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  By: Hernandez, Frank, Faircloth, Blanco H.B. No. 249
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to investigations of abuse, neglect, or exploitation
  conducted by the Department of Family and Protective Services.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 261.001, Family Code, is amended by
  adding Subdivision (3) and amending Subdivision (5) to read as
  follows:
               (3)  "Exploitation" means the illegal or improper use
  of a child or of the resources of a child for monetary or personal
  benefit, profit, or gain by an employee, volunteer, or other
  individual working under the auspices of a facility or program as
  further described by rule or policy.
               (5)  "Person responsible for a child's care, custody,
  or welfare" means a person who traditionally is responsible for a
  child's care, custody, or welfare, including:
                     (A)  a parent, guardian, managing or possessory
  conservator, or foster parent of the child;
                     (B)  a member of the child's family or household
  as defined by Chapter 71;
                     (C)  a person with whom the child's parent
  cohabits;
                     (D)  school personnel or a volunteer at the
  child's school; [or]
                     (E)  personnel or a volunteer at a public or
  private child-care facility that provides services for the child or
  at a public or private residential institution or facility where
  the child resides; or
                     (F)  an employee, volunteer, or other person
  working under the supervision of a licensed or unlicensed
  child-care facility, including a family home, residential
  child-care facility, employer-based day-care facility, or shelter
  day-care facility, as those terms are defined in Chapter 42, Human
  Resources Code.
         SECTION 2.  Section 261.101(b), Family Code, is amended to
  read as follows:
         (b)  If a professional has cause to believe that a child has
  been abused or neglected or may be abused or neglected, or that a
  child is a victim of an offense under Section 21.11, Penal Code, and
  the professional has cause to believe that the child has been abused
  as defined by Section 261.001 [or 261.401], the professional shall
  make a report not later than the 48th hour after the hour the
  professional first suspects that the child has been or may be abused
  or neglected or is a victim of an offense under Section 21.11, Penal
  Code.  A professional may not delegate to or rely on another person
  to make the report.  In this subsection, "professional" means an
  individual who is licensed or certified by the state or who is an
  employee of a facility licensed, certified, or operated by the
  state and who, in the normal course of official duties or duties for
  which a license or certification is required, has direct contact
  with children.  The term includes teachers, nurses, doctors,
  day-care employees, employees of a clinic or health care facility
  that provides reproductive services, juvenile probation officers,
  and juvenile detention or correctional officers.
         SECTION 3.  Section 261.301, Family Code, is amended by
  amending Subsections (b), (c), and (h) and adding Subsection (b-1)
  to read as follows:
         (b)  Except as provided by Subsection (b-1), a [A] state
  agency shall investigate a report that alleges abuse, [or] neglect,
  or exploitation occurred in a facility operated, licensed,
  certified, or registered by that agency as provided by Subchapter
  E. In conducting an investigation for a facility operated,
  licensed, certified, registered, or listed by the department, the
  department shall perform the investigation as provided by:
               (1)  Subchapter E; and
               (2)  the Human Resources Code.
         (b-1)  The department shall investigate a report that
  alleges abuse, neglect, or exploitation occurred in a facility
  operated, licensed, certified, or registered by the Health and
  Human Services Commission, the department, or another health and
  human services agency listed in Section 531.001, Government Code.
  The department shall perform the investigation as provided by:
               (1)  Subchapter E; and
               (2)  the Human Resources Code.
         (c)  The department is not required to investigate a report
  that alleges child abuse, [or] neglect, or exploitation by a person
  except as provided by Subsections (a) and (b) [other than a person
  responsible for a child's care, custody, or welfare]. The
  appropriate state or local law enforcement agency shall investigate
  other reports of child abuse, neglect, or exploitation [that
  report] if the agency determines an investigation should be
  conducted.
         (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 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.
