By: Nelson, et al. S.B. No. 6
A BILL TO BE ENTITLED
AN ACT
relating to protective services; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHILD PROTECTIVE SERVICES
SECTION 1.01. Section 54.211, Education Code, is amended to
read as follows:
Sec. 54.211. EXEMPTIONS FOR STUDENTS IN FOSTER OR OTHER
RESIDENTIAL CARE. (a) A student is exempt from the payment of
tuition and fees authorized in this chapter if the student:
(1) was in foster care or other residential care under
the conservatorship of the Department of Family and Protective [and
Regulatory] Services on or after:
(A) the day preceding the student's 18th
birthday;
(B) the day of the student's 14th birthday, if
the student was also eligible for adoption on or after that day; or
(C) the day the student graduated from high
school or received the equivalent of a high school diploma; and
(2) enrolls in an institution of higher education as
an undergraduate student not later than:
(A) the third anniversary of the date the student
was discharged from the foster or other residential care, the date
the student graduated from high school, or the date the student
received the equivalent of a high school diploma, whichever date is
earliest; or
(B) the student's 21st birthday.
(b) The Texas Education Agency and the Texas Higher
Education Coordinating Board shall develop outreach programs to
ensure that students in foster or other residential care in grades
9-12 are aware of the availability of the exemption from the payment
of tuition and fees provided by this section.
SECTION 1.02. Section 54.2111, Education Code, is amended
to read as follows:
Sec. 54.2111. EXEMPTIONS FOR ADOPTED STUDENTS FORMERLY IN
FOSTER OR OTHER RESIDENTIAL CARE. (a) A student is exempt from the
payment of tuition and fees authorized by this chapter if the
student:
(1) was adopted; and
(2) was the subject of an adoption assistance
agreement under Subchapter D, Chapter 162, Family Code.
(b) The Texas Education Agency and the Texas Higher
Education Coordinating Board shall develop outreach programs to
ensure that adopted students in grades 9-12 formerly in foster or
other residential care are aware of the availability of the
exemption from the payment of tuition and fees provided by this
section.
SECTION 1.03. Subchapter A, Chapter 107, Family Code, is
amended by adding Section 107.0045 to read as follows:
Sec. 107.0045. DISCIPLINE OF ATTORNEY AD LITEM. An
attorney ad litem who fails to perform the duties required by
Sections 107.003 and 107.004 is subject to disciplinary action
under Subchapter E, Chapter 81, Government Code.
SECTION 1.04. Section 162.304, Family Code, is amended by
adding Subsection (f) to read as follows:
(f) The department shall work with the Health and Human
Services Commission and the federal government to develop a program
to provide medical assistance under Chapter 32, Human Resources
Code, to children who were in the conservatorship of the department
at the time of adoptive placement and need medical or
rehabilitative care but do not qualify for adoption assistance.
SECTION 1.05. Section 261.001, Family Code, is amended by
amending Subdivision (2) to read as follows:
(2) "Department" means the Department of Family and
Protective [and Regulatory] Services.
SECTION 1.06. Section 261.002, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) The department shall enter into agreements with other
states to allow for the exchange of reports of child abuse and
neglect in other states' central registry systems. The department
shall use information obtained under this subsection in performing
the background checks required under Section 42.056, Human
Resources Code. The department shall cooperate with federal
agencies and shall provide information and reports of child abuse
and neglect to the appropriate federal agency that maintains the
national registry for child abuse and neglect, if a national
registry exists.
SECTION 1.07. (a) Subsection (a), Section 261.107, Family
Code, is amended to read as follows:
(a) A person commits an offense if the person knowingly or
intentionally makes a report as provided in this chapter that the
person knows is false [or lacks factual foundation]. An offense
under this section is a state jail felony [Class A misdemeanor]
unless it is shown on the trial of the offense that the person has
previously been convicted under this section, in which case the
offense is a [state jail] felony of the third degree.
(b) The change in law made by this section to Subsection
(a), Section 261.107, Family Code, applies only to an offense
committed on or after the effective date of this section. An
offense committed before the effective date of this section is
covered by Section 261.107, Family Code, as it existed on the date
the offense was committed, and the former law is continued in effect
for that purpose. For purposes of this subsection, an offense is
committed before the effective date of this section if any element
of the offense occurs before that date.
SECTION 1.08. Section 261.201, Family Code, is amended by
adding Subsection (f-1) to read as follows:
(f-1) The department shall provide to a relative or other
individual with whom a child is placed any information the
department considers necessary to ensure that the relative or other
individual is prepared to meet the needs of the child. The
information must include information regarding:
(1) any abuse or neglect suffered by the child;
(2) the child's physical and mental health history,
including any diagnosis of mental illness, and any physical or
mental health issues that exist at the time the child is placed;
(3) any medications prescribed for the child; and
(4) the child's educational background and experience.
SECTION 1.09. (a) Subsections (a), (d), (f), (g), and (h),
Section 261.301, Family Code, are amended to read as follows:
(a) With assistance from the appropriate state or local law
enforcement agency as provided by this section, the department or
designated agency shall make a prompt and thorough investigation of
a report of child abuse or neglect allegedly committed by a person
responsible for a child's care, custody, or welfare. The
investigation shall be conducted without regard to any pending suit
affecting the parent-child relationship.
(d) The department shall [may] by rule assign priorities and
prescribe investigative procedures for investigations based on the
severity and immediacy of the alleged harm to the child. The
primary purpose of the investigation shall be the protection of the
child. The rules must require the department to:
(1) immediately respond to a report of abuse and
neglect that involves circumstances in which the death of the child
or substantial bodily harm to the child would result unless the
department immediately intervenes;
(2) respond within 24 hours to a report of abuse and
neglect that is assigned the highest priority, other than a report
described by Subdivision (1); and
(3) respond within 72 hours to a report of abuse and
neglect that is assigned the second highest priority.
(f) An investigation of a report to the department [that is
assigned the highest priority in accordance with department rules
adopted under Subsection (d) and] that alleges that a child has been
or may be the victim of conduct that constitutes a felony [an
immediate risk of physical or sexual abuse of a child that could
result in the death of or serious harm to the child] shall be
conducted jointly by a peace officer, as defined by Article 2.12,
Code of Criminal Procedure, from the appropriate local law
enforcement agency and the department or the agency responsible for
conducting an investigation under Subchapter E.
(g) The inability or unwillingness of a local law
enforcement agency to conduct a joint investigation under this
section [Subsection (f)] does not constitute grounds to prevent or
prohibit the department from performing its duties under this
subtitle. The department shall document any instance in which a law
enforcement agency is unable or unwilling to conduct a joint
investigation under this section [Subsection (f)].
(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 [of child abuse or neglect that is assigned the highest
priority in accordance with department rules adopted under
Subsection (d) and] that alleges that a child has been or may be the
victim of conduct that constitutes a felony [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.
(b) The change in law made by this section to Section
261.301, Family Code, applies to the investigation of a report of
child abuse or neglect made on or after the effective date of this
section. The investigation of a report of child abuse or neglect
made before the effective date of this section is governed by the
law in effect on the date the report was made, and the former law is
continued in effect for that purpose.
(c) The Department of Family and Protective Services shall
develop and implement an automated tracking and reporting system
that enables the department to track information on initial
contacts to monitor compliance with the requirements of Subsection
(d), Section 261.301, Family Code, as amended by this section,
relating to the timely response to reports of abuse and neglect.
SECTION 1.10. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3011 to read as follows:
Sec. 261.3011. JOINT INVESTIGATION GUIDELINES AND
TRAINING. (a) The department shall, in consultation with the
appropriate law enforcement agencies, develop guidelines and
protocols for joint investigations by the department and the law
enforcement agency under Section 261.301. The guidelines and
protocols must:
(1) clarify the respective roles of the department and
law enforcement agency in conducting the investigation;
(2) require that mutual child protective services and
law enforcement training and agreements be implemented by both
entities to ensure the integrity and best outcomes of joint
investigations; and
(3) incorporate the use of forensic methods in
determining the occurrence of child abuse and neglect.
(b) The department shall collaborate with law enforcement
agencies to provide to department investigators and law enforcement
officers responsible for investigating reports of abuse and neglect
joint training relating to methods to effectively conduct joint
investigations under Section 261.301. The training must include
information on interviewing techniques, evidence gathering, and
testifying in court for criminal investigations.
SECTION 1.11. (a) Section 261.3015, Family Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) In assigning priorities and prescribing investigative
procedures based on the severity and immediacy of the alleged harm
to a child under Section 261.301(d), the department [board by rule]
shall establish a flexible response system to allow the department
to make the most effective use of [allocate] resources by
investigating serious cases of abuse and neglect and by screening
out less serious cases of abuse and neglect if the department
determines, after contacting a professional or other credible
source, that the child's safety can be assured without further
investigation. The department may administratively close the less
serious cases without providing services or making a referral to
another entity for assistance [providing assessment and family
preservation services in less serious cases].
(a-1) For purposes of Subsection (a), a case is considered
to be a less serious case of abuse or neglect if the circumstances
of the case do not indicate an immediate risk of abuse or neglect
that could result in the death of or serious harm to the child who is
the subject of the case.
(b) To ensure the safety of children, the Department of
Family and Protective Services shall use highly skilled caseworkers
to perform the screening functions described by Subsection (a),
Section 261.3015, Family Code, as amended by this section, and
develop standardized policy guidelines, including accountability
measures to monitor closed cases, to ensure that screening
guidelines do not result in the closing of cases that should not be
closed.
