By:  Nelson, et al.                                               S.B. No. 6  

A BILL TO BE ENTITLED
AN ACT
relating to protective services; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHILD PROTECTIVE SERVICES
SECTION 1.01. Section 54.211, Education Code, is amended to read as follows: Sec. 54.211. EXEMPTIONS FOR STUDENTS IN FOSTER OR OTHER RESIDENTIAL CARE. (a) A student is exempt from the payment of tuition and fees authorized in this chapter if the student: (1) was in foster care or other residential care under the conservatorship of the Department of Family and Protective [and Regulatory] Services on or after: (A) the day preceding the student's 18th birthday; (B) the day of the student's 14th birthday, if the student was also eligible for adoption on or after that day; or (C) the day the student graduated from high school or received the equivalent of a high school diploma; and (2) enrolls in an institution of higher education as an undergraduate student not later than: (A) the third anniversary of the date the student was discharged from the foster or other residential care, the date the student graduated from high school, or the date the student received the equivalent of a high school diploma, whichever date is earliest; or (B) the student's 21st birthday. (b) The Texas Education Agency and the Texas Higher Education Coordinating Board shall develop outreach programs to ensure that students in foster or other residential care in grades 9-12 are aware of the availability of the exemption from the payment of tuition and fees provided by this section. SECTION 1.02. Section 54.2111, Education Code, is amended to read as follows: Sec. 54.2111. EXEMPTIONS FOR ADOPTED STUDENTS FORMERLY IN FOSTER OR OTHER RESIDENTIAL CARE. (a) A student is exempt from the payment of tuition and fees authorized by this chapter if the student: (1) was adopted; and (2) was the subject of an adoption assistance agreement under Subchapter D, Chapter 162, Family Code. (b) The Texas Education Agency and the Texas Higher Education Coordinating Board shall develop outreach programs to ensure that adopted students in grades 9-12 formerly in foster or other residential care are aware of the availability of the exemption from the payment of tuition and fees provided by this section. SECTION 1.03. Subchapter A, Chapter 107, Family Code, is amended by adding Section 107.0045 to read as follows: Sec. 107.0045. DISCIPLINE OF ATTORNEY AD LITEM. An attorney ad litem who fails to perform the duties required by Sections 107.003 and 107.004 is subject to disciplinary action under Subchapter E, Chapter 81, Government Code. SECTION 1.04. Section 162.304, Family Code, is amended by adding Subsection (f) to read as follows: (f) The department shall work with the Health and Human Services Commission and the federal government to develop a program to provide medical assistance under Chapter 32, Human Resources Code, to children who were in the conservatorship of the department at the time of adoptive placement and need medical or rehabilitative care but do not qualify for adoption assistance. SECTION 1.05. Section 261.001, Family Code, is amended by amending Subdivision (2) to read as follows: (2) "Department" means the Department of Family and Protective [and Regulatory] Services. SECTION 1.06. Section 261.002, Family Code, is amended by adding Subsection (c) to read as follows: (c) The department shall enter into agreements with other states to allow for the exchange of reports of child abuse and neglect in other states' central registry systems. The department shall use information obtained under this subsection in performing the background checks required under Section 42.056, Human Resources Code. The department shall cooperate with federal agencies and shall provide information and reports of child abuse and neglect to the appropriate federal agency that maintains the national registry for child abuse and neglect, if a national registry exists. SECTION 1.07. (a) Subsection (a), Section 261.107, Family Code, is amended to read as follows: (a) A person commits an offense if the person knowingly or intentionally makes a report as provided in this chapter that the person knows is false [or lacks factual foundation]. An offense under this section is a state jail felony [Class A misdemeanor] unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a [state jail] felony of the third degree. (b) The change in law made by this section to Subsection (a), Section 261.107, Family Code, applies only to an offense committed on or after the effective date of this section. An offense committed before the effective date of this section is covered by Section 261.107, Family Code, as it existed on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense is committed before the effective date of this section if any element of the offense occurs before that date. SECTION 1.08. Section 261.201, Family Code, is amended by adding Subsection (f-1) to read as follows: (f-1) The department shall provide to a relative or other individual with whom a child is placed any information the department considers necessary to ensure that the relative or other individual is prepared to meet the needs of the child. The information must include information regarding: (1) any abuse or neglect suffered by the child; (2) the child's physical and mental health history, including any diagnosis of mental illness, and any physical or mental health issues that exist at the time the child is placed; (3) any medications prescribed for the child; and (4) the child's educational background and experience. SECTION 1.09. (a) Subsections (a), (d), (f), (g), and (h), Section 261.301, Family Code, are amended to read as follows: (a) With assistance from the appropriate state or local law enforcement agency as provided by this section, the department or designated agency shall make a prompt and thorough investigation of a report of child abuse or neglect allegedly committed by a person responsible for a child's care, custody, or welfare. The investigation shall be conducted without regard to any pending suit affecting the parent-child relationship. (d) The department shall [may] by rule assign priorities and prescribe investigative procedures for investigations based on the severity and immediacy of the alleged harm to the child. The primary purpose of the investigation shall be the protection of the child. The rules must require the department to: (1) immediately respond to a report of abuse and neglect that involves circumstances in which the death of the child or substantial bodily harm to the child would result unless the department immediately intervenes; (2) respond within 24 hours to a report of abuse and neglect that is assigned the highest priority, other than a report described by Subdivision (1); and (3) respond within 72 hours to a report of abuse and neglect that is assigned the second highest priority. (f) An investigation of a report to the department [that is assigned the highest priority in accordance with department rules adopted under Subsection (d) and] that alleges that a child has been or may be the victim of conduct that constitutes a felony [an immediate risk of physical or sexual abuse of a child that could result in the death of or serious harm to the child] shall be conducted jointly by a peace officer, as defined by Article 2.12, Code of Criminal Procedure, from the appropriate local law enforcement agency and the department or the agency responsible for conducting an investigation under Subchapter E. (g) The inability or unwillingness of a local law enforcement agency to conduct a joint investigation under this section [Subsection (f)] does not constitute grounds to prevent or prohibit the department from performing its duties under this subtitle. The department shall document any instance in which a law enforcement agency is unable or unwilling to conduct a joint investigation under this section [Subsection (f)]. (h) The department and the appropriate local law enforcement agency shall conduct an investigation, other than an investigation under Subchapter E, as provided by this section and Article 2.27, Code of Criminal Procedure, if the investigation is of a report [of child abuse or neglect that is assigned the highest priority in accordance with department rules adopted under Subsection (d) and] that alleges that a child has been or may be the victim of conduct that constitutes a felony [an immediate risk of physical or sexual abuse of a child that could result in the death of or serious harm to the child]. Immediately on receipt of a report described by this subsection, the department shall notify the appropriate local law enforcement agency of the report. (b) The change in law made by this section to Section 261.301, Family Code, applies to the investigation of a report of child abuse or neglect made on or after the effective date of this section. The investigation of a report of child abuse or neglect made before the effective date of this section is governed by the law in effect on the date the report was made, and the former law is continued in effect for that purpose. (c) The Department of Family and Protective Services shall develop and implement an automated tracking and reporting system that enables the department to track information on initial contacts to monitor compliance with the requirements of Subsection (d), Section 261.301, Family Code, as amended by this section, relating to the timely response to reports of abuse and neglect. SECTION 1.10. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3011 to read as follows: Sec. 261.3011. JOINT INVESTIGATION GUIDELINES AND TRAINING. (a) The department shall, in consultation with the appropriate law enforcement agencies, develop guidelines and protocols for joint investigations by the department and the law enforcement agency under Section 261.301. The guidelines and protocols must: (1) clarify the respective roles of the department and law enforcement agency in conducting the investigation; (2) require that mutual child protective services and law enforcement training and agreements be implemented by both entities to ensure the integrity and best outcomes of joint investigations; and (3) incorporate the use of forensic methods in determining the occurrence of child abuse and neglect. (b) The department shall collaborate with law enforcement agencies to provide to department investigators and law enforcement officers responsible for investigating reports of abuse and neglect joint training relating to methods to effectively conduct joint investigations under Section 261.301. The training must include information on interviewing techniques, evidence gathering, and testifying in court for criminal investigations. SECTION 1.11. (a) Section 261.3015, Family Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows: (a) In assigning priorities and prescribing investigative procedures based on the severity and immediacy of the alleged harm to a child under Section 261.301(d), the department [board by rule] shall establish a flexible response system to allow the department to make the most effective use of [allocate] resources by investigating serious cases of abuse and neglect and by screening out less serious cases of abuse and neglect if the department determines, after contacting a professional or other credible source, that the child's safety can be assured without further investigation. The department may administratively close the less serious cases without providing services or making a referral to another entity for assistance [providing assessment and family preservation services in less serious cases]. (a-1) For purposes of Subsection (a), a case is considered to be a less serious case of abuse or neglect if the circumstances of the case do not indicate an immediate risk of abuse or neglect that could result in the death of or serious harm to the child who is the subject of the case. (b) To ensure the safety of children, the Department of Family and Protective Services shall use highly skilled caseworkers to perform the screening functions described by Subsection (a), Section 261.3015, Family Code, as amended by this section, and develop standardized policy guidelines, including accountability measures to monitor closed cases, to ensure that screening guidelines do not result in the closing of cases that should not be closed. SECTION 1.12. Subsection (e), Section 261.302, Family Code, is amended to read as follows: (e) An interview with a child alleged to be a victim of [physical] abuse or neglect conducted by the department or another person, other than a law enforcement agency, under the direction of the department [sexual abuse] shall be audiotaped or videotaped [unless the investigating agency determines that good cause exists for not audiotaping or videotaping the interview in accordance with rules of the agency. Good cause may include, but is not limited to, such considerations as the age of the child and the nature and seriousness of the allegations under investigation. Nothing in this subsection shall be construed as prohibiting the investigating agency from audiotaping or videotaping an interview of a child on any case for which such audiotaping or videotaping is not required under this subsection]. The fact that the investigating agency failed to audiotape or videotape an interview is admissible at the trial of the offense that is the subject of the interview. SECTION 1.13. Subchapter D, Chapter 261, Family Code, is amended by adding Sections 261.3021, 261.3022, 261.3023, and 261.3024 to read as follows: Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT. Subject to the appropriation of money for these purposes, the department shall: (1) identify critical investigation actions that impact child safety and require department caseworkers to document those actions in a child's case file not later than the day after the action occurs; (2) identify and develop a comprehensive set of casework quality indicators that must be reported in real time to support timely management oversight; (3) provide department supervisors with access to casework quality indicators and train department supervisors on the use of that information in the daily supervision of caseworkers; (4) develop a case tracking system that notifies department supervisors and management when a case is not progressing in a timely manner; (5) use current data reporting systems to provide department supervisors and management with easier access to information; and (6) train department supervisors and management on the use of data to monitor cases and make decisions. Sec. 261.3022. CHILD SAFETY CHECK ALERT LIST. (a) If the department is unable to locate a family for purposes of investigating a report of child abuse or neglect and the department has exhausted all means available to the department for locating the family, the department may seek assistance from the appropriate county attorney, district attorney, or criminal district attorney with responsibility for representing the department as provided by Section 264.009. (b) If the department requests assistance, the county attorney, district attorney, or criminal district attorney, as applicable, may file an application with the court requesting the issuance of an ex parte order requiring the Texas Crime Information Center to place the members of the family the department is attempting to locate on a child safety check alert list. The application must include a summary of: (1) the report of child abuse or neglect the department is attempting to investigate; and (2) the department's efforts to locate the family. (c) If the court determines after a hearing that the department has exhausted all means available to the department for locating the family, the court shall approve the application and order the Texas Crime Information Center to place the family on a child safety check alert list. The alert list must include: (1) the name of the family member alleged to have abused or neglected a child according to the report the department is attempting to investigate; (2) the name of the child who is the subject of the report; (3) a code identifying the type of child abuse or neglect alleged to have been committed against the child; (4) the family's last known address; and (5) the minimum criteria for an entry as established by the center. Sec. 261.3023. LAW ENFORCEMENT RESPONSE TO CHILD SAFETY CHECK ALERT. (a) If a law enforcement officer encounters a person listed on the Texas Crime Information Center's child safety check alert list who is alleged to have abused or neglected a child, or encounters a child listed on the alert list who is the subject of a report of child abuse or neglect the department is attempting to investigate, the officer shall request information from the person or the child regarding the child's well-being and current residence. (b) If the law enforcement officer determines that the circumstances described by Section 262.104 exist, the officer may take possession of the child without a court order as authorized by that section if the officer is able to locate the child. If the circumstances described by Section 262.104 do not exist, the officer shall obtain the child's current address and any other relevant information and report that information to the department. Sec. 261.3024. REMOVAL FROM CHILD SAFETY CHECK ALERT LIST. (a) A law enforcement officer who locates a child listed on the Texas Crime Information Center's child safety check alert list who is the subject of a report of child abuse or neglect the department is attempting to investigate and who reports the child's current address and other relevant information to the department under Section 261.3023 shall report to the Texas Crime Information Center that the child has been located. (b) If the department locates a child described by Subsection (a) through a means other than information reported by a law enforcement officer under Subsection (a), the department shall report to the Texas Crime Information Center that the child has been located. (c) On receipt of notice under this section that a child has been located, the Texas Crime Information Center shall remove the child and the child's family from the child safety check alert list. SECTION 1.14. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3031 to read as follows: Sec. 261.3031. FAILURE TO COOPERATE WITH INVESTIGATION; DEPARTMENT RESPONSE. If a parent or other person refuses to cooperate with the department's investigation of the alleged abuse or neglect of a child and the refusal poses a risk to the child's safety, the department shall seek assistance from the appropriate county attorney or district attorney or criminal district attorney with responsibility for representing the department as provided by Section 264.009 to obtain a court order as described by Section 261.303. SECTION 1.15. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3032 to read as follows: Sec. 261.3032. INTERFERENCE WITH INVESTIGATION; CRIMINAL PENALTY. (a) A person commits an offense if, with the intent to interfere with the department's investigation of a report of abuse or neglect of a child, the person takes, retains, or conceals the child and the person's taking, retention, or concealment interferes with the department's investigation. (b) An offense under this section is a Class B misdemeanor. (c) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law. SECTION 1.16. (a) Section 261.307, Family Code, is amended to read as follows: Sec. 261.307. INFORMATION RELATING TO INVESTIGATION PROCEDURE. (a) As soon as possible after initiating an investigation of a parent or other person having legal custody of a child, the department shall make every reasonable effort to provide to the person: (1) a [brief and easily understood] summary that [of]: (A) is brief and easily understood; (B) is written in a language that the person understands, or if the person is illiterate, is read to the person in a language that the person understands; and (C) contains the following information: (i) [(1)] the department's procedures for conducting an investigation of alleged child abuse or neglect, including: (a) [(A)] a description of the circumstances under which the department would request to remove the child from the home through the judicial system; and (b) [(B)] an explanation that the law requires the department to refer all reports of alleged child abuse or neglect to a law enforcement agency for a separate determination of whether a criminal violation occurred; (ii) [(2)] the person's right to file a complaint with the department or to request a review of the findings made by the department in the investigation; (iii) [(3)] the person's right to review all records of the investigation unless the review would jeopardize an ongoing criminal investigation or the child's safety; (iv) [(4)] the person's right to seek legal counsel; (v) [(5)] references to the statutory and regulatory provisions governing child abuse and neglect and how the person may obtain copies of those provisions; and (vi) [(6)] the process the person may use to acquire to the child if the child is removed from the home; (2) a proposed child placement resources form that instructs the parent or other person having legal custody of the child to complete and return the form to the department or agency and to identify in the form three individuals who could be relatives or designated caregivers, as those terms are defined by Section 264.751; and (3) the informational manual required by Section 261.3071. (b) In addition to the information required to be provided under Subsection (a), the department shall provide to the person described by that subsection any information required to be provided by the federal Child Abuse Prevention and Treatment Act (Pub. L. No. 93-247) and its subsequent amendments by the Keeping Children and Families Safe Act of 2003 (Pub. L. No. 108-36). To the extent of any conflict between Subsection (a) and those federal laws, the federal law prevails. (b) The Department of Family and Protective Services shall develop the proposed child placement resources form required to be provided under Section 261.307, Family Code, as amended by this section, not later than November 1, 2005. (c) The Department of Family and Protective Services shall provide the proposed child placement resources form required under Section 261.307, Family Code, as amended by this section, to the parent or other person having legal custody of a child who is the subject of an investigation of abuse or neglect that is commenced on or after November 1, 2005. SECTION 1.17. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3071 to read as follows: Sec. 261.3071. INFORMATIONAL MANUAL. (a) In this section, "relative caregiver" and "designated caregiver" have the meanings assigned those terms by Section 264.751. (b) The department shall develop and publish an informational manual that provides information for: (1) a parent or other person having custody of a child who is the subject of an investigation under this chapter; and (2) a person who is selected by the department to be the child's relative or designated caregiver. (c) Information provided in the manual must be in both English and Spanish and must include: (1) useful indexes of information such as telephone numbers; (2) the information required to be provided under Section 261.307(1); (3) information describing the rights and duties of a relative or designated caregiver; and (4) information regarding the relative and other designated caregiver program under Subchapter I, Chapter 264. SECTION 1.18. Section 261.310, Family Code, is amended by amending Subsection (c) and adding Subsection (e) to read as follows: (c) The professional training curriculum developed under this section shall include: (1) information concerning: (A) [(1)] physical abuse and neglect, including distinguishing physical abuse from ordinary childhood injuries; (B) [(2)] psychological abuse and neglect; (C) [(3)] available treatment resources; and (D) [(4)] the incidence and types of reports of child abuse and neglect that are received by the investigating agencies, including information concerning false reports; (2) law-enforcement-style training, including training relating to forensic interviewing and investigatory techniques and the collection of physical evidence; and (3) training regarding applicable federal law, including the Adoption and Safe Families Act of 1997 (Pub. L. No. 105-89) and the Child Abuse Prevention and Treatment Act (Pub. L. No. 93-247) and its subsequent amendments by the Keeping Children and Families Safe Act of 2003 (Pub. L. No. 108-36). (e) The department, in conjunction with the Department of Public Safety, shall provide to the department's residential child-care facility licensing investigators advanced training in investigative protocols and techniques. SECTION 1.19. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3101 to read as follows: Sec. 261.3101. FORENSIC INVESTIGATION SUPPORT. The department shall, subject to the availability of money: (1) employ or contract with medical and law enforcement professionals who shall be strategically placed throughout the state to provide forensic investigation support and to assist caseworkers with assessment decisions and intervention activities; (2) employ or contract with subject matter experts to serve as consultants to department caseworkers in all aspects of their duties; and (3) designate persons who shall act as liaisons within the department whose primary functions are to develop relationships with local law enforcement agencies and courts. SECTION 1.20. Section 261.3125, Family Code, is amended to read as follows: Sec. 261.3125. CHILD SAFETY SPECIALISTS [INVESTIGATIONS COORDINATOR]. (a) The department shall employ in each of the department's administrative regions [region of the department for child protective services] at least one child safety specialist [protective services investigations coordinator]. The job responsibilities of the child safety specialist [investigations coordinator] must focus [only] on child abuse and neglect investigation issues, including reports of child abuse required by Section 261.101, to achieve a greater compliance with that section, and on assessing and improving the effectiveness of the department in providing for the protection of children in the region. (b) The duties of a child safety specialist [protective services investigations coordinator] must include the duty to: (1) conduct staff reviews and evaluations of cases determined to involve a high risk to the health or safety of a child, including cases of abuse reported under Section 261.101, to ensure that risk assessment tools are fully and correctly used; (2) review and evaluate [monitor] cases in which there have been multiple referrals to the department of child abuse or neglect involving the same family, child, or person alleged to have committed the abuse or neglect; and (3) approve decisions and assessments related to investigations of cases of child abuse or neglect that involve a high risk to the health or safety of a child. SECTION 1.21. Subchapter D, Chapter 261, Family Code, is amended by adding Section 261.3126 to read as follows: Sec. 261.3126. COLOCATION OF INVESTIGATORS. (a) In each county, to the extent possible, the department and the local law enforcement agencies that investigate child abuse in the county shall colocate in the same offices investigators from the department and the law enforcement agencies to improve the efficiency of child abuse investigations. With approval of the local children's advocacy center and its partner agencies, in each county in which a children's advocacy center established under Section 264.402 is located, the department shall attempt to locate investigators from the department and county and municipal law enforcement agencies at the center. (b) A law enforcement agency is not required to comply with the colocation requirements of this section if the law enforcement agency does not have a full-time peace officer solely assigned to investigate reports of child abuse and neglect. (c) If a county does not have a children's advocacy center, the department shall work with the local community to encourage one as provided by Section 264.402. SECTION 1.22. Section 261.315, Family Code, is amended to read as follows: Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION FROM RECORDS. (a) At the conclusion of an investigation in which the department determines that the person alleged to have abused or neglected a child did not commit abuse or neglect, the department shall [notify the person of the person's right to request the department to] remove information about the person's alleged role in the abuse or neglect report from the department's records. (b) [On request under Subsection (a) by a person whom the department has determined did not commit abuse or neglect, the department shall remove information from the department's records concerning the person's alleged role in the abuse or neglect report. [(c)] The board shall adopt rules necessary to administer this section. SECTION 1.23. Subchapter E, Chapter 261, Family Code, is amended by adding Section 261.410 to read as follows: Sec. 261.410. REPORT OF ABUSE BY OTHER CHILDREN. (a) In this section: (1) "Physical abuse" means: (A) physical injury that results in substantial harm to the child requiring emergency medical treatment and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; or (B) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child. (2) "Sexual abuse" means: (A) sexual conduct harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code; (B) failure to make a reasonable effort to prevent sexual conduct harmful to a child; (C) compelling or encouraging a child to engage in sexual conduct as defined by Section 43.01, Penal Code; (D) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of a child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic; or (E) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Section 43.25, Penal Code. (b) An agency that operates, licenses, certifies, or registers a facility shall require a residential child-care facility to report each incident of physical or sexual abuse committed by a child against another child. (c) Using information received under Subsection (b), the agency that operates, licenses, certifies, or registers a facility shall compile a report that includes information: (1) regarding the number of cases of physical and sexual abuse committed by a child against another child; (2) identifying the residential child-care facility; (3) regarding the date each allegation of abuse was made; (4) regarding the date each investigation was started and concluded; (5) regarding the findings and results of each investigation; and (6) regarding the number of children involved in each incident investigated. SECTION 1.24. Subchapter B, Chapter 262, Family Code, is amended by adding Section 262.114 to read as follows: Sec. 262.114. EVALUATION OF IDENTIFIED RELATIVES AND OTHER DESIGNATED INDIVIDUALS; PLACEMENT. (a) Before a full adversary hearing under Subchapter C, the Department of Family and Protective Services must perform a background and criminal history check and, if appropriate, a home study, of the relatives or other designated individuals identified as a potential relative or designated caregiver, as defined by Section 264.751, on the proposed child placement resources form provided under Section 261.307. The department shall perform these evaluations of each person listed on the form until the department identifies a relative or other designated individual qualified to be a substitute caregiver. The department may eliminate a person as a potential relative or designated caregiver based solely on a background and criminal history check. A final determination that a potential relative or designated caregiver is qualified to be a substitute caregiver must also include completion of the home study. (a-1) For the purposes of this section, "background" means, but is not limited to, a history of child abuse and neglect. (b) The department shall place a child with a relative or other designated individual identified on the proposed child placement resources form if the department, with input from the attorney ad litem, if the attorney ad litem has met with the child, determines that the placement is in the best interest of the child. The department may place the child with the relative or designated individual before conducting the home study required under Subsection (a), only in exigent circumstances, as determined by the department on an individual case basis. In determining the placement of the child, the department shall at all times consider the child's safety to be the paramount concern. The department shall provide a copy of the informational manual required under Section 261.3071 to the relative or other designated caregiver at the time of the child's placement. SECTION 1.25. (a) Subsection (c), Section 262.201, Family Code, is amended to read as follows: (c) If the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare of the child, the court shall issue an appropriate temporary order under Chapter 105. The court shall require each parent, alleged father, or relative of the child before the court to submit the proposed child placement resources form provided under Section 261.307, if the form has not been previously provided, and provide the Department of Family and Protective [and Regulatory] Services with information necessary to locate any other absent parent, alleged father, or relative of the child. The court shall inform each parent, alleged father, or relative of the child before the court that the person's failure to submit the proposed child placement resources form will not delay any court proceedings relating to the child. The court shall inform each parent in open court that parental and custodial rights and duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child with a safe environment. If the court finds that the child requires protection from family violence by a member of the child's family or household, the court shall render a protective order under Title 4 for the child. In this subsection, "family violence" has the meaning assigned by Section 71.004. (b) The change in law made by this section to Section 262.201(c), Family Code, applies only to a full adversary hearing that occurs on or after November 1, 2005. A full adversary hearing that occurs before that date is governed by the law as it existed before amendment by this section, and the former law is continued in effect for that purpose. SECTION 1.26. (a) Section 263.201, Family Code, is amended by adding Subsection (c) to read as follows: (c) The court shall require each parent, alleged father, or relative of the child before the court to submit the proposed child placement resources form provided under Section 261.307 at the status hearing, if the form has not previously been submitted. (b) The change in law made by this section to Section 263.201, Family Code, applies only to a status hearing that occurs on or after November 1, 2005. A status hearing that occurs before that date is governed by the law as it existed before amendment by this section, and the former law is continued in effect for that purpose. SECTION 1.27. (a) Section 263.102, Family Code, is amended by amending Subsection (a) and adding Subsections (d) and (e) to read as follows: (a) The service plan must: (1) be specific; (2) be in writing in a language that the parents understand, or made otherwise available; (3) be prepared by the department or other agency in conference with the child's parents; (4) state appropriate deadlines; (5) state whether the goal of the plan is: (A) return of the child to the child's parents; (B) termination of parental rights and placement of the child for adoption; or (C) because of the child's special needs or exceptional circumstances, continuation of the child's care out of the child's home; (6) state steps that are necessary to: (A) return the child to the child's home if the placement is in foster care; (B) enable the child to remain in the child's home with the assistance of a service plan if the placement is in the home under the department's or other agency's supervision; or (C) otherwise provide a permanent safe placement for the child; (7) state the actions and responsibilities that are necessary for the child's parents to take to achieve the plan goal during the period of the service plan and the assistance to be provided to the parents by the department or other authorized agency toward meeting that goal; (8) state any specific skills or knowledge that the child's parents must acquire or learn, as well as any behavioral changes the parents must exhibit, to achieve the plan goal; (9) state the actions and responsibilities that are necessary for the child's parents to take to ensure that the child attends school and maintains or improves the child's academic performance; (10) state the name of the person with the department or other agency whom the child's parents may contact for information relating to the child if other than the person preparing the plan; and (11) [(9)] prescribe any other term or condition that the department or other agency determines to be necessary to the service plan's success. (d) The department must write the service plan in a clear and understandable manner in order to facilitate a parent's ability to follow the requirements of the service plan. (e) Regardless of whether the goal stated in a child's service plan as required under Subsection (a)(5) is to return the child to the child's parents or to terminate parental rights and place the child for adoption, the department shall concurrently provide to the child and the child's family, as applicable: (1) time-limited family reunification services as defined by 42 U.S.C. Section 629a for a period not to exceed the period within which the court must render a final order in or dismiss the suit affecting the parent-child relationship with respect to the child as provided by Subchapter E; and (2) adoption promotion and support services as defined by 42 U.S.C. Section 629a. (b) Subsection (c), Section 263.202, Family Code, is amended to read as follows: (c) The court shall advise the parties that progress under the service plan will be reviewed at all subsequent hearings, including a review of whether the parties have acquired or learned any specific skills or knowledge stated in the service plan. (c) The changes in law made by Section 263.102 and Subsection (c), Section 263.202, Family Code, as amended by this section, apply only to a child placed in the custody of the Department of Family and Protective Services on or after the effective date of this section. A child placed in the custody of the department before the effective date of this section is governed by the law in effect on the date the child was placed in the department's custody, and the former law is continued in effect for that purpose. SECTION 1.28. Section 263.202, Family Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows: (b) Except as provided by Subsection (e), a [A] status hearing shall be limited to matters related to the contents and execution of the service plan filed with the court. The court shall review the service plan that the department or other agency filed under this chapter for reasonableness, accuracy, and compliance with requirements of court orders and make findings as to whether: (1) a plan that has the goal of returning the child to the child's parents adequately ensures that reasonable efforts are made to enable the child's parents to provide a safe environment for the child; and (2) the child's parents have reviewed and understand the service plan and have been advised that unless the parents are willing and able to provide the child with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the plan, the parents' parental and custodial duties and rights may be subject to restriction or to termination under this code or the child may not be returned to the parents. (e) At the status hearing, the court shall make a finding as to whether the court has identified the individual who has the right to consent for the child under Section 266.003. SECTION 1.29. Subsection (b), Section 263.401, Family Code, is amended to read as follows: (b) The court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances prevent the court from rendering a final order within the time described by Subsection (a) and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court's docket for a period not to exceed 180 days after the time described by Subsection (a)[, if the court finds that continuing the appointment of the department as temporary managing conservator is in the best interest of the child]. If the court retains the suit on the court's docket, the court shall render an order in which the court: (1) schedules the new date for dismissal of the suit not later than the 180th day after the time described by Subsection (a); (2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and (3) sets a final hearing on a date that allows the court to render a final order before the required date for dismissal of the suit under this subsection. SECTION 1.30. (a) Subsection (c), Section 263.502, Family Code, is amended to read as follows: (c) The placement review report must: (1) evaluate whether the child's current placement is appropriate for meeting the child's needs; (2) evaluate whether efforts have been made to ensure placement of the child in the least restrictive environment consistent with the best interest and special needs of the child if the child is placed in institutional care; (3) contain a discharge plan for a child who is at least 16 years of age that identifies [identify] the services and specific tasks that are needed to assist the [a] child [who is at least 16 years of age] in making the transition from substitute care to adult [independent] living and describes the services that are available through the Preparation for Adult Living Program operated by the department [if the services are available in the community]; (4) evaluate whether the child's current educational placement is appropriate for meeting the child's academic needs; (5) identify other plans or services that are needed to meet the child's special needs or circumstances; and (6) [(5)] describe the efforts of the department or authorized agency to place the child for adoption if parental rights to the child have been terminated and the child is eligible for adoption, including efforts to provide adoption promotion and support services as defined by 42 U.S.C. Section 629a and other efforts consistent with the federal Adoption and Safe Families Act of 1997 (Pub. L. No. 105-89). (b) In implementing the provisions of Subdivision (3), Subsection (c), Section 263.502, Family Code, as amended by this section, the Department of Family and Protective Services shall, to the extent that funding is appropriated for this purpose, contract with outside entities to assist in the discharge planning process. SECTION 1.31. Section 264.001, Family Code, is amended to read as follows: Sec. 264.001. DEFINITIONS [DEFINITION]. In this chapter: (1) "Department"[, "department"] means the Department of Family and Protective [and Regulatory] Services. (2) "Commission" means the Health and Human Services Commission. (3) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (4) "Residential child-care facility" has the meaning assigned by Section 42.002, Human Resources Code. SECTION 1.32. Subchapter A, Chapter 264, Family Code, is amended by adding Section 264.0091 to read as follows: Sec. 264.0091. USE OF TELECONFERENCING AND VIDEOCONFERENCING TECHNOLOGY. The department, in cooperation with district and county courts, shall expand the use of teleconferencing and videoconferencing to facilitate participation by medical experts and other individuals in court proceedings. SECTION 1.33. Section 264.101, Family Code, is amended by adding Subsection (d-1) to read as follows: (d-1) The executive commissioner may adopt rules that prescribe the maximum amount of state money that a residential child-care facility may spend on nondirect residential services, including administrative services. The commission shall recover the money that exceeds the maximum amount established under this subsection. SECTION 1.34. (a) Section 264.106, Family Code, is amended to read as follows: Sec. 264.106. REQUIRED CONTRACTS FOR SUBSTITUTE CARE SERVICES. (a) In this section: (1) "Case management services" means services provided to or for, or functions performed with respect to, a child for whom the department has been appointed temporary or permanent managing conservator or the child's family in managing a case involving the child. The term includes: (A) conducting caseworker-child visits or family visits; (B) convening family group conferences; (C) developing or revising case plans; (D) coordinating and monitoring services needed by the family; (E) assuming duties related to court proceedings involving the child, including preparing court reports and attending court hearings and permanency planning hearings, but not including duties related to court proceedings involving the processing of an adoption of the child; and (F) other services to ensure that the child is progressing toward permanency in accordance with federal law and the laws of this state. (2) "Substitute care provider" means a child-care institution or child-placing agency, as defined by Section 42.002, Human Resources Code. (3) "Substitute care services" means services provided to or for children in substitute care, including the recruitment, training, and management of foster parents, the recruitment of adoptive families, and the facilitation and processing of adoptions. The term does not include case management services. (b) The department shall: (1) assess the need for substitute care services throughout the state for children for whom the department has been appointed temporary or permanent managing conservator; and (2) contract with substitute care providers [only to the extent necessary to meet the need] for the [those] services described by Subdivision (1). [(b) Before contracting with a substitute care provider, the department shall determine whether: [(1) community resources are available to support children placed under the provider's care; and [(2) the appropriate public school district has sufficient resources to support children placed under the provider's care if the children will attend public school.] (c) The department shall: (1) monitor the quality of services for which the department contracts under this section; (2) ensure that the services are provided in accordance with federal law and the laws of this state, including department rules and rules of the Department of State Health Services and the Texas Commission on Environmental Quality; and (3) attempt to contract with substitute care providers that are community-based organizations that will: (A) increase local foster and adoptive placement options for all children, especially teenagers, sibling groups, children with severe or multiple disabilities, and other children who are difficult to place; and (B) expand efforts to recruit foster families, adoptive families, and alternative care providers through faith-based and other targeted recruitment programs. (d) In addition to the requirements of Section 40.058(b), Human Resources Code, a contract with a substitute care provider must include provisions that: (1) enable the department to monitor the effectiveness of the provider's services; [and] (2) specify performance criteria; and (3) authorize the department to terminate the contract or impose sanctions for a violation of a provision of the contract that specifies performance criteria. (e) [(d)] In determining whether to contract with a substitute care provider, the department shall consider the provider's performance under any previous contract for substitute care services between the department and the provider. (f) A contract under this section does not affect the rights and duties of the department in the department's capacity as the temporary or permanent managing conservator of a child. (g) Notwithstanding any other law, on and after September 1, 2008, the department may not directly provide substitute care services for children for whom the department has been appointed temporary or permanent managing conservator, except for case management services. [(e) In this section, "substitute care provider" means a person who provides residential care for children for 24 hours a day, including: [(1) a child-care institution, as defined by Section 42.002, Human Resources Code; [(2) a child-placing agency, as defined by Section 42.002, Human Resources Code; [(3) a foster group home or foster family home, as defined by Section 42.002, Human Resources Code; and [(4) an agency group home or agency home, as defined by Section 42.002, Human Resources Code, other than an agency group home, agency home, or a foster home verified or certified by the department.] (b) The executive commissioner of the Health and Human Services Commission shall adopt a substitute care transition plan and rules to implement Section 264.106, Family Code, as amended by this section. The transition plan must provide that: (1) as soon as possible after September 1, 2005, the Department of Family and Protective Services shall begin implementing Section 264.106, Family Code, as amended by this section; and (2) on and after September 1, 2008: (A) all substitute care services, as defined by Subsection (a), Section 264.106, Family Code, as amended by this section, for children for whom the department has been appointed temporary or permanent managing conservator must be provided by child-care institutions, child-placing agencies, foster group homes, and counties with a local child welfare board with which the department contracts; and (B) notwithstanding any other law, the department may not directly provide those services. (c) Section 264.106, Family Code, as amended by this section, applies only to a contract for substitute care services that is entered into or renewed on or after the effective date of this section. A contract that is entered into or renewed before the effective date of this section is governed by the law in effect on the date the contract was entered into or renewed, and the former law is continued in effect for that purpose. SECTION 1.35. ADOPTION OF TRANSITION PLAN. Not later than March 1, 2006, the Health and Human Services Commission and the Department of Family and Protective Services shall, in consultation with private entities under contract to provide substitute care services for the department, including members of the boards of directors of the private entities and other community stakeholders, develop and adopt a substitute care services transition plan. The executive commissioner of the Health and Human Services Commission shall adopt rules to implement the privatization of substitute care services in this state. The transition plan developed by the department and the commission must: (1) identify barriers to privatization and propose solutions to stimulate capacity and adjust program delivery; (2) include an implementation plan to transfer all foster homes certified by the department to private child-placing agencies, ensuring minimum disruption to the children in foster care and to current foster parents; (3) include a process for assessing each child who is transferred to a private substitute care provider to verify the child's service needs; (4) include an implementation plan to transfer all adoption services to private agencies, including details of how and when cases will be transferred and how adoption provider contracts and reimbursement methods will be structured; (5) detail financial arrangements and performance expectations for substitute care and case management providers that: (A) provide incentives for desired results and explicit contract performance and outcome indicators; (B) describe how financing options will increase flexibility to promote innovation and efficiency in service delivery; and (C) provide balance between control over key decisions with the level of risk the contractor assumes; (6) require the department to enter into contracts for the provision of substitute care and describe the procurement and contracting process, including: (A) describing how the department will shift from an open-enrollment system to competitive procurement; and (B) developing a procurement and contracting schedule to ensure full implementation not later than September 1, 2008; (7) address the immediate and ongoing training that is needed both for department staff who are shifting roles and for contractors, including substitute care and case management providers; (8) provide that a substitute care provider that contracts with the department to provide substitute care services shall give a preference in hiring to qualified department employees in good standing with the department who provide substitute care services and whose positions with the department may be eliminated as a result of the privatization of substitute care services; and (9) describe how the transition will impact the state's ability to capture federal funding and examine options for further maximizing federal funding opportunities and increasing flexibility. SECTION 1.36. PRIVATIZATION OF CHILD PROTECTIVE SERVICES. (a) The Health and Human Services Commission shall conduct a study to identify functions of the child protective services division of the Department of Family and Protective Services that are not currently performed by a private person or performed by an entity under a contract with the department on a widespread basis, would result in improving the welfare of children receiving services from the department or in other benefits to the department. (b) If the Health and Human Services Commission determines that contracting with a private person or entity to perform certain functions described by Subsection (a) of this section would be beneficial, the commission shall implement privatization of those functions through a pilot program in one county or one region of the state until September 1, 2009. (c) The Health and Human Services Commission shall: (1) ensure that the process for privatizing functions under Subsection (b) of this section and for monitoring that privatization includes rigorous accountability and oversight mechanisms; (2) ensure that any contract entered into under Subsection (b) of this section contains the provisions required under Subsection (b), Section 40.058, Human Resources Code, as amended by this Act, and is subject to the performance monitoring standards under Subsection (c), Section 40.058, Human Resources Code, as amended by this Act; (3) develop adequate contingency plans that allow for emergency takeovers of privatized functions if there is a disruption in the services provided by the contracted person or entity; and (4) provide opportunities for any interested parties to comment and otherwise have input in all stages of the process for privatizing functions under Subsection (b) of this section. (d) Not later than December 31, 2008, the Health and Human Services Commission shall report the results of any pilot program implemented under Subsection (b) of this section to the lieutenant governor, the speaker of the house of representatives, and the clerks of the standing committees of the senate and house of representatives with primary jurisdiction over the Department of Family and Protective Services. The report must include: (1) an analysis comparing costs and benefits of using a private entity to provide child protective services versus the state providing those services; (2) a description of the problems the commission experienced during the pilot programs and a description of any potential problems the commission anticipates with implementing the pilot programs statewide; and (3) recommendations on whether the pilot programs should be expanded statewide. SECTION 1.37. SUBSTITUTE CARE SERVICES TRANSITION TASK FORCE. (a) The substitute care services transition task force shall: (1) review the substitute care services transition plan and rules adopted by the executive commissioner of the Health and Human Services Commission under this Act; (2) monitor the implementation of Section 264.106, Family Code, as amended by this Act, by the Department of Family and Protective Services; and (3) make recommendations to the department to facilitate the implementation of Section 264.106, Family Code, as amended by this Act. (b) The task force is composed of three members, appointed as follows: (1) one member appointed by the lieutenant governor; (2) one member appointed by the speaker of the house of representatives; and (3) one member appointed by the comptroller. (c) The member appointed under Subdivision (3), Subsection (b) of this section, serves as the presiding officer. (d) The task force shall meet at least monthly. (e) Not later than the 31st day after the date the Department of Family and Protective Services receives a recommendation under Subdivision (3), Subsection (a) of this section, the department shall implement the recommendation or, if necessary, the executive commissioner of the Health and Human Services Commission shall initiate rulemaking procedures to adopt rules to implement the recommendation. (f) At least quarterly, the task force shall submit a report to the lieutenant governor, the speaker of the house of representatives, and the Legislative Budget Board regarding the status of the implementation of Section 264.106, Family Code, as amended by this Act. (g) This section expires and the task force is abolished August 31, 2008. SECTION 1.38. Section 264.1075, Family Code, is amended to read as follows: Sec. 264.1075. ASSESSING THE NEEDS OF A CHILD [USE OF ASSESSMENT SERVICES]. (a) As soon as possible after a child begins receiving foster care under this subchapter, the department shall assess whether the child has a developmental disability or mental retardation. The commission shall establish the procedures that the department must use in making an assessment under this subsection. The procedures may include screening or participation by: (1) a private person experienced in the developmental disabilities or mental retardation of children; (2) a local mental retardation authority; or (3) a provider of a county with a local child welfare board. (b) Before placing a child in substitute care, the department shall use assessment services provided by a child-care facility or child-placing agency in accordance with Section 42.0425, Human Resources Code, to determine the appropriate substitute care for the child. SECTION 1.39. Subchapter B, Chapter 264, Family Code, is amended by adding Section 264.1076 to read as follows: Sec. 264.1076. FOSTER CARE DEVELOPMENTAL DISABILITIES ADVISORY COMMITTEE. (a) The Foster Care Developmental Disabilities Advisory Committee shall advise the department on issues relating to the care of foster children with developmental disabilities or mental retardation, including effective methods for: (1) minimizing the number of foster children placed in institutions and maximizing the number of foster children receiving community-based care; (2) training and supporting persons who provide foster care in a residential setting on issues relating to the particular needs of children with developmental disabilities or mental retardation; (3) training employees of the department to promptly identify foster children with developmental disabilities or mental retardation; (4) monitoring the care provided in residential settings to foster children with developmental disabilities or mental retardation; (5) recruiting individuals to provide foster care in a residential setting to children with developmental disabilities or mental retardation; (6) contracting with persons to care for foster children with developmental disabilities or mental retardation; (7) planning for the transition of children with developmental disabilities or mental retardation out of foster care to enhance opportunities for the children to remain in their communities; and (8) assigning levels of services for children with developmental disabilities or mental retardation and children with special health care needs. (b) The executive commissioner shall determine the number of persons who serve on the committee. (c) The executive commissioner shall appoint the members of the committee and determine each member's length of service. In making appointments to the committee, the executive commissioner shall attempt to include: (1) representatives of the commission and other relevant state agencies; (2) providers of services to persons with developmental disabilities or mental retardation; (3) persons who formerly received care under this subchapter as foster children; (4) persons with expertise about developmental disabilities or mental retardation; (5) persons who advocate for the rights of children with developmental disabilities or mental retardation; and (6) persons related to children with developmental disabilities or mental retardation. (d) Chapter 2110, Government Code, does not apply to the committee. (e) The commission or the department may pay any expenses incurred by the committee. SECTION 1.40. Subchapter B, Chapter 264, Family Code, is amended by adding Section 264.1095 to read as follows: Sec. 264.1095. CHILD SUPPORT. Unless the department has been assigned support rights under Section 264.109, the department shall file suit for child support under Section 154.001(b) for a child for whom the department has been named temporary managing conservator. SECTION 1.41. (a) Subchapter B, Chapter 264, Family Code, is amended by adding Section 264.116 to read as follows: Sec. 264.116. TEXAS FOSTER GRANDPARENTS PROGRAM. (a) The department shall work with volunteer and advocacy organizations from the community to develop and implement a statewide foster grandparents program that: (1) recruits volunteers who are senior citizens; and (2) encourages the volunteers to serve as mentors to children who reside in a residential child-care facility. (b) From funds available for that purpose, the department may reimburse volunteers for actual and necessary expenses incurred while participating in the program, including travel expenses. The executive commissioner by rule shall develop guidelines for the reimbursement of expenses under the program. (c) A volunteer who participates in the program is subject to state and national criminal background checks in accordance with Sections 411.087 and 411.114, Government Code. (d) The department shall require foster parents or employees of residential child-care facilities to provide appropriate supervision over volunteers during their participation in the program. (e) The program is subject to Chapter 2109, Government Code. (b) The Department of Family and Protective Services shall implement the statewide foster grandparents program required by Section 264.116, Family Code, as added by this section, not later than June 1, 2006. SECTION 1.42. Subchapter B, Chapter 264, Family Code, is amended by adding Section 264.121 to read as follows: Sec. 264.121. PREPARATION FOR ADULT LIVING PROGRAM. (a) The department shall address the unique challenges facing foster children in the conservatorship of the department who must transition to independent living by: (1) expanding efforts to improve discharge planning and increasing the availability of transitional family group decision-making to all youth age 16 or older in the department's permanent managing conservatorship; (2) coordinating with the Health and Human Services Commission to obtain authority, to the extent allowed by federal law, the state Medicaid plan, the Title IV-E state plan, and any waiver or amendment to either plan, necessary to: (A) extend foster care eligibility and transition services for youth up to age 21 and develop policy to permit eligible youth to return to foster care as necessary to achieve the goals of the Preparation for Adult Living Program; and (B) extend Medicaid coverage for foster care youth and former foster care youth up to age 21 with a single application at the time the youth leaves foster care; and (3) entering into cooperative agreements with the Texas Workforce Commission and local workforce development boards to further the objectives of the Preparation for Adult Living Program. The department, the Texas Workforce Commission, and the local workforce development boards shall ensure that services are prioritized and targeted to meet the needs of foster care and former foster care children and that such services will include, where feasible, referrals for short-term stays for youth needing housing. (b) In this section "local workforce development board" means a local workforce development board created under Chapter 2308, Government Code. SECTION 1.43. Subchapter C, Chapter 264, Family Code, is amended by adding Section 264.2015 to read as follows: Sec. 264.2015. FAMILY GROUP CONFERENCING. The department may collaborate with the courts and other appropriate local entities to develop and implement family group conferencing as a strategy for promoting family preservation and permanency for children. SECTION 1.44. Subchapter C, Chapter 264, Family Code, is amended by adding Section 264.204 to read as follows: Sec. 264.204. COMMUNITY-BASED FAMILY SERVICES. (a) The department shall administer a grant program to provide funding to community organizations, including faith-based or county organizations, to respond to: (1) low-priority, less serious cases of abuse and neglect; and (2) cases in which an allegation of abuse or neglect of a child was unsubstantiated but involved a family that has been previously investigated for abuse or neglect of a child. (b) The executive commissioner shall adopt rules to implement the grant program, including rules governing the submission and approval of grant requests and the cancellation of grants. (c) To receive a grant, a community organization whose grant request is approved must execute an interagency agreement or a contract with the department. The contract must require the organization receiving the grant to perform the services as stated in the approved grant request. The contract must contain appropriate provisions for program and fiscal monitoring. (d) In areas of the state in which community organizations receive grants under the program, the department shall refer low-priority, less serious cases of abuse and neglect to a community organization receiving a grant under the program. (e) A community organization receiving a referral under Subsection (d) shall make a home visit and offer family social services to enhance the parents' ability to provide a safe and stable home environment for the child. If the family chooses to use the family services, a case manager from the organization shall monitor the case and ensure that the services are delivered. (f) If after the home visit the community organization determines that the case is more serious than the department indicated, the community organization shall refer the case to the department for a full investigation. (g) The department may not award a grant to a community organization in an area of the state in which a similar program is already providing effective family services in the community. (h) For purposes of this section, a case is considered to be a less serious case of abuse or neglect if: (1) the circumstances of the case do not appear to involve a reasonable likelihood that the child will be abused or neglected in the foreseeable future; or (2) the allegations in the report of child abuse or neglect: (A) are general in nature or vague and do not support a determination that the child who is the subject of the report has been abused or neglected or will likely be abused or neglected; or (B) if substantiated, would not be considered abuse or neglect under this chapter. SECTION 1.45. (a) Subchapter C, Chapter 264, Family Code, is amended by adding Section 264.2041 to read as follows: Sec. 264.2041. CULTURAL AWARENESS. The department shall: (1) develop and deliver cultural competency training to all service delivery staff; (2) increase targeted recruitment efforts for foster and adoptive families who can meet the needs of children and youth who are waiting for permanent homes; (3) target recruitment efforts to ensure diversity among department staff; and (4) develop collaborative partnerships with community groups, agencies, faith-based organizations, and other community organizations to provide culturally competent services to children and families of every race and ethnicity. (b) The Health and Human Services Commission and the Department of Family and Protective Services shall analyze data regarding child removals and other enforcement actions taken by the department during state fiscal years 2004 and 2005. Based on the analysis, the commission and the department shall determine whether enforcement actions were disproportionately initiated against any racial or ethnic group, in any area of the state, taking into account other relevant factors, including poverty, single-parent families, young-parent families, and any additional factor determined by other research to be statistically correlated with child abuse or child neglect. (c) The rate of enforcement actions shall be deemed disproportionate for a given racial or ethnic group if it is significantly different from the rate of enforcement actions against the population as a whole, taking into account other relevant factors. (d) Not later than January 1, 2006, the Health and Human Services Commission shall report the results of the analysis to the lieutenant governor, the speaker of the house of representatives, and the presiding officer of each house and senate standing committee having jurisdiction over child protective services. (e) If the results of the analysis indicate that enforcement actions are initiated disproportionately against any racial or ethnic group, in any area of the state, taking into account other relevant factors, the Health and Human Services Commission and Department of Family and Protective Services shall: (1) evaluate the policies and procedures the department uses in deciding to take enforcement actions to determine why racial or ethnic disparities exist; (2) develop and implement a remediation plan to prevent racial or ethnic disparities not justified by other external factors from affecting the decision to initiate enforcement actions; and (3) not later than July 1, 2006, submit a report to the lieutenant governor, the speaker of the house of representatives, and the presiding officer of each house and senate standing committee having jurisdiction over child protective services that explains: (A) the evaluation of policies and procedures; and (B) the remediation plan. SECTION 1.46. Subsection (c), Section 264.203, Family Code, is amended to read as follows: (c) If the person ordered to participate in the services fails to follow the court's order, the court may impose appropriate sanctions in order to protect the health and safety of the child, including the removal of the child as specified by Chapter 262 [community service as a sanction for contempt]. SECTION 1.47. Subsection (b), Section 264.502, Family Code, is amended to read as follows: (b) The members of the committee who serve under Subsections (a)(1) through (3) shall select the following additional committee members: (1) a criminal prosecutor involved in prosecuting crimes against children; (2) a sheriff; (3) a justice of the peace; (4) a medical examiner; (5) a police chief; (6) a pediatrician experienced in diagnosing and treating child abuse and neglect; (7) a child educator; (8) a child mental health provider; (9) a public health professional; (10) a child protective services specialist; (11) a sudden infant death syndrome family service provider; (12) a neonatologist; (13) a child advocate; [and] (14) a chief juvenile probation officer; and (15) a child abuse prevention specialist. SECTION 1.48. Section 264.503, Family Code, is amended by amending Subsections (b) through (f) and adding Subsections (d-1) and (g) to read as follows: (b) To ensure that the committee achieves its purpose, the department and the [Texas] Department of State Health Services shall perform the duties specified by this section. (c) The department shall: (1) recognize the creation and participation of review teams; and (2) work cooperatively with the committee and with individual child fatality review teams [promote and coordinate training to assist the review teams in carrying out their duties; [(3) assist the committee in developing model protocols for: [(A) the reporting and investigating of child fatalities for law enforcement agencies, child protective services, justices of the peace and medical examiners, and other professionals involved in the investigations of child deaths; [(B) the collection of data regarding child deaths; and [(C) the operation of the review teams; and [(4) develop and implement procedures necessary for the operation of the committee]. (d) The Department of State Health Services [department] shall: (1) promote and coordinate training to assist the review teams in carrying out their duties; (2) assist the committee in developing model protocols for: (A) the reporting and investigating of child fatalities for law enforcement agencies, child protective services, justices of the peace and medical examiners, and other professionals involved in the investigations of child deaths; (B) the collection of data regarding child deaths; and (C) the operation of the review teams; (3) develop and implement procedures necessary for the operation of the committee; and (4) promote education of the public regarding the incidence and causes of child deaths, the public role in preventing child deaths, and specific steps the public can undertake to prevent child deaths. (d-1) The committee shall enlist the support and assistance of civic, philanthropic, and public service organizations in the performance of the duties imposed under Subsection (d) [this subsection]. (e) In addition to the duties under Subsection (d), the [The Texas] Department of State Health Services shall: (1) collect data under this subchapter and coordinate the collection of data under this subchapter with other data collection activities; and (2) perform annual statistical studies of the incidence and causes of child fatalities using the data collected under this subchapter. (f) The committee shall issue a report for each preventable child death. The report must include [annual reports on the committee's activities, including] findings related to the child's death, [and] recommendations on how to prevent similar deaths, and details surrounding the department's involvement with the child prior to the child's death [relating to each purpose and duty of the committee described by this section]. Not later than December 1 of each [even-numbered] year, the committee shall publish a compilation of the reports published under this subsection during the year, [the report and] submit a copy of the compilation [report] to the governor, lieutenant governor, [and] speaker of the house of representatives, and department, and make the compilation available to the public. Not later than June 1 of each year, the department shall submit a written response on the compilation from the previous year to the committee, governor, lieutenant governor, and speaker of the house of representatives describing which of the committee's recommendations regarding the operation of the child protective services system the department will implement and the methods of implementation. (g) The committee shall perform the functions and duties required of a citizen review panel under 42 U.S.C. Section 5106a(c)(4)(A). SECTION 1.49. Subsection (c), Section 264.504, Family Code, is amended to read as follows: (c) Information identifying a deceased child, a member of the child's family, a guardian or caretaker of the child, or an alleged or suspected perpetrator of abuse or neglect of the child may not be disclosed during a public meeting. On a majority vote of the committee members, the members shall remove from the committee any member who discloses information described by this subsection in a public meeting. SECTION 1.50. Subsection (c), Section 264.505, Family Code, is amended to read as follows: (c) A review team may include: (1) a criminal prosecutor involved in prosecuting crimes against children; (2) a sheriff; (3) a justice of the peace or medical examiner; (4) a police chief; (5) a pediatrician experienced in diagnosing and treating child abuse and neglect; (6) a child educator; (7) a child mental health provider; (8) a public health professional; (9) a child protective services specialist; (10) a sudden infant death syndrome family service provider; (11) a neonatologist; (12) a child advocate; [and] (13) a chief juvenile probation officer; and (14) a child abuse prevention specialist. SECTION 1.51. Section 264.506, Family Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows: (b) To achieve its purpose, a review team shall: (1) adapt and implement, according to local needs and resources, the model protocols developed by the department and the committee; (2) meet on a regular basis at least quarterly to review child fatality cases and recommend methods to improve coordination of services and investigations between agencies that are represented on the team; (3) collect and maintain data as required by the committee; and (4) submit to the bureau of vital statistics data reports on deaths reviewed as specified by the committee. (d) A review team shall perform the functions and duties required of a citizen review panel under 42 U.S.C. Section 5106a(c)(4)(A). SECTION 1.52. Subsection (b), Section 264.509, Family Code, is amended to read as follows: (b) On request of the presiding officer of a review team, the custodian of the relevant information and records relating to a deceased child shall provide those records to the review team at no cost to the review team. SECTION 1.53. Subsection (c), Section 264.511, Family Code, is amended to read as follows: (c) A member of a review team may not disclose any information that is confidential under this section. On a majority vote of the review team members, the members shall remove from the review team any member who discloses confidential information. SECTION 1.54. Section 264.602, Family Code, is amended by adding Subsection (e) to read as follows: (e) The department, in cooperation with the statewide organization with which the attorney general contracts under Section 264.603 and other interested agencies, shall support the expansion of court-appointed volunteer advocate programs into counties in which there is a need for the programs. In expanding into a county, a program shall work to ensure the independence of the program, to the extent possible, by establishing community support and accessing private funding from the community for the program. SECTION 1.55. (a) Chapter 264, Family Code, is amended by adding Subchapter I to read as follows:
SUBCHAPTER I. RELATIVE AND OTHER DESIGNATED CAREGIVER PLACEMENT PROGRAM
Sec. 264.751. DEFINITIONS. In this subchapter: (1) "Designated caregiver" means an individual who has a longstanding and significant relationship with a child for whom the department has been appointed managing conservator and who: (A) is appointed to provide substitute care for the child, but is not licensed or certified to operate a foster home, foster group home, agency foster home, or agency foster group home under Chapter 42, Human Resources Code; or (B) is subsequently appointed permanent managing conservator of the child after providing the care described by Paragraph (A). (2) "Relative" means a person related to a child by consanguinity as determined under Section 573.022, Government Code. (3) "Relative caregiver" means a relative who: (A) provides substitute care for a child for whom the department has been appointed managing conservator, but who is not licensed or certified to operate a foster home, foster group home, agency foster home, or agency foster group home under Chapter 42, Human Resources Code; or (B) is subsequently appointed permanent managing conservator of the child after providing the care described by Paragraph (A). Sec. 264.752. RELATIVE AND OTHER DESIGNATED CAREGIVER PLACEMENT PROGRAM. (a) The department shall develop and administer a program to: (1) promote continuity and stability for children for whom the department is appointed managing conservator by placing those children with relative or other designated caregivers; and (2) facilitate relative or other designated caregiver placements by providing assistance and services to those caregivers in accordance with this subchapter and rules adopted by the executive commissioner. (b) The executive commissioner shall adopt rules necessary to implement this subchapter. The rules must include eligibility criteria for receiving assistance and services under this subchapter. Sec. 264.753. EXPEDITED PLACEMENT. The department shall expedite the completion of the background and criminal history check, the home study, and any other administrative procedure to ensure that the child is placed with a qualified relative or caregiver not later than two weeks after the date the caregiver is identified. Sec. 264.754. INVESTIGATION OF PROPOSED PLACEMENT. Before placing a child with a proposed relative or other designated caregiver, the department must conduct an investigation to determine whether the proposed placement is in the child's best interest. Sec. 264.755. CAREGIVER ASSISTANCE AGREEMENT. The department shall, subject to the availability of funds, enter into a caregiver assistance agreement with each relative or other designated caregiver to provide monetary assistance and additional support services to the caregiver. The monetary assistance and support services may include: (1) a one-time cash payment of not more than $1,000 to the caregiver on the initial placement of a child or, if the child and at least one of the child's siblings are placed with the caregiver, a one-time cash payment of not more than $1,000 to the caregiver on the initial placement of the sibling group, to assist the caregiver in purchasing essential child-care items such as furniture and clothing; (2) case management services and training and information about the child's needs until the caregiver is appointed permanent managing conservator; (3) referrals to appropriate state agencies administering public benefits or assistance programs for which the child, the caregiver, or the caregiver's family may qualify; (4) family counseling not provided under the Medicaid program for the caregiver's family for a period not to exceed two years from the date of initial placement; (5) if the caregiver meets the eligibility criteria determined by rules adopted by the executive commissioner, reimbursement of all child-care expenses incurred while the child is under 13 years of age, or under 18 years of age if the child has a developmental disability, and while the department is the child's managing conservator; (6) if the caregiver meets the eligibility criteria determined by rules adopted by the executive commissioner, reimbursement of 50 percent of child-care expenses incurred after the caregiver is appointed permanent managing conservator of the child while the child is under 13 years of age, or under 18 years of age if the child has a developmental disability; and (7) reimbursement of other expenses, as determined by rules adopted by the executive commissioner, not to exceed $500 per year for each child. Sec. 264.756. ASSISTANCE WITH PERMANENT PLACEMENT. The department shall collaborate with the State Bar of Texas and local community partners to identify legal resources to assist relatives and other designated caregivers in obtaining conservatorship, adoption, or other permanent legal status for the child. Sec. 264.757. COORDINATION WITH OTHER AGENCIES. The department shall coordinate with other health and human services agencies, as defined by Section 531.001, Government Code, to provide assistance and services under this subchapter. Sec. 264.758. FUNDS. The department and other state agencies shall actively seek and use federal funds available for the purposes of this subchapter. (b) Not later than December 1, 2005, the executive commissioner of the Health and Human Services Commission shall adopt rules for implementing and administering the relative and other designated caregiver placement program under Subchapter I, Chapter 264, Family Code, as added by this section. (c) Not later than March 1, 2006, the Department of Family and Protective Services shall implement the relative and other designated caregiver placement program in accordance with Subchapter I, Chapter 264, Family Code, as added by this section. SECTION 1.56. Subtitle E, Title 5, Family Code, is amended by adding Chapter 266 to read as follows:
CHAPTER 266. MEDICAL CARE FOR CHILDREN IN FOSTER CARE
Sec. 266.001. DEFINITIONS. In this chapter: (1) "Commission" means the Health and Human Services Commission. (2) "Department" means the Department of Family and Protective Services. Sec. 266.002. CONSTRUCTION WITH OTHER LAW. This chapter does not limit the right to consent to medical, dental, psychological, and surgical treatment under Chapter 32. Sec. 266.003. CONSENT FOR MEDICAL CARE. (a) Medical care may not be provided to a child in foster care unless the person authorized by this section has provided informed consent. (b) The following persons may be authorized by the court to consent to medical care for a child in foster care: (1) an individual designated by name in an order of the court, including the child's parent, if the parent's rights have not been terminated; or (2) the department or an agent of the department, including a foster parent. (c) If the person authorized to consent to medical care is the department or an agent of the department, the department shall file with the court the name of the individual who will exercise the duty and responsibility of providing informed consent on behalf of the department. If the individual who exercises the duty and responsibility of providing informed consent on behalf of the department changes, the department shall file notice of the change with the court not later than the 10th day after the date the change occurs. (d) A physician or other provider of medical care acting in good faith may rely on the representation by a person that the person has the authority to consent to the provision of medical care to a child in foster care as provided by Subsection (b). (e) The department, a person authorized to consent to medical care under Subsection (b), the child's parent if the parent's rights have not been terminated, a guardian ad litem or attorney ad litem if one has been appointed, or the person providing foster care to the child may petition the court for any order related to medical care of a child in foster care that the department or other person believes is in the best interest of the child. Notice of the petition must be given to each person entitled to notice under Section 263.301(b). (f) On its own motion or in response to a petition under Subsection (e), the court may issue any order related to the medical care of a child in foster care that the court determines is in the best interest of the child. (g) Notwithstanding Subsection (b), a person may not be authorized to consent to medical care provided to a child in foster care unless the person has completed a department-approved training program related to consenting to medical care. This subsection does not apply to a parent whose rights have not been terminated unless the court orders the parent to complete the training. (h) The person authorized by Subsection (b) to consent to medical care of a child in foster care shall participate in each appointment of the child with the provider of the medical care. Sec. 266.004. HEALTH PASSPORTS. (a) The commission shall make available to the person authorized to consent to medical care under Section 266.003(b) and any provider of health care to a child in foster care the most complete health history of the child available to the department. (b) The department shall develop a health passport for each child in foster care. The department shall determine the format of the passport. The passport may be maintained in an electronic format. The health passport must include the most complete medical history of the child available to the department and must be readily accessible to medical care providers. The health passport must contain educational records of the child, including the names and addresses of educational providers, the child's grade level performance, and any other educational information the department determines is important. (c) The form and content of the passport shall be finalized within six months of the enactment of the legislation adding this chapter. The passport shall be available in an electronic format within 24 months of the enactment of this legislation. Within 36 months, the passport shall interface directly with other electronic health record systems that contain information that impacts the health care of the child. (d) The department shall maintain the passport as part of the department's records for the child as long as the child remains in foster care. Sec. 266.005. JUDICIAL REVIEW OF MEDICAL CARE. (a) At each hearing under Chapter 263, or more frequently if ordered by the court, the court shall review a summary of the medical care provided to the child since the last hearing. The summary must include information regarding: (1) the nature of any emergency medical care provided to the child and the circumstances necessitating emergency medical care, including any injury or acute illness suffered by the child; (2) any medication prescribed for the child and the condition for which the medication was prescribed; (3) the degree to which the child or foster care provider has complied or failed to comply with any plan of medical treatment for the child; (4) any adverse reaction to or side effects of any medical treatment provided to the child; (5) any specific medical condition of the child that has been diagnosed or for which tests are being conducted to make a diagnosis; (6) any activity that the child should avoid or should engage in that might affect the effectiveness of the treatment, including physical activities, other medications, and diet; and (7) other information required by department rule or by the court. (b) At or before each hearing under Chapter 263, the department shall provide the summary of medical care described by Subsection (a) to: (1) the court; (2) the person authorized to consent to medical treatment for the child; (3) the guardian ad litem or attorney ad litem, if one has been appointed by the court; (4) the child's parent, if the parent's rights have not been terminated; and (5) any other person determined by the department or the court to be necessary or convenient to the provision of medical care to children in foster care. Sec. 266.006. OVERSIGHT OF MEDICAL CARE. (a) The commission shall establish a comprehensive system of oversight of medical care provided to children in foster care. (b) The oversight system must include: (1) the implementation of medical passports by which each foster child's full medical history available to the department is available at all times to the person authorized to consent to medical care for the child and to each provider of medical care who diagnoses or treats the child; (2) establishment and use of a management information system that allows medical care provided to all children in foster care to be monitored; (3) the use of medical advisory committees and medical review teams to establish treatment guidelines and criteria by which individual cases of medical care provided to children in foster care will be identified for further, in-depth review; (4) development of the training program described by Section 266.003(g); (5) a system in which parents, foster parents, caseworkers, and guardians ad litem have access to a child psychiatrist employed by the department or the Department of State Health Services to use as a resource for treating foster children; (6) provision for the summary of medical treatment described by Section 266.005(a); and (7) provision for the participation of the person authorized to consent to medical care for a child in foster care in each appointment of the child with the provider of the medical care. Sec. 266.0061. STUDY OF INCENTIVES TO PRESCRIBE PSYCHOTROPIC DRUGS. (a) The department shall study the level of care system the department uses to determine a child's foster care needs to ascertain whether the system creates incentives for prescribing psychotropic medications to children in foster care. (b) Not later than October 1, 2006, the department shall report the results of the study to the legislature. The report must include the department's proposed changes to the level of care system. (c) This section expires January 1, 2007. SECTION 1.57. Section 51.961, Government Code, is amended to read as follows: Sec. 51.961. FAMILY PROTECTION FEE. (a) The commissioners court of a county shall [may] adopt a family protection fee in an amount not to exceed $30 [$15]. (b) Except as provided by Subsection (c), the district clerk or county clerk shall collect the family protection fee at the time a suit for dissolution of a marriage under Chapter 6, Family Code, is filed. The fee is in addition to any other fee collected by the district clerk or county clerk. (c) The clerk may not collect a fee under this section from a person who is protected by an order issued under: (1) Subtitle B, Title 4, Family Code; or (2) Article 17.292, Code of Criminal Procedure. (d) The clerk shall pay one-half of the [a] fee collected under this section to the appropriate officer of the county in which the suit is filed for deposit in the county treasury to the credit of the family protection account. The account may be used by the commissioners court of the county only to fund a service provider located in that county or an adjacent county. The commissioners court may provide funding to a nonprofit organization that provides services described by Subsection (e). (e) A service provider who receives funds under Subsection (d) may provide family violence and child abuse prevention, intervention, family strengthening, mental health, counseling, legal, and marriage preservation services to families that are at risk of experiencing or that have experienced family violence or the abuse or neglect of a child. (f) In this section, "family violence" has the meaning assigned by Section 71.004, Family Code. (g) The clerk shall pay one-half of the fee collected under this section to the comptroller, who shall deposit the money to the credit of the child abuse and neglect prevention trust fund account established under Section 40.105, Human Resources Code. SECTION 1.58. Section 101.061, Government Code, is amended to read as follows: Sec. 101.061. DISTRICT COURT FEES AND COSTS. The clerk of a district court shall collect fees and costs as follows: (1) filing fee in action with respect to a fraudulent court record or fraudulent lien or claim filed against property (Sec. 12.005, Civil Practice and Remedies Code) . . . $15; (2) fee for service of notice of action with respect to a fraudulent court record or fraudulent lien or claim filed against property (Sec. 12.005, Civil Practice and Remedies Code) . . . not to exceed $20, if notice delivered in person, or the cost of postage, if service is by registered or certified mail; (3) court cost in certain civil cases to establish and maintain an alternative dispute resolution system, if authorized by the county commissioners court (Sec. 152.004, Civil Practice and Remedies Code) . . . not to exceed $10; (4) appellate judicial system filing fees for: (A) First or Fourteenth Court of Appeals District (Sec. 22.2021, Government Code) . . . not more than $5; (B) Second Court of Appeals District (Sec. 22.2031, Government Code) . . . not more than $5; (C) Fourth Court of Appeals District (Sec. 22.2051, Government Code) . . . not more than $5; (D) Fifth Court of Appeals District (Sec. 22.2061, Government Code) . . . not more than $5; and (E) Thirteenth Court of Appeals District (Sec. 22.2141, Government Code) . . . not more than $5; (5) additional filing fees: (A) for each suit filed for insurance contingency fund, if authorized by the county commissioners court (Sec. 51.302, Government Code) . . . not to exceed $5; (B) for each civil suit filed, for court-related purposes for the support of the judiciary and for civil legal services to an indigent: (i) for family law cases and proceedings as defined by Section 25.0002, Government Code (Sec. 133.151, Local Government Code) . . . $45; or (ii) for any case other than a case described by Subparagraph (i) (Sec. 133.151, Local Government Code) . . . $50; (C) to fund the improvement of Dallas County civil court facilities, if authorized by the county commissioners court (Sec. 51.705, Government Code) . . . not more than $15; and (D) on the filing of any civil action or proceeding requiring a filing fee, including an appeal, and on the filing of any counterclaim, cross-action, intervention, interpleader, or third-party action requiring a filing fee, to fund civil legal services for the indigent: (i) for family law cases and proceedings as defined by Section 25.0002, Government Code (Sec. 133.152, Local Government Code) . . . $5; or (ii) for any case other than a case described by Subparagraph (i) (Sec. 133.152, Local Government Code) . . . $10; (6) for filing a suit, including an appeal from an inferior court: (A) for a suit with 10 or fewer plaintiffs (Sec. 51.317, Government Code) . . . $50; (B) for a suit with at least 11 but not more than 25 plaintiffs (Sec. 51.317, Government Code) . . . $75; (C) for a suit with at least 26 but not more than 100 plaintiffs (Sec. 51.317, Government Code) . . . $100; (D) for a suit with at least 101 but not more than 500 plaintiffs (Sec. 51.317, Government Code) . . . $125; (E) for a suit with at least 501 but not more than 1,000 plaintiffs (Sec. 51.317, Government Code) . . . $150; or (F) for a suit with more than 1,000 plaintiffs (Sec. 51.317, Government Code) . . . $200; (7) for filing a cross-action, counterclaim, intervention, contempt action, motion for new trial, or third-party petition (Sec. 51.317, Government Code) . . . $15; (8) for issuing a citation or other writ or process not otherwise provided for, including one copy, when requested at the time a suit or action is filed (Sec. 51.317, Government Code) . . . $8; (9) for records management and preservation (Sec. 51.317, Government Code) . . . $10; (10) for issuing a subpoena, including one copy (Sec. 51.318, Government Code) . . . $8; (11) for issuing a citation, commission for deposition, writ of execution, order of sale, writ of execution and order of sale, writ of injunction, writ of garnishment, writ of attachment, or writ of sequestration not provided for in Section 51.317, or any other writ or process not otherwise provided for, including one copy if required by law (Sec. 51.318, Government Code) . . . $8; (12) for searching files or records to locate a cause when the docket number is not provided (Sec. 51.318, Government Code) . . . $5; (13) for searching files or records to ascertain the existence of an instrument or record in the district clerk's office (Sec. 51.318, Government Code) . . . $5; (14) for abstracting a judgment (Sec. 51.318, Government Code) . . . $8; (15) for approving a bond (Sec. 51.318, Government Code) . . . $4; (16) for a certified copy of a record, judgment, order, pleading, or paper on file or of record in the district clerk's office, including certificate and seal, for each page or part of a page (Sec. 51.318, Government Code) . . . $1; (17) for a noncertified copy, for each page or part of a page (Sec. 51.318, Government Code) . . . not to exceed $1; (18) jury fee (Sec. 51.604, Government Code) . . . $30; (19) for filing a report of divorce or annulment (Sec. 194.002, Health and Safety Code) . . . $1; (20) for filing a suit in Comal County (Sec. 152.0522, Human Resources Code) . . . $4; (21) additional filing fee for family protection on filing a suit for dissolution of a marriage under Chapter 6, Family Code, if authorized by the county commissioners court (Sec. 51.961, Government Code) . . . not to exceed $30 [$15]; (22) fee on filing a suit for dissolution of a marriage for services of child support department in Harris County, if authorized by the county commissioners court (Sec. 152.1074, Human Resources Code) . . . not to exceed $12; (23) fee on filing a suit requesting an adoption in Montague County (Sec. 152.1752, Human Resources Code) . . . $25; (24) court cost on citation for contempt of court for failure to comply with child support order in Nueces County, if authorized by the commissioners court (Sec. 152.1844, Human Resources Code) . . . not to exceed $10; (25) fee on filing a suit for divorce in Orange County (Sec. 152.1873, Human Resources Code) . . . not less than $5; (26) court costs on citation for contempt of court in Orange County for failure to comply with a child support order or order providing for possession of or access to a child (Sec. 152.1873, Human Resources Code) . . . amount determined by district clerk; (27) fee on filing a suit requesting an adoption in Orange County (Sec. 152.1874, Human Resources Code) . . . not less than $25; (28) fee on filing a suit requesting an adoption in Wichita County (Sec. 152.2496, Human Resources Code) . . . $100; (29) additional filing fee to fund the courthouse security fund, if authorized by the county commissioners court (Sec. 291.008, Local Government Code) . . . not to exceed $5; (30) additional filing fee for filing documents not subject to certain filing fees to fund the courthouse security fund, if authorized by the county commissioners court (Sec. 291.008, Local Government Code) . . . $1; (31) additional filing fee to fund the courthouse security fund in Webb County, if authorized by the county commissioners court (Sec. 291.009, Local Government Code) . . . not to exceed $20; (32) court cost in civil cases other than suits for delinquent taxes to fund the county law library fund, if authorized by the county commissioners court (Sec. 323.023, Local Government Code) . . . not to exceed $35; (33) when administering a case for the Rockwall County Court at Law (Sec. 25.2012, Government Code) . . . civil fees and court costs as if the case had been filed in district court; (34) at a hearing held by an associate judge in Dallas County, a court cost to preserve the record, in the absence of a court reporter, by other means (Sec. 54.509, Government Code) . . . as assessed by the referring court or associate judge; and (35) at a hearing held by an associate judge in Duval County, a court cost to preserve the record (Sec. 54.1151, Government Code, as added by Chapter 1150, Acts of the 78th Legislature, Regular Session, 2003) . . . as imposed by the referring court or associate judge. SECTION 1.59. Subdivision (2), Subsection (a), Section 411.114, Government Code, is amended to read as follows: (2) The Department of Family and Protective [and Regulatory] Services shall obtain from the department criminal history record information maintained by the department that relates to a person who is: (A) an applicant for a license, registration, certification, or listing under Chapter 42, Human Resources Code, or Chapter 249, Health and Safety Code[, or a person who registers with or has been issued a certificate to operate under accreditation by the Department of Protective and Regulatory Services under Subchapter E, Chapter 42, Human Resources Code]; (B) an owner, operator, or employee of or an applicant for employment by a child-care facility, child-placing agency, family home, or maternity home licensed, registered, certified, or listed under Chapter 42, Human Resources Code, or Chapter 249, Health and Safety Code[, or by a child-care facility or child-placing agency that is seeking to register with or has been issued a certificate to operate under accreditation by the Department of Protective and Regulatory Services under Subchapter E, Chapter 42, Human Resources Code]; (C) a person 14 years of age or older who will be regularly or frequently working or staying in a child-care facility, family home, or maternity home while children are being provided care, other than a child in the care of the home or facility; (D) an applicant selected for a position with the Department of Family and Protective [and Regulatory] Services, the duties of which include direct delivery of protective services to children, elderly persons, or persons with a disability; (E) an employee of, an applicant for employment with, or a volunteer or an applicant volunteer with a business entity or person that contracts with the Department of Family and Protective [and Regulatory] Services to provide direct delivery of protective services to children, elderly persons, or persons with a disability, if the person's duties or responsibilities include direct contact with children, elderly persons, or persons with a disability; (F) a registered volunteer with the Department of Family and Protective [and Regulatory] Services; (G) a person providing or applying to provide in-home, adoptive, or foster care for children in the care of the Department of Family and Protective [and Regulatory] Services and other persons living in the residence in which the child will reside; (H) a Department of Family and Protective [and Regulatory] Services employee who is engaged in the direct delivery of protective services to children, elderly persons, or persons with a disability; (I) a person who is the subject of a report the Department of Family and Protective [and Regulatory] Services receives alleging that the person has abused, neglected, or exploited a child, an elderly person, or a person with a disability, provided that: (i) the report alleges the person has engaged in conduct that meets the statutory definition of abuse, neglect, or exploitation under Chapter 261, Family Code, or Chapter 48, Human Resources Code; and (ii) the person who is the subject of the report is not also the victim of the alleged conduct; (J) a person providing child care for a child who is in the care of the Department of Family and Protective [and Regulatory] Services and who is or will be receiving adoptive, foster, or in-home care; (K) through a contract with a nonprofit management center, an employee of, an applicant for employment with, or a volunteer or an applicant volunteer with a nonprofit, tax-exempt organization that provides any service that involves the care of or access to children, elderly persons, or persons with a disability; or (L) an applicant for a child-care administrator or child-placing agency administrator license under Chapter 43 [seeking accreditation as provided by Section 43.003], Human Resources Code. SECTION 1.60. (a) Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.078 to read as follows: Sec. 531.078. POOLED FUNDING FOR FOSTER CARE PREVENTIVE SERVICES. (a) The commission and the Department of Family and Protective Services shall develop and implement a plan to combine, to the extent and in the manner allowed by Section 51, Article III, Texas Constitution, and other applicable law, funds of those agencies with funds of other appropriate state agencies and local governmental entities to provide services designed to prevent children from being placed in foster care. The preventive services may include: (1) child and family counseling; (2) instruction in parenting and homemaking skills; (3) parental support services; (4) temporary respite care; and (5) crisis services. (b) The plan must provide for: (1) state funding to be distributed to other state agencies, local governmental entities, or private entities only as specifically directed by the terms of a grant or contract to provide preventive services; (2) procedures to ensure that funds received by the commission by gift, grant, or interagency or interlocal contract from another state agency, a local governmental entity, the federal government, or any other public or private source for purposes of this section are disbursed in accordance with the terms under which the commission received the funds; and (3) a reporting mechanism to ensure appropriate use of funds. (c) For the purposes of this section, the commission may request and accept gifts and grants under the terms of a gift, grant, or contract from a local governmental entity, a private entity, or any other public or private source for use in providing services designed to prevent children from being placed in foster care. If required by the terms of a gift, grant, or contract or by applicable law, the commission shall use the amounts received: (1) from a local governmental entity to provide the services in the geographic area of this state in which the entity is located; and (2) from the federal government or a private entity to provide the services statewide or in a particular geographic area of this state. (b) Not later than November 1, 2006, the Health and Human Services Commission shall provide to the governor and the Legislative Budget Board a report on the status and progress of the preventive services funding plan required by Section 531.078, Government Code, as added by this section. SECTION 1.61. Section 651.004, Government Code, is amended by adding Subsection (e) to read as follows: (e) The Department of Family and Protective Services is not required to comply with management-to-staff ratio requirements of this section with respect to caseworker supervisors, program directors, and program administrators. SECTION 1.62. (a) Subchapter C, Chapter 2155, Government Code, is amended by adding Section 2155.1442 to read as follows: Sec. 2155.1442. FOSTER CARE RESIDENTIAL CONTRACT MANAGEMENT. (a) Subject to Subsection (d), the state auditor shall conduct a management review of the residential contract management employees of the Health and Human Services Commission and the Department of Family and Protective Services and make recommendations regarding the organization of, and skills and educational requirements for, those employees. The state auditor shall also make recommendations regarding the implementation of financial accountability provisions and processes to ensure effective and efficient expenditure of state and other contract funds. The state auditor shall report annually to the governor, the lieutenant governor, the speaker of the house of representatives, and the comptroller on the auditor's recommendations and the commission's and department's implementation of each recommendation. (b) The Health and Human Services Commission shall contract with the state auditor to perform on-site financial audits of selected contractors as needed subject to approval by the legislative audit committee for inclusion in the annual audit plan under Section 321.013. The state auditor, with input from the Health and Human Services Commission, shall select the contractors based on the contract's risk assessment rating, allegations of fraud or misuse of state or other contract funds, or other appropriate audit selection criteria. The state auditor shall include findings from the on-site financial audits in the annual report to the governor and other representatives of the state as required by Subsection (a). In addition, the state auditor shall immediately report to the governor and each person listed in Subsection (a) any findings of fraud or other misuse of state or other contract funds. (c) The Department of Family and Protective Services may develop an Internet-based system to enable residential contractors to review their reimbursement accounts or other pertinent financial data and reconcile their accounts. (d) Work performed under Subsections (a) and (b) by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c). (b) Section 2155.1442, Government Code, as added by this section, applies only to a contract that is entered into or renewed on or after the effective date of this section. A contract entered into or renewed before that date is governed by the law in effect on the date the contract is entered into or renewed, and the former law is continued in effect for that purpose. (c) Not later than December 1, 2005, the state auditor shall complete and publish the management review and report required by Subsection (a), Section 2155.1442, Government Code, as added by this section. This subsection applies only if the auditor's work is approved by the legislative audit committee in time to meet this deadline. (d) Not later than October 1, 2006, the state auditor shall begin the on-site financial reviews of selected contractors required by Subsection (b), Section 2155.1442, Government Code, as added by this section. SECTION 1.63. (a) Section 32.055, Human Resources Code, is amended to read as follows: Sec. 32.055. CATASTROPHIC CASE MANAGEMENT. (a) In this section, "medically fragile child" means a child who: (1) is under 21 years of age; (2) has a serious, chronic illness or condition that: (A) has continued, or is anticipated to continue, at least 12 months; (B) requires daily hospitalization or has required at least one month of hospitalization; (C) requires ongoing medical treatment and monitoring by appropriately trained personnel, including a parent or other family member; and (D) presents an ongoing threat to the child's well-being; and (3) requires the routine use of a medical device or the use of assistive technology to compensate for the loss of a bodily function necessary to participate in an activity of daily life. (b) The department shall develop and implement a catastrophic case management system to be used in providing medical assistance to persons with catastrophic health problems, including medically fragile children under the conservatorship of the Department of Family and Protective Services who are placed in foster care. (c) [(b)] The system must provide for the assignment of a case manager to a recipient of medical assistance with catastrophic health problems that are likely to: (1) require the services of multiple, specialized health care providers; and (2) result in major medical costs. (d) [(c)] The department shall identify the services to be provided by a case manager assigned under the system. The services must include assessment of the recipient's needs and coordination of all available medical services and payment options. The services may include other support services such as: (1) assistance with making arrangements to receive care from medical facilities; (2) assistance with travel and lodging in connection with receipt of medical care; (3) education of the recipient and the recipient's family members or foster parent, as applicable, regarding the nature of the recipient's health problems; (4) referral to appropriate support groups; and (5) any other service likely to result in better care provided in a cost-effective manner. (e) In implementing the system for medically fragile children, the department shall coordinate with the Department of Family and Protective Services and may contract with children's hospitals or other health care providers to provide case management services to foster children. (f) [(d)] Not later than January 15 of each odd-numbered year, the department shall report to the legislature on the implementation of the system. The report must include a statement of: (1) the number of recipients of medical assistance who received catastrophic case management services under the system during the preceding two years; and (2) the estimated savings under the medical assistance program resulting from implementation of the system during the preceding two years. (b) Not later than January 1, 2006, the Health and Human Services Commission shall implement the catastrophic case management system for medically fragile children required by Section 32.055, Human Resources Code, as amended by this section. SECTION 1.64. The heading to Subtitle D, Title 2, Human Resources Code, is amended to read as follows:
SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY] SERVICES; CHILD WELFARE AND PROTECTIVE SERVICES
SECTION 1.65. The heading to Chapter 40, Human Resources Code, is amended to read as follows:
CHAPTER 40. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY] SERVICES
SECTION 1.66. Subdivisions (3) and (5), Section 40.001, Human Resources Code, are amended to read as follows: (3) "Department" means the Department of Family and Protective [and Regulatory] Services. (5) "Family preservation" includes the provision of services designed to assist families, including adoptive and extended families, who are at risk or in crisis, including: (A) preventive services designed to help a child at risk of foster care placement remain safely with the child's family; and (B) services designed to help a child return, when the return is safe and appropriate, to the family from which the child was removed [the protection of parents and their children from needless family disruption because of unfounded accusations of child abuse or neglect. It does not include the provision of state social services for the rehabilitation of parents convicted of abusing or neglecting their children]. SECTION 1.67. Subsection (b), Section 40.002, Human Resources Code, is amended to read as follows: (b) Notwithstanding any other law, the department shall: (1) provide protective services for children and elderly and disabled persons, including investigations of alleged abuse, neglect, or exploitation in facilities of the Texas Department of Mental Health and Mental Retardation or its successor agency; (2) provide family support and family preservation services that respect the fundamental right of parents to control the education and upbringing of their children; (3) license, register, and enforce regulations applicable to child-care facilities, [and] child-care administrators, and child-placing agency administrators; and (4) implement and manage programs intended to provide early intervention or prevent at-risk behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school. SECTION 1.68. Section 40.003, Human Resources Code, is amended to read as follows: Sec. 40.003. SUNSET PROVISION. The Department of Family and Protective [and Regulatory] Services is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished and this chapter expires September 1, 2009. SECTION 1.69. Subchapter A, Chapter 40, Human Resources Code, is amended by adding Section 40.009 to read as follows: Sec. 40.009. QUALITY ASSURANCE PROGRAM FOR CHILD PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall develop and implement a quality assurance program for child protective services provided by or on behalf of the department. (b) The program must include periodic audits of the completeness and accuracy of investigatory and inspection-related reports prepared or required by the department, including: (1) reports of investigations of child abuse and neglect; (2) reports relating to children placed in foster care; and (3) reports relating to the licensing and inspection of residential child-care facilities. (c) An audit must be conducted in accordance with professional standards and generally recognized sampling techniques. (d) The department shall retain the results of an audit conducted under this section until at least the fifth anniversary of the date the audit is completed. (e) Each fiscal quarter the department shall file with the governor and the presiding officer of each house of the legislature a detailed written report assessing the delivery of child protective services and examining the outcomes for children and families served by child protective programs, foster care programs, adoption programs, and other related programs in this state. (f) The report required by Subsection (e) must include: (1) a summary of the audits conducted under this section during the preceding quarter; and (2) a summary of the department's performance during the preceding quarter on the most recent standards used by the federal government to evaluate state child and family services programs with regard to child safety, permanency, and well-being. SECTION 1.70. (a) Subchapter A, Chapter 40, Human Resources Code, is amended by adding Section 40.010 to read as follows: Sec. 40.010. PROTECTIVE SERVICES LEGISLATIVE OVERSIGHT COMMITTEE. (a) The Protective Services Legislative Oversight Committee is created to: (1) facilitate the reformation of powers, duties, functions, programs, and activities of the department; and (2) monitor the effectiveness and efficiency of the services provided by the department. (b) The committee is composed of 15 members as follows: (1) four members of the senate, appointed by the lieutenant governor; (2) four members of the house of representatives, appointed by the speaker of the house of representatives; and (3) six members of the public, appointed by the governor as follows: (A) one member with experience in a child–placing agency; (B) one member with experience in a foster family association; (C) one member with experience in a guardianship program; (D) one member with experience in mental health care; (E) two members with experience in law enforcement; and (F) one member who was formerly a child in foster care. (c) The commissioner serves as an ex officio member of the committee. (d) A member of the committee serves at the pleasure of the appointing official. (e) The lieutenant governor and the speaker of the house of representatives shall alternate designating a presiding officer for a term of one year from among their respective appointments. (f) A member of the committee may not receive compensation for serving on the committee but is entitled to reimbursement for travel expenses incurred by the member while conducting the business of the committee as provided by the General Appropriations Act. (g) In addition to performing the duties prescribed by Subsection (a), the committee shall: (1) with assistance from the department and the commission, advise the commissioner concerning the powers, duties, functions, programs, and activities of the department and the funds and obligations that are related to the powers, duties, functions, programs, or activities; (2) meet at the call of the presiding officer; (3) research, take public testimony, and issue reports on other appropriate issues or specific issues requested by the lieutenant governor, speaker, or governor; and (4) review specific recommendations for legislation proposed by the department or commission. (h) The committee may request reports and other information from the commission, the department, and the attorney general relating to protective services in this state and other appropriate issues. (i) The committee shall use existing staff of the senate and house of representatives to assist the committee in performing its duties under this section. (j) Chapter 551, Government Code, applies to the committee. (k) The committee shall report to the governor, the lieutenant governor, and the speaker of the house of representatives not later than November 15 of each even-numbered year. The report must include: (1) identification of significant issues in the protective services system, with recommendations for action; (2) an analysis of the effectiveness and efficiency of the protective services system, with recommendations for any necessary research; and (3) recommendations for legislative action. (b) The speaker, the lieutenant governor, and the governor shall appoint the members of the Protective Services Legislative Oversight Committee created by Section 40.010, Human Resources Code, as added by this section, as soon as possible after the effective date of this section. The lieutenant governor shall designate the initial presiding officer of the committee. The presiding officer shall call the initial meeting of the committee as soon as possible after the committee members are appointed. SECTION 1.71. Section 40.030, Human Resources Code, is amended to read as follows: Sec. 40.030. ADVISORY COMMITTEES. The executive commissioner or the executive commissioner's designee [board] may appoint advisory committees in accordance with Chapter 2110, Government Code [Article 6252-33, Revised Statutes]. SECTION 1.72. The heading to Section 40.0305, Human Resources Code, is amended to read as follows: Sec. 40.0305. STRATEGIC USE OF TECHNOLOGY [STEERING COMMITTEE]. SECTION 1.73. Subsections (a) and (d), Section 40.0305, Human Resources Code, are amended to read as follows: (a) The department shall continually explore the strategic use of technology as a means to improve services, reduce workload burdens, increase accountability, and enhance the overall efficiency and effectiveness of department operations. The department shall develop strategic plans and seek funding to implement technology enhancements that the department determines are feasible and cost-effective [establish a strategic technology steering committee within the department to evaluate major information technology project proposals]. (d) In evaluating major information technology project proposals, the department, in cooperation with the commission, [steering committee] shall: (1) assess the major information needs of the department; (2) define standard criteria for setting priorities for the department's information needs; (3) forecast the returns to the department on project investments; (4) evaluate the department's available information resources; and (5) review, approve, and evaluate the status of projected costs and benefits related to project proposals. SECTION 1.74. Section 40.031, Human Resources Code, is amended to read as follows: Sec. 40.031. DIVISIONS OF DEPARTMENT. (a) The executive commissioner [board] may establish divisions within the department as necessary for efficient administration and for the discharge of the department's functions. (b) The executive commissioner shall establish an investigations division to oversee and direct the investigation functions of the child protective services program, including the receipt and screening of all reports of alleged child abuse or neglect. (c) The commissioner shall designate a person with law enforcement experience as the director of the investigations division. (d) The investigations division shall, as appropriate, refer children and families in need of services to other department divisions or to other persons or entities with whom the department contracts for the provision of the needed services. (e) Reports of alleged child abuse or neglect investigated under Subchapter E, Chapter 261, Family Code, are not subject to investigation by the investigations division [board may allocate and reallocate functions, programs, and activities among the department's divisions]. SECTION 1.75. (a) Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.0322 to read as follows: Sec. 40.0322. CASEWORKER REPLACEMENT PROGRAM. (a) To the extent that funding is available, the department shall develop a program to provide for the timely replacement of caseworkers with trainees hired in anticipation of vacancies. (b) In developing the program, the department shall consider the turnover rate for caseworkers by region. (b) Unless sufficient funds are not available, the Department of Family and Protective Services shall develop the program required under Section 40.0322, Human Resources Code, as added by this section, not later than December 31, 2005. SECTION 1.76. Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.0323 to read as follows: Sec. 40.0323. CASELOAD STANDARDS. Notwithstanding Section 531.048(d), Government Code, in an ongoing manner, the department is encouraged to analyze and consider the appropriateness of hiring caseworkers for the children's protective services division in sufficient numbers to reduce those caseworkers' caseloads to the maximum number of active caseloads recommended for best practice casework by the Council on Accreditation for Children and Family Services and the Child Welfare League of America. SECTION 1.77. Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.035 to read as follows: Sec. 40.035. ENHANCED TRAINING OF CHILD PROTECTIVE SERVICES CASEWORKERS. To improve the quality and consistency of training provided to child protective services caseworkers, the department shall: (1) augment classroom-based training with a blended learning environment using computer-based modules, structured field experience, and simulation for skills development; (2) use a core curriculum for all new department caseworkers and specialized training for specific jobs; (3) require that department caseworkers transferring from one specialty to another must complete the core curriculum and advanced training for the new specialty before assuming their new responsibilities; and (4) centralize accountability and oversight of all department training in order to ensure statewide consistency. SECTION 1.78. Subchapter C, Chapter 40, Human Resources Code, is amended by adding Section 40.0526 to read as follows: Sec. 40.0526. BUILDING COMMUNITY PARTNERSHIPS TO SUPPORT CHILDREN AND FAMILIES. (a) The department shall develop a statewide strategy to build alliances and networks at the local level that support the detection and treatment of child abuse and neglect and enhance the coordination and delivery of services to children and families. (b) The strategy must include plans to: (1) move staff from centralized office sites into community-based settings to the greatest extent feasible; and (2) enter into agreements for the establishment or development of joint offices or workplaces with local officials and organizations, including: (A) children's advocacy centers; (B) law enforcement officials; (C) prosecutors; (D) health care providers; (E) schools; (F) housing projects; (G) domestic violence shelters; and (H) the local juvenile probation department. (c) The department may employ specialized staff, to the extent that funds are appropriated for that purpose, to serve as: (1) local legal liaisons who support the prosecution in each region of legal cases through the judicial system by improving coordination and cooperation in case consultation and preparation of cases for court; and (2) local community initiative specialists in each region who focus on building community alliances and networks. (d) An agreement made in accordance with this section for the joint location of department personnel with other local officials or organizations is not subject to Chapter 2167, Government Code. SECTION 1.79. Subchapter C, Chapter 40, Human Resources Code, is amended by adding Section 40.0527 to read as follows: Sec. 40.0527. COMPREHENSIVE STAFFING AND WORKLOAD DISTRIBUTION PLAN FOR CHILD PROTECTIVE SERVICES. (a) The department shall develop and implement a staffing and workload distribution plan for the child protective services program to: (1) enhance accountability; (2) improve the quality of investigations; (3) eliminate delays; and (4) ensure the most efficient and effective use of child protective services staff and resources. (b) In developing and implementing the plan, the department shall, subject to available funds: (1) develop a methodology for the equitable distribution of investigative and other staff to ensure an equitable assignment of cases in each area of the state; (2) evaluate the duties of investigators and supervisors and identify and reassign functions that may be performed more efficiently by support or other paraprofessional staff; (3) ensure that investigative and service units contain adequate supervisory and support staff; (4) provide incentives to recruit and retain: (A) caseworkers and supervisors assigned to investigative units; and (B) specialized staff with law enforcement or forensic investigation experience; (5) ensure that caseworkers and supervisors who are not in an investigations unit are paid appropriately to increase employee retention; (6) when appropriate, identify and use alternative work schedules; (7) use a system of regional hiring supervisors for targeted recruitment efforts; (8) improve staff recruitment and screening methods to promote the hiring of the most qualified candidates and improve an applicant's understanding of the job requirements; (9) reduce the time necessary to complete a plan of service for a child and family when providing family-based safety services; and (10) identify methods to reduce the administrative area that a manager is responsible for to increase accountability. SECTION 1.80. (a) Section 40.058, Human Resources Code, is amended by amending Subsections (b) and (c) and adding Subsections (b-1) and (f) through (i) to read as follows: (b) A contract for the purchase of program-related client services must include: (1) clearly defined goals and outcomes that can be measured to determine whether the objectives of the program are being achieved; (2) clearly defined sanctions or penalties for noncompliance with contract terms; [and] (3) clearly specified accounting, reporting, and auditing requirements applicable to money received under the contract; and (4) if applicable, clearly defined performance standards that relate directly to the quality of care provided to residents of foster care facilities. (b-1) A contract for the purchase of substitute care services, as defined by Section 264.106, Family Code, must be procured using: (1) department procurement procedures; or (2) procurement procedures approved by the executive commissioner that promote open and fair competition. (c) The department shall monitor a contractor's performance under a contract for the purchase of program-related client services. In monitoring performance, the department shall: (1) use a risk-assessment methodology to ensure compliance with financial and performance requirements under the contract; [and] (2) obtain and evaluate program cost information to ensure that all costs, including administrative costs, are reasonable and necessary to achieve program objectives; and (3) review each foster care services contract and evaluate the contract for compliance with the performance standards of the contract prescribed by Subsection (b)(4). (f) The department shall terminate a contract with a foster care services provider if the contractor does not meet the performance standards prescribed by Subsection (b)(4). The department may not award or renew a foster care services contract with a contractor if the contractor does not meet those performance standards. (g) The commission shall create a foster care performance team to develop performance criteria for foster care services contracts. The team shall include contracting experts from multiple state agencies, foster care services providers and clients, performance-based contract experts of the state auditor, and other experts in outcome-based contracts. The team shall develop clearly defined and measurable standards for foster care services contracts that directly relate to factors within the control of the providers. The department shall adopt the clearly defined performance standards for inclusion in foster care services contracts as developed and recommended by the team. The team shall also develop performance standards that provide measurable criteria for identification of foster care services providers: (1) that do not provide quality care; (2) that should not receive additional contract awards; and (3) whose contracts should be revoked. (h) The commission shall create an alternative payment plan in all foster care services contracts to encourage the reduction of the period that children are in intensive levels of care. The payment plan must provide several alternative payment mechanisms to encourage foster care services contractors to improve the quality of care, encourage efficient use of funding, and reduce the period of intensive care for children under program-related client services contracts for foster care. The payment plan may not be designed in a manner that encourages or requires a reduction in the level of care provided to medically fragile children, as defined by Section 32.055, children with significant developmental disabilities, or other children with chronic conditions that require a constant level of care. (i) A contract for the provision of foster care services must contain a provision requiring the department's contract management employees to make periodic unannounced visits to the contractor's facilities in accordance with commission rules and to report the employees' findings to the commission. (b) Subdivision (4), Subsection (b), Subsection (b-1), Subdivision (3), Subsection (c), and Subsections (f), (g), and (i), Section 40.058, Human Resources Code, as added by this section, apply only to a contract entered into or renewed on or after the effective date of this section. A contract entered into or renewed before that date is governed by the law in effect on the date the contract is entered into or renewed, and the former law is continued in effect for that purpose. SECTION 1.81. (a) Subchapter C, Chapter 40, Human Resources Code, is amended by adding Section 40.071 to read as follows: Sec. 40.071. MISSING CHILDREN WEBSITE. (a) The department shall develop and implement a program to display on the department's Internet website the name, age, and photograph of, and location information relating to, any child in the foster care system who has been reported missing. The department may also display other relevant information that the department determines will be useful in efforts to locate and ensure the safety of that child. (b) Notwithstanding any other law, information required to be provided under this section is public information. (c) The department shall regularly update the website by adding additional information that becomes available and by deleting the information relating to a child who is no longer missing. (b) Not later than January 1, 2006, the executive commissioner of the Health and Human Services Commission shall adopt rules and establish standards, policies, and procedures to implement and administer Section 40.071, Human Resources Code, as added by this section. SECTION 1.82. Section 42.002, Human Resources Code, is amended by adding Subdivisions (18) and (19) to read as follows: (18) "Controlling person" means a person who, either alone or in connection with others, has the ability to directly or indirectly influence or direct the management, expenditures, or policies of a residential child-care facility. (19) "Residential child-care facility" means a facility licensed or certified by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers. The term includes child-care institutions, foster group homes, foster homes, agency foster group homes, and agency foster homes. SECTION 1.83. Subsections (b) and (d), Section 42.021, Human Resources Code, are amended to read as follows: (b) The commissioner [executive director of the department] shall appoint as director of a division designated under Subsection (a) a person who meets the qualifications set by the executive commissioner [board]. (d) The commissioner [director] may divide the state into regions for the purpose of administering this chapter. SECTION 1.84. Subsections (a) and (b), Section 42.023, Human Resources Code, are amended to read as follows: (a) The department [executive director] shall prepare an annual written report regarding the department's activities under this chapter. (b) The annual report shall include: (1) a report by regions of applications for licensure or certification, of initial [provisional] licenses issued, denied, or revoked, of licenses issued, denied, suspended or revoked, of emergency closures and injunctions, and of the compliance of state-operated agencies with certification requirements; (2) a summary of the amount and kind of in-service training and other professional development opportunities provided for department staff; (3) a summary of training and other professional development opportunities offered to facilities' staffs; and (4) a report of new administrative procedures, of the number of staff and staff changes, and of plans for the coming year. SECTION 1.85. (a) Subsection (c), Section 42.041, Human Resources Code, is amended to read as follows: (c) A single license that lists addresses and the appropriate facilities may be issued to a child-care institution that operates noncontiguous facilities that are across the street from, in the same city block as, or on the same property as one another [nearby] and that are demonstrably a single operation as indicated by patterns of staffing, finance, administrative supervision, and programs. (b) Subsection (c), Section 42.041, Human Resources Code, as amended by this section, applies only to a license issued or renewed on or after the effective date of this section. A license issued or renewed before the effective date of this section is governed by the law in effect at the time the license is issued or renewed, and the former law is continued in effect for that purpose. SECTION 1.86. (a) Section 42.042, Human Resources Code, is amended by adding Subsections (h-1) and (q) to read as follows: (h-1) The executive commissioner shall adopt rules governing: (1) the placement and care of children by a child-placing agency, as necessary to ensure the health and safety of those children; (2) the verification and monitoring of agency foster homes, agency foster group homes, and adoptive homes by a child-placing agency; and (3) if appropriate, child-placing agency staffing levels, office locations, and administration. (q) Each residential child-care facility shall notify the department and the appropriate local law enforcement agency immediately on determining that a child is missing from the facility. (b) Not later than January 1, 2006, the executive commissioner of the Health and Human Services Commission shall adopt rules and establish standards, policies, and procedures to implement and administer Subsections (h-1) and (q), Section 42.042, Human Resources Code, as added by this section. SECTION 1.87. Section 42.044, Human Resources Code, is amended by adding Subsections (e) and (f) to read as follows: (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. (f) The department shall use an inspection checklist that includes a list of all required items for inspection in conducting a monitoring inspection under this section. SECTION 1.88. Section 42.0441, Human Resources Code, is amended to read as follows: Sec. 42.0441. INSPECTION RESULTS AND EXIT CONFERENCE. (a) Immediately after completing a monitoring inspection of a licensed day-care center, licensed group day-care home, or registered family home under Section 42.044, the inspector [authorized representative of the department] shall review the results of the monitoring inspection with a representative of the facility and give the facility an opportunity to respond to the inspection results. (b) Immediately after completing a monitoring inspection of a residential child-care facility under Section 42.044, the inspector shall hold an exit conference with a representative of the facility. The inspector shall provide to the representative: (1) a copy of the inspection checklist used by the inspector; and (2) a list of violations discovered during the inspection that includes specific references to the rules and minimum standards related to the violations. (c) An inspector acting under Subsection (b) shall provide the residential child-care facility representative an opportunity to respond to the violations discovered during the inspection. (d) If after holding an exit conference under Subsection (b) the inspector finds additional violations in a subsequent inspection of the residential child-care facility, the inspector shall conduct another exit conference to provide the information required by Subsection (b) with respect to the additional violations. SECTION 1.89. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.04411 to read as follows: Sec. 42.04411. INFORMAL DISPUTE RESOLUTION. (a) The executive commissioner by rule shall establish an informal dispute resolution process under which a disinterested individual may resolve a dispute between the department and a residential child-care facility regarding a violation discovered during an inspection, a proposed enforcement action relating to the violation, or another related proceeding under this chapter. The process must require: (1) the aggrieved residential child-care facility to request informal dispute resolution not later than the 15th day after the date the facility is notified of the violation, proposed enforcement action, or other proceeding that is the basis of the dispute; and (2) an individual representing the aggrieved residential child-care facility in the process to register with the commission and disclose the following: (A) the individual's employment history during the preceding five years, including employment with a regulatory agency of this state or another state; (B) the ownership, including the identity of the controlling person or persons, of the aggrieved residential child-care facility the individual is representing; and (C) the identity of other entities the individual is representing, or has represented during the preceding 24 months, before the commission. (b) The executive commissioner shall adopt rules to resolve disputes under the informal dispute resolution process. The rules must require that the process be completed not later than the 30th day after the date the aggrieved residential child-care facility requests informal dispute resolution. (c) The commission may not delegate to another state agency the responsibility to administer the informal dispute resolution process established under this section. SECTION 1.90. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.04431 to read as follows: Sec. 42.04431. RESIDENTIAL CHILD-CARE INSPECTION INFORMATION DATABASE. (a) The department shall establish a computerized database containing inspection information, including violations of minimum standards, on residential child-care facilities and child-placing agencies inspected under Section 42.044. (b) The department shall make the information collected by the department available to another state agency or political subdivision of the state for the purpose of administering programs or enforcing laws within the jurisdiction of that agency or subdivision. If feasible using available information systems, the department shall make the information directly available to the Department of State Health Services and the commission through electronic information systems. The department, the Department of State Health Services, and the commission shall jointly plan the development of inspection databases that, to the extent feasible, are similar in their design and architecture to promote the sharing of information. (c) The department shall categorize information regarding violations of minimum standards collected under this section by: (1) the type and size of the residential child-care facility in which the violation occurred; (2) the region of this state in which the violation occurred; and (3) the type of violation. (d) The department shall use the information to: (1) identify trends in violations in relation to regions of this state and types of residential child-care facilities; (2) identify minimum standards that are subject to inconsistent interpretation; (3) identify training needs; (4) direct training and other resources to residential child-care facilities that present the greatest risk to child safety; and (5) improve the quality of residential child-care services without increasing expenditures. SECTION 1.91. Section 42.046, Human Resources Code, is amended by amending Subsection (c) and adding Subsection (e) to read as follows: (c) After receiving an application, the department shall investigate the applicant and the plan of care for children, if applicable. As part of the investigation of an applicant for a license to operate a residential child-care facility, the department shall require the applicant to provide information about the applicant's and each controlling person's compliance history with the regulatory requirements in any other state in which the applicant or controlling person operates or previously operated a residential child-care facility. (e) The department may deny an application under this section if the applicant: (1) has a residential child-care facility license revoked in another state; or (2) is barred from operating a residential child-care facility in another state. SECTION 1.92. Subsections (f) and (g), Section 42.0461, Human Resources Code, are amended to read as follows: (f) A child-placing agency that proposes to verify an agency foster home or agency foster group home that is located in a county with a population of less than 300,000 that provides child care for 24 hours a day at a location other than the actual residence of a child's primary caretaker shall: (1) comply with the notice and hearing requirements imposed by Subsections (a) and (b); and (2) after conducting the required public hearing, provide the department with information relating to the considerations specified in Subsection (d). (g) The department may prohibit the child-placing agency from verifying the proposed agency foster home or agency foster group home on the same grounds that the department may deny an application under Subsection (e). The department may invalidate the verification of an agency foster home or agency foster group home that was not verified using the procedures required by Subsection (f) on or after September 1, 1997. SECTION 1.93. Section 42.051, Human Resources Code, is amended to read as follows: Sec. 42.051. INITIAL [PROVISIONAL] LICENSE. (a) The department shall issue an initial [a provisional] license when a facility's plans meet the department's licensing requirements and one of the following situations exists: (1) the facility is not currently operating; (2) the facility has relocated and has made changes in the type of child-care service it provides; or (3) there is a change in ownership of the facility resulting in changes in policy and procedure or in the staff who have direct contact with the children. (b) An initial [A provisional] license is valid for six months from the date it is issued and may be renewed for an additional six months. SECTION 1.94. Subsection (b), Section 42.054, Human Resources Code, is amended to read as follows: (b) The department shall charge each child-care facility a fee of $35 for an initial [a provisional] license. The department shall charge each child-placing agency a fee of $50 for an initial [a provisional] license. SECTION 1.95. (a) Section 42.056, Human Resources Code, is amended by adding Subsections (a-1), (d), (e), and (f) and amending Subsection (b) to read as follows: (a-1) In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a residential child-care facility shall submit to the department for use in conducting background and criminal history checks the name of each prospective employee who will provide direct care or have direct access to a child in the residential child-care facility. (b) The department shall conduct background and criminal history checks using: (1) the information provided under Subsections [Subsection] (a) and (a-1); (2) the information made available by the Department of Public Safety under Section 411.114, Government Code, and [or] by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code; and (3) the department's records of reported abuse and neglect. (d) A person described by Subsection (a) or (a-1) may not provide direct care or have direct access to a child in a residential child-care facility before completion of the person's background check and criminal history check. (e) The department shall provide the results of a background or criminal history check conducted under this section regarding a prospective employee to a director, owner, or operator of a residential child-care facility within 24 hours. If the residential child-care facility does not receive the results of the background or criminal history check within that time, the facility may obtain that information for the facility's employee, subcontractor, or volunteer directly from the Department of Public Safety. If the information obtained verifies that the person does not have a criminal record, the facility may allow the person to have unsupervised client contact until the department has performed the department's own criminal history check and notified the facility. (f) As part of a background check under this section, the department shall provide any relevant information available in the department's records regarding a person's previous employment in a residential child-care facility to the person submitting the request. (b) The director, owner, or operator of a residential child-care facility shall begin providing information to the Department of Family and Protective Services as required by Subsection (a-1), Section 42.056, Human Resources Code, as added by this section, as soon as possible after the effective date of this section and not later than January 1, 2006. SECTION 1.96. (a) Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.057 to read as follows: Sec. 42.057. DRUG TESTING. (a) Each residential child-care facility shall establish a drug testing policy for employees. A residential child-care facility may adopt the model employee drug testing policy adopted by the executive commissioner under Subsection (b) or may use another employee drug testing policy approved by the executive commissioner. (b) The executive commissioner by rule shall adopt a model employee drug testing policy for use by a residential child-care facility. The policy must be designed to ensure the safety of resident children through appropriate drug testing of employees while protecting the rights of employees. The model policy must require: (1) preemployment drug testing; (2) random, unannounced drug testing of each employee who has direct contact with a child in the care of the facility; (3) drug testing of an employee against whom there is an allegation of drug abuse; and (4) drug testing of an employee whom the department is investigating for the abuse or neglect of a child in the care of the facility, if the allegation of abuse or neglect includes information that provides good cause to suspect drug abuse. (c) The department shall require a drug test of a person who directly cares for or has access to a child in a residential child-care facility within 24 hours after the department receives notice of an allegation that the person has abused drugs. (d) An employee may not provide direct care or have direct access to a child in a residential child-care facility before completion of the employee's initial drug test. (e) A residential child-care facility shall pay any fee or cost associated with performing the drug test for an employee. (b) Not later than December 1, 2005, the executive commissioner of the Health and Human Services Commission shall adopt the model drug testing policy required by Section 42.057, Human Resources Code, as added by this section. (c) Not later than January 1, 2006, each residential child-care facility shall adopt a drug testing policy required by Section 42.057, Human Resources Code, as added by this section. SECTION 1.97. (a) Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.061 to read as follows: Sec. 42.061. RISK ASSESSMENT. (a) If an employee or volunteer at a residential child-care facility has been convicted of a crime, the department shall perform a risk assessment of the person before the person is allowed access to a child in the facility. The department shall also perform a similar risk assessment of a person who is at least 14 years of age and who will regularly or frequently be staying at the facility while children are being provided care. (b) The executive commissioner by rule shall develop and maintain risk assessment criteria to ensure the safety and well-being of a child's physical or mental health or welfare. (b) Not later than January 1, 2006, the executive commissioner of the Health and Human Services Commission shall adopt rules required by Section 42.061, Human Resources Code, as added by this section. SECTION 1.98. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.062 to read as follows: Sec. 42.062. CERTAIN EMPLOYMENT PROHIBITED. A residential child-care facility may not employ in any capacity a person who is not eligible to receive a license or certification for the operation of a residential child-care facility under Section 42.072(c-1) or who has been denied a license under Section 42.046. SECTION 1.99. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.063 to read as follows: Sec. 42.063. REPORTING OF INCIDENTS AND VIOLATIONS. (a) In this section, "serious incident" means a suspected or actual incident that threatens or impairs the basic health, safety, or well-being of a child. The term includes: (1) the arrest, abuse, neglect, exploitation, running away, attempted suicide, or death of a child; (2) a critical injury of a child; and (3) an illness of a child that requires hospitalization. (b) A person licensed under this chapter shall report to the department each serious incident involving a child who receives services from the person, regardless of whether the department is the managing conservator of the child. (c) An employee of a person described by Subsection (b) shall report suspected abuse or neglect directly to the statewide intake system. (d) An employee or volunteer of a child-care institution, child-placing agency, foster home, or foster group home shall report any serious incident directly to the department if the incident involves a child under the care of the institution, agency, or home. (e) A foster parent shall report any serious incident directly to the department if the incident involves a child under the care of the parent. (f) The executive commissioner by rule shall prescribe: (1) procedures governing reporting required under this section; and (2) the manner in which a report under this section must be provided. SECTION 1.100. (a) Section 42.0705, Human Resources Code, is amended to read as follows: Sec. 42.0705. RANGE OF PENALTIES. (a) The department shall revoke, suspend, or refuse to renew a license or registration, place on probation a person whose license or registration has been suspended, or reprimand a license holder or registration holder for a violation of this chapter or a rule of the board. (b) If a license or registration suspension is probated, the department may require the license holder or registration holder to: (1) report regularly to the department on matters that are the basis of the probation; (2) limit services to the areas prescribed by the department; (3) continue or review professional education until the license holder or registration holder attains a degree of skill satisfactory to the department in those areas that are the basis of the probation; or (4) take corrective action relating to the violation on which the probation is based. (c) The executive commissioner by rule shall establish gradations of penalties in accordance with the relative seriousness of the violation. The rules shall prescribe the violations or number of violations that will result in the department's automatically revoking a facility's license, certification, or registration under Section 42.072. (d) In determining the penalty to impose, the department shall consider any matter that justice may require, including: (1) the gradations of penalties established under Subsection (c); (2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited act and the hazard or potential hazard created by the act to the health or safety of a resident child; (3) the history of previous violations; (4) deterrence of future violations; and (5) efforts to correct the violation. (b) Not later than December 31, 2005, the executive commissioner of the Health and Human Services Commission shall establish the gradations of penalties required under Section 42.0705, Human Resources Code, as amended by this section. SECTION 1.101. Section 42.072, Human Resources Code, is amended by adding Subsection (c-1) to read as follows: (c-1) Notwithstanding Subsection (c), the department shall refuse to issue a license or certification for the operation of a residential child-care facility to a person who previously held more than a 20 percent ownership interest in or served as an officer, director, board member, or administrator of a residential child-care facility at the time of the occurrence of conduct that resulted in: (1) the license or certification of the facility being revoked by the department or by court order; or (2) the facility being voluntarily closed or its license or certification relinquished after: (A) the department took an action under Subsection (a) in relation to the facility; or (B) the facility received notice that the department intended to take an action under Subsection (a) in relation to the facility. SECTION 1.102. Subsection (c), Section 42.073, Human Resources Code, is amended to read as follows: (c) An order is valid for 10 days after the effective date of the order, except that an order relating to a residential child-care facility is valid for 30 days after the effective date of the order. SECTION 1.103. Section 42.077, Human Resources Code, is amended by adding Subsection (d-1) to read as follows: (d-1) If the department determines that the license of a residential child-care facility should be revoked or suspended, the facility shall mail notification of the action or proposed action by certified mail to a parent of each child served by the facility, if the person's parental rights have not been terminated, and to the child's managing conservator, as appropriate. The residential child-care facility shall mail the notification not later than the fifth day after the date the facility is notified of the department's determination that revocation or suspension of the license is appropriate. SECTION 1.104. (a) Section 42.078, Human Resources Code, is amended by amending Subsections (a) through (i) and (l), (m), and (n) and adding Subsection (a-1) to read as follows: (a) The department may impose an administrative penalty against a facility or family home licensed or registered under this chapter that violates this chapter or a rule or order adopted under this chapter. In addition, the department may impose an administrative penalty against a residential child-care facility or a controlling person of a residential child-care facility if the facility or controlling person: (1) violates a term of a license or registration issued under this chapter; (2) makes a statement about a material fact that the facility or person knows or should know is false: (A) on an application for the issuance or renewal of a license or registration or an attachment to the application; or (B) in response to a matter under investigation; (3) refuses to allow a representative of the department to inspect: (A) a book, record, or file required to be maintained by the facility; or (B) any part of the premises of the facility; (4) purposefully interferes with the work of a representative of the department or the enforcement of this chapter; or (5) fails to pay a penalty assessed under this chapter on or before the date the penalty is due, as determined under this section. (a-1) Nonmonetary, administrative penalties or remedies, including but not limited to corrective action plans, probation, and evaluation periods, shall be imposed when appropriate before monetary penalties. (b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The penalty for a violation may be in an amount not to exceed the following limits, based on the maximum number of children for whom the facility or family home was authorized to provide care or the number of children under the care of the child-placing agency when the violation occurred [receiving care at the facility or family home at the time of the violation]: (1) for violations that occur in a facility other than a residential child-care facility:Number of children Maximum amount of penalty 20 or less $20 21-40 $30 41-60 $40 61-80 $50 81-100 $75 More than 100 $100and (2) for violations that occur in a residential child-care facility: Number of children Maximum amount of penalty 20 or less $100 21-40 $150 41-60 $200 61-80 $250 81-100 $375 More than 100 $500 (c) In addition to the number of children, the [The] amount of the penalty shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter future violations; (5) efforts to correct the violation; and (6) any other matter that justice may require. (d) Monetary penalties shall not be assessed for violations that are the result of clerical errors [or standards which do not clearly apprise the facility or family home of the action required by the standard]. (e) If the department [executive director] determines that a violation has occurred, the department [executive director] may issue a recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty. (f) Within 14 days after the date the recommendation is issued, the department [executive director] shall give written notice of the recommendation to the person owning or operating the facility or family home or to the controlling person, if applicable. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (g) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the department [executive director] or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (h) If the person accepts the determination and recommended penalty of the department [executive director] or fails to respond to the notice in a timely manner, the department [executive director] shall issue an order and impose the recommended penalty. (i) If the person requests a hearing, the department [executive director] shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and issue a final decision finding that a violation has occurred and imposing a penalty or finding that no violation occurred. (l) Within the 30-day period, a person who acts under Subsection (k)(3) may: (1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the department [executive director] by certified mail. (m) On receipt of a copy of an affidavit under Subsection (l)(2), the department [executive director] may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (n) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department [executive director] may refer the matter to the attorney general for collection of the amount of the penalty. (b) Section 42.078, Human Resources Code, as amended by this section, applies to conduct that occurs on or after the effective date of this section. Conduct that occurs before the effective date of this section is governed by Section 42.078, Human Resources Code, as it existed before amendment by this section, and the former law is continued in effect for that purpose. SECTION 1.105. The heading to Chapter 43, Human Resources Code, is amended to read as follows:
CHAPTER 43. REGULATION OF CHILD-CARE
AND CHILD-PLACING AGENCY ADMINISTRATORS
SECTION 1.106. Section 43.001, Human Resources Code, is amended by amending Subdivision (1) and adding Subdivisions (3) and (4) to read as follows: (1) "Child-care institution" has the meaning assigned by Section 42.002 [means a profit or nonprofit children's home, orphanage, institution, or other place that receives and provides 24-hour-a-day care for more than six children who are dependent, neglected, handicapped, delinquent, in danger of becoming delinquent, or in need of group care]. (3) "Child-placing agency" has the meaning assigned in Section 42.002. (4) "Child-placing agency administrator" means a person who supervises and exercises direct control over a child-placing agency and who is responsible for the child-placing agency's program and personnel, regardless of whether the person has an ownership interest in the child-placing agency or shares duties with other persons. SECTION 1.107. (a) Section 43.003, Human Resources Code, is amended by adding Subsection (c) to read as follows: (c) A person may not serve as a child-placing agency administrator without a license issued by the department under this chapter. (b) Notwithstanding Subsection (c), Section 43.003, Human Resources Code, as added by this section, a person is not required to hold a license issued under Chapter 43, Human Resources Code, to act as a child-placing agency administrator until January 1, 2006. SECTION 1.108. (a) Section 43.004, Human Resources Code, is amended to read as follows: Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be eligible for a child-care administrator's license a person must: (1) provide information for the department's use in conducting a criminal history and background check under Subsection (c) [present evidence in writing of good moral character, ethical commitment, and sound physical and emotional health]; (2) pass an examination developed [devised] and administered by the department that demonstrates competence in the field of child-care administration; (3) have one year of full-time experience in management or supervision of child-care personnel and programs; and (4) have one of the following educational and experience qualifications: (A) a master's or doctor of philosophy degree in social work or other area of study; or (B) a bachelor's degree and two years' full-time experience in child care or a closely related field[; [(C) an associate degree from a junior college and four years' experience in child care or a closely related field; or [(D) a high school diploma or its equivalent and six years' experience in child care or a closely related field]. (b) To be eligible for a child-placing agency administrator's license a person must: (1) provide information for the department's use in conducting a criminal history and background check under Subsection (c); (2) pass an examination developed and administered by the department that demonstrates competence in the field of placing children in residential settings or adoptive homes; (3) have one year of full-time experience in management or supervision of child-placing personnel and programs; and (4) have one of the following educational and experience qualifications: (A) a master's or doctor of philosophy degree in social work or other area of study; or (B) a bachelor's degree and two years' full-time experience in the field of placing children in residential settings or adoptive homes or a closely related field. (c) Before the department issues a license under this chapter, the department must conduct a criminal history and background check of the applicant using: (1) the information made available by the Department of Public Safety under Section 411.114, Government Code, or by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code; and (2) the information in the central registry of reported cases of child abuse or neglect established under Section 261.002, Family Code. (b) Subsection (a), Section 43.004, Human Resources Code, as added by this section, applies only to a person who applies for a license or license renewal on or after the effective date of this section. SECTION 1.109. (a) Section 43.0041, Human Resources Code, is amended by adding Subsection (c) to read as follows: (c) A person who fails an examination three times may not submit a new application for a license until after the first anniversary of the date the person last failed the examination. (b) Subsection (c), Section 43.0041, Human Resources Code, as added by this section, applies only to an examination taken on or after the effective date of this section. An examination taken before the effective date of this section is not considered in determining whether a person is prohibited from seeking a new license for the period specified by Subsection (c), Section 43.0041, Human Resources Code, as added by this section. SECTION 1.110. Subsection (a), Section 43.0081, Human Resources Code, is amended to read as follows: (a) The department may issue a provisional child-care administrator's license to an applicant licensed in another state who applies for a license in this state. An applicant for a provisional license under this section must: (1) be licensed in good standing as a child-care administrator for at least two years in another state, the District of Columbia, a foreign country, or a territory of the United States that has licensing requirements that are substantially equivalent to the requirements of this chapter; (2) have passed a national or other examination recognized by the department that demonstrates competence in the field of child-care administration; and (3) be sponsored by a person licensed by the department under this chapter with whom the provisional license holder may practice under this section. SECTION 1.111. (a) Subsection (a), Section 43.009, Human Resources Code, is amended to read as follows: (a) To be eligible for license renewal, a license holder shall present evidence to the department of participation in a program of continuing education for 15 [approximating 15 actual] hours of formal study each year during the two-year period before the renewal. (b) Subsection (a), Section 43.009, Human Resources Code, as amended by this section, applies to a person who seeks license renewal on or after September 1, 2007. A person who seeks license renewal before September 1, 2007, is governed by the law in effect before amendment by this section, and the former law is continued in effect for that purpose. SECTION 1.112. The heading to Section 43.010, Human Resources Code, is amended to read as follows: Sec. 43.010. LICENSE DENIAL, REVOCATION, SUSPENSION, OR REFUSAL TO RENEW; REPRIMAND OR PROBATION. SECTION 1.113. (a) Subsections (a), (b), and (d), Section 43.010, Human Resources Code, are amended to read as follows: (a) The department may deny, [shall] revoke, suspend, or refuse to renew a license, or place on probation [a person whose license has been suspended,] or reprimand a license holder for: (1) violating [a violation by the license holder of] this chapter or a rule adopted under this chapter; (2) circumventing or attempting to circumvent the requirements of this chapter or a rule adopted under this chapter; (3) engaging in fraud or deceit related to the requirements of this chapter or a rule adopted under this chapter; (4) providing false or misleading information to the department during the license application or renewal process for any person's license; (5) making a statement about a material fact during the license application or renewal process that the person knows or should know is false; (6) having a criminal history or central registry record that would prohibit a person from working in a child-care facility, as defined by Section 42.002, under rules applicable to that type of facility; (7) using drugs or alcohol in a manner that jeopardizes the person's ability to function as an administrator; or (8) [of the board. [(b) The department may revoke a license if the license holder is: [(1) convicted of a felony; [(2) convicted of a misdemeanor involving fraud or deceit; [(3) addicted to a dangerous drug or intemperate in the use of alcohol; or [(4) grossly negligent in] performing duties as a child-care administrator in a negligent manner. (b) A person whose license is revoked under Subsection (a) is not eligible to apply for another license under this chapter. (d) If a license holder is placed on probation [suspension is probated], the department may require the license holder: (1) to report regularly to the department on the conditions of the probation; (2) to limit practice to the areas prescribed by the department; or (3) to continue or renew professional education until the practitioner attains a degree of skill satisfactory to the department in those areas in which improvement is a condition of the probation. (b) Subsection (b), Section 43.010, Human Resources Code, as amended by this section, applies only to a person whose license is revoked on or after the effective date of this section. A person whose license is revoked before the effective date of this section is governed by the law in effect at the time of the revocation, and the former law is continued in effect for that purpose. SECTION 1.114. Section 43.0105, Human Resources Code, is amended to read as follows: Sec. 43.0105. REVOCATION OF PROBATION. The department may revoke the probation of a license holder [whose license is suspended] if the license holder violates a term of the conditions of probation. SECTION 1.115. Section 43.0106, Human Resources Code, is amended to read as follows: Sec. 43.0106. ADMINISTRATIVE [DISCIPLINARY] HEARING. (a) If the department denies a license or proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings. Proceedings for a disciplinary action are governed by the administrative procedure law, Chapter 2001, Government Code. Rules of practice adopted by the executive commissioner [board] under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (b) A person may not continue to operate as a licensed child-care administrator or child-placing agency administrator during the appeal process if the department determines that the person is an immediate threat to the health or safety of a child. (c) The department must notify the person, and if applicable, the governing body of the facility that employs the person, of the department's determination under Subsection (b). SECTION 1.116. Section 43.012, Human Resources Code, is amended to read as follows: Sec. 43.012. PENALTY. A person who serves as a child-care or child-placing agency administrator without the license required by this chapter commits a Class C misdemeanor. SECTION 1.117. Subdivision (3), Article 56.01, Code of Criminal Procedure, is amended to read as follows: (3) "Victim" means a person who is the victim of the offense of sexual assault, kidnapping, [or] aggravated robbery, or injury to a child, elderly individual, or disabled individual or who has suffered bodily injury or death as a result of the criminal conduct of another. SECTION 1.118. (a) Section 22.04, Penal Code, is amended by amending Subsections (b) through (g) and adding Subsection (a-1) to read as follows: (a-1) A person commits an offense if the person is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child, elderly individual, or disabled individual who is a resident of that group home or facility: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; (3) bodily injury; or (4) exploitation. (b) An omission that causes a condition described by Subsection (a)(1), (2), or (3) or (a-1)(1), (2), (3), or (4) [Subsections (a)(1) through (a)(3)] is conduct constituting an offense under this section if: (1) the actor has a legal or statutory duty to act; or (2) the actor has assumed care, custody, or control of a child, elderly individual, or disabled individual. (c) In this section: (1) "Child" means a person 14 years of age or younger. (2) "Elderly individual" means a person 65 years of age or older. (3) "Disabled individual" means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself. (4) "Exploitation" means the illegal or improper use of an individual or of the resources of the individual for monetary or personal benefit, profit, or gain. (d) For purposes of an omission that causes a condition described by Subsection (a)(1), (2), or (3), the [The] actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or disabled individual. For purposes of an omission that causes a condition described by Subsection (a-1)(1), (2), (3), or (4), the actor acting during the actor's capacity as owner, operator, or employee of a group home or facility described by Subsection (a-1) is considered to have accepted responsibility for protection, food, shelter, and medical care for the child, elderly individual, or disabled individual who is a resident of the group home or facility. (e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is [it shall be] a felony of the second degree. (f) An offense under Subsection (a)(3) or (a-1)(3) or (4) is a felony of the third degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is [it shall be] a state jail felony. (g) An offense under Subsection (a) is a state jail felony when the person acts with criminal negligence [shall be a state jail felony]. An offense under Subsection (a-1) is a state jail felony when the person, with criminal negligence and by omission, causes a condition described by Subsection (a-1)(1), (2), (3), or (4). (b) The change in law made by this section applies only to an offense committed on or after the effective date of this section. An offense committed before the effective date of this section is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this subsection, an offense was committed before the effective date of this section if any element of the offense was committed before that date. SECTION 1.119. AT-RISK PREVENTION SERVICES TASK FORCE. (a) In this section: (1) "Department" means the Department of Family and Protective Services. (2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (3) "Prevention service" means a community-based prevention program to alleviate the conditions that lead to child abuse or neglect and juvenile crime. (4) "Task force" means the at-risk prevention services task force established under this section. (b) The at-risk prevention services task force is established to create a strategic plan to improve the availability of prevention services in this state and the manner in which those services are provided. (c) The task force is composed of 11 members appointed by the governor. (d) Each member of the task force must have demonstrated experience in the prevention of child abuse or neglect, or juvenile crime. Consideration shall be given to inclusion of prevention service providers, research professionals, representatives from mental health and juvenile justice fields, and the judicial system. One member of the task force must be a person who was formerly a child in foster care. (e) The task force shall: (1) examine the provision of prevention services in this state and identify gaps in services and opportunities to coordinate service delivery; (2) identify federal, state, and community sources of funding for prevention services and methods for combining resources for those services; and (3) create a strategic plan that would address current gaps in services and would result in the extension of prevention services that are evidence-based and utilize best practices to more at-risk families in this state. (f) To the extent that money is appropriated for this purpose, the department shall establish and administer a child abuse and neglect prevention grant program that addresses gaps and strategies recommended by the task force. The grant program shall fund evidence-based programs offered by community-based or county organizations that are designed to prevent or ameliorate child abuse and neglect. The task force shall advise the department in the evaluation of the evidence-based abuse and neglect prevention programs to determine the continued effectiveness of the programs. (g) The department shall provide administrative support and services to the task force. (h) Not later than September 1, 2006, the task force shall present to the department and executive commissioner the strategic plan created under Subsection (e) of this section. (i) Not later than the 90th day after the date on which the task force presents the strategic plan, the executive commissioner shall submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the presiding officer of each house and senate standing committee having jurisdiction over family protective services a written report concerning the strategic plan of the task force. The report shall include: (1) recommendations for implementing the strategic plan of the task force, if appropriate; (2) recommendations for modifications to the strategic plan of the task force; and (3) recommendations for legislation that the task force or executive commissioner considers necessary to implement the strategic plan. (j) This section expires and the task force is abolished June 1, 2007. SECTION 1.120. THINK TANK MEETING ON CHILD ABUSE AND NEGLECT INVESTIGATIONS. Not later than January 1, 2006, the Department of Family and Protective Services shall conduct a meeting with employees of the department and law enforcement professionals who have responsibility for investigating reports of child abuse and neglect to explore standards for: (1) training to be provided for personnel who conduct investigations of child abuse and neglect, including techniques for interviewing, investigating, and communicating with children with disabilities; (2) protocols for conducting investigations; and (3) the coordination of investigations between the department and law enforcement agencies. SECTION 1.121. CASEWORKER FUNCTION STUDY. (a) The Department of Family and Protective Services shall conduct a study on the merits of revising the functions performed by caseworkers employed by the department. In conducting the study required by this section, the department shall explore the benefits of using one caseworker to coordinate efforts on behalf of the child and the child's parents. (b) The department shall report the results of the study conducted under Subsection (a) of this section to the lieutenant governor and the speaker of the house of representatives not later than January 1, 2006. SECTION 1.122. USE OF LOCAL CASEWORKERS. If the Department of Family and Protective Services places a child in a home in an administrative region other than the region in which the child's caseworker is located, the department shall consider using a caseworker from the region in which the child is placed to conduct home visits for that child. SECTION 1.123. STUDY OF CHILD PROTECTIVE SERVICES AND ADULT PROTECTIVE SERVICES CERTIFICATION FOR PEACE OFFICERS. (a) In this section, "peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, or other law. (b) The Commission on Law Enforcement Officer Standards and Education shall study the feasibility of issuing certificates of professional achievement or proficiency to peace officers who receive specialized training for law enforcement assignments related to child protective services or adult protective services. The commission must consider: (1) the need for specialized training of peace officers who work with issues related to child protective services or adult protective services; (2) the feasibility of creating and administering the proposed certification; (3) potential incentives, including financial incentives, that may encourage peace officers to obtain the certification; and (4) the development of required training for the certification that will address the legal, social, and operational issues that peace officers are likely to encounter when working with children or aging persons. (c) In conducting the study, the Commission on Law Enforcement Officer Standards and Education shall seek the participation of: (1) state agency employees and peace officers who currently work with issues related to child protective services and adult protective services; (2) community advocates for children and aging persons; and (3) other interested persons. (d) Not later than September 1, 2006, the Commission on Law Enforcement Officer Standards and Education shall submit to the legislature a report regarding the results of the study conducted under this section. SECTION 1.124. The following provisions of the Human Resources Code are repealed: (1) Subdivision (1), Section 40.001; (2) Section 40.028; (3) Section 40.029; (4) Subsections (b), (c), and (e), Section 40.0305; (5) Subsection (c), Section 40.0525, Human Resources Code; and (6) Subsection (c), Section 43.010.