         SECTION 4.  Section 261.401(b), Family Code, is amended to
  read as follows: 
         (b)  Except as provided by Sections 261.301 and [Section]
  261.404, a state agency that operates, licenses, certifies,
  registers, or lists a facility in which children are located or
  provides oversight of a program that serves children shall make a
  prompt, thorough investigation of a report that a child has been or
  may be abused, neglected, or exploited in the facility or program.
  The primary purpose of the investigation shall be the protection of
  the child.
         SECTION 5.  Sections 261.405(a) and (c), Family Code, are
  amended to read as follows: 
         (a)  Notwithstanding Section 261.001, in [In] this section:
               (1)  "Abuse" means an intentional, knowing, or reckless
  act or omission by an employee, volunteer, or other individual
  working under the auspices of a facility or program that causes or
  may cause emotional harm or physical injury to, or the death of, a
  child served by the facility or program as further described by rule
  or policy.
               (2)  "Exploitation" means the illegal or improper use
  of a child or of the resources of a child for monetary or personal
  benefit, profit, or gain by an employee, volunteer, or other
  individual working under the auspices of a facility or program as
  further described by rule or policy.
               (3)  "Juvenile justice facility" means a facility
  operated wholly or partly by the juvenile board, by another
  governmental unit, or by a private vendor under a contract with the
  juvenile board, county, or other governmental unit that serves
  juveniles under juvenile court jurisdiction. The term includes:
                     (A)  a public or private juvenile
  pre-adjudication secure detention facility, including a holdover
  facility;
                     (B)  a public or private juvenile
  post-adjudication secure correctional facility except for a
  facility operated solely for children committed to the Texas
  Juvenile Justice Department; and
                     (C)  a public or private non-secure juvenile
  post-adjudication residential treatment facility that is not
  licensed by the Department of Family and Protective Services or the
  Department of State Health Services.
               (4) [(2)]  "Juvenile justice program" means a program
  or department operated wholly or partly by the juvenile board or by
  a private vendor under a contract with a juvenile board that serves
  juveniles under juvenile court jurisdiction. The term includes:
                     (A)  a juvenile justice alternative education
  program;
                     (B)  a non-residential program that serves
  juvenile offenders under the jurisdiction of the juvenile court;
  and
                     (C)  a juvenile probation department.
               (5)  "Neglect" means a negligent act or omission by an
  employee, volunteer, or other individual working under the auspices
  of a facility or program, including failure to comply with an
  individual treatment plan, plan of care, or individualized service
  plan, that causes or may cause substantial emotional harm or
  physical injury to, or the death of, a child served by the facility
  or program as further described by rule or policy.
         (c)  The Texas Juvenile Justice Department shall make a
  prompt, thorough [conduct an] investigation as provided by this
  chapter if that department receives a report of alleged abuse,
  neglect, or exploitation in any juvenile justice program or
  facility. The primary purpose of the investigation shall be the
  protection of the child.
         SECTION 6.  Section 531.02013, Government Code, is amended
  to read as follows:
         Sec. 531.02013.  FUNCTIONS REMAINING WITH CERTAIN
  AGENCIES.  The following functions are not subject to transfer
  under Sections 531.0201 and 531.02011:
               (1)  the functions of the Department of Family and
  Protective Services, including the statewide intake of reports and
  other information, related to the following:
                     (A)  child protective services, including
  services that are required by federal law to be provided by this
  state's child welfare agency;
                     (B)  adult protective services, other than
  investigations of the alleged abuse, neglect, or exploitation of an
  elderly person or person with a disability:
                           (i)  in a facility operated, or in a facility
  or by a person licensed, certified, or registered, by a state
  agency; or
                           (ii)  by a provider that has contracted to
  provide home and community-based services; [and]
                     (C)  prevention and early intervention services;
  and
                     (D)  investigations of alleged abuse, neglect, or
  exploitation occurring at a child-care facility, as that term is
  defined in Section 40.042, Human Resources Code; and
               (2)  the public health functions of the Department of
  State Health Services, including health care data collection and
  maintenance of the Texas Health Care Information Collection
  program.