SECTION 1.12. Subsection (e), Section 261.302, Family Code,
is amended to read as follows:
(e) An interview with a child alleged to be a victim of
[physical] abuse or neglect conducted by the department or another
person, other than a law enforcement agency, under the direction of
the department [sexual abuse] shall be audiotaped or videotaped
[unless the investigating agency determines that good cause exists
for not audiotaping or videotaping the interview in accordance with
rules of the agency. Good cause may include, but is not limited to,
such considerations as the age of the child and the nature and
seriousness of the allegations under investigation. Nothing in
this subsection shall be construed as prohibiting the investigating
agency from audiotaping or videotaping an interview of a child on
any case for which such audiotaping or videotaping is not required
under this subsection]. The fact that the investigating agency
failed to audiotape or videotape an interview is admissible at the
trial of the offense that is the subject of the interview.
SECTION 1.13. Subchapter D, Chapter 261, Family Code, is
amended by adding Sections 261.3021, 261.3022, 261.3023, and
261.3024 to read as follows:
Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT.
Subject to the appropriation of money for these purposes, the
department shall:
(1) identify critical investigation actions that
impact child safety and require department caseworkers to document
those actions in a child's case file not later than the day after
the action occurs;
(2) identify and develop a comprehensive set of
casework quality indicators that must be reported in real time to
support timely management oversight;
(3) provide department supervisors with access to
casework quality indicators and train department supervisors on the
use of that information in the daily supervision of caseworkers;
(4) develop a case tracking system that notifies
department supervisors and management when a case is not
progressing in a timely manner;
(5) use current data reporting systems to provide
department supervisors and management with easier access to
information; and
(6) train department supervisors and management on the
use of data to monitor cases and make decisions.
Sec. 261.3022. CHILD SAFETY CHECK ALERT LIST. (a) If the
department is unable to locate a family for purposes of
investigating a report of child abuse or neglect and the department
has exhausted all means available to the department for locating
the family, the department may seek assistance from the appropriate
county attorney, district attorney, or criminal district attorney
with responsibility for representing the department as provided by
Section 264.009.
(b) If the department requests assistance, the county
attorney, district attorney, or criminal district attorney, as
applicable, may file an application with the court requesting the
issuance of an ex parte order requiring the Texas Crime Information
Center to place the members of the family the department is
attempting to locate on a child safety check alert list. The
application must include a summary of:
(1) the report of child abuse or neglect the
department is attempting to investigate; and
(2) the department's efforts to locate the family.
(c) If the court determines after a hearing that the
department has exhausted all means available to the department for
locating the family, the court shall approve the application and
order the Texas Crime Information Center to place the family on a
child safety check alert list. The alert list must include:
(1) the name of the family member alleged to have
abused or neglected a child according to the report the department
is attempting to investigate;
(2) the name of the child who is the subject of the
report;
(3) a code identifying the type of child abuse or
neglect alleged to have been committed against the child;
(4) the family's last known address; and
(5) the minimum criteria for an entry as established
by the center.
Sec. 261.3023. LAW ENFORCEMENT RESPONSE TO CHILD SAFETY
CHECK ALERT. (a) If a law enforcement officer encounters a person
listed on the Texas Crime Information Center's child safety check
alert list who is alleged to have abused or neglected a child, or
encounters a child listed on the alert list who is the subject of a
report of child abuse or neglect the department is attempting to
investigate, the officer shall request information from the person
or the child regarding the child's well-being and current
residence.
(b) If the law enforcement officer determines that the
circumstances described by Section 262.104 exist, the officer may
take possession of the child without a court order as authorized by
that section if the officer is able to locate the child. If the
circumstances described by Section 262.104 do not exist, the
officer shall obtain the child's current address and any other
relevant information and report that information to the department.
Sec. 261.3024. REMOVAL FROM CHILD SAFETY CHECK ALERT LIST.
(a) A law enforcement officer who locates a child listed on the
Texas Crime Information Center's child safety check alert list who
is the subject of a report of child abuse or neglect the department
is attempting to investigate and who reports the child's current
address and other relevant information to the department under
Section 261.3023 shall report to the Texas Crime Information Center
that the child has been located.
(b) If the department locates a child described by
Subsection (a) through a means other than information reported by a
law enforcement officer under Subsection (a), the department shall
report to the Texas Crime Information Center that the child has been
located.
(c) On receipt of notice under this section that a child has
been located, the Texas Crime Information Center shall remove the
child and the child's family from the child safety check alert list.
SECTION 1.14. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3031 to read as follows:
Sec. 261.3031. FAILURE TO COOPERATE WITH INVESTIGATION;
DEPARTMENT RESPONSE. If a parent or other person refuses to
cooperate with the department's investigation of the alleged abuse
or neglect of a child and the refusal poses a risk to the child's
safety, the department shall seek assistance from the appropriate
county attorney or district attorney or criminal district attorney
with responsibility for representing the department as provided by
Section 264.009 to obtain a court order as described by Section
261.303.
SECTION 1.15. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3032 to read as follows:
Sec. 261.3032. INTERFERENCE WITH INVESTIGATION; CRIMINAL
PENALTY. (a) A person commits an offense if, with the intent to
interfere with the department's investigation of a report of abuse
or neglect of a child, the person takes, retains, or conceals the
child and the person's taking, retention, or concealment interferes
with the department's investigation.
(b) An offense under this section is a Class B misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section or the other law.
SECTION 1.16. (a) Section 261.307, Family Code, is amended
to read as follows:
Sec. 261.307. INFORMATION RELATING TO INVESTIGATION
PROCEDURE. (a) As soon as possible after initiating an
investigation of a parent or other person having legal custody of a
child, the department shall make every reasonable effort to provide
to the person:
(1) a [brief and easily understood] summary that [of]:
(A) is brief and easily understood;
(B) is written in a language that the person
understands, or if the person is illiterate, is read to the person
in a language that the person understands; and
(C) contains the following information:
(i) [(1)] the department's procedures for
conducting an investigation of alleged child abuse or neglect,
including:
(a) [(A)] a description of the
circumstances under which the department would request to remove
the child from the home through the judicial system; and
(b) [(B)] an explanation that the law
requires the department to refer all reports of alleged child abuse
or neglect to a law enforcement agency for a separate determination
of whether a criminal violation occurred;
(ii) [(2)] the person's right to file a
complaint with the department or to request a review of the findings
made by the department in the investigation;
(iii) [(3)] the person's right to review
all records of the investigation unless the review would jeopardize
an ongoing criminal investigation or the child's safety;
(iv) [(4)] the person's right to seek legal
counsel;
(v) [(5)] references to the statutory and
regulatory provisions governing child abuse and neglect and how the
person may obtain copies of those provisions; and
(vi) [(6)] the process the person may use
to acquire to the child if the child is removed from the home;
(2) a proposed child placement resources form that
instructs the parent or other person having legal custody of the
child to complete and return the form to the department or agency
and to identify in the form three individuals who could be relatives
or designated caregivers, as those terms are defined by Section
264.751; and
(3) the informational manual required by Section
261.3071.
(b) In addition to the information required to be provided
under Subsection (a), the department shall provide to the person
described by that subsection any information required to be
provided by the federal Child Abuse Prevention and Treatment Act
(Pub. L. No. 93-247) and its subsequent amendments by the Keeping
Children and Families Safe Act of 2003 (Pub. L. No. 108-36). To the
extent of any conflict between Subsection (a) and those federal
laws, the federal law prevails.
(b) The Department of Family and Protective Services shall
develop the proposed child placement resources form required to be
provided under Section 261.307, Family Code, as amended by this
section, not later than November 1, 2005.
(c) The Department of Family and Protective Services shall
provide the proposed child placement resources form required under
Section 261.307, Family Code, as amended by this section, to the
parent or other person having legal custody of a child who is the
subject of an investigation of abuse or neglect that is commenced on
or after November 1, 2005.
SECTION 1.17. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3071 to read as follows:
Sec. 261.3071. INFORMATIONAL MANUAL. (a) In this section,
"relative caregiver" and "designated caregiver" have the meanings
assigned those terms by Section 264.751.
(b) The department shall develop and publish an
informational manual that provides information for:
(1) a parent or other person having custody of a child
who is the subject of an investigation under this chapter; and
(2) a person who is selected by the department to be
the child's relative or designated caregiver.
(c) Information provided in the manual must be in both
English and Spanish and must include:
(1) useful indexes of information such as telephone
numbers;
(2) the information required to be provided under
Section 261.307(1);
(3) information describing the rights and duties of a
relative or designated caregiver; and
(4) information regarding the relative and other
designated caregiver program under Subchapter I, Chapter 264.
SECTION 1.18. Section 261.310, Family Code, is amended by
amending Subsection (c) and adding Subsection (e) to read as
follows:
(c) The professional training curriculum developed under
this section shall include:
(1) information concerning:
(A) [(1)] physical abuse and neglect, including
distinguishing physical abuse from ordinary childhood injuries;
(B) [(2)] psychological abuse and neglect;
(C) [(3)] available treatment resources; and
(D) [(4)] the incidence and types of reports of
child abuse and neglect that are received by the investigating
agencies, including information concerning false reports;
(2) law-enforcement-style training, including
training relating to forensic interviewing and investigatory
techniques and the collection of physical evidence; and
(3) training regarding applicable federal law,
including the Adoption and Safe Families Act of 1997 (Pub. L. No.
105-89) and the Child Abuse Prevention and Treatment Act (Pub. L.
No. 93-247) and its subsequent amendments by the Keeping Children
and Families Safe Act of 2003 (Pub. L. No. 108-36).
(e) The department, in conjunction with the Department of
Public Safety, shall provide to the department's residential
child-care facility licensing investigators advanced training in
investigative protocols and techniques.
