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79R11364 UM-D
By: Nelson, et al. S.B. No. 6
Substitute the following for S.B. No. 6:
By: Paxton C.S.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. Subchapter C, Chapter 39, Education Code, is
amended by adding Section 39.0531 to read as follows:
Sec. 39.0531. REPORTING CONCERNING STUDENTS IN FOSTER CARE.
The campus report card under Section 39.052 and the district
performance report under Section 39.053 must provide information
evaluating the performance, using the academic excellence
indicators adopted under Section 39.051(b), of students in foster
care or other residential care under the conservatorship of the
Department of Family and Protective Services.
SECTION 1.02. 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 1.03. 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 1.04. Section 101.024, Family Code, is amended to
read as follows:
Sec. 101.024. PARENT. (a) "Parent" means the mother, a
man presumed to be the father, a man legally determined to be the
father, a man who has been adjudicated to be the father by a court of
competent jurisdiction, a man who has acknowledged his paternity
under applicable law, or an adoptive mother or father. Except as
provided by Subsection (b), the [The] term does not include a parent
as to whom the parent-child relationship has been terminated.
(b) For purposes of establishing, determining the terms of,
modifying, or enforcing an order, a reference in this title to a
parent includes a person ordered to pay child support under Section
154.001(a-1) or to provide medical support for a child.
SECTION 1.05. (a) Section 107.004, Family Code, is amended
to read as follows:
Sec. 107.004. ADDITIONAL DUTIES OF ATTORNEY AD LITEM FOR
CHILD. (a) Except as otherwise provided by this chapter, the
attorney ad litem appointed for a child shall:
(1) seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
(2) advise the child;
(3) provide guidance to the child;
(4) represent the child's expressed objectives of
representation and follow the child's expressed objectives of
representation during the course of litigation if the attorney ad
litem determines that the child is competent to understand the
nature of an attorney-client relationship and has formed that
relationship with the attorney ad litem;
(5) consider the impact on the child in formulating
the attorney ad litem's presentation of the child's expressed
objectives of representation to the court; and
(6) become familiar with:
(A) the American Bar Association's standards of
practice for attorneys who represent children in abuse and neglect
cases; and
(B) the suggested amendments to those standards
adopted by the National Association of Counsel for Children.
(b) An attorney ad litem appointed for a child in a
proceeding under Chapter 262 or 263 shall complete at least three
hours of continuing legal education relating to child advocacy as
described by Subsection (c) as soon as practicable after the
attorney ad litem's appointment. An attorney ad litem is not
required to comply with this subsection if the court finds that the
attorney ad litem has experience equivalent to the required
education.
(c) The continuing legal education required by Subsection
(b) must:
(1) be low-cost, available on the Internet, and
provided through the State Bar of Texas; and
(2) focus on the duties of an attorney ad litem in, and
the procedures of and best practices for, a proceeding under
Chapter 262 or 263.
(d) Except as provided by Subsection (e), an attorney ad
litem appointed for a child in a proceeding under Chapter 262 or 263
shall meet before each court hearing with:
(1) the child, if the child is at least four years of
age; or
(2) the individual with whom the child ordinarily
resides, including the child's parent, conservator, guardian,
caretaker, or custodian, if the child is younger than four years of
age.
(e) An attorney ad litem appointed for a child in a
proceeding under Chapter 262 or 263 is not required to comply with
Subsection (d) before a hearing if the court finds at that hearing
that the attorney ad litem has shown good cause why the attorney ad
litem's compliance with that subsection is not feasible or in the
best interest of the child.
(b) The changes in law made by this section apply only to an
attorney ad litem for a child appointed in a proceeding under
Chapter 262 or 263, Family Code, on or after the effective date of
this section. An attorney ad litem for a child appointed in a
proceeding under Chapter 262 or 263, Family Code, before the
effective date of this section is governed by the law in effect on
the date the attorney ad litem was appointed, and the former law is
continued in effect for that purpose.
(c) The State Bar of Texas shall adopt rules governing the
reporting of an attorney ad litem's timely completion of the
continuing legal education required by Section 107.004(b), Family
Code, as added by this section.
SECTION 1.06. (a) Section 154.001, Family Code, is amended
by adding Subsection (a-1) to read as follows:
(a-1) The court may order each person who is financially
able and whose parental rights have been terminated with respect to
a child in substitute care for whom the department has been
appointed managing conservator to support the child in the manner
specified by the order:
(1) until the earliest of:
(A) the child's adoption;
(B) the child's 18th birthday or graduation from
high school, whichever occurs later;
(C) removal of the child's disabilities of
minority by court order, marriage, or other operation of law; or
(D) the child's death; or
(2) if the child is disabled as defined in this
chapter, for an indefinite period.
(b) Section 154.001, Family Code, as amended by this
section, applies only to a person whose parent-child relationship
with respect to a child is terminated on or after the effective
date of this section. A person whose parent-child relationship is
terminated before the effective date of this section is governed by
the law in effect on the date the parent-child relationship was
terminated, and the former law is continued in effect for that
purpose.
SECTION 1.07. Section 162.304, Family Code, is amended by
adding Subsection (f) to read as follows:
(f) Subject to the availability of funds, 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 1.08. Subchapter B, Chapter 231, Family Code, is
amended by adding Section 231.122 to read as follows:
Sec. 231.122. MONITORING CHILD SUPPORT CASES; ENFORCEMENT.
The Title IV-D agency shall monitor each Title IV-D case from the
date the agency begins providing services on the case. If a child
support obligor in a Title IV-D case becomes more than 60 days
delinquent in paying child support, the Title IV-D agency shall
expedite the commencement of an action to enforce the child support
order.
SECTION 1.09. 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 1.10. The heading to Section 261.107, Family Code,
is amended to read as follows:
Sec. 261.107. FALSE REPORT; CRIMINAL PENALTY; CIVIL
PENALTY.
SECTION 1.11. (a) Section 261.107, Family Code, is amended
by amending Subsection (a) and adding Subsections (d) and (e) 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.
(d) The court shall order a person who is convicted of an
offense under this section to pay any reasonable attorney's fees
incurred by the person who was falsely accused of abuse or neglect
in any proceeding relating to the false report.
(e) A person who engages in conduct described by Subsection
(a) is liable to the state for a civil penalty of $1,000. The
attorney general shall bring an action to recover a civil penalty
authorized by this subsection.
(b) Section 261.107(a), Family Code, as amended by this
section, and Section 261.107(d), Family Code, as added by this
section, apply 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.
(c) Section 261.107(e), Family Code, as added by this
section, applies only 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 the law in effect on
the date the conduct occurred, and the former law is continued in
effect for that purpose.
SECTION 1.12. 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 required by this subsection may include information
related to any abuse or neglect suffered by the child.
SECTION 1.13. (a) Sections 261.301(a), (d), (f), (g), and
(h), 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 executive commissioner of the Health and Human
Services Commission shall [department may] by rule assign
priorities and prescribe investigative procedures for
investigations based on the severity and immediacy of the alleged
harm to the child. Subject to the availability of funds, the rules
must require the department to respond within 24 hours after a
report of abuse and neglect that is assigned the highest priority
and within 72 hours after a report of abuse and neglect that is
assigned the second highest priority. The primary purpose of the
investigation shall be the protection of the child.
(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 criminal offense
that poses 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 criminal offense that poses 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 Section
261.301(d), Family Code, as amended by this section, relating to
the timely response to reports of abuse and neglect.
(d) The executive commissioner of the Health and Human
Services Commission shall adopt the rules as required by Section
261.301(d), Family Code, as amended by this section, not later than
September 1, 2007.
SECTION 1.14. 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 in each county, 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; and
(2) 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 1.15. (a) Section 261.3015(a), Family Code, is
amended 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].
(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 Section
261.3015(a), 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 1.16. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3021 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.
SECTION 1.17. 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 1.18. 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 1.19. (a) Section 261.307, Family Code, is amended
to read as follows:
Sec. 261.307. INFORMATION RELATING TO INVESTIGATION
PROCEDURE. As soon as possible after initiating an investigation
of a parent or other person having legal custody of a child, the
department shall provide to the person:
(1) a brief and easily understood summary of:
(A) [(1)] the department's procedures for
conducting an investigation of alleged child abuse or neglect,
including:
(i) [(A)] a description of the
circumstances under which the department would request to remove
the child from the home through the judicial system; and
(ii) [(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;
(B) [(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;
(C) [(3)] the person's right to review all
records of the investigation unless the review would jeopardize an
ongoing criminal investigation;
(D) [(4)] the person's right to seek legal
counsel;
(E) [(5)] references to the statutory and
regulatory provisions governing child abuse and neglect and how the
person may obtain copies of those provisions; and
(F) [(6)] the process the person may use to
acquire access to the child if the child is removed from the home;
(2) if the department determines that removal of the
child may be warranted, 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
relative caregivers or designated caregivers, as those terms are
defined by Section 264.751; and
(3) an informational manual required by Section
261.3071.
(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 as required by
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 1.20. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3071 to read as follows:
Sec. 261.3071. INFORMATIONAL MANUALS. (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 informational
manuals that provide 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 manuals must be in both
English and Spanish and must include, as appropriate:
(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 1.21. 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 1.22. 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 1.23. 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. The department shall
consider locating investigators from the department and county and
municipal law enforcement agencies at a children's advocacy center
in the county.
(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, if practicable, establish a children's
advocacy center in the county as provided by Section 264.402 and
locate investigators from the department and county and municipal
law enforcement agencies at the center.
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 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 evaluate each person
listed on the form to determine the relative or other designated
individual who would be the most appropriate substitute caregiver
for the child and must complete a home study of the most appropriate
substitute caregiver, if any, before the full adversary hearing.
