By: Hernandez, et al.	H.B. No. 249
	(Senate Sponsor - Taylor of Collin)
	(In the Senate - Received from the House May 1, 2017;
	May 8, 2017, read first time and referred to Committee on Health &
	Human Services; May 22, 2017, reported adversely, with favorable
	Committee Substitute by the following vote:  Yeas 8, Nays 0;
	May 22, 2017, sent to printer.)
Click here to see the committee vote
	COMMITTEE SUBSTITUTE FOR H.B. No. 249	By:  Taylor of Collin

	A BILL TO BE ENTITLED
	AN ACT
	relating to investigations of child abuse, neglect, or exploitation
	and to child protective services functions of the Department of
	Family and Protective Services.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 71.004, Family Code, is amended to read
	as follows:
	Sec. 71.004.  FAMILY VIOLENCE. "Family violence" means:
	(1)  an act by a member of a family or household against
	another member of the family or household that is intended to result
	in physical harm, bodily injury, assault, or sexual assault or that
	is a threat that reasonably places the member in fear of imminent
	physical harm, bodily injury, assault, or sexual assault, but does
	not include defensive measures to protect oneself;
	(2)  abuse, as that term is defined by Sections
	261.001(1)(C), (E), (G), (H), (I), (J), [and] (K), and (M), by a
	member of a family or household toward a child of the family or
	household; or
	(3)  dating violence, as that term is defined by
	Section 71.0021.
	SECTION 2.  Section 261.001, Family Code, is amended by
	amending Subdivisions (1), (4), and (5) and adding Subdivision (3)
	to read as follows:
	(1)  "Abuse" includes the following acts or omissions
	by a person:
	(A)  mental or emotional injury to a child that
	results in an observable and material impairment in the child's
	growth, development, or psychological functioning;
	(B)  causing or permitting the child to be in a
	situation in which the child sustains a mental or emotional injury
	that results in an observable and material impairment in the
	child's growth, development, or psychological functioning;
	(C)  physical injury that results in substantial
	harm to the child, or the genuine threat of substantial harm from
	physical injury to the child, including an injury that is at
	variance with the history or explanation given and excluding an
	accident or reasonable discipline by a parent, guardian, or
	managing or possessory conservator that does not expose the child
	to a substantial risk of harm;
	(D)  failure to make a reasonable effort to
	prevent an action by another person that results in physical injury
	that results in substantial harm to the child;
	(E)  sexual conduct harmful to a child's mental,
	emotional, or physical welfare, including conduct that constitutes
	the offense of continuous sexual abuse of young child or children
	under Section 21.02, Penal Code, indecency with a child under
	Section 21.11, Penal Code, sexual assault under Section 22.011,
	Penal Code, or aggravated sexual assault under Section 22.021,
	Penal Code;
	(F)  failure to make a reasonable effort to
	prevent sexual conduct harmful to a child;
	(G)  compelling or encouraging the child to engage
	in sexual conduct as defined by Section 43.01, Penal Code,
	including compelling or encouraging the child in a manner that
	constitutes an offense of trafficking of persons under Section
	20A.02(a)(7) or (8), Penal Code, prostitution under Section
	43.02(b), Penal Code, or compelling prostitution under Section
	43.05(a)(2), Penal Code;
	(H)  causing, permitting, encouraging, engaging
	in, or allowing the photographing, filming, or depicting of the
	child if the person knew or should have known that the resulting
	photograph, film, or depiction of the child is obscene as defined by
	Section 43.21, Penal Code, or pornographic;
	(I)  the current use by a person of a controlled
	substance as defined by Chapter 481, Health and Safety Code, in a
	manner or to the extent that the use results in physical, mental, or
	emotional injury to a child;
	(J)  causing, expressly permitting, or
	encouraging a child to use a controlled substance as defined by
	Chapter 481, Health and Safety Code;
	(K)  causing, permitting, encouraging, engaging
	in, or allowing a sexual performance by a child as defined by
	Section 43.25, Penal Code; [or]
	(L)  knowingly causing, permitting, encouraging,
	engaging in, or allowing a child to be trafficked in a manner
	punishable as an offense under Section 20A.02(a)(5), (6), (7), or
	(8), Penal Code, or the failure to make a reasonable effort to
	prevent a child from being trafficked in a manner punishable as an
	offense under any of those sections; or
	(M)  forcing or coercing a child to enter into a
	marriage.
	(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.