SECTION 1.19. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3101 to read as follows:
Sec. 261.3101. FORENSIC INVESTIGATION SUPPORT. The
department shall, subject to the availability of money:
(1) employ or contract with medical and law
enforcement professionals who shall be strategically placed
throughout the state to provide forensic investigation support and
to assist caseworkers with assessment decisions and intervention
activities;
(2) employ or contract with subject matter experts to
serve as consultants to department caseworkers in all aspects of
their duties; and
(3) designate persons who shall act as liaisons within
the department whose primary functions are to develop relationships
with local law enforcement agencies and courts.
SECTION 1.20. Section 261.3125, Family Code, is amended to
read as follows:
Sec. 261.3125. CHILD SAFETY SPECIALISTS [INVESTIGATIONS
COORDINATOR]. (a) The department shall employ in each of the
department's administrative regions [region of the department for
child protective services] at least one child safety specialist
[protective services investigations coordinator]. The job
responsibilities of the child safety specialist [investigations
coordinator] must focus [only] on child abuse and neglect
investigation issues, including reports of child abuse required by
Section 261.101, to achieve a greater compliance with that section,
and on assessing and improving the effectiveness of the department
in providing for the protection of children in the region.
(b) The duties of a child safety specialist [protective
services investigations coordinator] must include the duty to:
(1) conduct staff reviews and evaluations of cases
determined to involve a high risk to the health or safety of a
child, including cases of abuse reported under Section 261.101, to
ensure that risk assessment tools are fully and correctly used;
(2) review and evaluate [monitor] cases in which there
have been multiple referrals to the department of child abuse or
neglect involving the same family, child, or person alleged to have
committed the abuse or neglect; and
(3) approve decisions and assessments related to
investigations of cases of child abuse or neglect that involve a
high risk to the health or safety of a child.
SECTION 1.21. Subchapter D, Chapter 261, Family Code, is
amended by adding Section 261.3126 to read as follows:
Sec. 261.3126. COLOCATION OF INVESTIGATORS. (a) In each
county, to the extent possible, the department and the local law
enforcement agencies that investigate child abuse in the county
shall colocate in the same offices investigators from the
department and the law enforcement agencies to improve the
efficiency of child abuse investigations. With approval of the
local children's advocacy center and its partner agencies, in each
county in which a children's advocacy center established under
Section 264.402 is located, the department shall attempt to locate
investigators from the department and county and municipal law
enforcement agencies at the center.
(b) A law enforcement agency is not required to comply with
the colocation requirements of this section if the law enforcement
agency does not have a full-time peace officer solely assigned to
investigate reports of child abuse and neglect.
(c) If a county does not have a children's advocacy center,
the department shall work with the local community to encourage one
as provided by Section 264.402.
SECTION 1.22. Section 261.315, Family Code, is amended to
read as follows:
Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION
FROM RECORDS. (a) At the conclusion of an investigation in which
the department determines that the person alleged to have abused or
neglected a child did not commit abuse or neglect, the department
shall [notify the person of the person's right to request the
department to] remove information about the person's alleged role
in the abuse or neglect report from the department's records.
(b) [On request under Subsection (a) by a person whom the
department has determined did not commit abuse or neglect, the
department shall remove information from the department's records
concerning the person's alleged role in the abuse or neglect
report.
[(c)] The board shall adopt rules necessary to administer
this section.
SECTION 1.23. Subchapter E, Chapter 261, Family Code, is
amended by adding Section 261.410 to read as follows:
Sec. 261.410. REPORT OF ABUSE BY OTHER CHILDREN. (a) In
this section:
(1) "Physical abuse" means:
(A) physical injury that results in substantial
harm to the child requiring emergency medical treatment 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; or
(B) 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.
(2) "Sexual abuse" means:
(A) sexual conduct harmful to a child's mental,
emotional, or physical welfare, including conduct that constitutes
the offense of 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;
(B) failure to make a reasonable effort to
prevent sexual conduct harmful to a child;
(C) compelling or encouraging a child to engage
in sexual conduct as defined by Section 43.01, Penal Code;
(D) causing, permitting, encouraging, engaging
in, or allowing the photographing, filming, or depicting of a 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; or
(E) causing, permitting, encouraging, engaging
in, or allowing a sexual performance by a child as defined by
Section 43.25, Penal Code.
(b) An agency that operates, licenses, certifies, or
registers a facility shall require a residential child-care
facility to report each incident of physical or sexual abuse
committed by a child against another child.
(c) Using information received under Subsection (b), the
agency that operates, licenses, certifies, or registers a facility
shall compile a report that includes information:
(1) regarding the number of cases of physical and
sexual abuse committed by a child against another child;
(2) identifying the residential child-care facility;
(3) regarding the date each allegation of abuse was
made;
(4) regarding the date each investigation was started
and concluded;
(5) regarding the findings and results of each
investigation; and
(6) regarding the number of children involved in each
incident investigated.
SECTION 1.24. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.114 to read as follows:
Sec. 262.114. EVALUATION OF IDENTIFIED RELATIVES AND OTHER
DESIGNATED INDIVIDUALS; PLACEMENT. (a) Before a full adversary
hearing under Subchapter C, the Department of Family and Protective
Services must perform a background and criminal history check and,
if appropriate, a home study, of the relatives or other designated
individuals identified as a potential relative or designated
caregiver, as defined by Section 264.751, on the proposed child
placement resources form provided under Section 261.307. The
department shall perform these evaluations of each person listed on
the form until the department identifies a relative or other
designated individual qualified to be a substitute caregiver. The
department may eliminate a person as a potential relative or
designated caregiver based solely on a background and criminal
history check. A final determination that a potential relative or
designated caregiver is qualified to be a substitute caregiver must
also include completion of the home study.
(a-1) For the purposes of this section, "background" means,
but is not limited to, a history of child abuse and neglect.
(b) The department shall place a child with a relative or
other designated individual identified on the proposed child
placement resources form if the department, with input from the
attorney ad litem, if the attorney ad litem has met with the child,
determines that the placement is in the best interest of the child.
The department may place the child with the relative or designated
individual before conducting the home study required under
Subsection (a), only in exigent circumstances, as determined by the
department on an individual case basis. In determining the
placement of the child, the department shall at all times consider
the child's safety to be the paramount concern. The department
shall provide a copy of the informational manual required under
Section 261.3071 to the relative or other designated caregiver at
the time of the child's placement.
SECTION 1.25. (a) Subsection (c), Section 262.201, Family
Code, is amended to read as follows:
(c) If the court finds sufficient evidence to satisfy a
person of ordinary prudence and caution that there is a continuing
danger to the physical health or safety of the child and for the
child to remain in the home is contrary to the welfare of the child,
the court shall issue an appropriate temporary order under Chapter
105. The court shall require each parent, alleged father, or
relative of the child before the court to submit the proposed child
placement resources form provided under Section 261.307, if the
form has not been previously provided, and provide the Department
of Family and Protective [and Regulatory] Services with information
necessary to locate any other absent parent, alleged father, or
relative of the child. The court shall inform each parent, alleged
father, or relative of the child before the court that the person's
failure to submit the proposed child placement resources form will
not delay any court proceedings relating to the child. The court
shall inform each parent in open court that parental and custodial
rights and duties may be subject to restriction or to termination
unless the parent or parents are willing and able to provide the
child with a safe environment. If the court finds that the child
requires protection from family violence by a member of the child's
family or household, the court shall render a protective order
under Title 4 for the child. In this subsection, "family violence"
has the meaning assigned by Section 71.004.
(b) The change in law made by this section to Section
262.201(c), Family Code, applies only to a full adversary hearing
that occurs on or after November 1, 2005. A full adversary hearing
that occurs before that date is governed by the law as it existed
before amendment by this section, and the former law is continued in
effect for that purpose.
SECTION 1.26. (a) Section 263.201, Family Code, is amended
by adding Subsection (c) to read as follows:
(c) The court shall require each parent, alleged father, or
relative of the child before the court to submit the proposed child
placement resources form provided under Section 261.307 at the
status hearing, if the form has not previously been submitted.
(b) The change in law made by this section to Section
263.201, Family Code, applies only to a status hearing that occurs
on or after November 1, 2005. A status hearing that occurs before
that date is governed by the law as it existed before amendment by
this section, and the former law is continued in effect for that
purpose.
SECTION 1.27. (a) Section 263.102, Family Code, is amended
by amending Subsection (a) and adding Subsections (d) and (e) to
read as follows:
(a) The service plan must:
(1) be specific;
(2) be in writing in a language that the parents
understand, or made otherwise available;
(3) be prepared by the department or other agency in
conference with the child's parents;
(4) state appropriate deadlines;
(5) state whether the goal of the plan is:
(A) return of the child to the child's parents;
(B) termination of parental rights and placement
of the child for adoption; or
(C) because of the child's special needs or
exceptional circumstances, continuation of the child's care out of
the child's home;
(6) state steps that are necessary to:
(A) return the child to the child's home if the
placement is in foster care;
(B) enable the child to remain in the child's
home with the assistance of a service plan if the placement is in
the home under the department's or other agency's supervision; or
(C) otherwise provide a permanent safe placement
for the child;
(7) state the actions and responsibilities that are
necessary for the child's parents to take to achieve the plan goal
during the period of the service plan and the assistance to be
provided to the parents by the department or other authorized
agency toward meeting that goal;
(8) state any specific skills or knowledge that the
child's parents must acquire or learn, as well as any behavioral
changes the parents must exhibit, to achieve the plan goal;
(9) state the actions and responsibilities that are
necessary for the child's parents to take to ensure that the child
attends school and maintains or improves the child's academic
performance;
(10) state the name of the person with the department
or other agency whom the child's parents may contact for
information relating to the child if other than the person
preparing the plan; and
(11) [(9)] prescribe any other term or condition that
the department or other agency determines to be necessary to the
service plan's success.
