This website will be unavailable from Thursday, May 30, 2024 at 6:00 p.m. through Monday, June 3, 2024 at 7:00 a.m. due to data center maintenance.
79R2133 MCK/KEG-F
By: Goodman H.B. No. 478
A BILL TO BE ENTITLED
AN ACT
relating to the operation of the child protective services and
foster care system.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. It is the intent of the legislature that the
Department of Family and Protective Services privatize the
provision of substitute care services statewide. While recognizing
that some local governments are presently funding portions of
certain substitute care services programs and may choose to expand
that funding in the future, by privatizing substitute care
services, the legislature does not intend to require any county,
municipality, or special district to assist in funding programs
that previously have been funded by the state. It is the intent of
the legislature to engage community ownership and participation in
protecting and serving the children and families in their
community. This Act does not prohibit a county, municipality, or
special district from voluntarily funding participation in
substitute care services.
SECTION 2. Subtitle D, Title 2, Human Resources Code, is
amended by adding Chapter 45 to read as follows:
CHAPTER 45. PRIVATIZATION OF SUBSTITUTE CARE SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 45.001. DEFINITIONS. In this chapter:
(1) "Privatize" means to contract with a private
entity to provide certain governmental services.
(2) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002.
(3) "Substitute care services" means services
provided to or for children in substitute care, including the
recruitment, training, and management of foster parents, the
recruitment of adoptive families, parenting classes, services
related to family preservation, and case management services. The
term does not include the regulation of facilities under Subchapter
C, Chapter 42.
Sec. 45.002. PRIVATIZING SUBSTITUTE CARE SERVICES;
DEPARTMENT DUTIES. (a) Not later than September 1, 2009, the
department shall privatize the provision of substitute care
services in this state.
(b) On and after September 1, 2009:
(1) all substitute care services for children for whom
the department has been appointed temporary or permanent managing
conservator must be provided by child-care institutions and
child-placing agencies with which the department contracts; and
(2) notwithstanding any other law, the department may
not directly provide those services.
Sec. 45.003. HIRING PREFERENCE. A substitute care provider
that contracts with the department to provide substitute care
services shall give a preference in hiring to qualified department
employees in good standing with the department who provide
substitute care services and whose positions with the department
may be eliminated as a result of the privatization of substitute
care services.
[Sections 45.004-45.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT DUTIES
Sec. 45.051. REORGANIZING STAFF RESPONSIBILITIES. Not
later than March 1, 2006, the department shall develop a plan for
reorganizing the department's operation to support future
procurement of, contracting with, and monitoring of private
substitute care providers and enforcement of the licensing of
facilities. The plan must include provisions for reducing the
duplication of the department's program monitoring activities.
Sec. 45.052. CONTINUITY OF CARE. The department shall
examine the benefits of using a single private agency case manager
or case management team to be responsible for managing substitute
care services for each child and the child's family from the date
the child enters to the date the child exits the child protective
services system to ensure continuity of care and expedite
permanency.
Sec. 45.053. ALTERNATIVE FINANCING. The department shall
create alternative financing and payment arrangements for
substitute care service providers. In developing the alternative
financing arrangement, the department shall examine:
(1) the use of case rates or performance-based
fee-for-service contracts that include lump-sum incentive
payments; and
(2) ways to reduce a substitute care provider's
financial risk, including the use of a risk-reward corridor that
limits a provider's risk of loss and potential profits or the
establishment of a statewide risk pool.
Sec. 45.054. ADOPTION OF TRANSITION PLAN. Not later than
March 1, 2006, the commission and the department shall, in
consultation with private entities under contract to provide
substitute care services for the department, including members of
the boards of directors of the private entities and other community
stakeholders, develop and adopt a substitute care services
transition plan consistent with the requirements of Subchapter C.
The executive commissioner shall adopt rules to implement the
privatization of substitute care services in this state.
Sec. 45.055. REGIONAL IMPLEMENTATION. (a) The department
shall implement the privatization of substitute care services on a
regional basis.