Until the department identifies a relative or other designated
individual qualified to be a substitute caregiver, the department
must continue to explore substitute caregiver options. The time
frames in this subsection do not apply to a relative or other
designated individual located in another state.
(b) The department may place a child with a relative or
other designated individual identified on the proposed child
placement resources form if the department 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 background and criminal history check or home study
required under Subsection (a). The department shall provide a copy
of an 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) Section 262.201(c), 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 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. Section 263.001(a)(1), Family Code, is
amended to read as follows:
(1) "Department" means the Department of Family and
Protective [and Regulatory] Services.
SECTION 1.27. (a) Section 263.102, Family Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) The service plan must:
(1) be specific;
(2) be in writing;
(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 to achieve the plan goal;
(9) 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
(10) [(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 or other authorized entity 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.
(b) Section 263.202(c), 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 Sections 263.102 and
263.202(c), 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. (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 1.29. (a) Section 263.502(c), 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 [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.
(b) In implementing the provisions of Section
263.502(c)(3), 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 1.30. Subtitle D, Title 2, Human Resources Code, is
amended by adding Chapter 45 to read as follows:
CHAPTER 45. PRIVATIZATION OF SUBSTITUTE CARE AND CASE MANAGEMENT
SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 45.001. DEFINITIONS. In this chapter:
(1) "Case management services" means the provision of
case management services to a child for whom the department has been
appointed temporary or permanent managing conservator, including
caseworker-child visits, family visits, the convening of family
group conferences, the development and revision of the case plan,
the coordination and monitoring of services needed by the child and
family, and the assumption of court-related duties, including
preparing court reports, attending judicial hearings and
permanency hearings, and ensuring that the child is progressing
toward permanency within state and federal mandates.
(2) "Commission" means the Health and Human Services
Commission.
(3) "Department" means the Department of Family and
Protective Services.
(4) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(5) "Family-based safety services" means services
designed to help children at risk of being placed in foster care to
remain safely with their families.
(6) "Independent administrator" means an independent
agency selected through a competitive procurement process to:
(A) secure, coordinate, and manage substitute
care services and case management services in a geographically
designated area of the state; and
(B) ensure continuity of care for a child
referred to the administrator by the department and the child's
family from the day a child enters the child protective services
system until the child leaves the system.
(7) "Performance-based contracting" means the
structuring of all aspects of the procurement of services around
the purpose of the work to be performed and the desired results with
the contract requirements set forth in clear, specific, and
objective terms with measurable outcomes. Contracts may also
include provisions that link the performance of the contractor to
the level and timing of reimbursement.
(8) "Permanency services" means services, other than
family-based safety services, provided to secure a child's safety,
permanency, and well-being, including substitute care services,
family reunification services, adoption and postadoption services,
preparation for adult living services, and case management
services.
(9) "Placement assessment" means the process used by
the department or another authorized entity to determine the most
appropriate, least restrictive, safe placement resource for a child
who must be separated temporarily from the care of the child's
parents.
(10) "Privatize" means to contract with a private
entity to provide certain governmental services.
(11) "Psychotropic medication" means a drug that
affects the mind through action on the central nervous system and is
prescribed for depression, schizophrenia, attention deficit
hyperactivity disorder, seizures, and a variety of other similar
conditions.
(12) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002.
(13) "Substitute care services" means services
provided to or for children in substitute care and their families,
including the recruitment, training, and management of foster
parents, the recruitment of adoptive families, and the facilitation
of the adoption process, family reunification, independent living,
emergency shelter, residential group care, foster care,
therapeutic foster care, and post-placement supervision, including
relative placement. The term does not include the regulation of
facilities under Subchapter C, Chapter 42.
Sec. 45.002. PRIVATIZING SUBSTITUTE CARE AND CASE
MANAGEMENT SERVICES; DEPARTMENT DUTIES. (a) Not later than
September 1, 2009, the department shall complete the statewide
privatization of the provision of substitute care and case
management services in this state.
(b) On and after September 1, 2009:
(1) all substitute care and case management services
for children for whom the department has been appointed temporary
or permanent managing conservator must be provided by child-care
institutions and child-placing agencies; and
(2) except as provided by Subsection (d) and
notwithstanding any other law, the department may not directly
provide those services.
(c) On and after September 1, 2009, the department shall:
(1) monitor the quality of services for which the
department and each independent administrator contract under this
chapter; and
(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.
(d) On and after September 1, 2009, the department may
provide substitute care and case management services in an
emergency. The executive commissioner shall adopt rules describing
the circumstances in which the department may provide those
services.
Sec. 45.003. HIRING PREFERENCE. A substitute care or case
management services provider that contracts with the department to
provide substitute care services or case management services shall
give a preference in hiring to qualified department employees in
good standing with the department who provide substitute care or
case management services and whose positions with the department
may be eliminated as a result of the privatization of substitute
care and case management services.
Sec. 45.004. INDEPENDENT ADMINISTRATORS; DEPARTMENT
DUTIES. (a) The department shall research and develop a
comprehensive strategy for contracting for management support
services from independent administrators on a regional basis. If
the department determines that an independent administrator could
manage and procure substitute care and case management services
contracts with private agencies and conduct placement assessments
in a more cost-beneficial manner, the department shall implement a
transition plan to transfer the procurement, management, and
oversight of substitute care and case management services from the
department to an independent administrator, as well as
responsibility for placement assessments. If the department
determines that contracting for management support from an
independent administrator is not cost beneficial, the
privatization of substitute care and case management services will
occur as provided by Section 45.002(b).
(b) The comprehensive strategy, at a minimum, must:
(1) use competitively procured independent
administrators to procure and manage substitute care and case
management providers in a geographic region designated by the
department;
(2) require independent administrators to contract
with private agencies that will:
(A) increase local foster and adoptive placement
options for all children, especially teenagers, sibling groups,
children whose race or ethnicity is disproportionately represented
in foster care, 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; and
(3) allow permanency services providers to enter
client, service, and outcome information into the department's
client data system.
(c) Subject to the appropriation of funds, the department
shall:
(1) enhance existing data systems to include contract
performance information; and
(2) implement a contracting data system developed or
procured by the department, to track quality assurance and other
contracting tools to effectively manage, monitor, and evaluate
performance-based contracting functions.
[Sections 45.005-45.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT DUTIES
Sec. 45.051. REORGANIZING STAFF RESPONSIBILITIES. Not
later than March 1, 2006, the department shall develop a plan for
reorganizing the department's operation to support future
procurement of, contracting with, and monitoring of private
contractors and enforcement of the licensing of facilities. The
plan must include provisions for reducing duplication of the
department's program monitoring activities.
Sec. 45.052. FINANCING. The department shall create
financing and payment arrangements that provide incentives for an
independent administrator and its subcontract providers to achieve
safety, permanency, and well-being outcomes and improved system
performance. In developing this financing arrangement, the
department shall examine:
(1) the use of case rates or performance-based
fee-for-service contracts that include incentive payments or
payment schedules that link reimbursement to results; and
(2) ways to reduce a contractor's financial risk that
could jeopardize the solvency of the contractor, including the use
of a risk-reward corridor that limits risk of loss and potential
profits or the establishment of a statewide risk pool.
Sec. 45.053. ADOPTION OF TRANSITION PLAN. (a) Not later
than September 30, 2005, the commission and the department shall
submit to the legislature a plan for the development of the
transition plan, including the planning structure and process,
engagement of stakeholders, and access to experienced consultation
and technical assistance.
(b) Not later than March 1, 2006, the commission and the
department 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 and case management services transition plan
consistent with the requirements of Subchapter C.
(c) The executive commissioner shall adopt rules to
implement the privatization of substitute care and case management
services in this state.
Sec. 45.054. REGIONAL IMPLEMENTATION. (a) The department
shall implement the privatization of substitute care and case
management services on a regional basis. The transition plan must
include a schedule with deadlines for implementation of the plan in
each region of the state. The plan must ensure that the transition
is completed in the first region not later than December 31, 2006,
and that the transition is completed statewide not later than
September 1, 2009.
(b) The transition plan must include a schedule with the
following deadlines for implementation of the plan:
(1) completion of the transition plan, not later than
March 1, 2006;
(2) release of a request for proposal for a geographic
region of the state designated by the department, not later than
April 30, 2006;
(3) the awarding of the contract described by
Subdivision (2), not later than September 30, 2006;
(4) establishment of the multidisciplinary team and
necessary processes, evaluation criteria, and monitoring tools to
be used to monitor and evaluate the performance of the contractor,
not later than September 30, 2006;
(5) the review and evaluation of the multidisciplinary
team's reports pertaining to the contractor's achievement of
performance-based milestones and the effect on the quality of
permanency services provided, not later than December 31, 2007;
(6) release of a request for proposal for additional
geographic regions of the state designated by the department, not
later than March 31, 2008;
(7) the awarding of the contracts described by
Subdivision (6), not later than July 31, 2008;
(8) release of a request for proposal for all
remaining geographic regions of the state designated by the
department, not later than December 31, 2008; and
(9) the awarding of the contracts described by
Subdivision (8), not later than May 31, 2009.
(c) Not later than the first anniversary of the date the
department enters into the first contract under this section, the
department shall institute an independent evaluation of the
implementation of the privatization of substitute care and case
management services. The department shall report the results of
the evaluation to the legislature to determine whether to refine
the service delivery model for the remaining regional transitions.
The evaluation must assess performance based on compliance with
defined quality outcomes for children.
[Sections 45.055-45.100 reserved for expansion]
SUBCHAPTER C. TRANSITION PLAN
Sec. 45.101. GOALS FOR PRIVATIZATION. The transition plan
adopted under Section 45.053 must provide for a new structural
model for the community-centered delivery of substitute care and
case management services that is based on a goal of improving
protective services, achieving timely permanency for children in
substitute care, including family reunification, placement with a
relative, or adoption, and improving the overall well-being of
children in substitute care consistent with federal and state
mandates.
