87R10542 MM-F
By: Toth H.B. No. 4244
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of a representative payee or fiduciary
for a child in the conservatorship of the Department of Family and
Protective Services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 264, Family Code, is
amended by adding Section 264.0112 to read as follows:
Sec. 264.0112. APPOINTMENT OF REPRESENTATIVE PAYEE OR
FIDUCIARY FOR CHILD. (a) In this section, "legal representative"
means the child's attorney, the child's attorney ad litem, or
another individual appointed by a court to represent the legal
interests of the child.
(b) For a child in the department's conservatorship who
receives or is eligible to receive benefits or services for which a
representative payee or fiduciary is required, the department
shall, in cooperation with the child's legal representative, select
an appropriate individual to serve as the child's representative
payee or fiduciary in accordance with the requirements of 20 C.F.R.
Section 404.2021. If the department and the child's legal
representative do not agree on a representative payee or fiduciary,
the department shall request a hearing to determine an appropriate
individual. The court shall consider the appointment of the child's
relative and other designated caregivers. If the court does not
identify an appropriate individual, the court may name the
department as the representative payee or fiduciary.
(c) In accordance with federal law, if the department serves
as the representative payee or in any other fiduciary capacity for a
child receiving United States Department of Veterans Affairs
benefits, Supplemental Security Income (SSI) benefits under 42
U.S.C. Section 1381 et seq., or Social Security Disability
Insurance (SSDI) benefits under 42 U.S.C. Section 401 et seq., the
department shall:
(1) from the date the child turns 14 years of age until
the date the department no longer serves as the child's
representative payee or fiduciary, reserve the following minimum
percentage of the child's benefits for use by the child:
(A) for a child who is at least 14 years of age
but younger than 16 years of age, at least 40 percent;
(B) for a child who is at least 16 years of age
but younger than 18 years of age, at least 80 percent; and
(C) for a child who is at least 18 years of age,
100 percent;
(2) exercise discretion in accordance with federal law
and in the best interest of the child when making decisions to use
or save the child's benefits or resources that are less than or not
subject to asset or resource limits under federal law, including
using the benefits to address the child's special needs and saving
the benefits for the child's reasonably foreseeable future needs;
(3) appropriately monitor federal asset or resource
limits for the child's benefits and ensure that the child's best
interest is served by using or saving the benefits in a manner that
avoids violating federal asset or resource limits that would
negatively affect the child's eligibility to receive the benefits,
including by using:
(A) a Social Security Administration Plan to
Achieve Self-Support account for the child and determining whether
it is in the best interest of the child to save all or part of the
child's benefits in the account;
(B) an ABLE account authorized by Section 529A,
Internal Revenue Code of 1986, for the child and conserving the
child's benefits in that account in a manner that appropriately
avoids any federal asset or resource limits;
(C) an individual development account for the
child and conserving the child's benefits in that account in a
manner that appropriately avoids any federal asset or resource
limits;
(D) a special needs trust for the child and
conserving the child's benefits in the trust in a manner that is
consistent with federal requirements for special needs trusts and
that appropriately avoids any federal asset or resource limits;
(E) the benefits to pay for the child's special
needs not otherwise provided by the department if the department
determines it is in the best interest of the child;
(F) a dedicated account, if federal law requires
certain back payments of benefits to be placed in a dedicated
account, that complies with the requirements for dedicated accounts
under 20 C.F.R. Section 416.640(e); and
(G) any other exclusions from federal asset or
resource limits available under federal law and using or conserving
the child's benefits in a manner that appropriately avoids any
federal asset or resource limits;
(4) provide an annual accounting to the child and the
child's legal representative regarding the use or saving of the
child's resources in accordance with this section; and
(5) provide financial literacy training for each child
who is at least 14 years of age.
(d) The department shall immediately provide notice to the
child through the child's legal representative regarding:
(1) any application for United States Department of
Veterans Affairs benefits, Supplemental Security Income (SSI)
benefits under 42 U.S.C. Section 1381 et seq., or Social Security
Disability Insurance (SSDI) benefits under 42 U.S.C. Section 401 et
seq. made on the child's behalf;
(2) if the department is identified as the
representative payee under Subsection (b), any application to
become representative payee for the child's United States
Department of Veterans Affairs benefits, Supplemental Security
Income (SSI) benefits under 42 U.S.C. Section 1381 et seq., or
Social Security Disability Insurance (SSDI) benefits under 42
U.S.C. Section 401 et seq.;
(3) any decisions or communications from the United
States Department of Veterans Affairs or the Social Security
Administration regarding an application described by Subdivision
(1); and
(4) any appeal or other action requested by the
department regarding an application for benefits described by
Subdivision (1).
(e) If the department serves as the representative payee or
otherwise receives United States Department of Veterans Affairs
benefits, Supplemental Security Income (SSI) benefits under 42
U.S.C. Section 1381 et seq., or Social Security Disability
Insurance (SSDI) benefits under 42 U.S.C. Section 401 et seq. on the
child's behalf, the department shall provide notice to the child
through the child's legal representative of the following before
each placement review hearing:
(1) the amount of benefit funds received on the child's
behalf since the most recent notification to the child's legal
representative and the date the benefits were received;
(2) information regarding the child's assets and
resources, including the child's benefits, insurance, cash assets,
trust accounts, earnings, and other resources;
(3) an accounting of the disbursement of benefit
funds, including the date, amount, and identification of the payee;
and
(4) information regarding each request by the court
appointed special advocate for the child, the child's legal
representative, or the child's caregiver for disbursement of funds
and a statement regarding the department's reason for not granting
the request if the request was not granted.
SECTION 2. This Act takes effect September 1, 2021.