(b) The department may not implement the privatization of
substitute care services in a region of the state before the
department certifies in writing to the governor and the presiding
officers of each house of the legislature that the nonprofit
substitute care providers with whom the department has contracted
are ready to provide services and assume all responsibilities
transferred under the contract. In making this certification, the
department must conduct a readiness assessment before implementing
the privatization of substitute care services in a region.
[Sections 45.056-45.100 reserved for expansion]
SUBCHAPTER C. TRANSITION PLAN
Sec. 45.101. GOALS FOR PRIVATIZATION. The transition plan
adopted under Section 45.054 must provide for a new structural
model for the community-centered delivery of substitute care
services that is based on a goal of improving protective services,
achieving timely permanency for children in substitute care,
including family reunification, placement with a relative, or
adoption, and improving the overall well-being of children in
substitute care consistent with federal and state mandates.
Sec. 45.102. TRANSITION PLAN REQUIREMENTS. The transition
plan developed by the department and the commission must:
(1) address the transfer of substitute care services
and management functions from the department to substitute care
providers;
(2) identify regional gaps in the types of substitute
care services that are available;
(3) require the department to enter into contracts for
the provision of substitute care services as required by Section
264.106, Family Code;
(4) provide incentives for substitute care providers
to develop new services and supports before privatizing substitute
care services in a region;
(5) include an implementation plan to transfer all
foster homes certified by the department to private child-placing
agencies, ensuring minimum disruption to the children in foster
care and to current foster parents;
(6) include a process for assessing each child who is
transferred to a private nonprofit substitute care provider to
verify the child's service needs;
(7) include a process for transferring adoption
services to private contract agencies as soon as parental rights
are terminated in accordance with Section 264.207(b)(6), Family
Code;
(8) describe the manner in which family services and
case management services will be transferred to the substitute care
providers;
(9) describe the manner in which the department will:
(A) procure and contract for kinship and family
group conferencing services that are funded by the legislature; and
(B) incorporate those services into the
privatized system of substitute care services as it is implemented;
(10) provide for the implementation of Sections
264.1062 and 264.107, Family Code; and
(11) provide alternative financing and payment
arrangements for substitute care service providers that:
(A) limit the financial risk for substitute care
providers to ensure the providers' solvency;
(B) ensure flexibility to promote innovation and
efficiency in service delivery;
(C) balance provider control over key decisions
with the level of risk the substitute care provider assumes in the
contract; and
(D) provide for incentives to encourage
substitute care providers to expedite achieving permanency and
other goals for children.
[Sections 45.103-45.150 reserved for expansion]
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 45.151. EXPIRATION. This chapter expires September 1,
2010.
SECTION 3. Section 264.106, Family Code, is amended to read
as follows:
Sec. 264.106. REQUIRED CONTRACTS FOR SUBSTITUTE CARE
SERVICES. (a) In this section:
(1) "Substitute care provider" means a child-care
institution or a child-placing agency, as defined by Section
42.002, Human Resources Code.
(2) "Substitute care services" means services
provided to or for children in substitute care, including the
recruitment, training, and management of foster parents, the
recruitment of adoptive families, parenting classes, services
related to family preservation, and case management services. The
term does not include the regulation of facilities under Subchapter
C, Chapter 42, Human Resources Code.
(b) The department shall:
(1) assess the need for substitute care services
throughout the state; and
(2) contract with nonprofit agencies as part of
regional community-centered networks [substitute care providers
only to the extent necessary to meet the need] for the provision of
all necessary substitute care [those] services.
[(b) Before contracting with a substitute care provider,
the department shall determine whether:
[(1) community resources are available to support
children placed under the provider's care; and
[(2) the appropriate public school district has
sufficient resources to support children placed under the
provider's care if the children will attend public school.]
(c) In addition to the requirements of Section 40.058(b),
Human Resources Code, a contract with a substitute care provider
must include provisions that:
(1) enable the department to monitor the effectiveness
of the provider's services; [and]
(2) specify performance outcomes; and
(3) authorize the department to terminate the contract
or impose sanctions for a violation of a provision of the contract
that specifies performance criteria.
(d) In determining whether to contract with a substitute
care provider, the department shall consider the provider's
performance under any previous contract for substitute care
services between the department and the provider.