(d) The department must write the service plan in a clear
and understandable manner in order to facilitate a parent's ability
to follow the requirements of the service plan.
(e) Regardless of whether the goal stated in a child's
service plan as required under Subsection (a)(5) is to return the
child to the child's parents or to terminate parental rights and
place the child for adoption, the department shall concurrently
provide to the child and the child's family, as applicable:
(1) time-limited family reunification services as
defined by 42 U.S.C. Section 629a for a period not to exceed the
period within which the court must render a final order in or
dismiss the suit affecting the parent-child relationship with
respect to the child as provided by Subchapter E; and
(2) adoption promotion and support services as defined
by 42 U.S.C. Section 629a.
(b) Subsection (c), Section 263.202, Family Code, is
amended to read as follows:
(c) The court shall advise the parties that progress under
the service plan will be reviewed at all subsequent hearings,
including a review of whether the parties have acquired or learned
any specific skills or knowledge stated in the service plan.
(c) The changes in law made by Section 263.102 and
Subsection (c), Section 263.202, Family Code, as amended by this
section, apply only to a child placed in the custody of the
Department of Family and Protective Services on or after the
effective date of this section. A child placed in the custody of
the department before the effective date of this section is
governed by the law in effect on the date the child was placed in the
department's custody, and the former law is continued in effect for
that purpose.
SECTION 1.28. Section 263.202, Family Code, is amended by
amending Subsection (b) and adding Subsection (e) to read as
follows:
(b) Except as provided by Subsection (e), a [A] status
hearing shall be limited to matters related to the contents and
execution of the service plan filed with the court. The court shall
review the service plan that the department or other agency filed
under this chapter for reasonableness, accuracy, and compliance
with requirements of court orders and make findings as to whether:
(1) a plan that has the goal of returning the child to
the child's parents adequately ensures that reasonable efforts are
made to enable the child's parents to provide a safe environment for
the child; and
(2) the child's parents have reviewed and understand
the service plan and have been advised that unless the parents are
willing and able to provide the child with a safe environment, even
with the assistance of a service plan, within the reasonable period
of time specified in the plan, the parents' parental and custodial
duties and rights may be subject to restriction or to termination
under this code or the child may not be returned to the parents.
(e) At the status hearing, the court shall make a finding as
to whether the court has identified the individual who has the right
to consent for the child under Section 266.003.
SECTION 1.29. Subsection (b), Section 263.401, Family Code,
is amended to read as follows:
(b) The court may not retain the suit on the court's docket
after the time described by Subsection (a) unless the court finds
that extraordinary circumstances prevent the court from rendering a
final order within the time described by Subsection (a) and that
continuing the appointment of the department as temporary managing
conservator is in the best interest of the child. If the court
makes those findings, the court may retain the suit on the court's
docket for a period not to exceed 180 days after the time described
by Subsection (a)[, if the court finds that continuing the
appointment of the department as temporary managing conservator is
in the best interest of the child]. If the court retains the suit on
the court's docket, the court shall render an order in which the
court:
(1) schedules the new date for dismissal of the suit
not later than the 180th day after the time described by Subsection
(a);
(2) makes further temporary orders for the safety and
welfare of the child as necessary to avoid further delay in
resolving the suit; and
(3) sets a final hearing on a date that allows the
court to render a final order before the required date for dismissal
of the suit under this subsection.
SECTION 1.30. (a) Subsection (c), Section 263.502, Family
Code, is amended to read as follows:
(c) The placement review report must:
(1) evaluate whether the child's current placement is
appropriate for meeting the child's needs;
(2) evaluate whether efforts have been made to ensure
placement of the child in the least restrictive environment
consistent with the best interest and special needs of the child if
the child is placed in institutional care;
(3) contain a discharge plan for a child who is at
least 16 years of age that identifies [identify] the services and
specific tasks that are needed to assist the [a] child [who is at
least 16 years of age] in making the transition from substitute care
to adult [independent] living and describes the services that are
available through the Preparation for Adult Living Program operated
by the department [if the services are available in the community];
(4) evaluate whether the child's current educational
placement is appropriate for meeting the child's academic needs;
(5) identify other plans or services that are needed
to meet the child's special needs or circumstances; and
(6) [(5)] describe the efforts of the department or
authorized agency to place the child for adoption if parental
rights to the child have been terminated and the child is eligible
for adoption, including efforts to provide adoption promotion and
support services as defined by 42 U.S.C. Section 629a and other
efforts consistent with the federal Adoption and Safe Families Act
of 1997 (Pub. L. No. 105-89).
(b) In implementing the provisions of Subdivision (3),
Subsection (c), Section 263.502, Family Code, as amended by this
section, the Department of Family and Protective Services shall, to
the extent that funding is appropriated for this purpose, contract
with outside entities to assist in the discharge planning process.
SECTION 1.31. Section 264.001, Family Code, is amended to
read as follows:
Sec. 264.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Department"[, "department"] means the Department
of Family and Protective [and Regulatory] Services.
(2) "Commission" means the Health and Human Services
Commission.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Residential child-care facility" has the meaning
assigned by Section 42.002, Human Resources Code.
SECTION 1.32. Subchapter A, Chapter 264, Family Code, is
amended by adding Section 264.0091 to read as follows:
Sec. 264.0091. USE OF TELECONFERENCING AND
VIDEOCONFERENCING TECHNOLOGY. The department, in cooperation with
district and county courts, shall expand the use of
teleconferencing and videoconferencing to facilitate participation
by medical experts and other individuals in court proceedings.
SECTION 1.33. Section 264.101, Family Code, is amended by
adding Subsection (d-1) to read as follows:
(d-1) The executive commissioner may adopt rules that
prescribe the maximum amount of state money that a residential
child-care facility may spend on nondirect residential services,
including administrative services. The commission shall recover
the money that exceeds the maximum amount established under this
subsection.
SECTION 1.34. (a) 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) "Case management services" means services
provided to or for, or functions performed with respect to, a child
for whom the department has been appointed temporary or permanent
managing conservator or the child's family in managing a case
involving the child. The term includes:
(A) conducting caseworker-child visits or family
visits;
(B) convening family group conferences;
(C) developing or revising case plans;
(D) coordinating and monitoring services needed
by the family;
(E) assuming duties related to court proceedings
involving the child, including preparing court reports and
attending court hearings and permanency planning hearings, but not
including duties related to court proceedings involving the
processing of an adoption of the child; and
(F) other services to ensure that the child is
progressing toward permanency in accordance with federal law and
the laws of this state.
(2) "Substitute care provider" means a child-care
institution or child-placing agency, as defined by Section 42.002,
Human Resources Code.
(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, and the facilitation and
processing of adoptions. The term does not include case management
services.
(b) The department shall:
(1) assess the need for substitute care services
throughout the state for children for whom the department has been
appointed temporary or permanent managing conservator; and
(2) contract with substitute care providers [only to
the extent necessary to meet the need] for the [those] services
described by Subdivision (1).
[(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) The department shall:
(1) monitor the quality of services for which the
department contracts under this section;
(2) ensure that the services are provided in
accordance with federal law and the laws of this state, including
department rules and rules of the Department of State Health
Services and the Texas Commission on Environmental Quality; and
(3) attempt to contract with substitute care providers
that are community-based organizations that will:
(A) increase local foster and adoptive placement
options for all children, especially teenagers, sibling groups,
children with severe or multiple disabilities, and other children
who are difficult to place; and
(B) expand efforts to recruit foster families,
adoptive families, and alternative care providers through
faith-based and other targeted recruitment programs.
(d) 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 criteria; 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.
(e) [(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.
(f) 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.
(g) Notwithstanding any other law, on and after September 1,
2008, the department may not directly provide substitute care
services for children for whom the department has been appointed
temporary or permanent managing conservator, except for case
management services.
[(e) 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.]
(b) The executive commissioner of the Health and Human
Services Commission shall adopt a substitute care transition plan
and rules to implement Section 264.106, Family Code, as amended by
this section. The transition plan must provide that:
(1) as soon as possible after September 1, 2005, the
Department of Family and Protective Services shall begin
implementing Section 264.106, Family Code, as amended by this
section; and
(2) on and after September 1, 2008:
(A) all substitute care services, as defined by
Subsection (a), Section 264.106, Family Code, as amended by this
section, for children for whom the department has been appointed
temporary or permanent managing conservator must be provided by
child-care institutions, child-placing agencies, foster group
homes, and counties with a local child welfare board with which the
department contracts; and
(B) notwithstanding any other law, the
department may not directly provide those services.
(c) Section 264.106, Family Code, as amended by this
section, applies only to a contract for substitute care services
that is entered into or renewed on or after the effective date of
this section. A contract that is entered into or renewed before the
effective date of this section 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 1.35. ADOPTION OF TRANSITION PLAN. Not later than
March 1, 2006, the Health and Human Services Commission and the
Department of Family and Protective Services 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. The
executive commissioner of the Health and Human Services Commission
shall adopt rules to implement the privatization of substitute care
services in this state. The transition plan developed by the
department and the commission must:
(1) identify barriers to privatization and propose
solutions to stimulate capacity and adjust program delivery;
(2) 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;
(3) include a process for assessing each child who is
transferred to a private substitute care provider to verify the
child's service needs;
(4) include an implementation plan to transfer all
adoption services to private agencies, including details of how and
when cases will be transferred and how adoption provider contracts
and reimbursement methods will be structured;
(5) detail financial arrangements and performance
expectations for substitute care and case management providers
that:
(A) provide incentives for desired results and
explicit contract performance and outcome indicators;
(B) describe how financing options will increase
flexibility to promote innovation and efficiency in service
delivery; and
(C) provide balance between control over key
decisions with the level of risk the contractor assumes;
(6) require the department to enter into contracts for
the provision of substitute care and describe the procurement and
contracting process, including:
(A) describing how the department will shift from
an open-enrollment system to competitive procurement; and
(B) developing a procurement and contracting
schedule to ensure full implementation not later than September 1,
2008;
(7) address the immediate and ongoing training that is
needed both for department staff who are shifting roles and for
contractors, including substitute care and case management
providers;
(8) provide that 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; and
(9) describe how the transition will impact the
state's ability to capture federal funding and examine options for
further maximizing federal funding opportunities and increasing
flexibility.