Sec. 45.102. TRANSITION PLAN REQUIREMENTS. The transition
plan developed by the department and the commission must:
(1) identify barriers to privatization, including
regional disparities in resources, provider capacity, and
population, and propose solutions to stimulate capacity and adjust
program delivery;
(2) provide details regarding the target population
and services by region that will be part of the system redesign,
including the number of children and families, historic caseload
trends and service utilization information, and projected
caseloads;
(3) provide details regarding the roles,
responsibilities, and authority assigned to the public and private
entities, including the department, independent administrators,
and substitute care and case management providers, in making key
decisions throughout the child and family case;
(4) 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;
(5) specify the limited circumstances under which a
foster home verified by the department may continue to be verified
by the department when continuation would be in the best interest of
a child in the care of the foster home;
(6) include a process for assessing each child who is
transferred to a private substitute care provider to verify the
child's service needs;
(7) 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 reimbursements methods will be structured;
(8) describe the process to transfer the duties of
case management and family reunification services from department
staff to private agency staff, including the integration of family
group conferencing into private agency case management;
(9) describe the manner in which the department will
procure and contract for kinship services that are funded by the
state;
(10) provide details regarding financial arrangements
and performance expectations for independent administrators and
substitute care and case management providers that:
(A) provide incentives for desired results and
explicit contract performance and outcome indicators;
(B) describe how various risk-based arrangements
will be weighed and realistically assessed using sound actuarial
data and risk modeling and how mechanisms will be selected to limit
uncontrollable risks that could threaten provider stability and
quality;
(C) describe how financing options will increase
flexibility to promote innovation and efficiency in service
delivery; and
(D) provide balance between control over key
decisions and the level of risk the contractor assumes;
(11) require the executive commissioner to evaluate
whether existing rate structures are appropriate to compensate
substitute care providers who enter into contracts with an
independent administrator under Section 264.106, Family Code,
considering new functions to be served by the providers, and, if
necessary, require the executive commissioner to adjust the rates
accordingly;
(12) require the department to enter into contracts
for the provision of substitute care and case management services
as required by Section 264.106, Family Code, and describe the
procurement and contracting process, including:
(A) stating how the department will shift from an
open-enrollment system to a competitive procurement system;
(B) identifying the services that will be
procured and contracted for directly with the department and the
services that will be procured by an independent administrator; and
(C) developing a procurement and contracting
schedule to ensure full implementation not later than September 1,
2009;
(13) provide for the implementation of Sections
264.1062 and 264.107, Family Code, by describing each party's
responsibility and ensuring that the department retains the legal
authority to effectively provide oversight;
(14) describe formal training required for department
staff, independent administrators, and substitute care and case
management providers;
(15) define roles and expectations related to
reporting and managing data required to ensure quality services and
meet state and federal requirements, including data collection
responsibilities for an independent administrator and service
provider;
(16) describe how the transition will impact the
state's ability to obtain federal funding and examine options to
further maximize federal funding opportunities and increased
flexibility; and
(17) describe the costs of the transition, the initial
start-up costs, and mechanisms to periodically assess the overall
adequacy of funds and the fiscal impact of the change.
[Sections 45.103-45.150 reserved for expansion]
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 45.151. EXPIRATION. This chapter expires September 1,
2010.
SECTION 1.31. 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 1.32. Section 264.001, Family Code, is amended to
read as follows:
Sec. 264.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Department"[, "department"] means the Department
of Family and Protective [and Regulatory] Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
SECTION 1.33. Section 264.106, Family Code, is amended to
read as follows:
Sec. 264.106. REQUIRED CONTRACTS FOR SUBSTITUTE CARE AND
CASE MANAGEMENT SERVICES. (a) In this section:
(1) "Case management services" means the provision of
case management services to a child for whom the department has been
appointed temporary or permanent managing conservator, including
caseworker-child visits, family visits, the convening of family
group conferences, the development and revision of the case plan,
the coordination and monitoring of services needed by the child and
family, and the assumption of court-related duties, including
preparing court reports, attending judicial hearings and
permanency hearings, and ensuring that the child is progressing
toward permanency within state and federal mandates.
(2) "Independent administrator" means an independent
agency selected through a competitive procurement process to:
(A) secure, coordinate, and manage substitute
care services and case management services in a geographically
designated area of the state; and
(B) ensure continuity of care for a child
referred to the administrator by the department and the child's
family from the day a child enters the child protective services
system until the child leaves the system.
(3) "Permanency services" means services, other than
family-based safety services, provided to secure a child's safety,
permanency, and well-being, including substitute care services,
family reunification services, adoption and postadoption services,
preparation for adult living services, and case management
services.
(4) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002, Human Resources Code.
(5) "Substitute care services" means services
provided to or for children in substitute care and their families,
including the recruitment, training, and management of foster
parents, the recruitment of adoptive families, and the facilitation
of the adoption process, family preservation, independent living,
emergency shelter, residential group care, foster care,
therapeutic foster care, and post-placement supervision, including
relative placement. The term does not include the regulation of
facilities under Subchapter C, Chapter 42, Human Resources Code.
(b) The department shall, in accordance with Section
45.004, Human Resources Code:
(1) assess the need for substitute care and case
management services throughout the state; [and]
(2) contract with private agencies as part of regional
community-centered networks managed by independent administrators
[substitute care providers only to the extent necessary to meet the
need] for the provision of all necessary substitute care and case
management [those] services;
(3) contract with an independent administrator to
coordinate and manage all services needed for children in the
temporary or permanent managing conservatorship of the department
in a designated geographic area;
(4) monitor the quality of services for which the
department and each independent administrator contract under this
section; and
(5) 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.
(c) An independent administrator may not:
(1) directly provide substitute care services; or
(2) have a financial interest in or a financial
interest connected to a community-based organization that provides
permanency services in the state.
(d) Administrative services to be provided by an
independent administrator include:
(1) recruiting and subcontracting with
community-based substitute care providers to ensure a full array of
services in defined geographic areas;
(2) managing placements and making referrals for
placement based on department-approved protocols;
(3) monitoring services delivered by subcontractors;
(4) providing training and technical assistance to
contract providers;
(5) maintaining data systems that support tracking and
reporting key performance and outcome data; and
(6) ensuring accountability for achieving defined
client and system outcomes.
(e) [(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)] In addition to the requirements of Section 40.058(b),
Human Resources Code, a contract with an independent administrator
[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 outcomes;
(3) authorize the department to terminate the contract
or impose sanctions for a violation of a provision of the contract
that specifies performance criteria;
(4) ensure that an independent administrator may not
refuse to accept a client who is referred for services or reject a
client who is receiving services unless the department has reviewed
the independent administrator's decision and approved the decision
in writing;
(5) authorize the department, an agent of the
department, and the state auditor to inspect all books, records,
and files maintained by an independent administrator relating to
the contract; and
(6) the department determines are necessary to ensure
accountability for the delivery of services and for the expenditure
of public funds.
(f) A contract with an independent administrator for
substitute care and case management services must include
department-approved provisions that:
(1) enable the independent administrator and the
department to:
(A) monitor the effectiveness of substitute care
and case management services; and
(B) specify performance standards and authorize
termination of the contract for cause;
(2) describe how performance is linked to
reimbursement amounts or schedules to provide incentives for
desired results;
(3) require all independent administrators and
private contractors to disclose to the department any information
that may indicate an actual or potential conflict of interest with
the commission, the department, or another health and human
services agency, including information regarding actual or
potential related-party transactions, relationships, interests, or
business history, and any other factor that may indicate an actual
or potential conflict of interest;
(4) authorize the independent administrator, an agent
of the independent administrator, the department, an agent of the
department, and the state auditor to inspect all books, records,
and files maintained by a contractor relating to the contract; and
(5) the department determines are necessary to ensure
accountability for the delivery of services and for the expenditure
of public funds.
(g) [(d)] In determining whether to contract with a
substitute care provider or an independent administrator, the
department shall consider the provider's or administrator's
performance under any previous contract [for substitute care
services] between the department and the provider or administrator.
(h) 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.
(i) Except as provided by Subsection (j) and
notwithstanding any other law, on and after September 1, 2009, the
department may not directly provide substitute care and case
management services for children for whom the department has been
appointed temporary or permanent managing conservator.
(j) On and after September 1, 2009, the department may
provide substitute care and case management services in an
emergency. The executive commissioner shall adopt rules describing
the circumstances in which the department may provide those
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.]
SECTION 1.34. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.1062 to read as follows:
Sec. 264.1062. EVALUATION OF INDEPENDENT ADMINISTRATORS.
The department shall develop and implement a comprehensive
multidisciplinary team to monitor and evaluate the performance of
independent administrators. The team must consist of specialized
staff who can enable the department to measure critical dimensions
of community-based organization performance, obtained through the
quality assurance functions of the independent administrator,
including:
(1) achievement of client and system outcomes;
(2) compliance with contractual terms and conditions;
and
(3) any history of the community-based organization's
noncompliance with the department's licensing standards.
SECTION 1.35. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.1063 to read as follows:
Sec. 264.1063. MONITORING PERFORMANCE OF SUBSTITUTE CARE
AND CASE MANAGEMENT PROVIDERS. (a) The department, in
consultation with private entities under contract with an
independent administrator to provide substitute care or case
management services, shall establish a quality assurance program
that uses comprehensive, multitiered assurance and improvement
systems based, subject to the availability of funds, on real-time
data to evaluate performance.
