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.
* * * * *