SECTION 1.36. PRIVATIZATION OF CHILD PROTECTIVE SERVICES.
(a) The Health and Human Services Commission shall conduct a study
to identify functions of the child protective services division of
the Department of Family and Protective Services that are not
currently performed by a private person or performed by an entity
under a contract with the department on a widespread basis, would
result in improving the welfare of children receiving services from
the department or in other benefits to the department.
(b) If the Health and Human Services Commission determines
that contracting with a private person or entity to perform certain
functions described by Subsection (a) of this section would be
beneficial, the commission shall implement privatization of those
functions through a pilot program in one county or one region of the
state until September 1, 2009.
(c) The Health and Human Services Commission shall:
(1) ensure that the process for privatizing functions
under Subsection (b) of this section and for monitoring that
privatization includes rigorous accountability and oversight
mechanisms;
(2) ensure that any contract entered into under
Subsection (b) of this section contains the provisions required
under Subsection (b), Section 40.058, Human Resources Code, as
amended by this Act, and is subject to the performance monitoring
standards under Subsection (c), Section 40.058, Human Resources
Code, as amended by this Act;
(3) develop adequate contingency plans that allow for
emergency takeovers of privatized functions if there is a
disruption in the services provided by the contracted person or
entity; and
(4) provide opportunities for any interested parties
to comment and otherwise have input in all stages of the process for
privatizing functions under Subsection (b) of this section.
(d) Not later than December 31, 2008, the Health and Human
Services Commission shall report the results of any pilot program
implemented under Subsection (b) of this section to the lieutenant
governor, the speaker of the house of representatives, and the
clerks of the standing committees of the senate and house of
representatives with primary jurisdiction over the Department of
Family and Protective Services. The report must include:
(1) an analysis comparing costs and benefits of using
a private entity to provide child protective services versus the
state providing those services;
(2) a description of the problems the commission
experienced during the pilot programs and a description of any
potential problems the commission anticipates with implementing
the pilot programs statewide; and
(3) recommendations on whether the pilot programs
should be expanded statewide.
SECTION 1.37. SUBSTITUTE CARE SERVICES TRANSITION TASK
FORCE. (a) The substitute care services transition task force
shall:
(1) review the substitute care services transition
plan and rules adopted by the executive commissioner of the Health
and Human Services Commission under this Act;
(2) monitor the implementation of Section 264.106,
Family Code, as amended by this Act, by the Department of Family and
Protective Services; and
(3) make recommendations to the department to
facilitate the implementation of Section 264.106, Family Code, as
amended by this Act.
(b) The task force is composed of three members, appointed
as follows:
(1) one member appointed by the lieutenant governor;
(2) one member appointed by the speaker of the house of
representatives; and
(3) one member appointed by the comptroller.
(c) The member appointed under Subdivision (3), Subsection
(b) of this section, serves as the presiding officer.
(d) The task force shall meet at least monthly.
(e) Not later than the 31st day after the date the
Department of Family and Protective Services receives a
recommendation under Subdivision (3), Subsection (a) of this
section, the department shall implement the recommendation or, if
necessary, the executive commissioner of the Health and Human
Services Commission shall initiate rulemaking procedures to adopt
rules to implement the recommendation.
(f) At least quarterly, the task force shall submit a report
to the lieutenant governor, the speaker of the house of
representatives, and the Legislative Budget Board regarding the
status of the implementation of Section 264.106, Family Code, as
amended by this Act.
(g) This section expires and the task force is abolished
August 31, 2008.
SECTION 1.38. Section 264.1075, Family Code, is amended to
read as follows:
Sec. 264.1075. ASSESSING THE NEEDS OF A CHILD [USE OF
ASSESSMENT SERVICES]. (a) As soon as possible after a child
begins receiving foster care under this subchapter, the department
shall assess whether the child has a developmental disability or
mental retardation. The commission shall establish the procedures
that the department must use in making an assessment under this
subsection. The procedures may include screening or participation
by:
(1) a private person experienced in the developmental
disabilities or mental retardation of children;
(2) a local mental retardation authority; or
(3) a provider of a county with a local child welfare
board.
(b) Before placing a child in substitute care, the
department shall use assessment services provided by a child-care
facility or child-placing agency in accordance with Section
42.0425, Human Resources Code, to determine the appropriate
substitute care for the child.
SECTION 1.39. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.1076 to read as follows:
Sec. 264.1076. FOSTER CARE DEVELOPMENTAL DISABILITIES
ADVISORY COMMITTEE. (a) The Foster Care Developmental
Disabilities Advisory Committee shall advise the department on
issues relating to the care of foster children with developmental
disabilities or mental retardation, including effective methods
for:
(1) minimizing the number of foster children placed in
institutions and maximizing the number of foster children receiving
community-based care;
(2) training and supporting persons who provide foster
care in a residential setting on issues relating to the particular
needs of children with developmental disabilities or mental
retardation;
(3) training employees of the department to promptly
identify foster children with developmental disabilities or mental
retardation;
(4) monitoring the care provided in residential
settings to foster children with developmental disabilities or
mental retardation;
(5) recruiting individuals to provide foster care in a
residential setting to children with developmental disabilities or
mental retardation;
(6) contracting with persons to care for foster
children with developmental disabilities or mental retardation;
(7) planning for the transition of children with
developmental disabilities or mental retardation out of foster care
to enhance opportunities for the children to remain in their
communities; and
(8) assigning levels of services for children with
developmental disabilities or mental retardation and children with
special health care needs.
(b) The executive commissioner shall determine the number
of persons who serve on the committee.
(c) The executive commissioner shall appoint the members of
the committee and determine each member's length of service. In
making appointments to the committee, the executive commissioner
shall attempt to include:
(1) representatives of the commission and other
relevant state agencies;
(2) providers of services to persons with
developmental disabilities or mental retardation;
(3) persons who formerly received care under this
subchapter as foster children;
(4) persons with expertise about developmental
disabilities or mental retardation;
(5) persons who advocate for the rights of children
with developmental disabilities or mental retardation; and
(6) persons related to children with developmental
disabilities or mental retardation.
(d) Chapter 2110, Government Code, does not apply to the
committee.
(e) The commission or the department may pay any expenses
incurred by the committee.
SECTION 1.40. 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 1.41. (a) Subchapter B, Chapter 264, Family Code,
is amended by adding Section 264.116 to read as follows:
Sec. 264.116. TEXAS FOSTER GRANDPARENTS PROGRAM. (a) The
department shall work with volunteer and advocacy organizations
from the community to develop and implement a statewide foster
grandparents program that:
(1) recruits volunteers who are senior citizens; and
(2) encourages the volunteers to serve as mentors to
children who reside in a residential child-care facility.
(b) From funds available for that purpose, the department
may reimburse volunteers for actual and necessary expenses incurred
while participating in the program, including travel expenses. The
executive commissioner by rule shall develop guidelines for the
reimbursement of expenses under the program.
(c) A volunteer who participates in the program is subject
to state and national criminal background checks in accordance with
Sections 411.087 and 411.114, Government Code.
(d) The department shall require foster parents or
employees of residential child-care facilities to provide
appropriate supervision over volunteers during their participation
in the program.
(e) The program is subject to Chapter 2109, Government Code.
(b) The Department of Family and Protective Services shall
implement the statewide foster grandparents program required by
Section 264.116, Family Code, as added by this section, not later
than June 1, 2006.
SECTION 1.42. Subchapter B, Chapter 264, Family Code, is
amended by adding Section 264.121 to read as follows:
Sec. 264.121. PREPARATION FOR ADULT LIVING PROGRAM.
(a) The department shall address the unique challenges facing
foster children in the conservatorship of the department who must
transition to independent living by:
(1) expanding efforts to improve discharge planning
and increasing the availability of transitional family group
decision-making to all youth age 16 or older in the department's
permanent managing conservatorship;
(2) coordinating with the Health and Human Services
Commission to obtain authority, to the extent allowed by federal
law, the state Medicaid plan, the Title IV-E state plan, and any
waiver or amendment to either plan, necessary to:
(A) extend foster care eligibility and
transition services for youth up to age 21 and develop policy to
permit eligible youth to return to foster care as necessary to
achieve the goals of the Preparation for Adult Living Program; and
(B) extend Medicaid coverage for foster care
youth and former foster care youth up to age 21 with a single
application at the time the youth leaves foster care; and
(3) entering into cooperative agreements with the
Texas Workforce Commission and local workforce development boards
to further the objectives of the Preparation for Adult Living
Program. The department, the Texas Workforce Commission, and the
local workforce development boards shall ensure that services are
prioritized and targeted to meet the needs of foster care and former
foster care children and that such services will include, where
feasible, referrals for short-term stays for youth needing housing.
(b) In this section "local workforce development board"
means a local workforce development board created under Chapter
2308, Government Code.
SECTION 1.43. Subchapter C, Chapter 264, Family Code, is
amended by adding Section 264.2015 to read as follows:
Sec. 264.2015. FAMILY GROUP CONFERENCING. The department
may collaborate with the courts and other appropriate local
entities to develop and implement family group conferencing as a
strategy for promoting family preservation and permanency for
children.