(b) The contract performance outcomes specified in a
contract under Section 264.106 must be consistent with the fiscal
goals of privatizing substitute care and case management services
and must be within the contractor's authority to deliver. The
contract must clearly define the manner in which the substitute
care or case management provider's performance will be measured and
identify the information sources the department and independent
administrator will use to evaluate the performance.
SECTION 1.36. Section 264.107, Family Code, is amended by
adding Subsections (c)-(f) to read as follows:
(c) The contract between the department and an independent
administrator or other authorized entity must require, not later
than September 1, 2012, the use of real-time technology in the
independent administrator's or other authorized entity's placement
system to screen possible placement options for a child and match
the child's needs with the most qualified providers with vacancies.
(d) The department shall institute a quality assurance
system in monitoring the independent administrators or other
authorized entities to ensure that placement decisions are reliable
and are made in a consistent manner.
(e) In making placement decisions, an independent
administrator or other authorized entity shall use clinical
protocols to match a child to the most appropriate placement
resource.
(f) The department may create a regional advisory council in
a region to assist the department and independent administrator or
other authorized entity in:
(1) assessing the need for resources in the region;
and
(2) locating substitute care services in the region
for hard-to-place children.
SECTION 1.37. Section 264.1075, Family Code, is amended to
read as follows:
Sec. 264.1075. ASSESSING NEEDS OF CHILD [USE OF ASSESSMENT
SERVICES]. (a) On removing a child from the child's home [Before
placing a child in substitute care], the department shall use
assessment services provided by a child-care facility, a [or]
child-placing agency, or the child's medical home during the
initial substitute care placement. The assessment may be used [in
accordance with Section 42.0425, Human Resources Code,] to
determine the most appropriate substitute care placement for the
child, if needed.
(b) 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 person who has experience in childhood
developmental disabilities or mental retardation;
(2) a local mental retardation authority; or
(3) a provider in a county with a local child welfare
board.
SECTION 1.38. Subchapter B, Chapter 264, Family Code, is
amended by adding Sections 264.115 and 264.116 to read as follows:
Sec. 264.115. PREPARATION FOR ADULT LIVING PROGRAM. (a) To
assist children in the conservatorship of the department in
transitioning to independent living, the department shall:
(1) expand efforts to improve discharge planning and
increase the availability of transitional family group
decision-making for each child in the department's permanent
managing conservatorship who is at least 16 years of age;
(2) coordinate with the commission to obtain
authority, to the extent allowed by federal law, the Medicaid state
plan, or the Title IV-E state plan, or by any waiver or amendment to
either plan, necessary to:
(A) extend foster care eligibility and
transition services for youth 21 years of age or younger and develop
policies 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 youth 21 years
of age or younger who are in foster care or were formerly in foster
care, with a single application at the time the youth leaves foster
care; and
(3) enter into cooperative agreements with the Texas
Workforce Commission and local workforce development boards to
further the objectives of the Preparation for Adult Living Program.
(b) 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 ensure that the services include, if
feasible, referrals for short-term stays for children needing
housing.
Sec. 264.116. ANNUAL SURVEY. (a) The department shall
conduct an annual random survey of a sample of children from each
region of the state who are at least 14 years of age and who receive
substitute care services. The survey must include questions
regarding:
(1) the quality of the substitute care services
provided to the child;
(2) any improvements that could be made to better
support the child; and
(3) any other factor that the department considers
relevant to enable the department to identify potential program
enhancements.
(b) The identity of each child participating in a department
survey is confidential and not subject to public disclosure under
Chapter 552, Government Code. The department shall adopt
procedures to ensure that the identity of each child participating
in a department survey remains confidential.
SECTION 1.39. 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 1.40. Section 264.203(c), 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 1.41. Subchapter C, Chapter 264, Family Code, is
amended by adding Sections 264.204 and 264.205 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.
Sec. 264.205. CULTURAL AWARENESS. If the department
determines that the number of children of a particular race or
ethnicity in the child protective services system is not
proportionate to the general population, the department shall
attempt to reduce the disproportionate representation by:
(1) documenting any disproportionate representation
and instituting policies and practices to promote parity in
outcomes for all children;
(2) prioritizing prevention and early intervention
services for communities and groups with disproportionate
representation in the child protective services population;
(3) developing and providing cultural competency
training to department staff members who provide child protective
services;
(4) increasing targeted recruitment efforts of foster
and adoptive families who can meet the needs of children who are
waiting for permanent homes;
(5) targeting recruitment efforts to ensure diversity
among department staff; and
(6) developing collaborative partnerships with
community groups, agencies, faith-based organizations, and other
community-based organizations to provide culturally competent
services to children and families of every race and ethnicity.
SECTION 1.42. Section 264.503, Family Code, is amended by
amending Subsections (b)-(e) and adding Subsection (d-1) 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.
SECTION 1.43. 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.
SECTION 1.44. (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 as soon as possible 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
interests.
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 shall be based on a family's need, as determined by
rules adopted by the executive commissioner, and 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 1.45. (a) Subtitle E, Title 5, Family Code, is
amended by adding Chapter 266 to read as follows:
CHAPTER 266. MEDICAL CARE AND EDUCATIONAL SERVICES 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. MEDICAL SERVICES FOR CHILD ABUSE AND NEGLECT
VICTIMS. (a) Subject to the availability of funds, the commission
shall collaborate with health care and child welfare professionals
to design a comprehensive, cost-effective medical services
delivery model to meet the needs of children served by the
department, either directly or by contract. The medical services
delivery model must include:
(1) the designation of health care facilities with
expertise in the forensic assessment, diagnosis, and treatment of
child abuse and neglect as pediatric centers of excellence;
(2) a statewide telemedicine system to link department
investigators and caseworkers with pediatric centers of excellence
or other medical experts for consultation;
(3) identification of a medical home for each foster
child on entering foster care at which the child will receive an
initial comprehensive assessment as well as preventive treatments,
acute medical services, and therapeutic and rehabilitative care to
meet the child's ongoing physical and mental health needs
throughout the duration of the child's stay in foster care;
(4) a review system composed of medical and mental
health professionals to assess clinical care recommendations as
needed for individual foster children; and
(5) development of protocols for use of psychotropic
medications for foster children based on the recommendations and
best practices manual developed by an ad hoc work group consisting
of experts from the fields of pharmacy, psychiatry, pediatrics,
family practice, and internal medicine and staff from the
commission.
(b) The commission shall collaborate with health and human
services agencies, community partners, the health care community,
and federal health and social services programs to maximize
services and benefits available under this section.
(c) The executive commissioner shall adopt rules necessary
to implement this chapter.
Sec. 266.004. 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 consent.
(b) Unless the court has specifically authorized a relative
caregiver who lives with the child to give medical consent, the
following persons may provide consent required by Subsection (a):
(1) the caseworker, supervisor, or program director
responsible for the child's case;
(2) medical personnel employed by the department; or
(3) a caregiver designated by the department.
(c) The department shall file with the court the name of
each person who may provide consent for medical care. The
department shall notify the court of any change to the list of
persons authorized to provide consent for medical care in the
department's next report to the court following the date of the
change.
(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) A person authorized under Subsection (b) to consent to
medical care for a child in foster care shall participate in each
appointment of the child with the provider of the medical care. The
level of participation may vary depending on the nature of the
appointment. The authorized person may designate another person to
participate in the appointment for the authorized person.
(i) A person authorized under Subsection (b) to give consent
to medical care for a child in foster care must be aware of a child's
medical condition and history before giving consent.
Sec. 266.005. PARENTAL NOTIFICATION OF SIGNIFICANT MEDICAL
CONDITIONS. (a) In this section, "significant medical condition"
means an injury or illness that is life-threatening or has
potentially serious long-term health consequences, including
hospitalization for surgery or other procedures, except minor
emergency care.
(b) Except as provided by Subsection (c), the department
shall notify the child's parents of any significant medical
condition involving a child in foster care as soon as practicable,
but not later than 24 hours after the department learns of the
significant medical condition.
(c) The department is not required to provide notice under
Subsection (b) to a parent who:
(1) has failed to give the department current contact
information and cannot be located; or
(2) has executed an affidavit of relinquishment of
parental rights.
Sec. 266.006. HEALTH PASSPORTS. (a) The commission shall
make available to the person authorized to consent to medical care
under Section 266.004(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 commission shall develop a health passport for each
child in foster care. The commission in conjunction with 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.
(c) 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. 266.007. 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. 266.008. MONITORING USE OF MEDICATIONS. As part of the
commission's drug utilization review, the commission shall
annually monitor the use of medications for foster children.
Sec. 266.009. EDUCATION. (a) The commission shall develop
an education passport for each child in foster care. The
commission, in conjunction with the department, shall determine the
format of the passport. The passport may be maintained in an
electronic format. The 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 commission determines is important.
(b) 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.
(c) The department and the commission shall collaborate
with the Texas Education Agency to develop policies and procedures
to ensure that the needs of foster children are met in every school
district.
(b) The Health and Human Services Commission is required to
develop and implement the passport programs required by Sections
266.006 and 266.009, Family Code, as added by this section, if the
legislature appropriates money specifically for that purpose. If
the legislature does not appropriate money specifically for that
purpose, the commission may, but is not required to, develop and
implement the passport programs using other appropriations
available for that purpose. In addition, the commission may
develop and implement the passport programs required by Sections
266.006 and 266.009, Family Code, as added by this section, only if
technology necessary to ensure privacy is available.
(c) If the Health and Human Services Commission develops
and implements the passport programs required by Sections 266.006
and 266.009, Family Code, as added by this section, the commission
shall finalize the form and content of the passports not later than
March 1, 2006.
(d) Not later than September 1, 2007, the Health and Human
Services Commission shall make the health passport required by
Section 266.006, Family Code, as added by this section, available
in an electronic format.
