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.