ARTICLE 2. ADULT PROTECTIVE SERVICES
SECTION 2.01. Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.0315 to read as follows: Sec. 40.0315. INVESTIGATION UNIT FOR ADULT PROTECTIVE SERVICES. (a) The adult protective services division of the department shall maintain an investigation unit to investigate allegations of abuse, neglect, and exploitation of elderly and disabled persons reported to the division. (b) An investigator in the unit shall determine whether an elderly or disabled person who is the subject of a report made under Section 48.051(a) may have suffered from abuse, neglect, or exploitation as a result of the criminal conduct of another person. If the investigator determines that criminal conduct may have occurred, the investigator shall immediately notify the appropriate law enforcement agency. (c) Not later than the 30th day after the date a law enforcement agency is notified by an investigator as provided by Subsection (b), the agency shall, if feasible, provide to the unit information regarding the disposition of the agency's investigation of the conduct that was the subject of the notice. SECTION 2.02. Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.0323 to read as follows: Sec. 40.0323. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES PERSONNEL. (a) In hiring department employees whose duties include providing services as part of, or relating to, the provision of adult protective services directly to an elderly or disabled person, the commissioner shall ensure that the department gives preference to applicants with professional credentials related to adult protective services, including applicants who are licensed master social workers, as defined by Section 505.002, Occupations Code, or licensed professional counselors. (b) Subject to the availability of funds, the executive commissioner by rule shall develop and the department shall implement an incentive program to encourage each department employee whose duties include the duties described by Subsection (a) to obtain professional credentials described by that subsection if the employee does not have those credentials. SECTION 2.03. Subchapter B, Chapter 40, Human Resources Code, is amended by adding Section 40.035 to read as follows: Sec. 40.035. TRAINING PROGRAM FOR ADULT PROTECTIVE SERVICES; CONTINUING EDUCATION. (a) The department shall develop and implement a training program that each newly hired or assigned department employee must complete before: (1) initiating an investigation of a report of alleged abuse, neglect, or exploitation of an elderly or disabled person under Chapter 48; or (2) providing protective services to elderly or disabled persons under that chapter. (b) The training program must: (1) provide the person with appropriate comprehensive information regarding: (A) the incidence and types of reports of abuse, neglect, and exploitation of elderly or disabled persons that are received by the department, including information concerning false reports; and (B) the use and proper implementation of: (i) the risk assessment criteria developed under Section 48.004; and (ii) the legal procedures available under Chapter 48 for the protection of elderly or disabled persons, including the procedures for obtaining a court order for emergency protective services under Section 48.208; (2) include best practices for management of a case from the intake process to the provision of protective services, if any, including criteria that specify the circumstances under which an employee should: (A) consult a supervisor regarding a case; or (B) refer an elderly or disabled person to an appropriate public agency or community service provider for guardianship or other long-term services after the delivery of protective services to that person has been completed; (3) provide appropriate specialized training in any necessary topics, including: (A) investigation of suspected financial exploitation and self-neglect; and (B) establishment and maintenance of working relationships with community organizations and other local providers who provide services to elderly and disabled persons; (4) include on-the-job training, which must require: (A) a supervisor to accompany and train a department caseworker in the field throughout the first case assigned to the caseworker; and (B) the supervisor to make a detailed, written progress report regarding the caseworker's performance during a three-month review period that: (i) identifies the strengths and weaknesses of the caseworker that the supervisor observed during that period; and (ii) specifies the policies and tools the caseworker used during that period; (5) provide for the development of individualized training plans; (6) include training in working with law enforcement agencies and the court system when legal intervention is sought for investigations or emergency orders; and (7) to the maximum extent possible, include nationally recognized best practices in addition to the best practices required under Subdivision (2). (c) The department at least annually shall provide comprehensive case management training to supervisors of department employees who conduct investigations under Chapter 48. The training must be designed to enable the supervisors to provide guidance on investigations of reports of alleged abuse, neglect, or exploitation that are complex or present unique problems. (d) The department shall develop and implement appropriate continuing education programs for employees of the adult protective services division who have completed initial training under this section. The continuing education programs must include nationally recognized best practices to the maximum extent possible and must be designed to provide an annual update regarding changes in: (1) adult protective services division policies and procedures; and (2) applicable law, including statutory changes affecting the adult protective services division or elderly or disabled persons served by the division. (e) A department employee required to participate in a continuing education program under this section must complete the program at least once each calendar year. (f) The department shall: (1) make curriculum developed for a training or continuing education program under this section readily available to department employees in written form; and (2) periodically revise a training and continuing education program established under this section as necessary to satisfy training needs identified by the department or department employees. (g) The circumstances specified under Subsection (b)(2) under which an employee should consult a supervisor regarding a case must be consistent with the risk assessment criteria developed under Section 48.004 that require consultation with a supervisor. (h) The executive commissioner by rule shall provide policies and procedures by which the department incorporates examples of actual cases investigated by the department in the training programs under this section for use as training tools. (i) In implementing the training program and continuing education programs under this section, the department, to the maximum extent possible, shall contract with persons who are not department employees to conduct the programs. SECTION 2.04. (a) Subchapter C, Chapter 40, Human Resources Code, is amended by adding Section 40.0515 to read as follows: Sec. 40.0515. QUALITY ASSURANCE PROGRAM FOR ADULT PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall develop and implement a quality assurance program for adult protective services provided by or on behalf of the department. (b) In developing the program, the department shall establish: (1) client-centered outcome measures for each of the following functions of the adult protective services program: (A) intake process; (B) investigations; (C) risk assessment determinations; and (D) delivery of protective services; (2) minimum job performance standards for personnel and each work department of the adult protective services division of the department; and (3) procedures for conducting periodic performance reviews to monitor compliance with the standards established under Subdivision (2), which must include requirements that, for each caseworker in the adult protective services division of the department, a supervisor shall conduct: (A) at least two performance reviews each year, if the employee has less than two years of adult protective services casework experience; and (B) at least one performance review each year, if the employee has at least two years of adult protective services casework experience. (c) The department shall promptly address a person's or work department's failure to meet minimum job performance standards established under Subsection (b)(2): (1) by issuing to the person or work department, as appropriate, a corrective action plan detailing the actions required to comply with the standards; or (2) if necessary, through disciplinary action, including a person's demotion or discharge, for repeated failure to meet the standards. (d) A performance review conducted under Subsection (b)(3) is considered a performance evaluation for purposes of Section 40.032(c). The department shall ensure that disciplinary or other corrective action is taken against a supervisor or other managerial employee who is required to conduct a performance evaluation under Section 40.032(c) or a performance review under Subsection (b)(3) and who fails to complete that evaluation or review in a timely manner. (e) The annual performance evaluation required under Section 40.032(c) of the performance of a supervisor in the adult protective services division must: (1) be performed by an appropriate program administrator; and (2) include: (A) an evaluation of the supervisor with respect to the job performance standards applicable to the supervisor's assigned duties; and (B) an evaluation of the supervisor with respect to the compliance of employees supervised by the supervisor with the job performance standards applicable to those employees' assigned duties. (f) A summary of the findings of outcome measures established and performance reviews conducted under this section must be reported to regional directors and other senior management employees of the adult protective services division. (g) Each fiscal quarter the department shall file with the governor and the presiding officer of each house of the legislature a report that includes: (1) a comprehensive review of the adult protective services division's overall performance during the preceding quarter; and (2) a summary of the adult protective services division's performance during the preceding quarter on each of the outcome measures established under Subsection (b)(1). (b) The Department of Family and Protective Services shall submit the initial report required under Section 40.0515, Human Resources Code, as added by this section, not later than October 1, 2005. SECTION 2.05. Subdivision (4), Subsection (a), Section 48.002, Human Resources Code, is amended to read as follows: (4) "Neglect" means the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services. This term includes a person leaving a facility that provides medical care, against medical advice, if leaving places the person at imminent risk of physical or emotional harm and a physician has issued a written letter or certificate stating the person is not mentally competent. SECTION 2.06. Subchapter A, Chapter 48, Human Resources Code, is amended by adding Section 48.004 to read as follows: Sec. 48.004. RISK ASSESSMENT. The executive commissioner by rule shall develop and maintain risk assessment criteria for use by department personnel in determining whether an elderly or disabled person is in imminent risk of abuse, neglect, or exploitation or in a state of abuse, neglect, or exploitation and needs protective services. The criteria must: (1) provide for a comprehensive assessment of the person's: (A) environmental, physical, medical, mental health, and financial condition; (B) social interaction and support; and (C) need for legal intervention; and (2) specify the circumstances under which a caseworker must consult with a supervisor regarding a case. SECTION 2.07. Subchapter A, Chapter 48, Human Resources Code, is amended by adding Sections 48.005 and 48.006 to read as follows: Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding Chapter 441, Government Code, or any other law, the department shall maintain in an electronic format a summary of all records related to investigations of reports made under Section 48.051 that includes only critical information with respect to those investigations that will enable the department to research the history of a person's involvement in the investigated cases. Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) The department shall develop a community satisfaction survey that solicits information regarding the department's performance with respect to providing investigative and adult protective services. In each region, the department shall send the survey at least annually to: (1) stakeholders in the adult protective services system, including local law enforcement agencies and prosecutors' offices; (2) protective services agencies, including nonprofit agencies; and (3) courts with jurisdiction over probate matters. (b) The department shall send the results of each region's survey to: (1) the region for evaluation by regional and program administrators and implementation of changes necessary to address community concerns; (2) the presiding judge of the statutory probate courts in that region; and (3) courts with jurisdiction over probate matters in that region. (c) The department may not include any confidential information in the results of the survey provided under Subsection (b)(2) or (3) unless ordered by a court. SECTION 2.08. Section 48.051, Human Resources Code, is amended by adding Subsection (e) to read as follows: (e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report. SECTION 2.09. Section 48.101, Human Resources Code, is amended by amending Subsections (d) and (e) and adding Subsections (d-1), (e-1), (g), and (g-1) to read as follows: (d) The executive commissioner shall adopt rules providing [department or investigating state agency by rule shall provide] for the release, on request, to a person who is the subject of a report of abuse, neglect, or exploitation or to that person's legal representative of otherwise confidential information relating to that report. The department or investigating state agency shall edit the information before release to protect the confidentiality of information relating to the reporter's identity and to protect any other individual whose safety or welfare may be endangered by disclosure. (d-1) Subject to Subsection (e-1), the executive commissioner shall adopt rules providing for the release, on request, by the department or investigating state agency of otherwise confidential information relating to a person who is the subject of a report or investigation of abuse, neglect, or exploitation or to whom the department has provided protective services, to: (1) a court that has a matter pending before it that involves the person; (2) the attorney ad litem or any other legal representative, other than a guardian, appointed for the person; and (3) the person's legal guardian. (e) The executive commissioner [department or investigating state agency] may adopt rules relating to the release of information by the department or investigating state agency that is contained in the record of a deceased individual who was the subject of an investigation conducted by the department or investigating state agency or to whom the department has provided protective services. The rules must be consistent with the purposes of this chapter and any applicable state or federal law. The executive commissioner shall adopt rules, subject to Subsection (e-1), that provide for the release, on request, of otherwise confidential information in the deceased person's record to the personal representative appointed for the person's estate. (e-1) Information released by the department or an investigating state agency under Subsection (d-1) or to a personal representative under Subsection (e) may not include the identity of the person who made the report of abuse, neglect, or exploitation. (g) The department may establish procedures to exchange with a community service provider or local governmental entity confidential information relating to a report made under Section 48.051(a) that is necessary for the department, provider, or entity to provide protective services, health care services, housing services, or social services to the person who is the subject of the report. An exchange of information under this subsection does not affect whether the information is subject to disclosure under Chapter 552, Government Code. (g-1) The executive commissioner by rule shall provide policies and procedures that are designed to guard against the unauthorized release or dissemination of confidential information that is exchanged under Subsection (g). SECTION 2.10. (a) Subchapter D, Chapter 48, Human Resources Code, is amended by adding Section 48.1521 to read as follows: Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The department shall develop and implement a system to ensure that, to the greatest extent possible, investigations conducted by the department that involve especially complex issues of abuse, neglect, or exploitation, such as issues associated with self-neglect, mental health, or financial exploitation, are: (1) assigned to personnel who have experience and training in those issues; and (2) monitored by a special task unit for complex cases. (b) Each county with a population of 250,000 or more shall appoint persons to serve as standing members of a special task unit to monitor cases that arise in the county and require monitoring as provided by Subsection (a). The standing members of each special task unit must include: (1) a provider of mental health services or aging services or a representative of a nonprofit entity serving persons with disabilities; (2) a representative of a law enforcement agency; and (3) a legal expert. (c) In addition to the standing members specified by Subsection (b), the special task unit: (1) must include, for purposes of monitoring a particular case, the caseworker on the case and the caseworker's supervisor; and (2) may include a financial forensics expert and any other person with expertise that would be useful in monitoring a particular case. (d) The department shall develop and make available to each county described by Subsection (b) a manual to assist the county in establishing and operating the special task unit required by this section. The manual must describe: (1) the purpose and potential benefits of the unit; (2) a description of the monitoring process the unit is expected to follow and potential problems the unit may encounter; (3) the composition and administration of the unit; and (4) the department's criteria for selecting cases to be monitored by the unit. (e) Before the special task unit makes a recommendation that a guardian be appointed for a person in a case being monitored by the unit, the unit shall thoroughly consider all less-restrictive alternatives for legal intervention in the case. (b) Subchapter D, Chapter 48, Human Resources Code, is amended by adding Section 48.1521 to read as follows: Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) In this section, "local aging and disabled authority" means a local aging and disabled authority that provides aging and disabled services in a local service region under Subchapter M, Chapter 531, Government Code. (b) The department shall develop and implement a system to ensure that, to the greatest extent possible, investigations conducted by the department that involve especially complex issues of abuse, neglect, or exploitation, such as issues associated with self-neglect, mental health, or financial exploitation, are: (1) assigned to personnel who have experience and training in those issues; and (2) monitored by a special task unit for complex cases. (c) Each local aging and disabled authority shall appoint persons to serve as standing members of a special task unit to monitor cases that arise in the authority's local service region and require monitoring as provided by Subsection (b). The standing members of each special task unit must include: (1) a provider of mental health services or aging services or a representative of a nonprofit entity serving persons with disabilities; (2) a representative of a law enforcement agency; and (3) a legal expert. (d) In addition to the standing members specified by Subsection (c), the special task unit: (1) must include, for purposes of monitoring a particular case, the caseworker on the case and the caseworker's supervisor; and (2) may include a financial forensics expert and any other person with expertise that would be useful in monitoring a particular case. (e) The department shall develop and make available to each local aging and disabled authority a manual to assist the authority in establishing and operating the special task unit required by this section. The manual must describe: (1) the purpose and potential benefits of the unit; (2) a description of the monitoring process the unit is expected to follow and potential problems the unit may encounter; (3) the composition and administration of the unit; and (4) the department's criteria for selecting cases to be monitored by the unit. (f) Before the special task unit makes a recommendation that a guardian be appointed for a person in a case being monitored by the unit, the unit shall thoroughly consider all less-restrictive alternatives for legal intervention in the case. (c) The Department of Family and Protective Services shall develop the manual required by Subsection (d), Section 48.1521, Human Resources Code, as added by Subsection (a) of this section, or Subsection (e), Section 48.1521, Human Resources Code, as added by Subsection (b) of this section, as soon as possible after the effective date of this article. In developing the manual, the department shall use Wisconsin's Elder Abuse Interdisciplinary Team Manual as a model. (d) Section 48.1521, Human Resources Code, as added by Subsection (a) of this section, takes effect only if neither Senate Bill 194 nor House Bill 470, proposed by the 79th Legislature, Regular Session, 2005, relating to the local delivery of aging, disability, behavioral health, and mental retardation services, is enacted and becomes law. If Senate Bill 194 or House Bill 470 is enacted and becomes law, Subsection (a) of this section has no effect and Section 48.1521, Human Resources Code, as added by Subsection (b) of this section, takes effect. If neither bill is enacted or becomes law, Subsection (b) of this section has no effect. SECTION 2.11. Subchapter D, Chapter 48, Human Resources Code, is amended by adding Section 48.1522 to read as follows: Sec. 48.1522. MANAGEMENT REVIEW FOLLOWING CERTAIN INVESTIGATIONS. If the department receives and investigates a report made under Section 48.051, the subject of which is a person with respect to whom the department received and investigated two previous reports under that section and closed those investigations, an adult protective services supervisor shall: (1) classify the case as a recidivist case; (2) review the reports and investigation files concerning that person; and (3) assist the caseworker and supervisor investigating the third report in developing a long-term plan for resolving the issues involved in the case. SECTION 2.12. Subchapter D, Chapter 48, Human Resources Code, is amended by adding Section 48.158 to read as follows: Sec. 48.158. STATUS REPORT OF INVESTIGATION. (a) Notwithstanding any other law, the department, on written request, shall provide to a person who makes a report of alleged abuse, neglect, or exploitation under Section 48.051(a) information on the status of the investigation conducted with respect to the report, unless the department determines that providing the information would: (1) jeopardize the investigation; or (2) endanger the safety or welfare of the person who is the subject of the report. (b) For purposes of Subsection (a), the status of an investigation must be designated as: (1) ongoing; (2) closed, with a determination that the person who was the subject of the report needs protective services; or (3) closed, with a determination that the person who was the subject of the report does not need protective services. (c) The information provided under Subsection (a) must include information relating to whether protective services are being provided to the person who was the subject of the report. SECTION 2.13. Subchapter D, Chapter 48, Human Resources Code, is amended by adding Section 48.159 to read as follows: Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION. (a) The department shall establish procedures for conducting an internal review of completed investigations conducted by the department under this chapter to: (1) determine whether information obtained during the intake process was sufficient and accurate; (2) assess whether telephone calls were appropriately routed; (3) assess whether investigations were appropriately classified and prioritized; (4) evaluate the case reports for any special issues or requirements; (5) assess whether appropriate law enforcement agencies were notified of any suspected criminal conduct; and (6) identify other relevant information to enable the department to take any corrective action necessary to improve the process of conducting investigations under this chapter. (b) The department shall ensure that an internal review of a completed investigation is conducted before the investigation is closed or before the case results in the delivery of protective services. SECTION 2.14. Section 48.202, Human Resources Code, is amended to read as follows: Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY. (a) In an investigation the department or state agency, as appropriate, shall determine: (1) whether the person needs protective services from the department; (2) what services are needed; (3) whether services are available from the department, from the state agency, or in the community and how they can be provided; (4) whether the person, acting alone, would be capable of obtaining needed services and could bear the cost or would be eligible for services from the department or state agency; (5) whether a caretaker would be willing to provide services or would agree to their provision [provisions]; (6) whether the elderly or disabled person desires the services; [and] (7) whether the person needs legal intervention to resolve the person's abuse, neglect, or exploitation and, if so, what type of intervention is needed; and (8) other pertinent data. (b) If the department or state agency, as appropriate, determines under Subsection (a)(1) that a person needs protective services, the department or agency shall, in determining how those services can be provided as required by Subsection (a)(3), determine whether the person is eligible for community-based long-term care services and whether those services are available. If the person is eligible for those services, but the services are not immediately available, the department or state agency shall ensure that the person is placed on an appropriate waiting list for the services and that the person's abuse, neglect, or exploitation is resolved before the department closes the case. SECTION 2.15. Subchapter E, Chapter 48, Human Resources Code, is amended by adding Section 48.2055 to read as follows: Sec. 48.2055. TEMPORARY EMERGENCY SHELTERS. (a) The department, in conjunction with the Department of Aging and Disability Services and the Department of State Health Services, shall develop and implement a program to provide, subject to availability of funds, temporary emergency shelter to an elderly or disabled person for whom the department obtains an emergency order under Section 48.208 requiring that the person be moved to safer surroundings. (b) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall enter into a memorandum of understanding to clearly define the responsibilities of each agency under this section. (c) Temporary emergency shelter under this section: (1) may not be provided for more than 30 days; and (2) must be provided in a community-based facility that is the least restrictive environment available, if possible. (d) If temporary emergency shelter described by Subsection (c)(2) is not available and a person is placed in an institution, including a nursing facility, an ICF-MR, as defined by Section 531.002, Health and Safety Code, and an institution for the mentally retarded licensed by a health and human services agency, as defined by Section 531.001, Government Code, the department shall ensure that the person is evaluated for community-based services and, if appropriate, is provided transition services through Department of Aging and Disability Services programs to enable the person to leave the institution and receive community-based services. (e) The executive commissioner shall adopt rules to implement this section. SECTION 2.16. Section 48.208, Human Resources Code, is amended by amending Subsection (e) and adding Subsections (c-1), (c-2), (c-3), and (d-1) to read as follows: (c-1) Notwithstanding Subsection (c)(4), the petition may include an assessment of the elderly or disabled person's health or psychological status as described by Subsection (c-2) or (c-3) in lieu of a medical report described by Subsection (c)(4) if the department determines after making a good faith effort that a physician from whom the department may obtain the medical report is unavailable. The department shall ensure that the person who performs an assessment of the elderly or disabled person's health or psychological status has training and experience in performing the applicable assessment. (c-2) An assessment of the elderly or disabled person's health may be completed by a physician assistant or advanced practice nurse and must state: (1) that the person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to life or physical safety; (2) whether the person has provided the person's medical history to the physician assistant or advanced practice nurse, as applicable; and (3) the professional opinion of the physician assistant or advanced practice nurse, as applicable, that under the circumstances a temporary order of emergency services without the person's consent is necessary. (c-3) An assessment of the elderly or disabled person's psychological status may be completed by a licensed psychologist or master social worker who has training and expertise in issues related to abuse, neglect, and exploitation, and must state: (1) that the person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to life or physical safety; and (2) the professional opinion of the psychologist or master social worker, as applicable, that under the circumstances a temporary order of emergency services without the person's consent is necessary. (d-1) If the court enters an order described by Subsection (d) that is based on a petition that did not include a medical report described by Subsection (c)(4), the court shall order that the elderly or disabled person be examined by a physician not later than 72 hours after the provision of protective services begins. (e) The emergency order expires at the end of 72 hours from the time of the order unless the 72-hour period ends on a Saturday, Sunday, or legal holiday in which event the order is automatically extended to 4 p.m. on the first succeeding business day. An order may be renewed for not more than 30 [14] additional days, except that an order that was based on a petition that did not include a medical report described by Subsection (c)(4) may not be renewed unless a medical report described by Subsection (c)(4) is filed with the request for the renewal. A renewal order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the first succeeding business day. The court may modify or terminate the emergency order on petition of the department, the incapacitated person, or any person interested in his welfare. SECTION 2.17. Chapter 48, Human Resources Code, is amended by adding Subchapter J to read as follows:
SUBCHAPTER J. OPTION FOR LOCAL PROVISION OF SERVICES
Sec. 48.451. DEFINITION. In this subchapter, "local entity" means a local public or private agency, corporation, board, or organization. Sec. 48.452. PRELIMINARY INFORMATION PROVIDED BY DEPARTMENT. On the request of the commissioners court of a county or the commissioners courts of two or more counties that want to explore forming a cooperative for purposes of this subchapter, the department shall provide sufficient information to the commissioners court or commissioners courts, as applicable, to enable an assessment of whether one or more functions and duties of the department under this chapter could be performed by the county or counties directly, through contracts with local entities, or both, in a more efficient and effective manner than the manner in which the functions and duties are performed by the department. Sec. 48.453. PROVISION OF SERVICES BY COUNTIES AUTHORIZED. (a) A county or two or more counties that form a cooperative as provided by Section 48.454 may, subject to the requirements of this subchapter, opt to perform one or more functions and duties of the department under this chapter if the county or counties, as applicable, determine that those functions and duties could be performed more efficiently and effectively in the manner described by Section 48.452. (b) Functions and duties of the department that a county or counties may opt to perform include: (1) conducting investigations of reports of abuse, neglect, or exploitation of an elderly or disabled person, other than an investigation under Subchapter F, G, or H; and (2) providing protective services as necessary to a person who is the subject of an investigation. (c) A county or cooperative that opts to conduct investigations described by Subsection (b)(1) and to provide protective services described by Subsection (b)(2) shall ensure that: (1) if the county or cooperative directly conducts investigations, the county or cooperative does not also directly provide protective services; and (2) if a local entity conducts investigations under a contract with the county or cooperative, that local entity does not also provide protective services. Sec. 48.454. FORMATION OF COUNTY COOPERATIVE. Two or more counties may form a cooperative to perform functions and duties of the department as authorized by Section 48.453. To form a cooperative, the counties must: (1) enter into an interlocal cooperation contract under Chapter 791, Government Code; and (2) designate one of the counties that is a party to the interlocal cooperation contract as the entity that, on behalf of the cooperative, will contract with the department under this subchapter and monitor and enforce any contracts the cooperative enters into with local entities. Sec. 48.455. LOCAL ADULT PROTECTIVE SERVICES PLAN. (a) Before a county or cooperative may perform one or more functions and duties of the department as authorized by Section 48.453, the county or cooperative must submit to the department for approval a local adult protective services plan under which the county or cooperative will assume and provide for the performance of those functions and duties. (b) If a county or cooperative intends to perform all or part of those functions and duties through contracts with local entities, the county or cooperative, as applicable, shall solicit and accept proposals from local entities for performing those functions and duties. (c) A local adult protective services plan required under this section must: (1) specify which of the department's functions and duties the county or cooperative is proposing to perform directly or through contracts with local entities; (2) include proposals submitted to the county or cooperative, as applicable, by local entities, if the county or cooperative intends to perform all or part of the specified functions and duties through contracts with local entities; and (3) demonstrate that the county or cooperative or the local entities through which the county or cooperative would perform the specified functions and duties will: (A) on entering into a contract to perform the functions and duties, have sufficient resources, including personnel, and adequate technological support, training, and expertise to perform those functions and duties; and (B) if appropriate, provide persons needing adult protective services with immediate access to community-based services that may prevent the need for the appointment of guardians for those persons. (d) The department shall evaluate the local adult protective services plan submitted under Subsection (a) and, not later than the 60th day after the plan is submitted, approve or disapprove the plan in writing. If during the 60-day period the department determines that additional information is needed to adequately assess the plan, the department shall: (1) notify the county or cooperative, as applicable, of that determination; (2) request the necessary information with sufficient specificity as to allow the county or cooperative, as applicable, to respond with the information; and (3) provide the county or cooperative, as applicable, a reasonable period in which to respond with the necessary information. Sec. 48.456. DEPARTMENT CONTRACT WITH COUNTY OR COOPERATIVE. (a) Not later than the 30th day after the date the department approves a local adult protective services plan under Section 48.455, the department shall enter into a contract with the county or cooperative, as applicable, under which the county or cooperative, either directly or through contracts with the local entities whose proposals were included in the plan, performs the department's functions and duties that are specified in the plan. (b) The department may not pay less under the terms of a contract under this section for the performance of the functions and duties specified in the contract than the department would otherwise spend in directly performing those functions and duties in the county or counties included in the cooperative. (c) A contract under Subsection (a) between the department and a county or cooperative must: (1) provide for a 90-day transition period during which: (A) the performance of functions and duties specified in the contract will transfer from the department to the county, cooperative, or local entity that will ultimately perform the functions and duties; and (B) the department will cooperate with each county, cooperative, or local entity that will perform the specified functions and duties to provide technical assistance, adequate training, and expertise to the county, cooperative, or entity before the transfer occurs; (2) require the county or cooperative to file a report with the department once each calendar quarter that includes information required by rules adopted by the executive commissioner regarding the performance of the functions and duties; and (3) include provisions: (A) imposing fiscal accountability measures; and (B) allowing the department to monitor the performance of the functions and duties by local entities with which the county or cooperative contracts under Section 48.457, if applicable. (d) The department shall ensure that, under a contract entered into with a county or cooperative under this section, the department's functions and duties under this chapter are performed in accordance with all applicable laws. The department shall monitor and enforce the terms of the contract, including the fiscal accountability measures. The department shall include a provision in the contract that allows the department to terminate the contract and resume performing the functions and duties specified in the contract if, under the contract between the department and the county or cooperative or under a contract between the county or cooperative and a local entity, the functions and duties are not performed in accordance with all applicable laws or the terms of the applicable contract. Sec. 48.457. COUNTY OR COOPERATIVE CONTRACTS WITH LOCAL ENTITIES. (a) A county or cooperative may contract with a local entity whose proposal was included in the county's or cooperative's local adult protective services plan to perform one or more of the department's functions and duties specified in the plan. The county or cooperative may contract with any other local entity to perform one or more of those functions and duties with the department's written approval. (b) A contract under this section must require the local entity to provide the county or cooperative with information as needed to enable the county or cooperative to comply with the reporting requirement specified by Section 48.456(c)(2). The contract must also specify that the department is authorized to monitor the local entity's performance of functions and duties specified in the contract and require the entity to cooperate with that monitoring. Sec. 48.458. DEPARTMENT PROHIBITED FROM DIRECT PROVISION OF CERTAIN SERVICES. Except as provided by Section 48.456(d) and notwithstanding any other provision of this chapter, beginning on the 91st day after the date the department enters into a contract with a county or cooperative under Section 48.456: (1) the department may not directly perform the functions and duties specified in the contract; and (2) the county or cooperative and any local entities with which the county or cooperative contracts under Section 48.457 have all powers and privileges granted to and duties imposed on the department under this chapter with respect to those functions and duties. SECTION 2.18. (a) Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.0551 to read as follows: Sec. 531.0551. MEMORANDUM OF UNDERSTANDING ON SERVICES FOR CERTAIN ELDERLY OR DISABLED PERSONS NEEDING MULTIAGENCY SERVICES. (a) In this section, "disabled person," "elderly person," and "protective services" have the meanings assigned by Section 48.002, Human Resources Code. (b) The commission and each health and human services agency shall adopt a joint memorandum of understanding to implement a system of local-level interagency staffing groups to coordinate services for an elderly or disabled person who needs multiagency services in addition to receiving protective services from or on behalf of the Department of Family and Protective Services. (c) The memorandum must: (1) clarify the financial and statutory responsibilities of each agency with respect to elderly or disabled persons needing multiagency services in addition to protective services, including subcategories of funding for different services such as case management, arranging for psychiatric and health evaluation, home care, health care, and investigation services; (2) include a functional definition of "elderly and disabled persons needing multiagency services in addition to protective services"; (3) define procedures for cost sharing among the commission and the health and human services agencies adopting the memorandum; (4) define procedures aimed at eliminating duplication of services relating to assessment and diagnosis, treatment, social services, residential placement and care, and case management of elderly and disabled persons needing multiagency services in addition to protective services; (5) define procedures for addressing disputes between the agencies that relate to the agencies' areas of service responsibilities; (6) provide that each local-level interagency staffing group includes: (A) a local representative of each agency; (B) one or more representatives of local private sector agencies; (C) a representative of a local law enforcement agency; (D) a health care provider; and (E) one or more family members or caregivers of elderly or disabled persons needing multiagency services in addition to protective services; (7) provide that the local representative of each agency has authority to contribute agency resources to solving problems identified by the local-level interagency staffing group; (8) provide that if an elderly or disabled person's needs exceed the resources of an agency or an agency is not able to provide all the services an elderly or disabled person requires, the agency may, with the consent of the person's legal guardian, if applicable, submit a referral on behalf of the person or the person's case history to the local-level interagency staffing group for consideration; (9) provide that a local-level interagency staffing group may be called together by a representative of any member agency; (10) provide that an agency representative may be excused from attending a meeting if the staffing group determines that the age or needs of the person to be considered are clearly not within the agency's service responsibilities, provided that each agency representative is encouraged to attend all meetings to contribute to the collective ability of the staffing group to solve an elderly or disabled person's need for multiagency services in addition to protective services; (11) provide that records that are used or developed by a local-level interagency staffing group or its members and that relate to a particular elderly or disabled person are confidential and may not be released to any other person or agency except as provided by this section or by other law; and (12) subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.), provide a procedure that permits the agencies and local-level interagency staffing groups to share confidential information while preserving the confidential nature of the information. (d) The agencies that participate in the formulation of the memorandum of understanding shall consult with and solicit input from advocacy and consumer groups. (e) Each agency shall adopt the memorandum of understanding and all revisions to the memorandum. Not later than the last month of each state fiscal year, each agency shall review and update the memorandum. The agencies shall develop revisions as necessary to reflect major agency reorganizations or statutory changes affecting the agencies. (f) The agencies shall ensure that a state-level interagency staffing group provides to the executive commissioner of the Health and Human Services Commission, the commissioner of each agency, the governor, the lieutenant governor, the speaker of the house of representatives, and the presiding officers of each house and senate standing committee having jurisdiction over adult protective services a biennial report that includes: (1) the number of elderly or disabled persons served through the local-level interagency staffing groups established under this section and the outcomes of the services provided; (2) a description of any barriers identified to the state's ability to provide effective services to elderly or disabled persons needing multiagency services in addition to protective services; and (3) any other information relevant to improving the delivery of services to elderly or disabled persons needing multiagency services in addition to protective services. (b) Not later than March 1, 2006, the Department of Family and Protective Services, the Health and Human Services Commission, the Department of Aging and Disability Services, the Department of State Health Services, and the Department of Assistive and Rehabilitative Services shall adopt a joint memorandum of understanding as prescribed by Section 531.0551, Government Code, as added by this section. SECTION 2.19. The heading of Section 531.055, Government Code, is amended to read as follows: Sec. 531.055. MEMORANDUM OF UNDERSTANDING ON SERVICES FOR CERTAIN PERSONS NEEDING MULTIAGENCY SERVICES. SECTION 2.20. Subsections (a), (b), and (e), Section 531.055, Government Code, are amended to read as follows: (a) Each health and human services agency, the Texas Council on Offenders with Mental Impairments, the Texas Department of Criminal Justice, the Texas Department of Housing and Community Affairs, the Texas Education Agency, the Texas Workforce Commission, and the Texas Youth Commission shall adopt a joint memorandum of understanding to promote a system of local-level interagency staffing groups to coordinate services for persons needing multiagency services other than elderly or disabled persons served through the local-level interagency staffing groups established under Section 531.0551. (b) The memorandum must: (1) clarify the statutory responsibilities of each agency in relation to persons needing multiagency services other than elderly or disabled persons served under Section 531.0551, including subcategories for different services such as prevention, family preservation and strengthening, aging in place, emergency shelter, diagnosis and evaluation, residential care, after-care, information and referral, medical care, and investigation services; (2) include a functional definition for purposes of this section of "persons needing multiagency services"; (3) outline membership, officers, and necessary standing committees of local-level interagency staffing groups; (4) define procedures aimed at eliminating duplication of services relating to assessment and diagnosis, treatment, residential placement and care, and case management of persons needing multiagency services; (5) define procedures for addressing disputes between the agencies that relate to the agencies' areas of service responsibilities; (6) provide that each local-level interagency staffing group includes: (A) a local representative of each agency; (B) representatives of local private sector agencies; and (C) family members or caregivers of persons, other than elderly or disabled persons served under Section 531.0551, who need [needing] multiagency services or other current or previous consumers of multiagency services acting as general consumer advocates; (7) provide that the local representative of each agency has authority to contribute agency resources to solving problems identified by the local-level interagency staffing group; (8) provide that if a person's needs exceed the resources of an agency, the agency may, with the consent of the person's legal guardian, if applicable, submit a referral on behalf of the person to the local-level interagency staffing group for consideration; (9) provide that a local-level interagency staffing group may be called together by a representative of any member agency; (10) provide that an agency representative may be excused from attending a meeting if the staffing group determines that the age or needs of the person to be considered are clearly not within the agency's service responsibilities, provided that each agency representative is encouraged to attend all meetings to contribute to the collective ability of the staffing group to solve a person's need for multiagency services; (11) define the relationship between state-level interagency staffing groups and local-level interagency staffing groups in a manner that defines, supports, and maintains local autonomy; (12) provide that records that are used or developed by a local-level interagency staffing group or its members that relate to a particular person are confidential and may not be released to any other person or agency except as provided by this section or by other law; and (13) provide a procedure that permits the agencies to share confidential information while preserving the confidential nature of the information. (e) The agencies shall ensure that a state-level interagency staffing group provides a biennial report to the executive director of each agency, the legislature, and the governor that includes: (1) the number of persons served through the local-level interagency staffing groups established under this section and the outcomes of the services provided; (2) a description of any barriers identified to the state's ability to provide effective services to persons needing multiagency services other than elderly or disabled persons served through the local-level interagency staffing groups established under Section 531.0551; and (3) any other information relevant to improving the delivery of services to persons needing multiagency services other than elderly or disabled persons described by Subdivision (2). SECTION 2.21. IMPLEMENTATION MONITORING; REPORT. (a) In this section, "caseload" means the total number of open cases that an adult protective services caseworker is assigned, regardless of the number of cases with respect to which the caseworker performs functions on a specified day. (b) The Legislative Budget Board shall: (1) monitor the implementation of this article by the Department of Family and Protective Services; and (2) not later than January 1, 2007, report to the legislature regarding: (A) the status of the implementation of this article; (B) whether department personnel are meeting expectations with respect to the client-centered outcome measures and minimum job performance standards established under Section 40.0515, Human Resources Code, as added by this article; (C) the average caseload of each adult protective services caseworker; (D) the average amount of time spent investigating an adult protective services case from the initial report made under Section 48.051, Human Resources Code, as amended by this article, to final disposition of the case, including the average amount of time a caseworker spends writing reports and completing other documentation in the case; (E) the incidence of reports made under Section 48.051, Human Resources Code, as amended by this article, that involve as their subject an elderly or disabled person with respect to whom a report was previously made under that section; and (F) the average amount of time department personnel spend providing non-investigative services to a person who is the subject of a report made under Section 48.051, Human Resources Code, as amended by this article. SECTION 2.22. LOCAL ADULT PROTECTIVE SERVICES BOARDS. (a) The standing committee of the senate having jurisdiction over adult protective services shall conduct a study regarding the feasibility of establishing a system by which adult protective services are provided through a statewide network of local adult protective services boards. Each local adult protective services board would: (1) serve a designated local adult protective services area; (2) develop a local adult protective services plan for approval by the Department of Family and Protective Services; and (3) receive a block grant through the department to provide adult protective services in accordance with the approved local adult protective services plan. (b) The standing committee of the senate having jurisdiction over adult protective services must include the results of the study conducted under this section and recommendations regarding implementation of the local adult protective services board system in the committee's interim report to the 80th Legislature.