(e) Not later than September 1, 2008, the Health and Human
Services Commission shall ensure that the health passport required
by Section 266.006, Family Code, as added by this section, can
interface directly with other electronic health record systems that
contain information that impacts the health care of the child.
SECTION 1.46. Chapter 265, Family Code, is amended by
adding Section 265.004 to read as follows:
Sec. 265.004. USE OF EVIDENCE-BASED PROGRAMS FOR AT-RISK
FAMILIES. (a) To the extent that money is appropriated for the
purpose, the department shall fund evidence-based programs offered
by community-based organizations that are designed to prevent or
ameliorate child abuse and neglect.
(b) The department shall place priority on programs that
target children whose race or ethnicity is disproportionately
represented in the child protective services system.
(c) The department shall periodically evaluate the
evidence-based abuse and neglect prevention programs to determine
the continued effectiveness of the programs.
SECTION 1.47. 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 1.48. (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) The Health and Human Services Commission shall
contract with the state auditor to perform on-site financial audits
of selected residential contractors as necessary. The state
auditor, in consultation with the commission, shall select the
contractors to audit 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
residential contractors selected to be audited must be included in
the audit plan and approved by the legislative audit committee
under Section 321.013.
(b) The Department of Family and Protective Services shall
require that all files related to contracts for residential care of
foster children:
(1) are complete and accurately reflect the
contractor's actual updated contract performance; and
(2) are maintained in accordance with the department's
record retention procedures and made available to the state auditor
when requested.
(c) Subject to the availability of funds appropriated for
the purpose, 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.
(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 October 1, 2009, the state auditor shall
begin the on-site financial audits of selected contractors as
provided by Section 2155.1442(a), Government Code, as added by this
section.
SECTION 1.49. Section 22.035(j), Human Resources Code, is
amended to read as follows:
(j) The work group shall study and make recommendations in
the following areas:
(1) access of a child or a child's family to effective
case management services, including case management services with a
single case manager, parent case managers, or independent case
managers;
(2) the transition needs of children who reach an age
at which they are no longer eligible for services at the [Texas]
Department of State Health Services, the Texas Education Agency,
and other applicable state agencies;
(3) the blending of funds, including case management
funding, for children needing long-term care and health services;
(4) collaboration and coordination of children's
services between the department, the [Texas] Department of State
Health Services, the [Texas] Department of Aging and Disability
Services, the Department of Assistive and Rehabilitative Services
[Mental Health and Mental Retardation], and any other agency
determined to be applicable by the work group;
(5) budgeting and the use of funds appropriated for
children's long-term care services and children's health services;
(6) services and supports for families providing care
for children with disabilities;
(7) effective permanency planning for children who
reside in institutions or who are at risk of placement in an
institution;
(8) barriers to enforcement of regulations regarding
institutions that serve children with disabilities; [and]
(9) the provision of services under the medical
assistance program to children younger than 23 years of age with
disabilities or special health care needs under a waiver granted
under Section 1915(c) of the federal Social Security Act (42 U.S.C.
Section 1396n(c));
(10) minimizing the number of foster children placed
in institutions and maximizing the number of foster children
receiving community-based care;
(11) 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;
(12) monitoring the care provided in residential
settings to foster children with developmental disabilities or
mental retardation; and
(13) recruiting individuals to provide foster care in
a residential setting to children with developmental disabilities
or mental retardation.
SECTION 1.50. 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 1.51. 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 1.52. Sections 40.001(3) and (5), 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 [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 1.53. Section 40.002(b), 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 1.54. 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, 2013 [2009].
SECTION 1.55. 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 1.56. 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 1.57. Sections 40.0305(a), (d), and (e), 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.
(e) To the extent that funds are appropriated for these
specific purposes, the department shall implement the following
technology projects:
(1) a mobile technology project, including online
transcription services designed to:
(A) increase caseworker access to department
policy and family case history;
(B) facilitate communication between caseworkers
and supervisors;
(C) allow timely and accurate data entry; and
(D) reduce backlogged investigations; and
(2) a modified design of the department's automated
case management system to improve risk and safety assessment and
service plan development, and to facilitate incorporation of
historical case data. [The steering committee shall make
recommendations to the executive director based on the committee's
performance of its duties.]
SECTION 1.58. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.03051 to read as follows:
Sec. 40.03051. PAPERLESS INFORMATION EXCHANGE PILOT
PROGRAM. (a) The department shall develop and implement a pilot
program to allow the paperless exchange of information between the
department and courts with jurisdiction over child protective
services cases.
(b) The pilot program must:
(1) include one or more courts with jurisdiction over
child protective services cases; and
(2) be designed to facilitate the progression of child
protective services cases through the judicial process.
(c) The executive commissioner shall adopt rules necessary
to implement this section.
(d) Notwithstanding any other provision of this section,
the department is not required to implement the pilot program
unless funds are appropriated for that purpose.
(e) Not later than December 1, 2006, the department shall
submit a report to the governor, the lieutenant governor, and the
speaker of the house of representatives regarding the preliminary
results of the pilot program. The report must include:
(1) a description of the status of the pilot program;
(2) a description of the effects of the pilot program
on the progression of child protective services cases through the
judicial process; and
(3) an evaluation of the feasibility of expanding the
system statewide.
(f) This section expires September 1, 2009.
SECTION 1.59. 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 1.60. 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 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 1.61. Section 40.0525(c), Human Resources Code, is
amended to read as follows:
(c) Subject to Section 40.031(b), this [This] section does
not require the department to establish separate departments for
investigations and service delivery.
SECTION 1.62. 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; and
(E) domestic violence shelters.
(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 1.63. 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) reduce caseloads;
(2) enhance accountability;
(3) improve the quality of investigations;
(4) eliminate delays; and
(5) 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 in
an investigations unit are paid appropriately to increase employee
retention;
(6) when appropriate, identify and use alternative
work schedules;
(7) develop a program to replace caseworkers and
investigators with trainees hired in anticipation of vacant
positions or mobile caseworkers who provide coverage for vacancies
as needed;
(8) use a system of regional hiring supervisors for
targeted recruitment efforts;
(9) 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;
(10) reduce the time necessary to complete a plan of
service for a child and family when providing family-based safety
services; and
(11) identify methods to reduce the administrative
area that a manager is responsible for to increase accountability.
SECTION 1.64. Section 40.058, Human Resources Code, is
amended by adding Subsection (b-1) to read as follows:
(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.
SECTION 1.65. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Sections 40.071 and 40.072 to read as
follows:
Sec. 40.071. DRUG-ENDANGERED CHILD INITIATIVE. The
department shall establish a drug-endangered child initiative
aimed at protecting children who are exposed to methamphetamine or
to chemicals and other hazardous materials used in the illicit
manufacture of methamphetamine.
Sec. 40.072. DUTY TO REPORT; DEPARTMENT RECORDS. (a) To
the extent that reporting does not interfere with an ongoing
criminal investigation, the Department of Public Safety and each
local law enforcement agency shall report to the department on
discovering the presence of a child in a location where
methamphetamine is manufactured.
(b) The department shall maintain a record of reports
received under this section and shall include in the record
information regarding actions taken by the department to ensure the
child's safety and well-being.
SECTION 1.66. 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, child-placing agencies, foster group homes, foster
homes, agency foster group homes, and agency foster homes.
SECTION 1.67. Sections 42.021(b) and (d), 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 1.68. Sections 42.023(a) and (b), 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, if such agencies exist, with
certification requirements;
(2) a summary of the training programs required by the
department and their effectiveness [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;
and
(5) a report of trends in licensing violations on a
statewide and regional basis and the department's plans to address
those trends through the provision of technical assistance.
SECTION 1.69. (a) Section 42.041(c), 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) Section 42.041(c), 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 1.70. (a) Section 42.042, Human Resources Code, is
amended by adding Subsections (d-1), (g-1), (h-1), and (q) to read
as follows:
(d-1) The department shall provide a standard inspection
checklist and other forms for use in conducting inspections of
residential child-care facilities and issuing inspection reports.
(g-1) In promulgating minimum standards under this section,
the department shall assign a tested weighted value for each
standard that correlates to that standard's potential impact on the
health and safety of children. In developing a methodology to
classify and assign weighted values to designate the risk
associated with each minimum standard, the department may consult
with a committee appointed by the executive commissioner composed
of representatives of public and private entities.
(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) The executive commissioner shall require residential
child-care facilities to immediately report to the department when
the facility determines that a child is missing or if there is a
serious incident involving a child, including death or serious
injury, abuse or neglect, or arrest or truancy.
(b) Except as provided by Subsection (c) of this section,
the executive commissioner of the Health and Human Services
Commission shall adopt rules and establish standards, policies, and
procedures to implement and administer Sections 42.042(d-1),
(g-1), (h-1), and (q), Human Resources Code, as added by this
section, as soon as possible after the effective date of this
section.
(c) The executive commissioner shall adopt rules and
establish standards under Section 42.042(g-1) for facilities other
than a residential child-care facility when the Department of
Family and Protective Services and the Health and Human Services
Commission perform a comprehensive review of those standards.
SECTION 1.71. Section 42.0426, Human Resources Code, is
amended to read as follows:
Sec. 42.0426. TRAINING OF PERSONNEL. (a) A licensed
facility shall provide training for staff members in:
(1) the recognition of symptoms of child abuse,
neglect, and sexual molestation and the responsibility and
procedure of reporting suspected occurrences of child abuse,
neglect, and sexual molestation to the department or other
appropriate entity;
(2) the application of first aid; and
(3) the prevention and spread of communicable
diseases.
(b) A residential child-care facility shall implement a
behavior intervention program approved by the department for the
benefit of a child served by the facility who needs assistance in
managing the child's conduct. The program must include:
(1) behavior intervention instruction for staff
members who work directly with children served by the facility; and
(2) training for all employees regarding the risks
associated with the use of prone restraints.