(e) In consultation with the department, the executive
commissioner of the Health and Human Services Commission, by rule,
shall establish contracting guidelines for the department under
this section designed to prevent potential conflicts of interest
between the department and nonprofit agencies that contract with
the department under this section.
(f) The department shall ensure that small and specialized
providers are provided an equal opportunity to contract with the
department to provide substitute care services.
(g) A contract under this section does not affect the rights
and duties of the department in the department's capacity as the
temporary or permanent managing conservator of a child.
(h) Notwithstanding any other law, on and after September 1,
2009, the department may not directly provide substitute care
services for children for whom the department has been appointed
temporary or permanent managing conservator.
[In this section, "substitute care provider" means a person
who provides residential care for children for 24 hours a day,
including:
[(1) a child-care institution, as defined by Section
42.002, Human Resources Code;
[(2) a child-placing agency, as defined by Section
42.002, Human Resources Code;
[(3) a foster group home or foster family home, as
defined by Section 42.002, Human Resources Code; and
[(4) an agency group home or agency home, as defined by
Section 42.002, Human Resources Code, other than an agency group
home, agency home, or a foster home verified or certified by the
department.]
SECTION 4. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.1062 to read as follows:
Sec. 264.1062. MONITORING PERFORMANCE OF SUBSTITUTE CARE
PROVIDERS. (a) The department, in consultation with private
entities under contract to provide substitute care services, shall
establish a quality assurance program that uses comprehensive,
multitiered assurance and improvement systems based on real-time
data to evaluate performance.
(b) The contract performance outcomes specified in a
contract under Section 264.106 must be consistent with the fiscal
goals of privatizing substitute care services and must be within
the contractor's authority to deliver. The contract must clearly
define the manner in which the substitute care provider's
performance will be measured and identify the information sources
the department will use to evaluate the performance.
SECTION 5. Section 264.107, Family Code, is amended by
adding Subsections (c)-(f) to read as follows:
(c) The department shall require the use of real-time
technology in the placement system to screen possible placement
options for a child and match the child's needs with the most
qualified providers with vacancies.
(d) The department shall institute a quality assistance
system to ensure that placement decisions are reliable and are made
in a consistent manner.
(e) In making placement decisions, the department shall
consider the recommendations of clinically qualified professionals
who have knowledge of the provider network.
(f) The department shall create regional advisory councils
to assist the department in:
(1) assessing the need for resources in the region;
and
(2) locating substitute care services in the region
for hard to place children.
SECTION 6. Section 264.109(c), Family Code, is amended to
read as follows:
(c) The department and the Title IV-D agency shall execute a
memorandum of understanding for the implementation of the
provisions of this section and for the allocation to [between] the
department [and the agency], consistent with federal laws and
regulations, of any child support funds recovered by the Title IV-D
agency in substitute care cases. All child support funds recovered
under this section and retained by the department [or the Title IV-D
agency] and any federal matching or incentive funds resulting from
child support collection efforts in substitute care cases shall be
in excess of amounts otherwise appropriated to [either] the
department [or the Title IV-D agency] by the legislature.
SECTION 7. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.1095 to read as follows:
Sec. 264.1095. CHILD SUPPORT. Unless the department has
been assigned support rights under Section 264.109, the department
shall file suit for child support under Section 154.001(b) for a
child for whom the department has been named temporary managing
conservator.
SECTION 8. Section 264.113(b), Family Code, is amended to
read as follows:
(b) The department shall encourage private substitute care
providers [develop a program] to recruit and retain foster parents
from faith-based organizations. As part of the program, the
substitute care provider [department] shall:
(1) collaborate with faith-based organizations to
inform prospective foster parents about the [department's] need for
foster parents, the requirements for becoming a foster parent, and
any other aspect of the foster care program that is necessary to
recruit foster parents;
(2) provide training for prospective foster parents
recruited under this section; and
(3) identify and recommend ways in which faith-based
organizations may support persons as they are recruited, are
trained, and serve as foster parents.