         SECTION 7.  Subchapter B, Chapter 40, Human Resources Code,
  is amended by adding Section 40.042 to read as follows:
         Sec. 40.042.  INVESTIGATIONS OF CHILD ABUSE, NEGLECT, AND
  EXPLOITATION.  (a)  In this section, "child-care facility" includes
  a facility, licensed or unlicensed child-care facility, family
  home, residential child-care facility, employer-based day-care
  facility, or shelter day-care facility, as those terms are defined
  in Chapter 42.
         (b)  For all investigations of child abuse, neglect, or
  exploitation conducted by the child protective services division of
  the department, the department shall adopt the definitions of
  abuse, neglect, and exploitation provided in Section 261.001,
  Family Code.
         (c)  The department shall establish standardized policies to
  be used during investigations.
         (d)  The commissioner may establish units within the child
  protective services division of the department to specialize in
  investigating allegations of child abuse, neglect, or exploitation
  occurring at a child-care facility.
         (e)  The department may require that investigators who
  specialize in allegations of child abuse, neglect, and exploitation
  occurring at child-care facilities receive ongoing training on the
  minimum licensing standards for any facilities that are applicable
  to the investigator's specialization.
         (f)  After an investigation of abuse, neglect, or
  exploitation occurring at a child-care facility, the department
  shall provide the state agency responsible for regulating the
  facility with access to any information relating to the
  department's investigation.  Providing access to confidential
  information under this subsection does not constitute a waiver of
  confidentiality.
         (g)  The executive commissioner may adopt rules to implement
  this section.
         SECTION 8.  Section 42.002(23), Human Resources Code, is
  amended to read as follows:
               (23)  "Other maltreatment" means:
                     (A)  abuse, as defined by Section 261.001 [or
  261.401], Family Code; or
                     (B)  neglect, as defined by Section 261.001 [or
  261.401], Family Code.
         SECTION 9.  Section 42.044(c-1), Human Resources Code, is
  amended to read as follows:
         (c-1)  The department:
               (1)  shall investigate a listed family home if the
  department receives a complaint that:
                     (A)  a child in the home has been abused or
  neglected, as defined by Section 261.001 [261.401], Family Code; or
                     (B)  otherwise alleges an immediate risk of danger
  to the health or safety of a child being cared for in the home; and
               (2)  may investigate a listed family home to ensure
  that the home is providing care for compensation to not more than
  three children, excluding children who are related to the
  caretaker.
         SECTION 10.  Section 261.401(a), Family Code, is repealed.
         SECTION 11.  (a) The changes in law made by this Act apply
  only to a report of suspected abuse, neglect, or exploitation of a
  child that is made on or after the effective date of this Act. A
  report of suspected abuse, neglect, or exploitation that is made
  before that date is governed by the law in effect on the date the
  report was made, and that law is continued in effect for that
  purpose.
         (b)  Notwithstanding any provision of Subchapter A-1,
  Chapter 531, Government Code, or any other law, the responsibility
  for conducting investigations of reports of abuse, neglect, or
  exploitation occurring at a child-care facility, as that term is
  defined in Section 40.042, Human Resources Code, as added by this
  Act, may not be transferred to the Health and Human Services
  Commission and remains the responsibility of the Department of
  Family and Protective Services.
         (c)  As soon as possible after the effective date of this
  Act, the commissioner of the Department of Family and Protective
  Services shall transfer the responsibility for conducting
  investigations of reports of abuse, neglect, or exploitation
  occurring at a child-care facility, as that term is defined in
  Section 40.042, Human Resources Code, as added by this Act, to the
  child protective services division of the department.  The
  commissioner shall transfer appropriate investigators and staff as
  necessary to implement this subsection.
         (d)  The Department of Family and Protective Services shall
  implement the standardized definitions and policies required under
  Sections 40.042(b) and (c), Human Resources Code, as added by this
  Act, not later than December 1, 2017.
         SECTION 12.  This Act takes effect September 1, 2017.