SECTION 1.72. (a) Section 42.044, Human Resources Code, is
amended by adding Subsections (e)-(h) 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.
(g) A person assigned to conduct an inspection or
investigation of a residential child-care facility under this
section must:
(1) hold a bachelor's degree and have at least two
years of relevant work experience;
(2) complete a course of training regarding the
minimum standards applicable to the type of facility or facilities
to which the person will be assigned; and
(3) pass an examination administered by the department
relating to the type of facility or facilities to which the person
will be assigned.
(h) The department shall annually evaluate and determine
the effectiveness of the department's required inspection training
programs in providing consistent training on the interpretation and
enforcement of licensing standards for residential child-care
facilities. In conducting the evaluation, the department shall
determine the number of residential child-care facility licensing
violations identified statewide and identify any regional
discrepancies in licensing enforcement.
(b) The education and experience requirements required
under Section 42.044(g), Human Resources Code, as added by this
section, apply only to staff hired or assigned for the first time to
conduct inspections or investigations of residential child-care
facilities on or after the effective date of this section.
SECTION 1.73. The heading to Section 42.0441, Human
Resources Code, is amended to read as follows:
Sec. 42.0441. INSPECTION RESULTS FOR CERTAIN
NONRESIDENTIAL CHILD-CARE FACILITIES.
SECTION 1.74. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.04411 to read as follows:
Sec. 42.04411. INSPECTION RESULTS AND EXIT CONFERENCE FOR
RESIDENTIAL CHILD-CARE FACILITIES. (a) On completion of an
inspection of a residential child-care facility under Section
42.044, the inspector shall hold an exit conference with a
representative of the inspected facility. The inspector shall
provide to the representative a copy of the inspection checklist
used by the inspector.
(b) The inspector shall provide the representative an
opportunity to communicate regarding potential violations.
SECTION 1.75. Section 42.046, Human Resources Code, is
amended by adding Subsection (e) to read as follows:
(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 1.76. Sections 42.0461(f) and (g), 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 1.77. 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 1.78. Section 42.054(b), 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 1.79. Section 42.072, Human Resources Code, is
amended by amending Subsection (c) and adding Subsection (g) to
read as follows:
(c) The department may not issue a license, listing,
registration, or certification to a [A] person whose license,
listing, registration, or certification is revoked or whose
application for a license, listing, registration, or certification
is denied for a substantive reason under this chapter [may not apply
for any license, listing, registration, or certification under this
chapter] before:
(1) the fifth anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final, if the facility is a
residential child-care facility; or
(2) the second anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final, if the facility is not a
residential child-care facility.
(g) Notwithstanding Subsection (c), the department may
refuse to issue a license, listing, registration, or certification
to:
(1) a person whose license or certification for a
residential child-care facility was revoked by the department or by
court order;
(2) a person who was a controlling person of a
residential child-care facility at the time conduct occurred that
resulted in the revocation of the license or certification of the
facility;
(3) a person who voluntarily closed a residential
child-care facility or relinquished the person's license or
certification after:
(A) the department took an action under
Subsection (a) in relation to the facility or person; or
(B) the person received notice that the
department intended to take an action under Subsection (a) in
relation to the facility or person; or
(4) a person who was a controlling person of a
residential child-care facility at the time conduct occurred that
resulted in the closure of the facility or relinquishment of the
license or certification in the manner described by Subdivision
(3).
SECTION 1.80. Section 42.073(c), 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 1.81. 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 1.82. (a) Section 42.078, Human Resources Code, is
amended by amending Subsections (a)-(i) and (l)-(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
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 1.83. 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 1.84. 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 1.85. (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 Section 43.003(c), 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 1.86. (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 doctoral [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 doctoral 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) Section 43.004(a), 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 1.87. (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) Section 43.0041(c), 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 Section 43.0041(c), Human Resources Code, as
added by this section.
SECTION 1.88. Section 43.0081(a), 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 1.89. (a) Section 43.009(a), 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) Section 43.009(a), 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 1.90. 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 1.91. (a) Sections 43.010(a), (b), and (d), 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 for
a period of five years after the date the license was revoked.
(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) Section 43.010(b), 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 1.92. 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 1.93. 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 1.94. 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 1.95. The following provisions of the Human
Resources Code are repealed:
(1) Section 40.001(1);
(2) Section 40.028;
(3) Section 40.029;
(4) Sections 40.0305(b) and (c); and
(5) Section 43.010(c).
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.
SECTION 2.02. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Sections 40.0322 and 40.0323 to read as
follows:
Sec. 40.0322. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES
PERSONNEL; RECRUITMENT. (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
hires, as often as possible, persons with professional credentials
related to adult protective services, including persons 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 a recruiting program designed to attract and retain for
employment in the adult protective services division persons with
professional credentials described by Subsection (a).
(c) 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.
Sec. 40.0323. COORDINATION REGARDING RECRUITMENT FOR AND
CURRICULUM OF CERTAIN CERTIFICATE OR DEGREE PROGRAMS. The
department and the Texas Higher Education Coordinating Board
jointly shall develop strategies to:
(1) promote certificate or degree programs in the
fields of social work and psychology to individuals enrolled in or
admitted to institutions of higher education in this state; and
(2) ensure that persons receiving a certificate or
degree, including a graduate degree, in social work or psychology
from an institution of higher education in this state have the
knowledge and skills regarding protective services that are
provided directly to elderly or disabled persons and necessary for
successful employment by the adult protective services division of
the department.
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;
(ii) the criteria used by caseworkers to
determine whether elderly or disabled persons lack capacity to
consent to receive protective services; and
(iii) 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,
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 identity theft
and other forms of financial exploitation and suspected
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
another department caseworker with more experience to accompany and
train the caseworker in the field for a three-month 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) include testing, progress reports, or other
evaluations to assess the performance of trainees.
(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 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.
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).
(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) Each employee of the adult protective services division
must receive a performance evaluation required by Section 40.032(c)
at least annually. 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 and fails to complete that evaluation in a timely
manner.
(e) 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.
(f) 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 February 1,
2006.
SECTION 2.05. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0527 to read as follows:
Sec. 40.0527. PUBLIC AWARENESS. (a) The executive
commissioner by rule shall develop and the department shall
implement a statewide public awareness campaign designed to educate
the public regarding the abuse, neglect, and exploitation of
elderly and disabled persons.
(b) The department may use mass communications media, the
Internet, publications, or other means of public education in
conducting the campaign.
(c) A public awareness strategy implemented for the program
must include:
(1) the provision of information on the incidence and
types of reports of abuse, neglect, and exploitation of elderly or
disabled persons; and
(2) practices that can reduce the incidences of abuse,
neglect, and exploitation of elderly or disabled persons in this
state.
(d) The department shall enlist the support and assistance
of civic, philanthropic, and public service organizations in the
performance of the duties imposed under this section.
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 a state of abuse, neglect, or exploitation and
needs protective services. The criteria must provide for a
comprehensive assessment of the person's:
(1) environmental, physical, medical, mental health,
and financial condition; and
(2) social interaction and support.
SECTION 2.07. Section 48.151, Human Resources Code, is
amended by adding Subsection (c-1) to read as follows:
(c-1) 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
identity theft and other forms of financial exploitation, are
assigned to personnel who have experience and training in those
issues.
SECTION 2.08. Sections 48.205(a) and (b), Human Resources
Code, are amended to read as follows:
(a) Subject to the availability of funds, the [The]
department shall [may] provide direct protective services or
contract with protective services agencies for the provision
[provisions] of those services.
(b) The department shall use existing resources and
services of public and private agencies in providing protective
services. If the department does not have existing resources to
provide direct protective services to elderly or disabled persons,
the department, subject to the availability of funds, shall
contract with protective services agencies for the provision of
those services, especially to elderly or disabled persons residing
in rural or remote areas of this state or not previously served by
the department.
SECTION 2.09. Section 48.208, Human Resources Code, is
amended by amending Subsections (b), (c), and (e) and adding
Subsections (c-1), (c-2), and (e-1) to read as follows:
(b) If the department determines that an elderly or disabled
person is suffering from abuse, neglect, or exploitation presenting
a threat to life or physical safety, that the person lacks capacity
to consent to receive protective services, and that no consent can
be obtained, the department shall [may] petition the probate or
statutory or constitutional county court that has probate
jurisdiction in the county in which the elderly or disabled person
resides for an emergency order authorizing protective services.
(c) The petition shall be verified and shall include:
(1) the name, age, and address of the elderly or
disabled person who needs protective services;
(2) the nature of the abuse, neglect, or exploitation;
(3) the services needed; and
(4) a [medical] report signed by a physician,
physician assistant, registered nurse, or advanced practice nurse
that contains the information required by Subsection (c-1) or a
report signed by a psychologist licensed under Chapter 501,
Occupations Code, that contains the information required by
Subsection (c-2), [stating that the person is suffering from abuse,
neglect, or exploitation presenting a threat to life or physical
safety and stating that the person is physically or mentally
incapable of consenting to services] unless the court finds that an
immediate danger to the health or safety of the elderly or disabled
person exists and there is not sufficient time to obtain the
[medical] report.
(c-1) A report obtained from a physician, physician
assistant, registered nurse, or advanced practice nurse under
Subsection (c)(4) must state that the person:
(1) is suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety; and
(2) is physically or mentally incapable of consenting
to services.
(c-2) A report obtained from a licensed psychologist under
Subsection (c)(4) must state that the person:
(1) is suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety; and
(2) is mentally incapable of consenting to services.
(e) The emergency order expires at the end of 72 hours from
the time of the order unless:
(1) 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; or
(2) the court extends the order as provided by
Subsection (e-1).