SECTION 1.44. Subchapter C, Chapter 264, Family Code, is
amended by adding Section 264.204 to read as follows:
Sec. 264.204. COMMUNITY-BASED FAMILY SERVICES. (a) The
department shall administer a grant program to provide funding to
community organizations, including faith-based or county
organizations, to respond to:
(1) low-priority, less serious cases of abuse and
neglect; and
(2) cases in which an allegation of abuse or neglect of
a child was unsubstantiated but involved a family that has been
previously investigated for abuse or neglect of a child.
(b) The executive commissioner shall adopt rules to
implement the grant program, including rules governing the
submission and approval of grant requests and the cancellation of
grants.
(c) To receive a grant, a community organization whose grant
request is approved must execute an interagency agreement or a
contract with the department. The contract must require the
organization receiving the grant to perform the services as stated
in the approved grant request. The contract must contain
appropriate provisions for program and fiscal monitoring.
(d) In areas of the state in which community organizations
receive grants under the program, the department shall refer
low-priority, less serious cases of abuse and neglect to a
community organization receiving a grant under the program.
(e) A community organization receiving a referral under
Subsection (d) shall make a home visit and offer family social
services to enhance the parents' ability to provide a safe and
stable home environment for the child. If the family chooses to use
the family services, a case manager from the organization shall
monitor the case and ensure that the services are delivered.
(f) If after the home visit the community organization
determines that the case is more serious than the department
indicated, the community organization shall refer the case to the
department for a full investigation.
(g) The department may not award a grant to a community
organization in an area of the state in which a similar program is
already providing effective family services in the community.
(h) For purposes of this section, a case is considered to be
a less serious case of abuse or neglect if:
(1) the circumstances of the case do not appear to
involve a reasonable likelihood that the child will be abused or
neglected in the foreseeable future; or
(2) the allegations in the report of child abuse or
neglect:
(A) are general in nature or vague and do not
support a determination that the child who is the subject of the
report has been abused or neglected or will likely be abused or
neglected; or
(B) if substantiated, would not be considered
abuse or neglect under this chapter.
SECTION 1.45. (a) Subchapter C, Chapter 264, Family Code,
is amended by adding Section 264.2041 to read as follows:
Sec. 264.2041. CULTURAL AWARENESS. The department shall:
(1) develop and deliver cultural competency training
to all service delivery staff;
(2) increase targeted recruitment efforts for foster
and adoptive families who can meet the needs of children and youth
who are waiting for permanent homes;
(3) target recruitment efforts to ensure diversity
among department staff; and
(4) develop collaborative partnerships with community
groups, agencies, faith-based organizations, and other community
organizations to provide culturally competent services to children
and families of every race and ethnicity.
(b) The Health and Human Services Commission and the
Department of Family and Protective Services shall analyze data
regarding child removals and other enforcement actions taken by the
department during state fiscal years 2004 and 2005. Based on the
analysis, the commission and the department shall determine whether
enforcement actions were disproportionately initiated against any
racial or ethnic group, in any area of the state, taking into
account other relevant factors, including poverty, single-parent
families, young-parent families, and any additional factor
determined by other research to be statistically correlated with
child abuse or child neglect.
(c) The rate of enforcement actions shall be deemed
disproportionate for a given racial or ethnic group if it is
significantly different from the rate of enforcement actions
against the population as a whole, taking into account other
relevant factors.
(d) Not later than January 1, 2006, the Health and Human
Services Commission shall report the results of the analysis to the
lieutenant governor, the speaker of the house of representatives,
and the presiding officer of each house and senate standing
committee having jurisdiction over child protective services.
(e) If the results of the analysis indicate that enforcement
actions are initiated disproportionately against any racial or
ethnic group, in any area of the state, taking into account other
relevant factors, the Health and Human Services Commission and
Department of Family and Protective Services shall:
(1) evaluate the policies and procedures the
department uses in deciding to take enforcement actions to
determine why racial or ethnic disparities exist;
(2) develop and implement a remediation plan to
prevent racial or ethnic disparities not justified by other
external factors from affecting the decision to initiate
enforcement actions; and
(3) not later than July 1, 2006, submit a report to the
lieutenant governor, the speaker of the house of representatives,
and the presiding officer of each house and senate standing
committee having jurisdiction over child protective services that
explains:
(A) the evaluation of policies and procedures;
and
(B) the remediation plan.
SECTION 1.46. Subsection (c), Section 264.203, Family Code,
is amended to read as follows:
(c) If the person ordered to participate in the services
fails to follow the court's order, the court may impose appropriate
sanctions in order to protect the health and safety of the child,
including the removal of the child as specified by Chapter 262
[community service as a sanction for contempt].
SECTION 1.47. Subsection (b), Section 264.502, Family Code,
is amended to read as follows:
(b) The members of the committee who serve under Subsections
(a)(1) through (3) shall select the following additional committee
members:
(1) a criminal prosecutor involved in prosecuting
crimes against children;
(2) a sheriff;
(3) a justice of the peace;
(4) a medical examiner;
(5) a police chief;
(6) a pediatrician experienced in diagnosing and
treating child abuse and neglect;
(7) a child educator;
(8) a child mental health provider;
(9) a public health professional;
(10) a child protective services specialist;
(11) a sudden infant death syndrome family service
provider;
(12) a neonatologist;
(13) a child advocate; [and]
(14) a chief juvenile probation officer; and
(15) a child abuse prevention specialist.
SECTION 1.48. Section 264.503, Family Code, is amended by
amending Subsections (b) through (f) and adding Subsections (d-1)
and (g) to read as follows:
(b) To ensure that the committee achieves its purpose, the
department and the [Texas] Department of State Health Services
shall perform the duties specified by this section.
(c) The department shall:
(1) recognize the creation and participation of review
teams; and
(2) work cooperatively with the committee and with
individual child fatality review teams [promote and coordinate
training to assist the review teams in carrying out their duties;
[(3) assist the committee in developing model
protocols for:
[(A) the reporting and investigating of child
fatalities for law enforcement agencies, child protective
services, justices of the peace and medical examiners, and other
professionals involved in the investigations of child deaths;
[(B) the collection of data regarding child
deaths; and
[(C) the operation of the review teams; and
[(4) develop and implement procedures necessary for
the operation of the committee].
(d) The Department of State Health Services [department]
shall:
(1) promote and coordinate training to assist the
review teams in carrying out their duties;
(2) assist the committee in developing model protocols
for:
(A) the reporting and investigating of child
fatalities for law enforcement agencies, child protective
services, justices of the peace and medical examiners, and other
professionals involved in the investigations of child deaths;
(B) the collection of data regarding child
deaths; and
(C) the operation of the review teams;
(3) develop and implement procedures necessary for the
operation of the committee; and
(4) promote education of the public regarding the
incidence and causes of child deaths, the public role in preventing
child deaths, and specific steps the public can undertake to
prevent child deaths.
(d-1) The committee shall enlist the support and assistance
of civic, philanthropic, and public service organizations in the
performance of the duties imposed under Subsection (d) [this
subsection].
(e) In addition to the duties under Subsection (d), the [The
Texas] Department of State Health Services shall:
(1) collect data under this subchapter and coordinate
the collection of data under this subchapter with other data
collection activities; and
(2) perform annual statistical studies of the
incidence and causes of child fatalities using the data collected
under this subchapter.
(f) The committee shall issue a report for each preventable
child death. The report must include [annual reports on the
committee's activities, including] findings related to the child's
death, [and] recommendations on how to prevent similar deaths, and
details surrounding the department's involvement with the child
prior to the child's death [relating to each purpose and duty of the
committee described by this section]. Not later than December 1 of
each [even-numbered] year, the committee shall publish a
compilation of the reports published under this subsection during
the year, [the report and] submit a copy of the compilation [report]
to the governor, lieutenant governor, [and] speaker of the house of
representatives, and department, and make the compilation
available to the public. Not later than June 1 of each year, the
department shall submit a written response on the compilation from
the previous year to the committee, governor, lieutenant governor,
and speaker of the house of representatives describing which of the
committee's recommendations regarding the operation of the child
protective services system the department will implement and the
methods of implementation.
(g) The committee shall perform the functions and duties
required of a citizen review panel under 42 U.S.C. Section
5106a(c)(4)(A).
SECTION 1.49. Subsection (c), Section 264.504, Family Code,
is amended to read as follows:
(c) Information identifying a deceased child, a member of
the child's family, a guardian or caretaker of the child, or an
alleged or suspected perpetrator of abuse or neglect of the child
may not be disclosed during a public meeting. On a majority vote of
the committee members, the members shall remove from the committee
any member who discloses information described by this subsection
in a public meeting.
SECTION 1.50. Subsection (c), Section 264.505, Family Code,
is amended to read as follows:
(c) A review team may include:
(1) a criminal prosecutor involved in prosecuting
crimes against children;
(2) a sheriff;
(3) a justice of the peace or medical examiner;
(4) a police chief;
(5) a pediatrician experienced in diagnosing and
treating child abuse and neglect;
(6) a child educator;
(7) a child mental health provider;
(8) a public health professional;
(9) a child protective services specialist;
(10) a sudden infant death syndrome family service
provider;
(11) a neonatologist;
(12) a child advocate; [and]
(13) a chief juvenile probation officer; and
(14) a child abuse prevention specialist.
SECTION 1.51. Section 264.506, Family Code, is amended by
amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) To achieve its purpose, a review team shall:
(1) adapt and implement, according to local needs and
resources, the model protocols developed by the department and the
committee;
(2) meet on a regular basis at least quarterly to
review child fatality cases and recommend methods to improve
coordination of services and investigations between agencies that
are represented on the team;
(3) collect and maintain data as required by the
committee; and
(4) submit to the bureau of vital statistics data
reports on deaths reviewed as specified by the committee.