ARTICLE 3. GUARDIANSHIP AND RELATED SERVICES
SECTION 3.01. The heading to Subchapter E, Chapter 48, Human Resources Code, is amended to read as follows:
SUBCHAPTER E. PROVISION OF SERVICES; [GUARDIANSHIP SERVICES;] EMERGENCY PROTECTION
SECTION 3.02. The heading to Section 48.209, Human Resources Code, is amended to read as follows: Sec. 48.209. SUBMISSION OF INFORMATION TO PROBATE COURT [GUARDIANSHIPS]. SECTION 3.03. Subsections (a), (b), and (c), Section 48.209, Human Resources Code, are amended to read as follows: (a) At least six months before the individual's 18th birthday, the [The] department shall submit to the appropriate court having probate jurisdiction an information letter about [file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate or both of] an individual who is a minor, is a conservatee of the department, and, because of a physical or mental condition, will be substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult. The information letter must satisfy the requirements of Section 683A, Texas Probate Code. If a less restrictive alternative to guardianship is available for an individual, the department shall pursue the alternative before submitting the information letter. On exhausting the alternative and determining that no other less restrictive alternative to guardianship is available, the department shall inform the appropriate court that a guardianship may be necessary for the individual by submitting the letter under this section [instead of applying for appointment as a guardian]. (b) The [As a last resort, the] department shall submit to the appropriate court having probate jurisdiction an information letter about [may apply to be appointed guardian of the person or estate of] an elderly or disabled person who is found by the department to be in a state of abuse, neglect, or exploitation, and who, because of a physical or mental condition, will be substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs. The information letter must: (1) satisfy the requirements of Section 683A, Texas Probate Code; (2) include information relating to whether the department is providing protective services to the individual; (3) state whether [A representative of the department shall take the oath required by the Texas Probate Code on behalf of the department if the department is appointed guardian. If] the department is aware of any [knows that an] individual who is willing and able to serve as the guardian; and (4) be submitted not later than the 14th day after the date the department finds the individual [, the department may inform the court of that individual's willingness and ability]. (c) [If appropriate, the department may contract with a political subdivision of this state, a private agency, or another state agency for the provision of guardianship services under this section.] The department [or a political subdivision of the state or state agency with which the department contracts under this section] is not required to [post a bond or] pay any cost or fee otherwise required by the Texas Probate Code, including a fee associated with the appointment of a guardian ad litem or attorney ad litem. SECTION 3.04. Section 161.071, Human Resources Code, is amended to read as follows: Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The department is responsible for administering human services programs for the aging and disabled, including: (1) administering and coordinating programs to provide community-based care and support services to promote independent living for populations that would otherwise be institutionalized; (2) providing institutional care services, including services through convalescent and nursing homes and related institutions under Chapter 242, Health and Safety Code; (3) providing and coordinating programs and services for persons with disabilities, including programs for the treatment, rehabilitation, or benefit of persons with developmental disabilities or mental retardation; (4) operating state facilities for the housing, treatment, rehabilitation, or benefit of persons with disabilities, including state schools for persons with mental retardation; (5) serving as the state unit on aging required by the federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its subsequent amendments, including performing the general functions under Section 101.022 to ensure: (A) implementation of the federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its subsequent amendments, including implementation of services and volunteer opportunities under that Act for older residents of this state through area agencies on aging; (B) advocacy for residents of nursing facilities through the office of the state long-term care ombudsman; (C) fostering of the state and community infrastructure and capacity to serve older residents of this state; and (D) availability of a comprehensive resource for state government and the public on trends related to and services and programs for an aging population; (6) performing all licensing and enforcement activities and functions related to long-term care facilities, including licensing and enforcement activities related to convalescent and nursing homes and related institutions under Chapter 242, Health and Safety Code; (7) performing all licensing and enforcement activities related to assisted living facilities under Chapter 247, Health and Safety Code; (8) performing all licensing and enforcement activities related to intermediate care facilities for persons with mental retardation under Chapter 252, Health and Safety Code; [and] (9) performing all licensing and enforcement activities and functions related to home and community support services agencies under Chapter 142, Health and Safety Code; and (10) serving as last resort as the guardian of the person or estate, or both, of an incapacitated person under Chapter XIII, Texas Probate Code. SECTION 3.05. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Section 161.074 to read as follows: Sec. 161.074. GUARDIANSHIP SERVICES AS LAST RESORT. (a) A representative of the department shall take the oath required by the Texas Probate Code on behalf of the department if the department is appointed guardian of the person or estate, or both, of a ward under Chapter XIII of that code. (b) The department is not required to post a bond or pay any cost or fee associated with a guardianship proceeding under the Texas Probate Code, including any fee associated with the appointment of a guardian ad litem or attorney ad litem. (c) If the department is appointed guardian, the department is not liable for funding services provided to the department's ward, including long-term care or burial expenses. (d) The department shall review each of the department's pending guardianship cases at least annually to determine whether a more suitable person, including a guardianship program or private professional guardian, is willing and able to serve as successor guardian for a ward of the department. If the department becomes aware of any person's willingness and ability to serve as successor guardian, the department shall notify the court in which the guardianship is pending as required by Section 695A, Texas Probate Code. (e) The number of wards of the department at any one time may not exceed 1,500. SECTION 3.06. Section 601, Texas Probate Code, is amended by amending Subdivisions (13), (21), and (24) and adding Subdivision (12-a) to read as follows: (12-a) "Guardianship Alliance Office" means the Guardianship Alliance Office established under Chapter 111, Government Code. (13) "Guardianship program" has the meaning assigned by Section 111.001, Government Code [means a local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person's own welfare or financial affairs]. (21) "Person" includes natural persons, corporations, governmental entities, private professional guardians, and guardianship programs. (24) "Private professional guardian" has the meaning assigned by Section 111.001, Government Code [means a person, other than an attorney or a corporate fiduciary, who is engaged in the business of providing guardianship services]. SECTION 3.07. Section 625, Texas Probate Code, is amended to read as follows: Sec. 625. CASE FILES. (a) The county clerk shall maintain a case file for each person's filed guardianship proceedings. The case file must contain all orders, judgments, and proceedings of the court and any other guardianship filing with the court, including all: (1) applications for the granting of guardianship; (2) citations and notices, whether published or posted, with the returns on the citations and notices; (3) bonds and official oaths; (4) inventories, appraisements, and lists of claims; (5) exhibits and accounts; (6) reports of hiring, renting, or sale; (7) applications for sale or partition of real estate and reports of sale and of commissioners of partition; (8) applications for authority to execute leases for mineral development, or for pooling or unitization of lands, royalty, or other interest in minerals, or to lend or invest money; (9) reports of lending or investing money; and (10) reports of guardians of the persons. (b) The county clerk may not post any information contained in a person's case file on the Internet. SECTION 3.08. The heading to Subpart J, Part 2, Chapter XIII, Texas Probate Code, is amended to read as follows:
SUBPART J. LIABILITY OF GUARDIAN [FOR CONDUCT OF WARD]
SECTION 3.09. The heading to Section 673, Texas Probate Code, is amended to read as follows: Sec. 673. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD. SECTION 3.10. Subpart J, Part 2, Chapter XIII, Texas Probate Code, is amended by adding Section 674 to read as follows: Sec. 674. IMMUNITY OF GUARDIANSHIP PROGRAM. A guardianship program is not liable for civil damages arising from an action taken or omission made by a person while providing guardianship services to a ward on behalf of the guardianship program, unless the action or omission: (1) was wilfully wrongful; (2) was taken or made with conscious indifference or reckless disregard to the safety of the incapacitated person or another; (3) was taken or made in bad faith or with malice; or (4) was grossly negligent. SECTION 3.11. Section 677, Texas Probate Code, is amended by adding Subsection (f) to read as follows: (f) If there is no eligible person willing and able to serve as guardian, the court shall determine whether it is in the adult individual's best interest to appoint as guardian a guardianship program, a private professional guardian, or, as last resort, the Department of Aging and Disability Services. Before appointing the department as guardian, the court must enter a specific finding that the department is the most suitable person to serve as guardian for the proposed ward and that the appointment is in the best interest of the proposed ward. SECTION 3.12. Section 682, Texas Probate Code, is amended to read as follows: Sec. 682. APPLICATION; CONTENTS. Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by the applicant and state: (1) the name, sex, date of birth, and address of the proposed ward; (2) the name, relationship, and address of the person the applicant desires to have appointed as guardian; (3) whether guardianship of the person or estate, or both, is sought; (4) the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitation of rights requested to be included in the court's order of appointment; (5) the facts requiring that a guardian be appointed and the interest of the applicant in the appointment; (6) the nature and description of any guardianship of any kind existing for the proposed ward in any other state; (7) the name and address of any person or institution having the care and custody of the proposed ward; (8) the approximate value and description of the proposed ward's property, including any compensation, pension, insurance, or allowance to which the proposed ward may be entitled; (9) the name and address of any person whom the applicant knows to hold a power of attorney signed by the proposed ward and a description of the type of power of attorney; (10) if the proposed ward is a minor and if known by the applicant: (A) the name of each parent of the proposed ward and state the parent's address or that the parent is deceased; (B) the name and age of each sibling, if any, of the proposed ward and state the sibling's address or that the sibling is deceased; and (C) if each of the proposed ward's parents and siblings are deceased, the names and addresses of the proposed ward's next of kin who are adults; (11) if the proposed ward is a minor, whether the minor was the subject of a legal or conservatorship proceeding within the preceding two-year period and, if so, the court involved, the nature of the proceeding, and the final disposition, if any, of the proceeding; (12) if the proposed ward is an adult and if known by the applicant: (A) the name of the proposed ward's spouse, if any, and state the spouse's address or that the spouse is deceased; (B) the name of each of the proposed ward's parents and state the parent's address or that the parent is deceased; (C) the name and age of each of the proposed ward's siblings, if any, and state the sibling's address or that the sibling is deceased; (D) the name and age of each of the proposed ward's children, if any, and state the child's address or that the child is deceased; and (E) if the proposed ward's spouse and each of the proposed ward's parents, siblings, and children are deceased, or, if there is no spouse, parent, adult sibling, or adult child, the names and addresses of the proposed ward's next of kin who are adults; (13) facts showing that the court has venue over the proceeding; and (14) if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who is certified under Subchapter D, Chapter 111, Government Code, and has complied with the requirements of Section 697 of this code. SECTION 3.13. Section 683, Texas Probate Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows: (a) If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, including the receipt of an information letter about a person submitted under Section 48.209, Human Resources Code, and the person does not have a guardian in this state, the court, except as provided by Subsection (a-1) of this section, shall appoint a guardian ad litem or court investigator to investigate and file an application for the appointment of a guardian of the person or estate, or both, of the person believed to be incapacitated. (a-1) The court in a county that does not have a statutory probate court, in lieu of appointing a guardian ad litem under Subsection (a) of this section, may appoint the Department of Family and Protective Services, subject to the availability of funds, to investigate and file a report with the court as to whether a guardian may be necessary or whether a less restrictive alternative to guardianship might meet the needs of the proposed ward. If the court, after considering the report filed under this subsection, determines that a guardianship may be necessary, the court shall appoint a guardian ad litem, the county attorney, the district attorney, or a guardianship program to file an application for the appointment of a suitable person to serve as guardian for the proposed ward. SECTION 3.14. Section 684, Texas Probate Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows: (b) Before appointing a guardian and except as provided by Subsection (b-1) of this section, the court must find by a preponderance of the evidence that: (1) the court has venue of the case; (2) the person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is: (A) a proper person to act as guardian; and (B) the most suitable person to serve as guardian for the proposed ward; (3) if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and (4) the proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual's property, or the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual's property. (b-1) Before appointing the Department of Aging and Disability Services as guardian, the court, in addition to making the findings required by Subsection (a) of this section, must: (1) make the findings required by Subsections (b)(1), (b)(3), and (b)(4) of this section; and (2) find by clear and convincing evidence that the department is the person most suitable to serve as guardian of the proposed ward and that the appointment is in the proposed ward's best interest. SECTION 3.15. Subpart A, Part 3, Chapter XIII, Texas Probate Code, is amended by adding Sections 691 and 691A to read as follows: Sec. 691. STATE AS GUARDIAN OF LAST RESORT. (a) Except as a last resort, the court may not appoint the Department of Aging and Disability Services to serve as guardian of the person or estate, or both, of an incapacitated person. (b) This section may not be construed to permit the appointment of a state entity other than the Department of Aging and Disability Services as a guardian under this chapter. Sec. 691A. AGREEMENTS FOR APPOINTMENT AS PUBLIC GUARDIANS. (a) A county may enter into an agreement with a person operating a guardianship program located in the county or in an adjacent county or with a private professional guardian located in the county or in an adjacent county regarding the willingness and ability of the parties to provide guardianship and related services to incapacitated persons who: (1) may need guardianship services or similar assistance; and (2) do not have a family member, friend, or other interested person who is willing, able, and qualified to serve as guardian of the person or estate, or both. (b) Consideration for an agreement under Subsection (a) of this section may be monetary or in-kind, such as office space, transportation, or utilities. (c) On execution of the agreement, the county shall provide a copy of the agreement to the Guardianship Alliance Office and to each of the courts having probate jurisdiction over a county participating in the agreement. (d) A county that enters into an agreement under Subsection (a) of this section may determine that the county or each other party to the agreement may not be the person most suitable to serve as guardian for an incapacitated person residing in the county, and, if the court appoints the Department of Aging and Disability Services as guardian of last resort for the incapacitated person, the county shall reimburse the department for a portion of the costs incurred in providing guardianship services to the incapacitated person if the person's estate is insufficient to pay for the services. (e) A person, including the court, may infer that a county, by failing to enter into or submit a copy of an agreement to the court under this section, has made a determination that the state may be more suitable than the county to provide guardianship and related services to residents of the county described by Subsection (a) of this section. If, as a last resort, the Department of Aging and Disability Services is appointed guardian of an incapacitated person residing in the county, the county shall reimburse the department for a portion of the costs incurred in providing guardianship services to the incapacitated person if the person's estate is insufficient to pay for the services. (f) The amount to be reimbursed to the Department of Aging and Disability Services under Subsection (d) or (e) of this section must be a reasonable amount as determined jointly by the department and the Guardianship Alliance Office, and must be approved by the judge of the court having jurisdiction over the guardianship proceedings. Reimbursements paid to the Department of Aging and Disability Services by a county shall be paid from funds budgeted by the commissioners court of the county for that purpose. (g) The Department of Aging and Disability Services shall deposit all amounts received from a county under Subsection (d) or (e) of this section to the credit of the guardianship services account in the general revenue fund. Money in the account may be appropriated only to the department for the provision of guardianship services, as a last resort, to wards of the department. (h) A county or guardianship program that enters into an agreement under this section remains eligible to receive supplemental funds from the Guardianship Alliance Office under Section 111.048, Government Code, to provide guardianship and related services to incapacitated persons. SECTION 3.16. Section 693, Texas Probate Code, is amended by adding Subsection (f) to read as follows: (f) An order appointing the Department of Aging and Disability Services as guardian must specify that the department is the most suitable person to serve as guardian for the proposed ward and that the appointment is in the best interest of the proposed ward. SECTION 3.17. Section 695A, Texas Probate Code, is amended by adding Subsections (a-1) and (d) to read as follows: (a-1) If, while serving as a guardian for a ward under this chapter, the Department of Aging and Disability Services becomes aware of a guardianship program or private professional guardian willing and able to serve as the ward's successor guardian and the department is not aware of a family member or friend of the ward or any other interested person who is willing and able to serve as the ward's successor guardian, the department shall notify the court in which the guardianship is pending of the guardianship program's or private professional guardian's willingness and ability to serve. (d) If the court finds under Subsection (a-1) of this section that the proposed successor guardian for a ward is eligible to be appointed as the ward's successor guardian and that the appointment is in the ward's best interest, the Department of Aging and Disability Services, or the court on the court's own motion, may file an application to appoint the guardianship program or private professional guardian as the ward's successor guardian. Service of notice on an application filed under this subsection shall be made as directed by the court. SECTION 3.18. Section 696, Texas Probate Code, is amended to read as follows: Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A court may not appoint a private professional guardian to serve as a guardian or permit a private professional guardian to continue to serve as a guardian under this code if the private professional guardian: (1) has not complied with the requirements of Section 697 of this code; or (2) is not certified as provided by Section 697B of this code. SECTION 3.19. Subpart A, Part 3, Texas Probate Code, is amended by adding Sections 696A and 696B to read as follows: Sec. 696A. APPOINTMENT OF PUBLIC GUARDIANS. (a) An individual employed by or contracting with a guardianship program must be certified as provided by Section 697B of this code to provide guardianship services to a ward of the guardianship program. (b) An employee of the Department of Aging and Disability Services must be certified as provided by Section 697B of this code to provide guardianship services to a ward of the department. Sec. 696B. APPOINTMENT OF FAMILY MEMBERS OR FRIENDS. A family member or friend of an incapacitated person is not required to be certified under Subchapter D, Chapter 111, Government Code, or any other law to serve as the person's guardian. SECTION 3.20. Subsections (a), (c), and (e), Section 697, Texas Probate Code, are amended to read as follows: (a) A private professional guardian must apply annually to the clerk of the county having venue over the proceeding for the appointment of a guardian for a certificate of registration [certification]. The application must include a sworn statement containing the following information concerning a private professional guardian or each person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian: (1) educational background and professional experience; (2) three or more professional references; (3) the names of all of the wards the private professional guardian or person is or will be serving as a guardian; (4) the aggregate fair market value of the property of all wards that is being or will be managed by the private professional guardian or person; (5) place of residence, business address, and business telephone number; and (6) whether the private professional guardian or person has ever been removed as a guardian by the court or resigned as a guardian in a particular case, and, if so, a description of the circumstances causing the removal or resignation, and the style of the suit, the docket number, and the court having jurisdiction over the proceeding. (c) The term of the registration [certification] begins on the date that the requirements are met and extends through December 31 of the initial year. After the initial year of registration [certification], the term of the registration [certification] begins on January 1 and ends on December 31 of each year. A renewal application must be completed during December of the year preceding the year for which the renewal is requested. (e) Not later than February 1 of each year, the clerk shall submit to the Guardianship Alliance Office [Health and Human Services Commission] the names and business addresses of private professional guardians who have satisfied the registration [certification] requirements under this section during the preceding year. SECTION 3.21. Subpart A, Part 3, Texas Probate Code, is amended by adding Sections 697A and 697B to read as follows: Sec. 697A. LIST OF PUBLIC GUARDIANS MAINTAINED BY COUNTY CLERKS. (a) Each guardianship program operating in a county shall submit annually to the county clerk a statement containing the name, address, and telephone number of each individual employed by or volunteering or contracting with the program to provide guardianship services to a ward or proposed ward of the program. (b) The Department of Aging and Disability Services, if the department is appointed to serve as guardian of last resort for one or more incapacitated persons residing in the county, shall submit annually to the county clerk the information required under Subsection (a) of this section for each department employee who is or will be providing guardianship services in the county on the department's behalf. (c) Not later than February 1 of each year, the county clerk shall submit to the Guardianship Alliance Office the information received under Subsection (a) of this section during the preceding year. Sec. 697B. CERTIFICATION REQUIREMENT FOR PRIVATE PROFESSIONAL GUARDIANS AND PUBLIC GUARDIANS. (a) The following persons must be certified under Subchapter D, Chapter 111, Government Code: (1) an individual who is a private professional guardian; (2) an individual who will represent the interests of a ward as a guardian on behalf of a private professional guardian; (3) an individual providing guardianship services to a ward of a guardianship program on the program's behalf, except as provided by Subsection (d) of this section; and (4) an employee of the Department of Aging and Disability Services providing guardianship services to a ward of the department. (b) A person whose certification has expired must obtain a new certification under Subchapter D, Chapter 111, Government Code, to be allowed to provide or continue to provide guardianship services to a ward under this code. (c) The court shall notify the Guardianship Alliance Office if the court becomes aware of a person who is not complying with the terms of a certification issued under Subchapter D, Chapter 111, Government Code, or with the standards and rules adopted under that subchapter. (d) An individual volunteering with a guardianship program is not required to be certified as provided by this section to provide guardianship services on the program's behalf. SECTION 3.22. Subsections (a) and (c), Section 698, Texas Probate Code, are amended to read as follows: (a) The clerk of the county having venue over the proceeding for the appointment of a guardian shall obtain criminal history record information that is maintained by the Department of Public Safety or the Federal Bureau of Investigation identification division relating to: (1) a private professional guardian; (2) each person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian; [or] (3) each person employed by a private professional guardian who will: (A) have personal contact with a ward or proposed ward; (B) exercise control over and manage a ward's estate; or (C) perform any duties with respect to the management of a ward's estate; (4) each person employed by or volunteering or contracting with a guardianship program to provide guardianship services to a ward of the program on the program's behalf; or (5) an employee of the Department of Aging and Disability Services who is or will be providing guardianship services to a ward of the department. (c) The court shall use the information obtained under this section only in determining whether to appoint, remove, or continue the appointment of a private professional guardian, a guardianship program, or the Department of Aging and Disability Services. SECTION 3.23. Subsection (b), Section 700, Texas Probate Code, is amended to read as follows: (b) A representative of the Department of Aging and Disability [Protective and Regulatory] Services shall take the oath required by Subsection (a) of this section if the department is appointed guardian. SECTION 3.24. Subsection (a), Section 767, Texas Probate Code, is amended to read as follows: (a) The guardian of the person is entitled to take [the] charge [and control] of the person of the ward, and the duties of the guardian correspond with the rights of the guardian. A guardian of the person has: (1) the right to have physical possession of the ward and to establish the ward's legal domicile; (2) the duty to provide [of] care, supervision [control], and protection for [of] the ward; (3) the duty to provide the ward with clothing, food, medical care, and shelter; (4) the power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the ward; and (5) on application to and order of the court, the power to establish a trust in accordance with 42 U.S.C. Section 1396p(d)(4)(B), as amended, and direct that the income of the ward as defined by that section be paid directly to the trust, solely for the purpose of the ward's eligibility for medical assistance under Chapter 32, Human Resources Code. SECTION 3.25. Subsections (c) and (j), Section 875, Texas Probate Code, are amended to read as follows: (c) A sworn, written application for the appointment of a temporary guardian shall be filed before the court appoints a temporary guardian. The application must state: (1) the name and address of the person who is the subject of the guardianship proceeding; (2) the danger to the person or property alleged to be imminent; (3) the type of appointment and the particular protection and assistance being requested; (4) the facts and reasons supporting the allegations and requests; (5) the name, address, and qualification of the proposed temporary guardian; (6) the name, address, and interest of the applicant; and (7) if applicable, that the proposed temporary guardian is a private professional guardian who is certified under Subchapter D, Chapter 111, Government Code, and has complied with the requirements of Section 697 of this code. (j) The court may not customarily or ordinarily appoint the Department of Aging and Disability [Protective and Regulatory] Services as a temporary guardian under this section. The appointment of the department as a temporary guardian under this section should be made only as a last resort. SECTION 3.26. Title 2, Government Code, is amended by adding Subtitle J to read as follows:
SUBTITLE J. GUARDIANSHIPS
CHAPTER 111. GUARDIANSHIP ALLIANCE OFFICE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 111.001. DEFINITIONS. In this chapter: (1) "Administrative director" means the administrative director of the courts as appointed by Chapter 72. (2) "Board" means the Guardianship Alliance Board. (3) "Corporate fiduciary" has the meaning assigned by Section 601, Texas Probate Code. (4) "Guardian" has the meaning assigned by Section 601, Texas Probate Code. (5) "Guardianship program" means a local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person's own welfare or financial affairs. (6) "Incapacitated person" has the meaning assigned by Section 601, Texas Probate Code. (7) "Office" means the Guardianship Alliance Office. (8) "Office of Court Administration" means the Office of Court Administration of the Texas Judicial System. (9) "Private professional guardian" means a person, other than an attorney or a corporate fiduciary, who is engaged in the business of providing guardianship services. (10) "Statutory probate court" has the meaning assigned by Section 601, Texas Probate Code. (11) "Ward" has the meaning assigned by Section 601, Texas Probate Code. Sec. 111.002. RULES. The supreme court may adopt rules consistent with this chapter, including rules governing the certification of individuals providing guardianship services. Sec. 111.003. SUNSET PROVISION. The office is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished and this chapter expires September 1, 2015.