SECTION 9. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.117 to read as follows:
Sec. 264.117. MEDICAL PASSPORT. (a) The department shall
develop a medical passport for each foster child. The passport must
include the child's complete medication, medical, and therapy
history, including:
(1) immunization history;
(2) known medical conditions and allergies or other
special health needs;
(3) dates of well-baby checks and child physicals;
(4) medications prescribed; and
(5) the name of the child's primary care physician.
(b) The child or the child's caretaker shall present the
passport during each physician or therapist visit to ensure that
the physician or therapist has a complete record of the child's
medical treatment.
(c) The passport shall be part of the department's record
for the child as long as the child remains in foster care. The
passport shall remain with the child as the child changes
placements, physicians, or therapists.
(d) The department shall develop a procedure for
maintaining and updating medical passports.
(e) The department shall work with stakeholder groups to
create the medical passport.
SECTION 10. Section 264.207(b), Family Code, is amended to
read as follows:
(b) To accomplish the goals stated in Subsection (a), the
department shall:
(1) establish time frames for the initial screening of
families seeking to adopt children;
(2) provide for the evaluation of the effectiveness of
the department's management-level employees in expeditiously
making permanent placements for children;
(3) establish, as feasible, comprehensive assessment
services in various locations in the state to determine the needs of
children and families served by the department;
(4) emphasize and centralize the monitoring and
promoting of the permanent placement of children receiving
department services;
(5) establish goals and performance measures in the
permanent placement of children;
(6) immediately seek private licensed child-placing
agencies to place a child in the department's managing
conservatorship if the goal of the child's permanency plan is for
the child to be adopted [who has been available for permanent
placement for more than 90 days];
(7) provide information to private licensed
child-placing agencies concerning children under Subdivision (6);
(8) provide incentives for a private licensed
child-placing agency that places a child, as defined by Section
162.301, under Subdivision (6);
(9) encourage foster parents to be approved by the
department as both foster parents and adoptive parents; and
(10) [address failures by the department's service
regions in making permanent placements for children in a reasonable
time; and
[(11)] require the department's service regions to
participate in the Texas Adoption Resources Exchange.
SECTION 11. Section 42.002, Human Resources Code, is
amended by adding Subdivision (18) to read as follows:
(18) "Residential child-care facility" means a
facility licensed or certified by the department to provide
assessment, care, training, education, custody, treatment, or
supervision for a child who is not related by blood, marriage, or
adoption to the owner or operator of the facility, for all of the
24-hour day, whether or not the facility is operated for profit or
charges for the services it offers. The term includes child-care
institutions, foster group homes, foster homes, agency foster group
homes, and agency foster homes.
SECTION 12. Section 42.023(b), Human Resources Code, is
amended to read as follows:
(b) The annual report shall include:
(1) a report by regions of applications for licensure
or certification, of provisional licenses issued, denied, or
revoked, of licenses issued, denied, suspended or revoked, of
emergency closures and injunctions, and of the compliance of
state-operated agencies, if such agencies exist, with
certification requirements;
(2) a summary of the training programs required under
Section 42.04412 and their effectiveness [amount and kind of
in-service training and other professional development
opportunities provided for department staff];
(3) a summary of training and other professional
development opportunities offered to facilities' staffs; [and]
(4) a report of new administrative procedures, of the
number of staff and staff changes, and of plans for the coming year;
and
(5) a report of trends in licensing violations on a
statewide and regional basis and any department plans to address
those trends through the provision of technical assistance.
SECTION 13. Subchapter B, Chapter 42, Human Resources Code,
is amended by adding Section 42.025 to read as follows:
Sec. 42.025. STATE ADVISORY COMMITTEE ON LICENSING. (a)
The executive commissioner shall establish a State Advisory
Committee on Licensing.
(b) The advisory committee shall be composed of members from
the public and private sectors, including:
(1) representatives of each type of licensed
residential child-care facility;
(2) a department employee who performs functions
relating to licensing; and
(3) a representative of the community.
(c) The department shall provide staff necessary for the
advisory committee.
(d) The advisory committee shall meet at least annually.
(e) The advisory committee shall receive and review the
annual report required under Section 42.023 and make
recommendations to the department with respect to:
(1) improving consistency in the enforcement of
licensing requirements;
(2) the provision of advanced training;
(3) the revision of licensing standards; and
(4) technical assistance necessary to improve the
quality of care based on the information reported regarding
violations of licensing standards.