(e-1) The court may extend an emergency order issued under
this section once for an additional period of not more than 30 days
if the court receives a medical report signed by a physician stating
that the person is physically or mentally incapable of consenting
to services and the court, after a hearing, finds that the immediate
danger to the health or safety of the elderly or disabled person
continues to exist. The medical report must be based on an
examination the physician performed not earlier than the date the
court granted the initial emergency order. An extension order [may
be renewed for not more than 14 additional days. 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 shorten the term of [modify] or terminate the emergency order on
petition of the department, the elderly or disabled [incapacitated]
person, or any person interested in the elderly or disabled
person's [his] welfare.
SECTION 2.10. Section 531.0162, Government Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) Subject to available appropriations, the commission
shall use technology whenever possible in connection with the adult
protective services program of the Department of Family and
Protective Services to:
(1) provide for automated collection of information
necessary to evaluate program effectiveness using systems that
integrate collection of necessary information with other routine
duties of caseworkers and other service providers; and
(2) consequently reduce the time that caseworkers and
other service providers are required to use in gathering and
reporting information necessary for program evaluation.
(d) The commission shall include representatives of the
private sector in the technology planning process used to determine
appropriate technology for the adult protective services program of
the Department of Family and Protective Services.
SECTION 2.11. (a) Section 531.048, Government Code, is
amended by adding Subsection (g) to read as follows:
(g) The executive commissioner shall develop and, subject
to the availability of funds, implement a caseload management
reduction plan to reduce, not later than January 1, 2011, caseloads
for caseworkers employed by the adult protective services division
of the Department of Family and Protective Services to a level that
does not exceed professional caseload standards by more than five
cases per caseworker. The plan must provide specific annual
targets for caseload reduction.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules establishing the caseload management reduction plan as
provided by Section 531.048(g), Government Code, as added by this
section.
(c) Not later than December 31 of each even-numbered year,
the executive commissioner of the Health and Human Services
Commission shall prepare a report regarding the implementation of
the plan provided by Section 531.048(g), Government Code, as added
by this section. The report must include an assessment of the
effect of the plan on reducing caseloads and the amount of funding
necessary to fully implement the plan during the next biennium. The
executive commissioner shall submit the report 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 adult protective services.
SECTION 2.12. PILOT PROGRAM FOR MONITORING CERTAIN
UNLICENSED LONG-TERM CARE FACILITIES. (a) In this section:
(1) "Disabled person" has the meaning assigned by
Section 48.002, Human Resources Code.
(2) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(3) "Long-term care facility" means:
(A) a nursing home or related institution;
(B) an assisted living facility;
(C) an ICF-MR, as defined by Section 531.002,
Health and Safety Code;
(D) a community home subject to Chapter 123,
Human Resources Code; or
(E) any other residential arrangement that
provides care to four or more adults who are unrelated to the
proprietor of the establishment.
(b) The executive commissioner of the Health and Human
Services Commission by rule shall develop and implement a pilot
program in which local task forces composed of health care
providers, representatives from governmental entities, and local
government officials are created to:
(1) identify, through a coordination of efforts and
resources, persons establishing or operating:
(A) long-term care facilities providing personal
care services, health-related services, or other care to elderly or
disabled persons without being licensed or providing disclosures as
required by state law; or
(B) residential facilities or arrangements
providing personal care services or other care in violation of
state law to three or fewer elderly or disabled persons who are
unrelated to the proprietor of the establishment; and
(2) take appropriate action necessary to:
(A) report the facilities or arrangements
described by Subdivision (1) of this subsection to the appropriate
state regulatory agencies or local law enforcement agencies;
(B) assist, whenever practicable, a long-term
care facility described by Subdivision (1)(A) of this subsection in
obtaining the appropriate licensure or making the appropriate
disclosures on request of the facility; and
(C) assist, if it is feasible and practicable, a
facility or arrangement described by Subdivision (1)(B) of this
subsection in complying with applicable regulatory requirements of
state or local law.
(c) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
implement the pilot program in at least one rural area and one urban
area of this state.
(d) Not later than January 1, 2007, the Health and Human
Services Commission shall submit a report on the status and
progress of the pilot program 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 adult protective services. The report
must include a recommendation regarding the advisability of
expanding the pilot program statewide.
(e) This section expires September 1, 2007.
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. Section 48.209, Human Resources Code, is
amended to read as follows:
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES
[GUARDIANSHIPS]. (a) The department shall refer an individual to
the Department of Aging and Disability Services for guardianship
services under Subchapter E, Chapter 161, if the individual is:
(1) a minor in the conservatorship of the department
who:
(A) is 16 years of age or older; and
(B) the department has reason to believe will,
because of a physical or mental condition, be substantially unable
to provide for the individual's own food, clothing, or shelter, to
care for the individual's own physical health, or to manage the
individual's own financial affairs when the individual becomes an
adult; or
(2) an elderly or disabled person who:
(A) has been found by the department to be in a
state of abuse, neglect, or exploitation; and
(B) the department has reason to believe is an
incapacitated person as defined by Section 601(14)(B), Texas
Probate Code.
(b) Notwithstanding Subsection (a), if a less restrictive
alternative to guardianship is appropriate and available for the
individual, the department shall pursue that alternative instead of
making a referral to the Department of Aging and Disability
Services for guardianship services.
(c) The department and the Department of Aging and
Disability Services shall enter into a memorandum of understanding
that sets forth in detail the roles and duties of each agency
regarding the referral for guardianship services under Subsection
(a) and the provision of guardianship services to individuals under
Subchapter E, Chapter 161.
(d) Nothing in this section shall prohibit the department
from also making a referral of an individual to a court having
probate jurisdiction in the county where the individual is
domiciled or found, if the court has requested the department to
notify the court of any individuals who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
(e) The department may not be appointed to serve as
temporary or permanent guardian for any individual. [(a) The
department shall 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. If a less restrictive alternative
to guardianship is available for an individual, the department
shall pursue the alternative instead of applying for appointment as
a guardian.
[(b) As a last resort, the department 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. 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 knows that
an individual is willing and able to serve as the guardian, 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.
[(d) 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.
[(e) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
[(f) The department shall file an application with the court
to name a successor guardian if the department becomes aware of a
qualified and willing individual or guardianship program serving
the area in which the ward is located.]
SECTION 3.03. 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 guardian of the person or estate, or
both, for an incapacitated individual as provided by Subchapter E
of this chapter and Chapter XIII, Texas Probate Code.
SECTION 3.04. Chapter 161, Human Resources Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. GUARDIANSHIP SERVICES
Sec. 161.101. GUARDIANSHIP SERVICES. (a) The department
shall file an application under Section 682 or 875, Texas Probate
Code, to be appointed guardian of the person or estate, or both, of
a minor referred to the department under Section 48.209(a)(1) for
guardianship services if the department determines:
(1) that the minor, because of a mental or physical
condition, will be substantially unable to provide for the minor's
own food, clothing, or shelter, to care for the minor's own physical
health, or to manage the individual's own financial affairs when
the minor becomes an adult; and
(2) that a less restrictive alternative to
guardianship is not available for the minor.
(b) The department shall conduct a thorough assessment of
the conditions and circumstances of an elderly or disabled person
referred to the department under Section 48.209(a)(2) for
guardianship services to determine whether a guardianship is
appropriate for the individual. In determining whether a
guardianship is appropriate, the department may consider the
resources and funds available to meet the needs of the elderly or
disabled person. The executive commissioner shall adopt rules for
the administration of this subsection.
(c) If after conducting an assessment of an elderly or
disabled person under Subsection (b) the department determines that
a guardianship is appropriate for the elderly or disabled person,
the department shall file an application under Section 682 or 875,
Texas Probate Code, to be appointed guardian of the person or
estate, or both, of the individual. If after conducting the
assessment the department determines that a less restrictive
alternative to guardianship is available for the elderly or
disabled person, the department shall pursue the less restrictive
alternative instead of applying for appointment as the person's
guardian.
(d) The department may not be required by a court to file an
application for guardianship, and the department may not be
appointed as permanent guardian for any individual unless the
department files an application to serve or otherwise agrees to
serve as the individual's guardian of the person or estate, or both.
(e) A guardianship created for an individual as a result of
an application for guardianship filed under Subsection (a) may not
take effect before the individual's 18th birthday.
Sec. 161.102. REFERRAL TO GUARDIANSHIP PROGRAM, COURT, OR
OTHER PERSON. (a) If the department becomes aware of a
guardianship program, private professional guardian, or other
person willing and able to provide the guardianship services that
would otherwise be provided by the department to an individual
referred to the department by the Department of Family and
Protective Services under Section 48.209, the department shall
refer the individual to that person or program for guardianship
services.
(b) If requested by a court, the department shall notify the
court of any referral made to the department by the Department of
Family and Protective Services relating to any individual who is
domiciled or found in a county where the requesting court has
probate jurisdiction and who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
Sec. 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. If
appropriate, the department may contract with a political
subdivision of this state, a guardianship program as defined by
Section 601, Texas Probate Code, a private agency, or another state
agency for the provision of guardianship services under this
section.
Sec. 161.104. QUALITY ASSURANCE PROGRAM. The department
shall develop and implement a quality assurance program for
guardianship services provided by or on behalf of the department.
If the department enters into a contract with a political
subdivision, guardianship program, private agency, or other state
agency under Section 161.103, the department shall establish a
monitoring system as part of the quality assurance program to
ensure the quality of guardianship services for which the
department contracts under that section.
Sec. 161.105. OATH. A representative of the department
shall take the oath required by Section 700, Texas Probate Code, on
behalf of the department if the department is appointed guardian.
Sec. 161.106. GUARDIANSHIP POWERS AND DUTIES. In serving
as guardian of the person or estate, or both, for an incapacitated
individual, the department has all the powers granted and duties
prescribed to a guardian under Chapter XIII, Texas Probate Code, or
any other applicable law.