	(4)  "Neglect":
	(A)  includes:
	(i)  the leaving of a child in a situation
	where the child would be exposed to a substantial risk of physical
	or mental harm, without arranging for necessary care for the child,
	and the demonstration of an intent not to return by a parent,
	guardian, or managing or possessory conservator of the child;
	(ii)  the following acts or omissions by a
	person:
	(a)  placing a child in or failing to
	remove a child from a situation that a reasonable person would
	realize requires judgment or actions beyond the child's level of
	maturity, physical condition, or mental abilities and that results
	in bodily injury or a substantial risk of immediate harm to the
	child;
	(b)  failing to seek, obtain, or follow
	through with medical care for a child, with the failure resulting in
	or presenting a substantial risk of death, disfigurement, or bodily
	injury or with the failure resulting in an observable and material
	impairment to the growth, development, or functioning of the child;
	(c)  the failure to provide a child
	with food, clothing, or shelter necessary to sustain the life or
	health of the child, excluding failure caused primarily by
	financial inability unless relief services had been offered and
	refused;
	(d)  placing a child in or failing to
	remove the child from a situation in which the child would be
	exposed to a substantial risk of sexual conduct harmful to the
	child; or
	(e)  placing a child in or failing to
	remove the child from a situation in which the child would be
	exposed to acts or omissions that constitute abuse under
	Subdivision (1)(E), (F), (G), (H), or (K) committed against another
	child; [or]
	(iii)  the failure by the person responsible
	for a child's care, custody, or welfare to permit the child to
	return to the child's home without arranging for the necessary care
	for the child after the child has been absent from the home for any
	reason, including having been in residential placement or having
	run away; or
	(iv)  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; and
	(B)  does not include the refusal by a person
	responsible for a child's care, custody, or welfare to permit the
	child to remain in or return to the child's home resulting in the
	placement of the child in the conservatorship of the department if:
	(i)  the child has a severe emotional
	disturbance;
	(ii)  the person's refusal is based solely on
	the person's inability to obtain mental health services necessary
	to protect the safety and well-being of the child; and
	(iii)  the person has exhausted all
	reasonable means available to the person to obtain the mental
	health services described by Subparagraph (ii).
	(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 3.  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 4.  Sections 261.301(b) and (c), Family Code, are
	amended to read as follows:
	(b)  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.
	(c)  The department is not required to investigate a report
	that alleges child abuse, [or] neglect, or exploitation by a person
	other than a person responsible for a child's care, custody, or
	welfare. The appropriate state or local law enforcement agency
	shall investigate that report if the agency determines an
	investigation should be conducted.
	SECTION 5.  Section 261.401(b), Family Code, is amended to
	read as follows:
	(b)  Except as provided by Section 261.404 and Section
	531.02013(1)(D), Government Code, 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 6.  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 7.  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 8.  (a)  Subchapter B, Chapter 40, Human Resources
	Code, is amended by adding Sections 40.039, 40.040, 40.041, and
	40.042 to read as follows:
	Sec. 40.039.  REVIEW OF RECORDS RETENTION POLICY. The
	department shall periodically review the department's records
	retention policy with respect to case and intake records relating
	to department functions.  The department shall make changes to the
	policy consistent with the records retention schedule submitted
	under Section 441.185, Government Code, that are necessary to
	improve case prioritization and the routing of cases to the
	appropriate division of the department.  The department may adopt
	rules necessary to implement this section.
	Sec. 40.040.  CASE MANAGEMENT VENDOR QUALITY OVERSIGHT AND
	ASSURANCE DIVISION; MONITORING OF CONTRACT ADHERENCE. (a)  In this
	section, "case management," "catchment area," and "community-based
	care" have the meanings assigned by Section 264.151, Family Code.
	(b)  The department shall create within the department the
	case management services vendor quality oversight and assurance
	division. The division shall:
	(1)  oversee quality and ensure accountability of any
	vendor that provides community-based care and full case management
	services for the department under community-based care; and
	(2)  monitor the transfer from the department to a
	vendor of full case management services for children and families
	receiving services from the vendor, including any transfer
	occurring under a pilot program.
	(c)  The commission shall contract with an outside vendor
	with expertise in quality assurance to develop, in coordination
	with the department, a contract monitoring system and standards for
	the continuous monitoring of the adherence of a vendor providing
	foster care services under community-based care to the terms of the
	contract entered into by the vendor and the commission.  The
	standards must include performance benchmarks relating to the
	provision of case management services in the catchment area where
	the vendor operates.
	(d)  The division shall collect and analyze data comparing
	outcomes on performance measures between catchment areas where
	community-based care has been implemented and regions where
	community-based care has not been implemented.
	Sec. 40.041.  OFFICE OF DATA ANALYTICS. The department
	shall create an office of data analytics.  The office shall report
	to the deputy commissioner and may perform any of the following
	functions, as determined by the department:
	(1)  monitor management trends;
	(2)  analyze employee exit surveys and interviews;
	(3)  evaluate the effectiveness of employee retention
	efforts, including merit pay;
	(4)  create and manage a system for handling employee
	complaints submitted by the employee outside of an employee's
	direct chain of command, including anonymous complaints;
	(5)  monitor and provide reports to department
	management personnel on:
	(A)  employee complaint data and trends in
	employee complaints;
	(B)  compliance with annual department
	performance evaluation requirements; and
	(C)  the department's use of positive performance
	levels for employees;
	(6)  track employee tenure and internal employee
	transfers within both the child protective services division and
	the department;
	(7)  use data analytics to predict workforce shortages
	and identify areas of the department with high rates of employee
	turnover, and develop a process to inform the deputy commissioner
	and other appropriate staff regarding the office's findings;
	(8)  create and monitor reports on key metrics of
	agency performance;
	(9)  analyze available data, including data on employee
	training, for historical and predictive department trends; and
	(10)  conduct any other data analysis the department
	determines to be appropriate for improving performance, meeting the
	department's current business needs, or fulfilling the powers and
	duties of the department.