(f) Chapter 2110, Government Code, does not apply to the
committee.
SECTION 14. (a) Section 42.042, Human Resources Code, is
amended by adding Subsections (d-1), (h-1), (h-2), and (q) to read
as follows:
(d-1) The department shall provide a standard inspection
checklist and other forms for use in conducting inspections of
residential child-care facilities and issuing inspection reports.
(h-1) The department shall evaluate minimum standards for
residential child-care facilities and child-placing agencies
promulgated under this section and shall:
(1) classify each minimum standard as:
(A) an immediate health and safety issue;
(B) a procedural issue; or
(C) an administrative function; and
(2) assign a priority designation to each standard
within a classification that identifies the degree of risk that the
issue that is the subject of the standard presents to a child's
health and safety.
(h-2) In developing a methodology to classify and assign
risk designations to minimum standards under Subsection (h-1), the
department shall:
(1) consult with a committee appointed by the
executive commissioner and composed of representatives of public
and private entities; and
(2) test any potential methodology for accuracy when
applied to the state's licensing standards.
(q) The executive commissioner shall require residential
child-care facilities and child-placing agencies to immediately
report to the department when the facility or agency determines
that a child is missing or if there is a serious incident involving
a child, including death or serious injury, abuse or neglect, or
arrest or truancy.
(b) Not later than September 1, 2006, the Department of
Family and Protective Services shall:
(1) develop the methodology for a classification and
risk-analysis system in accordance with Sections 42.042(h-1) and
(h-2), Human Resources Code, as added by this section; and
(2) classify and assign priority designations to each
minimum standard described by Section 42.042(h-1), Human Resources
Code, as added by this section.
SECTION 15. The section heading to Section 42.0441, Human
Resources Code, is amended to read as follows:
Sec. 42.0441. INSPECTION RESULTS FOR CERTAIN
NONRESIDENTIAL CHILD-CARE FACILITIES.
SECTION 16. Subchapter C, Chapter 42, Human Resources Code,
is amended by adding Section 42.04411 to read as follows:
Sec. 42.04411. INSPECTION RESULTS AND EXIT CONFERENCE FOR
RESIDENTIAL CHILD-CARE FACILITIES. (a) On completion of an
inspection of a residential child-care facility under Section
42.044, the inspector shall hold an exit conference with a
representative of the inspected facility. The inspector shall
provide to the representative:
(1) a copy of the inspection checklist used by the
inspector; and
(2) a list of violations discovered during the
inspection that includes specific references to the minimum
standards related to the violations and the level of risk assigned
to those standards in accordance with Section 42.042(h-1).
(b) The inspector shall provide the representative an
opportunity to respond to the violations discovered during the
inspection.
(c) If, after holding an exit conference, the inspector
finds additional violations in a subsequent inspection, the
inspector shall conduct another exit conference to provide the
information required by Subsection (a) with respect to the
additional violations.
SECTION 17. (a) Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.04412 to read as follows:
Sec. 42.04412. QUALIFICATIONS AND TRAINING FOR CERTAIN
INSPECTORS AND INVESTIGATORS; EXAMINATION. (a) The department
shall use qualified individuals to inspect residential child-care
facilities and conduct investigations of those facilities under
this chapter. An individual is qualified to serve as an inspector
or investigator if the individual:
(1) holds at least a master's degree or has at least
three years of relevant work experience; and
(2) passes the examination required by Subsection (b)
to be administered after completion of training.
(b) The department shall develop and administer
competency-based examinations for department employees who inspect
residential child-care facilities or conduct investigations of
those facilities under this chapter. The department shall
administer one examination to each employee before the employee
begins a training program under Subsection (c) and another
examination after the employee completes the training program.
(c) The department shall develop and administer training
programs to provide appropriate competency-based training to
department employees who inspect residential child-care facilities
or conduct investigations of those facilities under this chapter.