Sec. 161.107. EXEMPTION FROM GUARDIANSHIP BONDS, CERTAIN
COSTS, FEES, AND EXPENSES. (a) The department or a political
subdivision of this state or state agency with which the department
contracts under Section 161.103 is not required to post a bond or
pay any cost or fee associated with a bond otherwise required by the
Texas Probate Code in guardianship matters.
(b) The department is not required to pay any cost or fee
otherwise imposed for court proceedings or other services,
including:
(1) a filing fee or fee for issuance of service of
process imposed by Section 51.317, 51.318(b)(2), or 51.319,
Government Code;
(2) a court reporter fee imposed by Section 51.601,
Government Code;
(3) a judicial fund fee imposed by Section 51.702,
Government Code;
(4) a judge's fee imposed by Section 25.0008 or
25.0029, Government Code;
(5) a cost or security fee imposed by Section 12 or
622, Texas Probate Code; or
(6) a fee imposed by a county officer under Section
118.011 or 118.052, Local Government Code.
(c) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
(d) A political subdivision of this state or state agency
with which the department contracts under Section 161.103 is not
required to pay any cost or fee otherwise required by the Texas
Probate Code.
(e) The department is not liable for funding services
provided to a ward of the department, including long-term care or
burial expenses.
Sec. 161.108. APPLICATION FOR SUCCESSOR GUARDIAN. 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.
Sec. 161.109. ACCESS TO RECORDS OR DOCUMENTS. (a) The
department shall have access to all of the records and documents
concerning an individual referred for guardianship services under
this subchapter that are necessary to the performance of the
department's duties under this subchapter, including
client-identifying information and medical, psychological,
educational, or residential information.
(b) The department is exempt from the payment of a fee
otherwise required or authorized by law to obtain a medical record,
including a mental health record, from a hospital or health care
provider if the request for a record is made in the course of an
assessment for guardianship services conducted by the department.
(c) If the department cannot obtain access to a record or
document that is necessary to properly perform a duty under this
subchapter, the department may petition the probate court or the
statutory or constitutional court having probate jurisdiction for
access to the record or document.
(d) The court with probate jurisdiction shall, on good cause
shown, order the person or entity who denied access to a record or
document to allow the department to have access to the record or
document under the terms and conditions prescribed by the court.
(e) A person or entity is entitled to notice of and a hearing
on the department's petition for access as described by this
section.
(f) Access to, or disclosure of, a confidential record or
other confidential information under this section does not
constitute a waiver of confidentiality for other purposes or as to
other persons.
Sec. 161.110. LEGAL REPRESENTATION OF DEPARTMENT. (a)
Except as provided by Subsection (b), (c), or (f), the prosecuting
attorney representing the state in criminal cases in the county
court shall represent the department in any proceeding under this
subchapter unless the representation would be a conflict of
interest.
(b) If the attorney representing the state in criminal cases
in the county court is unable to represent the department in an
action under this subchapter because of a conflict of interest, the
attorney general shall represent the department in the action.
(c) If the attorney general is unable to represent the
department in an action under this subchapter, the attorney general
shall deputize an attorney who has contracted with the department
under Subsection (d) or an attorney employed by the department
under Subsection (e) to represent the department in the action.
(d) Subject to the approval of the attorney general, the
department may contract with a private attorney to represent the
department in an action under this subchapter.
(e) The department may employ attorneys to represent the
department in an action under this subchapter.
(f) In a county having a population of more than 2.8
million, the prosecuting attorney representing the state in civil
cases in the county court shall represent the department in any
proceeding under this subchapter unless the representation would be
a conflict of interest. If such attorney is unable to represent the
department in an action under this subchapter because of a conflict
of interest, the attorney general shall represent the department in
the action.
Sec. 161.111. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. (a) All files, reports, records, communications, or
working papers used or developed by the department in the
performance of duties relating to the assessment for or the
provision of guardianship services to an individual referred for
guardianship services under this subchapter are confidential and
not subject to disclosure under Chapter 552, Government Code.
(b) Confidential information may be disclosed only for a
purpose consistent with this subchapter, as required by other state
or federal law, or as necessary to enable the department to exercise
its powers and duties as guardian of the person or estate, or both,
of an individual.
(c) A court may order disclosure of confidential
information only if:
(1) a motion is filed with the court requesting
release of the information and a hearing on that request;
(2) notice of the hearing is served on the department
and each interested party; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is being assessed by the department for
guardianship services under this subchapter;
(B) is a ward of the department; or
(C) provides services to a ward of the
department.
(d) The department shall establish a policy and procedures
for the exchange of information with another state agency or
governmental entity, including a court, with a local guardianship
program to which an individual is referred for services, or with any
other entity who provides services to a ward of the department, as
necessary for the department, state agency, governmental entity, or
other entity to properly execute its respective duties and
responsibilities to provide guardianship services or other needed
services to meet the needs of the ward under this subchapter or
other law. An exchange of information under this subsection does
not constitute a release for purposes of waiving the
confidentiality of the information exchanged.
Sec. 161.112. INDEMNIFICATION FOR LEGAL EXPENSES. If a
present or former employee of the department who was involved in
activities related to the provision of guardianship services under
this subchapter is criminally prosecuted for conduct related to the
person's misfeasance or nonfeasance in the course and scope of the
person's employment and is found not guilty after a trial or appeal
or if the complaint or indictment is dismissed without a plea of
guilty or nolo contendere being entered, the department may
indemnify the person or the person's estate for the reasonable
attorney's fees incurred in defense of the prosecution up to a
maximum of $10,000.
Sec. 161.113. IMMUNITY. (a) In this section, "volunteer"
means a person who:
(1) renders services for or on behalf of the
department under the supervision of a department employee; and
(2) does not receive compensation that exceeds the
authorized expenses the person incurs in performing those services.
(b) A department employee or an authorized volunteer who
performs a department duty or responsibility under this subchapter
is immune from civil or criminal liability for any act or omission
that relates to the duty or responsibility if the person acted in
good faith and within the scope of the person's authority.
SECTION 3.05. Section 695A, Texas Probate Code, is amended
by adding Subsection (a-1) 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.
SECTION 3.06. Section 700(b), 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 3.07. Section 875(j), Texas Probate Code, is
amended to read as follows:
(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 3.08. 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 or its predecessor agency, the Department of
Protective and Regulatory 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 Commission 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, 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 Subsection (a)(7) of this section until
the contract expires or is otherwise lawfully terminated.
(c) To effectuate a smooth and orderly transfer of existing
guardianship status, a court may not require the Department of
Family and Protective Services or the Department of Aging and
Disability Services to comply with the provisions concerning
resignation of a guardian and appointment of a successor guardian
under Subpart D, Part 4, Chapter XIII, Texas Probate Code, with
respect to guardianship cases of the Department of Family and
Protective Services transferred to the Department of Aging and
Disability Services under this section and Section 2.09 of this
Act.
(d) A reference in a legal document, including a letter of
guardianship issued under Section 659, Texas Probate Code, to the
Department of Family and Protective Services as guardian in an
existing guardianship or application for guardianship that is
pending on the effective date of this Act is considered to be a
reference to the Department of Aging and Disability Services.
(e) A public entity, a private entity, or any other person,
including a bank, a service provider, law enforcement personnel, or
medical personnel, is required to accept the Department of Aging
and Disability Services' authority as guardian in the same manner
the entity or person would have accepted the Department of Family
and Protective Services' authority as guardian of a particular
ward.
(f) The Department of Aging and Disability Services may not
be required to take a new oath of guardianship under Section 700,
Texas Probate Code, with respect to a guardianship case transferred
to the department from the Department of Family and Protective
Services under this section and Section 2.09 of this Act.
SECTION 3.09. 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 last day of the period prescribed by the
executive commissioner.
ARTICLE 4. REPORT; EFFECTIVE DATE
SECTION 4.01. (a) Not later than the 180th day after the
effective date of this Act, and every six months after that date,
the Health and Human Services Commission shall provide a detailed
progress report on the implementation of the provisions of this Act
to:
(1) the governor;
(2) the Legislative Budget Board;
(3) the lieutenant governor;
(4) the speaker of the house of representatives;
(5) appropriate oversight committees of the
legislature; and
(6) the state auditor.
(b) Each progress report must address:
(1) the achievement status of each major element of
reform and each of the performance milestones specified in this
Act;
(2) any significant obstacles encountered by the
Health and Human Services Commission, Department of Family and
Protective Services, or Department of Aging and Disability Services
in implementing the provisions of this Act, and the steps proposed
to resolve those obstacles;
(3) any provision of this Act the Health and Human
Services Commission, Department of Family and Protective Services,
or Department of Aging and Disability Services determines that it
is unable to fully implement due to insufficient funds;
(4) any significant unanticipated fiscal implications
associated with the implementation of this Act, and recommendations
for addressing the fiscal implications in the most cost-effective
manner; and
(5) steps taken to enhance internal and external
accountability for:
(A) achieving favorable outcomes for children
needing protective services and adults needing protective services
or guardianship services; and
(B) the expenditure of public funds.
(c) In accordance with Chapter 321, Government Code, the
state auditor may conduct financial and compliance audits related
to the implementation of this Act as specified in an audit plan.
The state auditor shall coordinate an audit performed under this
subsection with the Health and Human Services Commission,
Department of Family and Protective Services, and Department of
Aging and Disability Services internal auditors and the
commission's office of inspector general to avoid duplication of
effort.
(d) Except as provided by this subsection, this section
expires September 1, 2010. Subsections (a) and (b) of this section
expire September 1, 2009.
SECTION 4.02. This Act takes effect September 1, 2005.