(d) A review team shall perform the functions and duties
required of a citizen review panel under 42 U.S.C. Section
5106a(c)(4)(A).
SECTION 1.52. Subsection (b), Section 264.509, Family Code,
is amended to read as follows:
(b) On request of the presiding officer of a review team,
the custodian of the relevant information and records relating to a
deceased child shall provide those records to the review team at no
cost to the review team.
SECTION 1.53. Subsection (c), Section 264.511, Family Code,
is amended to read as follows:
(c) A member of a review team may not disclose any
information that is confidential under this section. On a majority
vote of the review team members, the members shall remove from the
review team any member who discloses confidential information.
SECTION 1.54. Section 264.602, Family Code, is amended by
adding Subsection (e) to read as follows:
(e) The department, in cooperation with the statewide
organization with which the attorney general contracts under
Section 264.603 and other interested agencies, shall support the
expansion of court-appointed volunteer advocate programs into
counties in which there is a need for the programs. In expanding
into a county, a program shall work to ensure the independence of
the program, to the extent possible, by establishing community
support and accessing private funding from the community for the
program.
SECTION 1.55. (a) Chapter 264, Family Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. RELATIVE AND OTHER DESIGNATED CAREGIVER PLACEMENT
PROGRAM
Sec. 264.751. DEFINITIONS. In this subchapter:
(1) "Designated caregiver" means an individual who has
a longstanding and significant relationship with a child for whom
the department has been appointed managing conservator and who:
(A) is appointed to provide substitute care for
the child, but is not licensed or certified to operate a foster
home, foster group home, agency foster home, or agency foster group
home under Chapter 42, Human Resources Code; or
(B) is subsequently appointed permanent managing
conservator of the child after providing the care described by
Paragraph (A).
(2) "Relative" means a person related to a child by
consanguinity as determined under Section 573.022, Government
Code.
(3) "Relative caregiver" means a relative who:
(A) provides substitute care for a child for whom
the department has been appointed managing conservator, but who is
not licensed or certified to operate a foster home, foster group
home, agency foster home, or agency foster group home under Chapter
42, Human Resources Code; or
(B) is subsequently appointed permanent managing
conservator of the child after providing the care described by
Paragraph (A).
Sec. 264.752. RELATIVE AND OTHER DESIGNATED CAREGIVER
PLACEMENT PROGRAM. (a) The department shall develop and
administer a program to:
(1) promote continuity and stability for children for
whom the department is appointed managing conservator by placing
those children with relative or other designated caregivers; and
(2) facilitate relative or other designated caregiver
placements by providing assistance and services to those caregivers
in accordance with this subchapter and rules adopted by the
executive commissioner.
(b) The executive commissioner shall adopt rules necessary
to implement this subchapter. The rules must include eligibility
criteria for receiving assistance and services under this
subchapter.
Sec. 264.753. EXPEDITED PLACEMENT. The department shall
expedite the completion of the background and criminal history
check, the home study, and any other administrative procedure to
ensure that the child is placed with a qualified relative or
caregiver not later than two weeks after the date the caregiver is
identified.
Sec. 264.754. INVESTIGATION OF PROPOSED PLACEMENT. Before
placing a child with a proposed relative or other designated
caregiver, the department must conduct an investigation to
determine whether the proposed placement is in the child's best
interest.
Sec. 264.755. CAREGIVER ASSISTANCE AGREEMENT. The
department shall, subject to the availability of funds, enter into
a caregiver assistance agreement with each relative or other
designated caregiver to provide monetary assistance and additional
support services to the caregiver. The monetary assistance and
support services may include:
(1) a one-time cash payment of not more than $1,000 to
the caregiver on the initial placement of a child or, if the child
and at least one of the child's siblings are placed with the
caregiver, a one-time cash payment of not more than $1,000 to the
caregiver on the initial placement of the sibling group, to assist
the caregiver in purchasing essential child-care items such as
furniture and clothing;
(2) case management services and training and
information about the child's needs until the caregiver is
appointed permanent managing conservator;
(3) referrals to appropriate state agencies
administering public benefits or assistance programs for which the
child, the caregiver, or the caregiver's family may qualify;
(4) family counseling not provided under the Medicaid
program for the caregiver's family for a period not to exceed two
years from the date of initial placement;
(5) if the caregiver meets the eligibility criteria
determined by rules adopted by the executive commissioner,
reimbursement of all child-care expenses incurred while the child
is under 13 years of age, or under 18 years of age if the child has a
developmental disability, and while the department is the child's
managing conservator;
(6) if the caregiver meets the eligibility criteria
determined by rules adopted by the executive commissioner,
reimbursement of 50 percent of child-care expenses incurred after
the caregiver is appointed permanent managing conservator of the
child while the child is under 13 years of age, or under 18 years of
age if the child has a developmental disability; and
(7) reimbursement of other expenses, as determined by
rules adopted by the executive commissioner, not to exceed $500 per
year for each child.
Sec. 264.756. ASSISTANCE WITH PERMANENT PLACEMENT. The
department shall collaborate with the State Bar of Texas and local
community partners to identify legal resources to assist relatives
and other designated caregivers in obtaining conservatorship,
adoption, or other permanent legal status for the child.
Sec. 264.757. COORDINATION WITH OTHER AGENCIES. The
department shall coordinate with other health and human services
agencies, as defined by Section 531.001, Government Code, to
provide assistance and services under this subchapter.
Sec. 264.758. FUNDS. The department and other state
agencies shall actively seek and use federal funds available for
the purposes of this subchapter.
(b) Not later than December 1, 2005, the executive
commissioner of the Health and Human Services Commission shall
adopt rules for implementing and administering the relative and
other designated caregiver placement program under Subchapter I,
Chapter 264, Family Code, as added by this section.
(c) Not later than March 1, 2006, the Department of Family
and Protective Services shall implement the relative and other
designated caregiver placement program in accordance with
Subchapter I, Chapter 264, Family Code, as added by this section.
SECTION 1.56. Subtitle E, Title 5, Family Code, is amended
by adding Chapter 266 to read as follows:
CHAPTER 266. MEDICAL CARE FOR CHILDREN IN FOSTER CARE
Sec. 266.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Department" means the Department of Family and
Protective Services.
Sec. 266.002. CONSTRUCTION WITH OTHER LAW. This chapter
does not limit the right to consent to medical, dental,
psychological, and surgical treatment under Chapter 32.
Sec. 266.003. CONSENT FOR MEDICAL CARE. (a) Medical care
may not be provided to a child in foster care unless the person
authorized by this section has provided informed consent.
(b) The following persons may be authorized by the court to
consent to medical care for a child in foster care:
(1) an individual designated by name in an order of the
court, including the child's parent, if the parent's rights have not
been terminated; or
(2) the department or an agent of the department,
including a foster parent.
(c) If the person authorized to consent to medical care is
the department or an agent of the department, the department shall
file with the court the name of the individual who will exercise the
duty and responsibility of providing informed consent on behalf of
the department. If the individual who exercises the duty and
responsibility of providing informed consent on behalf of the
department changes, the department shall file notice of the change
with the court not later than the 10th day after the date the change
occurs.
(d) A physician or other provider of medical care acting in
good faith may rely on the representation by a person that the
person has the authority to consent to the provision of medical care
to a child in foster care as provided by Subsection (b).
(e) The department, a person authorized to consent to
medical care under Subsection (b), the child's parent if the
parent's rights have not been terminated, a guardian ad litem or
attorney ad litem if one has been appointed, or the person providing
foster care to the child may petition the court for any order
related to medical care of a child in foster care that the
department or other person believes is in the best interest of the
child. Notice of the petition must be given to each person entitled
to notice under Section 263.301(b).
(f) On its own motion or in response to a petition under
Subsection (e), the court may issue any order related to the medical
care of a child in foster care that the court determines is in the
best interest of the child.
(g) Notwithstanding Subsection (b), a person may not be
authorized to consent to medical care provided to a child in foster
care unless the person has completed a department-approved training
program related to consenting to medical care. This subsection
does not apply to a parent whose rights have not been terminated
unless the court orders the parent to complete the training.
(h) The person authorized by Subsection (b) to consent to
medical care of a child in foster care shall participate in each
appointment of the child with the provider of the medical care.
Sec. 266.004. HEALTH PASSPORTS. (a) The commission shall
make available to the person authorized to consent to medical care
under Section 266.003(b) and any provider of health care to a child
in foster care the most complete health history of the child
available to the department.
(b) The department shall develop a health passport for each
child in foster care. The department shall determine the format of
the passport. The passport may be maintained in an electronic
format. The health passport must include the most complete medical
history of the child available to the department and must be readily
accessible to medical care providers. The health passport must
contain educational records of the child, including the names and
addresses of educational providers, the child's grade level
performance, and any other educational information the department
determines is important.
(c) The form and content of the passport shall be finalized
within six months of the enactment of the legislation adding this
chapter. The passport shall be available in an electronic format
within 24 months of the enactment of this legislation. Within 36
months, the passport shall interface directly with other electronic
health record systems that contain information that impacts the
health care of the child.
(d) The department shall maintain the passport as part of
the department's records for the child as long as the child remains
in foster care.