(d) Annually, the department shall evaluate and determine
the effectiveness of the training programs required under
Subsection (c) in providing consistent training on the
interpretation and enforcement of licensing standards for
residential child-care facilities. In conducting the evaluation,
the department shall determine the number of residential child-care
facility licensing violations identified throughout the state and,
based on that information, identify any regional discrepancies in
licensing enforcement.
(b) Not later than January 1, 2006, the Department of Family
and Protective Services shall develop and begin administering the
examinations and training programs for inspectors and
investigators required by Section 42.04412, Human Resources Code,
as added by this section.
(c) The qualifications listed under Section 42.04412(a),
Human Resources Code, as added by this section, apply to an employee
of the Department of Family and Protective Services who conducts an
inspection or investigation of a residential child-care facility on
or after March 1, 2006.
SECTION 18. Section 42.046(c), Human Resources Code, is
amended to read as follows:
(c) After receiving an application, the department shall
investigate the applicant and the plan of care for children, if
applicable. As part of the investigation, the department shall
require the applicant to provide information about the applicant's
compliance history with the regulatory requirements in any other
state in which the applicant provides or provided similar services.
The department shall verify the compliance history of each
applicant.
SECTION 19. Subchapter C, Chapter 42, Human Resources Code,
is amended by adding Section 42.062 to read as follows:
Sec. 42.062. CERTAIN EMPLOYMENT PROHIBITED. A residential
child-care facility may not employ in any capacity a person who is
not eligible to receive a license or certification for the
operation of a residential child-care facility under Section
42.072(c-1).
SECTION 20. Section 42.072, Human Resources Code, is
amended by adding Subsection (c-1) to read as follows:
(c-1) Notwithstanding Subsection (c), the department may
not, before the fifth anniversary of the date the revocation took
effect, issue a license or certification for the operation of a
residential child-care facility to a person who previously operated
or served as an officer, director, or board member of a residential
child-care facility at the time of the occurrence of conduct that
resulted in the license or certification of the facility being
revoked by the department or by court order.
SECTION 21. (a) Chapter 97, Civil Practice and Remedies
Code, is amended by adding Section 97.003 to read as follows:
Sec. 97.003. LIMIT ON LIABILITY OF CERTAIN ORGANIZATIONS
PROVIDING CHILD WELFARE SERVICES. (a) In an action on a liability
claim in which a final judgment is rendered against a nonprofit
agency that provides child welfare services on behalf of the state
to children in the conservatorship of the state, the limit of civil
liability for noneconomic damages inclusive of all persons and
entities for which vicarious liability theories may apply is a
total amount, including prejudgment interest, not to exceed
$250,000 for each person and $500,000 for each single occurrence of
bodily injury or death.
(b) The limitation on civil liability does not apply to
reckless conduct or intentional, wilful, or wanton misconduct of a
nonprofit agency.
(b) Section 97.003, Civil Practice and Remedies Code, as
added by this section, applies only to a cause of action that
accrues on or after the effective date of this Act. An action that
accrued before the effective date of this Act is governed by the law
applicable to the action immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
(c) Section 97.003, Civil Practice and Remedies Code, as
added by this section, is an exercise of authority under Section
66(c), Article III, Texas Constitution, and takes effect only if
this Act receives a vote of three-fifths of all the members elected
to each house, as provided by Section 66(e) of that article.
SECTION 22. (a) Not later than December 1, 2005, the
Department of Family and Protective Services shall develop a plan
to improve:
(1) the training provided to personnel who conduct
investigations of child abuse and neglect;
(2) the protocols for conducting investigations; and
(3) the coordination of investigations between the
department and law enforcement agencies.
(b) The plan must be finalized by a work group consisting
of:
(1) employees of the Department of Family and
Protective Services and law enforcement professionals who have
responsibility for investigating reports of child abuse and
neglect; and
(2) employees of the courts that handle child
protective cases.
SECTION 23. The change in law made by Section 264.106,
Family Code, as amended by this Act, applies only to a contract for
substitute care services or case management services that is
entered into or renewed on or after the effective date of this Act.
A contract that is entered into or renewed before the effective date
of this Act is governed by the law in effect on the date the contract
was entered into or renewed, and the former law is continued in
effect for that purpose.
SECTION 24. This Act takes effect September 1, 2005.