	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 shall 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 or the commissioner of the
	department, as appropriate, may adopt rules to implement this
	section.
	(b)  As soon as possible after the effective date of this
	Act, the commissioner of the Department of Family and Protective
	Services shall establish the office of data analytics required by
	Section 40.041, Human Resources Code, as added by this section.  The
	commissioner and the executive commissioner of the Health and Human
	Services Commission shall transfer appropriate staff as necessary
	to conduct the duties of the office.
	SECTION 9.  Section 40.051, Human Resources Code, is amended
	to read as follows:
	Sec. 40.051.  STRATEGIC PLAN FOR DEPARTMENT. The department
	shall develop a departmental strategic plan based on the goals and
	priorities stated in the commission's coordinated strategic plan
	for health and human services. The department shall also develop
	its plan based on:
	(1)  furthering the policy of family preservation;
	(2)  the goal of ending the abuse and neglect of
	children in the conservatorship of the department; and
	(3)  the goal of increasing the capacity and
	availability of foster, relative, and kinship placements in this
	state.
	SECTION 10.  (a)  Section 40.058(f), Human Resources Code,
	is amended to read as follows:
	(f)  A contract for residential child-care services provided
	by a general residential operation or by a child-placing agency
	must include provisions that:
	(1)  enable the department and commission to monitor
	the effectiveness of the services;
	(2)  specify performance outcomes, financial penalties
	for failing to meet any specified performance outcomes, and
	financial incentives for exceeding any specified performance
	outcomes;
	(3)  authorize the department or commission to
	terminate the contract or impose monetary sanctions for a violation
	of a provision of the contract that specifies performance criteria
	or for underperformance in meeting any specified performance
	outcomes;
	(4)  authorize the department or commission, an agent
	of the department or commission, and the state auditor to inspect
	all books, records, and files maintained by a contractor relating
	to the contract; and
	(5)  are necessary, as determined by the department or
	commission, to ensure accountability for the delivery of services
	and for the expenditure of public funds.
	(b)  The Health and Human Services Commission shall, in a
	contract for residential child-care services between the
	commission and a general residential operation or child-placing
	agency that is entered into on or after the effective date of this
	section, including a renewal contract, include the provisions
	required by Section 40.058(f), Human Resources Code, as amended by
	this section.
	(c)  The Health and Human Services Commission shall seek to
	amend contracts for residential child-care services entered into
	with general residential operations or child-placing agencies
	before the effective date of this section to include the provisions
	required by Section 40.058(f), Human Resources Code, as amended by
	this section.
	(d)  The Department of Family and Protective Services and the
	Health and Human Services Commission may not impose a financial
	penalty against a general residential operation or child-placing
	agency under a contract provision described by Section 40.058(f)(2)
	or (3), Human Resources Code, as amended by this section, until
	September 1, 2018.
	SECTION 11.  (a)  Subchapter C, Chapter 40, Human Resources
	Code, is amended by adding Section 40.0581 to read as follows:
	Sec. 40.0581.  PERFORMANCE MEASURES FOR CERTAIN SERVICE
	PROVIDER CONTRACTS. (a)  The commission, in collaboration with the
	department, shall contract with a vendor or enter into an agreement
	with an institution of higher education to develop, in coordination
	with the department, performance quality metrics for family-based
	safety services and post-adoption support services providers.  The
	quality metrics must be included in each contract with those
	providers.
	(b)  Each provider whose contract with the commission to
	provide department services includes the quality metrics developed
	under Subsection (a) must prepare and submit to the department a
	report each calendar quarter regarding the provider's performance
	based on the quality metrics.
	(c)  The commissioner shall compile a summary of all reports
	prepared and submitted to the department by family-based safety
	services providers as required by Subsection (b) and distribute the
	summary to appropriate family-based safety services caseworkers
	and child protective services region management once each calendar
	quarter.
	(d)  The commissioner shall compile a summary of all reports
	prepared and submitted to the department by post-adoption support
	services providers as required by Subsection (b) and distribute the
	summary to appropriate conservatorship and adoption caseworkers
	and child protective services region management.
	(e)  The department shall make the summaries prepared under
	Subsections (c) and (d) available to families that are receiving
	family-based safety services and to adoptive families.
	(f)  This section does not apply to a provider that has
	entered into a contract with the commission to provide family-based
	safety services under Section 264.165, Family Code.
	(b)  The quality metrics required by Section 40.0581, Human
	Resources Code, as added by this section, must be developed not
	later than September 1, 2018, and included in any contract,
	including a renewal contract, entered into by the Health and Human
	Services Commission with a family-based safety services provider or
	a post-adoption support services provider on or after January 1,
	2019, except as provided by Section 40.0581(f), Human Resources
	Code, as added by this section.
	SECTION 12.  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 13.  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 14.  Section 261.401(a), Family Code, is repealed.
	SECTION 15.  (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 16.  This Act takes effect September 1, 2017.
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