[Sections 111.004-111.010 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 111.011. GUARDIANSHIP ALLIANCE OFFICE; ADMINISTRATIVE ATTACHMENT. (a) The Guardianship Alliance Office is administratively attached to the Office of Court Administration. (b) Notwithstanding any other law, the Office of Court Administration shall: (1) provide administrative assistance, services, and materials to the office; (2) accept, deposit, and disburse money made available to the office; (3) accept gifts and grants on behalf of the office from any public or private entity; (4) pay the salaries and benefits of the director and staff of the office; (5) reimburse the travel expenses and other actual and necessary expenses of the board, director, and staff of the office incurred in the performance of a function of the office, as provided by the General Appropriations Act; (6) apply for and receive on behalf of the office any appropriations or other money from the state or federal government or any other public or private entity, subject to limitations and conditions prescribed by legislative appropriation; and (7) provide the office with adequate computer equipment and support. Sec. 111.012. BOARD. (a) The Guardianship Alliance Board is composed of: (1) 11 members appointed by the presiding judge of the statutory probate courts, elected as provided by Chapter 25; (2) three public members appointed by the supreme court from a list of nominees submitted by the governor; and (3) a representative of the Department of Aging and Disability Services appointed by the supreme court from a list of nominees submitted by the commissioner of aging and disability services. (b) The presiding judge of the statutory probate courts shall appoint members under Subsection (a)(1) from the different geographical areas of this state. (c) In making an appointment under Subsection (a)(2), the supreme court may reject one or more of the nominees on a list submitted by the governor and request a new list of different nominees. In making an appointment under Subsection (a)(3), the supreme court may reject one or more of the nominees on a list submitted by the commissioner of aging and disability services and request a new list of different nominees. (d) To be eligible for appointment to the board other than as a public member, an individual must have demonstrated experience working with: (1) a guardianship program; (2) an organization that advocates on behalf of or in the interest of elderly individuals; (3) an organization that advocates on behalf of or in the interest of individuals with mental illness or mental retardation or individuals with physical disabilities; or (4) incapacitated individuals. (e) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees. (f) The members of the board serve for staggered six-year terms, with the terms of one-third of the members expiring on February 1 of each odd-numbered year. Board members receive no compensation but are entitled to reimbursement of actual and necessary expenses incurred in the performance of their duties. (g) The board shall elect from among its members a presiding officer and other officers considered necessary. (h) The board shall meet at least quarterly at the call of the presiding officer. (i) Any action taken by the board must be approved by a majority vote of the members present. Sec. 111.013. ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the board if the person or the person's spouse: (1) is registered, certified, or licensed by a regulatory agency in the field of guardianship; (2) is employed by or participates in the management of a business entity or other organization regulated by the office or receiving money from the Office of Court Administration; (3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the office or receiving money from the Office of Court Administration; or (4) uses or receives a substantial amount of tangible goods, services, or funds from the Office of Court Administration, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. Sec. 111.014. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) A person may not be a member of the board or may not be an employee of the office employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of guardianship; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of guardianship. (c) A person may not be a member of the board if the person is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of the office. Sec. 111.015. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a ground for removal from the board that a member: (1) does not have at the time of appointment the qualifications required by Section 111.012; (2) does not maintain during service on the board the qualifications required by Section 111.012; (3) is ineligible for membership under Section 111.013 or 111.014; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board. (b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists. (c) If the director of the office has knowledge that a potential ground for removal exists, the director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the presiding judge of the statutory probate courts and the chief justice of the supreme court that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the director shall notify the next highest ranking officer of the board, who shall then notify the presiding judge of the statutory probate courts and the chief justice of the supreme court that a potential ground for removal exists. Sec. 111.016. POWERS AND DUTIES OF BOARD. (a) The board is charged with the executive functions necessary to carry out the purposes of this chapter under rules adopted by the supreme court. (b) The board shall: (1) administer and enforce this chapter; (2) develop and recommend proposed rules and procedures to the supreme court as necessary to implement this chapter; (3) set the amount of each fee prescribed by Section 111.062, subject to the approval of the supreme court; (4) establish the qualifications for obtaining certification or recertification under Section 111.062; (5) issue certificates to individuals who meet the certification requirements of Section 111.062; and (6) perform any other duty required by this chapter or other law. (c) The board may appoint any necessary or proper subcommittee. (d) The board shall maintain: (1) a complete record of each board proceeding; and (2) a complete record of each certification issued, renewed, suspended, or revoked under Section 111.062. Sec. 111.017. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) this chapter; (2) the role and functions of the board; (3) the current budget for the office; (4) the results of the most recent formal audit of the office; and (5) any applicable ethics policies adopted by the board. (c) A person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. Sec. 111.018. USE OF TECHNOLOGY. The Office of Court Administration shall research and propose appropriate technological solutions to improve the board's and office's ability to perform its functions. The technological solutions must: (1) ensure that the public is able to easily find information about the board and office on the Internet; (2) ensure that persons who want to use the office's services are able to: (A) interact with the board and office through the Internet; and (B) access any service that can be provided effectively through the Internet; and (3) be cost-effective and developed through the board's and office's planning processes. Sec. 111.019. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The board shall develop and implement a policy to encourage the use of appropriate alternative dispute resolution procedures to assist in the resolution of internal and external disputes under the office's jurisdiction. (b) The procedures relating to alternative dispute resolution under this section must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. Sec. 111.020. PUBLIC ACCESS. The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the office. Sec. 111.021. DIRECTOR OF OFFICE; STAFF. The administrative director, after consulting with the board, may hire a director to perform the administrative duties of the office. The administrative director may hire staff as necessary for the office. Sec. 111.022. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate the policymaking responsibilities of the board and the management responsibilities of the director and the staff of the office. Sec. 111.023. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The director of the office or the director's designee shall provide to members of the board and to office staff, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees. Sec. 111.024. STRATEGIC PLAN. (a) The office shall develop a comprehensive, long-range strategic plan for its operations. Each even-numbered year, the office shall issue a plan covering five fiscal years beginning the next odd-numbered fiscal year. (b) The strategic plan must include measurable goals and a system of performance measures that: (1) relates directly to the purposes of the office; and (2) focuses on the results and outcomes of the office's operations. (c) Not later than December 15 of each year, the office shall report the performance measures included in the strategic plan under this section to: (1) the administrative director; (2) the supreme court; (3) the Department of Aging and Disability Services; (4) the governor; (5) the lieutenant governor; and (6) the speaker of the house of representatives. (d) In preparing the budget for the Office of Court Administration, the administrative director shall: (1) consider the goals and performance measures identified in the strategic plan; and (2) identify additional goals and performance measures as necessary.
[Sections 111.025-111.040 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 111.041. GENERAL POWERS AND DUTIES OF OFFICE REGARDING GUARDIANSHIP MATTERS. The office shall: (1) develop a statewide, uniform system for use by county clerks in identifying guardianships pending in each county; (2) establish other methods to facilitate and encourage use of appropriate and less restrictive alternatives to guardianship in addition to the informational brochure developed under Section 111.049; (3) periodically review state funding received for the provision of guardianship services or other less restrictive types of assistance to incapacitated persons and make legislative recommendations as necessary; (4) apply for any grants or other sources of federal funds for which the office may be eligible, including any federal funds that may be available under the federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.); (5) provide support and technical expertise regarding guardianship-related issues to members of the judiciary; (6) educate members of the judiciary and the public about less restrictive alternatives to guardianship; and (7) review and comment on the guardianship policies of all health and human services agencies and recommend changes to the policies the office considers necessary or advisable. Sec. 111.042. REGISTRY OF GUARDIANSHIP PROGRAMS. The office shall establish and maintain a central registry of all guardianship programs operating in this state. Sec. 111.043. REGISTRY OF PRIVATE PROFESSIONAL GUARDIANS. The office shall establish and maintain a central registry of all private professional guardians registered with county clerks under Section 697, Texas Probate Code. Sec. 111.044. COLLECTION OF GUARDIANSHIP STATISTICS. (a) The Texas Judicial Council shall collect, maintain, and publish statistics by county relating to guardianship proceedings of incapacitated persons other than minors, as defined by Section 601, Texas Probate Code, in the form and manner prescribed by Section 71.035. (b) The Texas Judicial Council shall report: (1) the number of court-initiated guardianship requests under Section 683, Texas Probate Code; (2) the number of applications filed for guardianship of the person of an adult who is alleged to be incapacitated; (3) the number of applications filed for guardianship of the estate of an adult who is alleged to be incapacitated; (4) the number of applications filed for guardianship of both the person and estate of an adult who is alleged to be incapacitated; (5) whether the person applying for a guardianship is a family member or friend of the proposed ward or is a guardian ad litem, private professional guardian, or local guardianship program; (6) a categorical description of the alleged incapacity of the proposed wards, such as dementia, stroke, mental retardation, brain injury, or chronic mental illness; (7) whether the filing fee was waived based on the fact that the alleged incapacitated adult is indigent; (8) the number of guardianships of the person granted by the court during the period; (9) the number of guardianships of the estate granted by the court during the period; (10) the number of guardianships of both the person and estate that were granted by the court during the period; (11) the number of applications for complete restoration of a ward's capacity or for modification of a guardianship filed during the period; (12) the number of guardianships of the person closed by the court during the period; (13) the number of guardianships of the estate closed by the court during the period; (14) the number of guardianships of both the person and estate that were closed by the court during the period; and (15) any other information considered necessary by the office. Sec. 111.045. DIRECTORY. (a) The office shall compile, in the most cost-efficient form, a directory of guardianship programs and private professional guardians operating in this state. (b) The office at least annually shall update the directory and provide access to the directory on the Internet website of the Office of Court Administration or in another written form. Sec. 111.046. GUARDIANSHIP RESOURCE ACCOUNT. (a) The guardianship resource account is created as a dedicated account in the general revenue fund. Money in the fund may be appropriated only to provide funding for purposes consistent with this chapter. (b) The administrative director shall deposit in the guardianship resource account all funds collected for the office or appropriated to the Office of Court Administration for purposes of the office as provided by: (1) this chapter; and (2) Chapter X, Texas Probate Code. (c) Each fiscal year, the office shall set aside an amount of funds from the guardianship resource account sufficient to pay anticipated expenses and claims on the guardianship resource account under Chapter X, Texas Probate Code. Sec. 111.047. DONATIONS. The office may accept and solicit gifts or grants of property from public or private sources for the purposes of this chapter. Funds received under this section shall be deposited in the guardianship resource account. Sec. 111.048. FUNDING FOR GUARDIANSHIP AND RELATED SERVICES. (a) The office shall develop and implement a plan for the distribution of state and other funds received for purposes of this chapter to guardianship programs and other providers of services that are considered alternatives to guardianship. (b) The plan must provide for: (1) state funding to be distributed to guardianship programs and providers of services that are considered alternatives to guardianship: (A) only as specifically directed by the terms of a grant or contract to provide guardianship and related services; and (B) in a manner that rewards a county that chooses to make significant contributions to the funding of guardianship programs operated by or located in the county; (2) procedures to ensure that funds received by the Office of Court Administration for purposes of the office are disbursed in accordance with the terms under which that agency received the funds; and (3) a reporting mechanism to ensure appropriate use of funds. (c) The plan must also be designed in a manner that fosters the establishment and growth of guardianship programs to provide guardianships or other less restrictive types of assistance or services to incapacitated individuals residing in the areas served by those programs. Sec. 111.049. INFORMATIONAL BROCHURE. (a) The office shall develop and update as necessary an informational brochure describing various types of less restrictive alternatives to guardianship that are available to elderly or disabled persons, including: (1) a durable power of attorney; (2) a special needs trust; (3) a representative payee designated by a federal agency to manage a person's federal benefits; and (4) a bill payer. (b) The board shall prescribe the form and contents of the informational brochure. (c) Instead of publishing the informational brochure in written form, the office may distribute the informational brochure to the Department of Aging and Disability Services for purposes of displaying the contents of the brochure on the department's Internet website. Sec. 111.050. USE OF OFFICE FUNDS. (a) The office may not spend for the office's administrative costs more than 22 percent of the funds received each fiscal year to implement this chapter. (b) The portion of the funds received by the office to implement this chapter that are not spent for the office's administrative costs must be distributed as directed by grants or contracts in accordance with the plan established under Section 111.048.
[Sections 111.051-111.060 reserved for expansion]
SUBCHAPTER D. REGULATION OF CERTAIN GUARDIANS
Sec. 111.061. STANDARDS FOR CERTAIN GUARDIANSHIPS AND ALTERNATIVES TO GUARDIANSHIP. (a) The board shall adopt minimum standards for: (1) the provision of guardianship services or other similar but less restrictive types of assistance or services by: (A) guardianship programs; and (B) private professional guardians; and (2) the provision of guardianship services by the Department of Aging and Disability Services. (b) The board shall design the standards to protect the interests of an incapacitated person or other person needing assistance making decisions concerning the person's own welfare or financial affairs. Sec. 111.062. CERTIFICATION REQUIRED FOR CERTAIN GUARDIANS. (a) To provide guardianship services in this state, the following individuals must hold a certificate issued under this section: (1) an individual who is a private professional guardian; (2) an individual who will provide those services to a ward of a private professional guardian or the Department of Aging and Disability Services on the guardian's or department's behalf; and (3) an individual, other than a volunteer, who will provide those services to a ward of a guardianship program on the program's behalf. (b) An applicant for a certificate under this section must: (1) apply to the office on a form prescribed by the board; and (2) submit with the application a nonrefundable application fee in an amount determined by the board, subject to the approval of the supreme court. (c) The supreme court may adopt rules and procedures for issuing a certificate and for renewing, suspending, or revoking a certificate issued under this section. Any rules adopted by the supreme court under this section must: (1) ensure compliance with the standards adopted under Section 111.061; (2) provide that the board establish qualifications for obtaining and maintaining certification; (3) provide that the board issue certificates under this section; (4) provide that a certificate expires on the second anniversary of the date the certificate is issued; (5) prescribe procedures for accepting complaints and conducting investigations of alleged violations of the minimum standards adopted under Section 111.061 or other terms of the certification by certificate holders; and (6) prescribe procedures by which the office, after notice and hearing, may suspend or revoke the certificate of a holder who fails to substantially comply with appropriate standards or other terms of the certification. (d) If the requirements for issuing a certificate under this section include passage of an examination covering guardianship education requirements, the office shall: (1) develop and administer the examination; or (2) contract with another person or entity the board determines has the expertise and resources to develop and administer the examination. (e) In lieu of the certification requirements imposed under this section, the board may issue a certificate to an individual to engage in business as a guardian or to provide guardianship services in this state if the individual: (1) submits an application to the office in the form prescribed by the board; (2) pays a fee in a reasonable amount determined by the board, subject to the approval of the supreme court; (3) is certified, registered, or licensed as a guardian by a national organization or association the board determines has requirements at least as stringent as those prescribed by the board under this subchapter; and (4) is in good standing with the organization or association with whom the person is licensed, certified, or registered. (f) An application or other fee collected under this section shall be deposited in the guardianship resource account. Sec. 111.063. INFORMATION FROM PRIVATE PROFESSIONAL GUARDIANS. In addition to the information submitted under Section 697(e), Texas Probate Code, the office may require a private professional guardian or a person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian to submit information considered necessary to monitor the person's compliance with the applicable standards adopted under Section 111.061 or with the certification requirements of Section 111.062. SECTION 3.27. Section 3, Texas Probate Code, is amended by adding Subsection (nn) to read as follows: (nn) "Guardianship Alliance Office" means the Guardianship Alliance Office established under Chapter 111, Government Code. SECTION 3.28. The heading of Chapter X, Texas Probate Code, is amended to read as follows:
CHAPTER X. PAYMENT OF ESTATES TO GUARDIANSHIP RESOURCE ACCOUNT
[INTO STATE TREASURY]
SECTION 3.29. Sections 427, 430, and 431, Texas Probate Code, are amended to read as follows: Sec. 427. WHEN ESTATES TO BE PAID TO GUARDIANSHIP RESOURCE ACCOUNT [INTO STATE TREASURY]. (a) If any person entitled to a portion of an estate, except a resident minor without a guardian, shall not demand his portion from the executor or administrator within six months after an order of court approving the report of commissioners of partition, or within six months after the settlement of the final account of an executor or administrator, as the case may be, the court by written order shall require the executor or administrator to pay so much of said portion as is in money to the comptroller; and such portion as is in other property he shall order the executor or administrator to sell on such terms as the court thinks best, and, when the proceeds of such sale are collected, the court shall order the same to be paid to the comptroller, in all such cases allowing the executor or administrator reasonable compensation for his services. A suit to recover proceeds of the sale is governed by Section 433 of this Code. (b) The comptroller shall deposit funds received under this section to the credit of the guardianship resource account established under Subchapter C, Chapter 111, Government Code. Sec. 430. RECEIPT [OF COMPTROLLER]. Whenever an executor or administrator pays the comptroller any funds of the estate he represents, under the preceding provisions of this Code, he shall take from the comptroller a receipt for such payment, with official seal attached, and shall file the same with the clerk of the court ordering such payment; and such receipt shall be recorded in the minutes of the court. Sec. 431. PENALTY FOR FAILURE TO MAKE PAYMENTS [TO COMPTROLLER]. When an executor or administrator fails to pay to the comptroller any funds of an estate which he has been ordered by the court so to pay, within 30 days after such order has been made, such executor or administrator shall, after personal service of citation charging such failure and after proof thereof, be liable to pay out of his own estate to the comptroller damages thereon at the rate of five per cent per month for each month, or fraction thereof, that he fails to make such payment after 30 days from such order, which damages may be recovered in any court of competent jurisdiction. SECTION 3.30. Subsections (a) and (c), Section 433, Texas Probate Code, are amended to read as follows: (a) Mode of Recovery. When funds of an estate have been paid to the comptroller under this chapter, any heir, devisee, or legatee of the estate, or their assigns, or any of them, may recover the portion of such funds to which he, she, or they are entitled. The person claiming such funds shall institute suit on or before the fourth anniversary of the date of the order requiring payment to the comptroller, by petition filed in the district court of Travis County, against the comptroller, setting forth the plaintiff's right to such funds, and the amount claimed by him. (c) Procedure. The proceedings in such suit shall be governed by the rules for other civil suits; and, should the plaintiff establish his right to the funds claimed, he shall have a judgment therefor, which shall specify the amount to which he is entitled; and a certified copy of such judgment shall be sufficient authority for the comptroller to pay the same from the guardianship resource account established under Subchapter C, Chapter 111, Government Code. To the extent that funds are not available in the guardianship resource account, the comptroller shall pay the amount to which the plaintiff is entitled from the general revenue fund until funds become available in the guardianship resource account. SECTION 3.31. STUDY. (a) The Guardianship Alliance Office shall conduct a study regarding the feasibility of establishing and administering a pooled income trust for families of incapacitated individuals in this state. (b) Not later than January 1, 2007, the Guardianship Alliance Office shall report the findings and conclusions of the study required under this section to the governor, lieutenant governor, speaker of the house of representatives, and presiding officer of each standing committee of the senate and house of representatives having jurisdiction over guardianship matters. SECTION 3.32. TRANSFERS TO THE DEPARTMENT OF AGING AND DISABILITY SERVICES. (a) On September 1, 2005: (1) all powers, duties, functions, programs, and activities of the Department of Family and Protective Services related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law are transferred to the Department of Aging and Disability Services; (2) all employees of the Department of Family and Protective Services who primarily perform duties related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law become employees of the Department of Aging and Disability Services; (3) a rule or form adopted by the executive commissioner of the Health and Human Services Commission that relates to the provision of guardianship services by the Department of Family and Protective Services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law, as those laws existed immediately before that date, is a rule or form of the Department of Aging and Disability Services and remains in effect until altered by the executive commissioner; (4) a reference in law to the Department of Family and Protective Services that relates to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law means the Department of Aging and Disability Services; (5) a waiver in effect that was issued by the Department of Family and Protective Services relating to the provision of guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law is continued in effect as a waiver of the Department of Aging and Disability Services; (6) a proceeding involving the Department of Family and Protective Services that is related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law is transferred without change in status to the Department of Aging and Disability Services, and the Department of Aging and Disability Services assumes, without a change in status, the position of the Department of Family and Protective Services in a proceeding relating to guardianship matters to which the Department of Family and Protective Services is a party; (7) all money, contracts, leases, rights, and obligations of the Department of Family and Protective Services related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law are transferred to the Department of Aging and Disability Services, subject to Subsection (b) of this section; (8) all property and records in the custody of the Department of Family and Protective Services related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law shall be transferred to the Department of Aging and Disability Services; and (9) all funds appropriated by the legislature to the Department of Family and Protective Services for purposes related to providing guardianship services for incapacitated persons under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code, or other law are transferred to the Department of Aging and Disability Services. (b) The Department of Aging and Disability Services shall administer a contract of the Department of Family and Protective Services transferred under Subdivision (7), Subsection (a), of this section, until the contract expires or is otherwise lawfully terminated. The Department of Aging and Disability Services, however, may not renew the contract. SECTION 3.33. TRANSITION PLAN. The executive commissioner of the Health and Human Services Commission shall establish a plan for the transfer of guardianship cases of the Department of Family and Protective Services to the Department of Aging and Disability Services on or before the period prescribed by the executive commissioner. SECTION 3.34. PLAN TO TRANSFER STATE GUARDIANSHIPS TO LOCAL ENTITIES. (a) Notwithstanding any other provision of this Act, the Guardianship Alliance Office established under Chapter 111, Government Code, as added by this Act, shall develop a plan for the transfer of all powers, duties, functions, programs, and activities of the Department of Aging and Disability Services related to providing guardianship services for incapacitated persons under Chapter 161, Human Resources Code, as amended by this Act, Chapter XIII, Texas Probate Code, as amended by this Act, or other law to the counties. (b) Not later than November 1, 2006, the Guardianship Alliance Office shall submit to the 79th Legislature a report regarding the plan developed by the office under this section. The report must include the office's recommendations for any statutory changes required to facilitate the plan and any modifications to the Department of Aging and Disability Services' policies, procedures, or administration that are necessary to facilitate the transfer. SECTION 3.35. ABOLITION OF GUARDIANSHIP ADVISORY BOARD. On the effective date of this Act: (1) the term of a member of the Guardianship Advisory Board created under Subchapter D, Chapter 531, Government Code, repealed by this Act, serving immediately before that date expires; and (2) the advisory board is abolished. SECTION 3.36. PROPOSED RULES AND PROCEDURES. Not later than March 1, 2006, the Guardianship Alliance Board established under Chapter 111, Government Code, as added by this Act, shall develop rules and procedures for consideration by the supreme court as required by Chapter 111, Government Code, as added by this Act. SECTION 3.37. APPOINTMENT OF BOARD MEMBERS. (a) As soon as practicable after the effective date of this Act, the presiding judge of the statutory probate courts shall appoint 11 members to the Guardianship Alliance Board in accordance with Chapter 111, Government Code, as added by this Act. In making the initial appointments, the presiding judge shall designate three members for terms expiring February 1, 2007, four members for terms expiring February 1, 2009, and four members for terms expiring February 1, 2011. (b) As soon as practicable after the effective date of this Act, the supreme court shall appoint four members to the Guardianship Alliance Board in accordance with Chapter 111, Government Code, as added by this Act. In making the initial appointments, the supreme court shall designate two members for terms expiring February 1, 2007, one member for a term expiring February 1, 2009, and one member for a term expiring February 1, 2011. SECTION 3.38. EFFECTIVE DATE OF CERTIFICATION. A person is not required to hold a certificate issued under Subchapter D, Chapter 111, Government Code, as added by this Act, to provide or continue to provide guardianship services to a ward before September 1, 2007. SECTION 3.39. The following are repealed: (1) Subsections (d), (e), and (f), Section 48.209, Human Resources Code; and (2) Subchapter D, Chapter 531, Government Code.
ARTICLE 4. EFFECTIVE DATE
SECTION 4.01. This Act takes effect September 1, 2005.