Sec. 266.005. JUDICIAL REVIEW OF MEDICAL CARE. (a) At
each hearing under Chapter 263, or more frequently if ordered by the
court, the court shall review a summary of the medical care provided
to the child since the last hearing. The summary must include
information regarding:
(1) the nature of any emergency medical care provided
to the child and the circumstances necessitating emergency medical
care, including any injury or acute illness suffered by the child;
(2) any medication prescribed for the child and the
condition for which the medication was prescribed;
(3) the degree to which the child or foster care
provider has complied or failed to comply with any plan of medical
treatment for the child;
(4) any adverse reaction to or side effects of any
medical treatment provided to the child;
(5) any specific medical condition of the child that
has been diagnosed or for which tests are being conducted to make a
diagnosis;
(6) any activity that the child should avoid or should
engage in that might affect the effectiveness of the treatment,
including physical activities, other medications, and diet; and
(7) other information required by department rule or
by the court.
(b) At or before each hearing under Chapter 263, the
department shall provide the summary of medical care described by
Subsection (a) to:
(1) the court;
(2) the person authorized to consent to medical
treatment for the child;
(3) the guardian ad litem or attorney ad litem, if one
has been appointed by the court;
(4) the child's parent, if the parent's rights have not
been terminated; and
(5) any other person determined by the department or
the court to be necessary or convenient to the provision of medical
care to children in foster care.
Sec. 266.006. OVERSIGHT OF MEDICAL CARE. (a) The
commission shall establish a comprehensive system of oversight of
medical care provided to children in foster care.
(b) The oversight system must include:
(1) the implementation of medical passports by which
each foster child's full medical history available to the
department is available at all times to the person authorized to
consent to medical care for the child and to each provider of
medical care who diagnoses or treats the child;
(2) establishment and use of a management information
system that allows medical care provided to all children in foster
care to be monitored;
(3) the use of medical advisory committees and medical
review teams to establish treatment guidelines and criteria by
which individual cases of medical care provided to children in
foster care will be identified for further, in-depth review;
(4) development of the training program described by
Section 266.003(g);
(5) a system in which parents, foster parents,
caseworkers, and guardians ad litem have access to a child
psychiatrist employed by the department or the Department of State
Health Services to use as a resource for treating foster children;
(6) provision for the summary of medical treatment
described by Section 266.005(a); and
(7) provision for the participation of the person
authorized to consent to medical care for a child in foster care in
each appointment of the child with the provider of the medical care.
Sec. 266.0061. STUDY OF INCENTIVES TO PRESCRIBE
PSYCHOTROPIC DRUGS. (a) The department shall study the level of
care system the department uses to determine a child's foster care
needs to ascertain whether the system creates incentives for
prescribing psychotropic medications to children in foster care.
(b) Not later than October 1, 2006, the department shall
report the results of the study to the legislature. The report must
include the department's proposed changes to the level of care
system.
(c) This section expires January 1, 2007.
SECTION 1.57. Section 51.961, Government Code, is amended
to read as follows:
Sec. 51.961. FAMILY PROTECTION FEE. (a) The commissioners
court of a county shall [may] adopt a family protection fee in an
amount not to exceed $30 [$15].
(b) Except as provided by Subsection (c), the district clerk
or county clerk shall collect the family protection fee at the time
a suit for dissolution of a marriage under Chapter 6, Family Code,
is filed. The fee is in addition to any other fee collected by the
district clerk or county clerk.
(c) The clerk may not collect a fee under this section from a
person who is protected by an order issued under:
(1) Subtitle B, Title 4, Family Code; or
(2) Article 17.292, Code of Criminal Procedure.
(d) The clerk shall pay one-half of the [a] fee collected
under this section to the appropriate officer of the county in which
the suit is filed for deposit in the county treasury to the credit
of the family protection account. The account may be used by the
commissioners court of the county only to fund a service provider
located in that county or an adjacent county. The commissioners
court may provide funding to a nonprofit organization that provides
services described by Subsection (e).
(e) A service provider who receives funds under Subsection
(d) may provide family violence and child abuse prevention,
intervention, family strengthening, mental health, counseling,
legal, and marriage preservation services to families that are at
risk of experiencing or that have experienced family violence or
the abuse or neglect of a child.
(f) In this section, "family violence" has the meaning
assigned by Section 71.004, Family Code.
(g) The clerk shall pay one-half of the fee collected under
this section to the comptroller, who shall deposit the money to the
credit of the child abuse and neglect prevention trust fund account
established under Section 40.105, Human Resources Code.
SECTION 1.58. Section 101.061, Government Code, is amended
to read as follows:
Sec. 101.061. DISTRICT COURT FEES AND COSTS. The clerk of a
district court shall collect fees and costs as follows:
(1) filing fee in action with respect to a fraudulent
court record or fraudulent lien or claim filed against property
(Sec. 12.005, Civil Practice and Remedies Code) . . . $15;
(2) fee for service of notice of action with respect to
a fraudulent court record or fraudulent lien or claim filed against
property (Sec. 12.005, Civil Practice and Remedies Code) . . . not
to exceed $20, if notice delivered in person, or the cost of
postage, if service is by registered or certified mail;
(3) court cost in certain civil cases to establish and
maintain an alternative dispute resolution system, if authorized by
the county commissioners court (Sec. 152.004, Civil Practice and
Remedies Code) . . . not to exceed $10;
(4) appellate judicial system filing fees for:
(A) First or Fourteenth Court of Appeals District
(Sec. 22.2021, Government Code) . . . not more than $5;
(B) Second Court of Appeals District (Sec.
22.2031, Government Code) . . . not more than $5;
(C) Fourth Court of Appeals District (Sec.
22.2051, Government Code) . . . not more than $5;
(D) Fifth Court of Appeals District (Sec.
22.2061, Government Code) . . . not more than $5; and
(E) Thirteenth Court of Appeals District (Sec.
22.2141, Government Code) . . . not more than $5;
(5) additional filing fees:
(A) for each suit filed for insurance contingency
fund, if authorized by the county commissioners court (Sec. 51.302,
Government Code) . . . not to exceed $5;
(B) for each civil suit filed, for court-related
purposes for the support of the judiciary and for civil legal
services to an indigent:
(i) for family law cases and proceedings as
defined by Section 25.0002, Government Code (Sec. 133.151, Local
Government Code) . . . $45; or
(ii) for any case other than a case
described by Subparagraph (i) (Sec. 133.151, Local Government
Code) . . . $50;
(C) to fund the improvement of Dallas County
civil court facilities, if authorized by the county commissioners
court (Sec. 51.705, Government Code) . . . not more than $15; and
(D) on the filing of any civil action or
proceeding requiring a filing fee, including an appeal, and on the
filing of any counterclaim, cross-action, intervention,
interpleader, or third-party action requiring a filing fee, to fund
civil legal services for the indigent:
(i) for family law cases and proceedings as
defined by Section 25.0002, Government Code (Sec. 133.152, Local
Government Code) . . . $5; or
(ii) for any case other than a case
described by Subparagraph (i) (Sec. 133.152, Local Government
Code) . . . $10;
(6) for filing a suit, including an appeal from an
inferior court:
(A) for a suit with 10 or fewer plaintiffs (Sec.
51.317, Government Code) . . . $50;
(B) for a suit with at least 11 but not more than
25 plaintiffs (Sec. 51.317, Government Code) . . . $75;
(C) for a suit with at least 26 but not more than
100 plaintiffs (Sec. 51.317, Government Code) . . . $100;
(D) for a suit with at least 101 but not more than
500 plaintiffs (Sec. 51.317, Government Code) . . . $125;
(E) for a suit with at least 501 but not more than
1,000 plaintiffs (Sec. 51.317, Government Code) . . . $150; or
(F) for a suit with more than 1,000 plaintiffs
(Sec. 51.317, Government Code) . . . $200;
(7) for filing a cross-action, counterclaim,
intervention, contempt action, motion for new trial, or third-party
petition (Sec. 51.317, Government Code) . . . $15;
(8) for issuing a citation or other writ or process not
otherwise provided for, including one copy, when requested at the
time a suit or action is filed (Sec. 51.317, Government Code) . . .
$8;
(9) for records management and preservation (Sec.
51.317, Government Code) . . . $10;
(10) for issuing a subpoena, including one copy (Sec.
51.318, Government Code) . . . $8;
(11) for issuing a citation, commission for
deposition, writ of execution, order of sale, writ of execution and
order of sale, writ of injunction, writ of garnishment, writ of
attachment, or writ of sequestration not provided for in Section
51.317, or any other writ or process not otherwise provided for,
including one copy if required by law (Sec. 51.318, Government
Code) . . . $8;
(12) for searching files or records to locate a cause
when the docket number is not provided (Sec. 51.318, Government
Code) . . . $5;
(13) for searching files or records to ascertain the
existence of an instrument or record in the district clerk's office
(Sec. 51.318, Government Code) . . . $5;
(14) for abstracting a judgment (Sec. 51.318,
Government Code) . . . $8;
(15) for approving a bond (Sec. 51.318, Government
Code) . . . $4;
(16) for a certified copy of a record, judgment,
order, pleading, or paper on file or of record in the district
clerk's office, including certificate and seal, for each page or
part of a page (Sec. 51.318, Government Code) . . . $1;
(17) for a noncertified copy, for each page or part of
a page (Sec. 51.318, Government Code) . . . not to exceed $1;
(18) jury fee (Sec. 51.604, Government Code) . . .
$30;
(19) for filing a report of divorce or annulment (Sec.
194.002, Health and Safety Code) . . . $1;
(20) for filing a suit in Comal County (Sec. 152.0522,
Human Resources Code) . . . $4;
(21) additional filing fee for family protection on
filing a suit for dissolution of a marriage under Chapter 6, Family
Code, if authorized by the county commissioners court (Sec. 51.961,
Government Code) . . . not to exceed $30 [$15];
(22) fee on filing a suit for dissolution of a marriage
for services of child support department in Harris County, if
authorized by the county commissioners court (Sec. 152.1074, Human
Resources Code) . . . not to exceed $12;
(23) fee on filing a suit requesting an adoption in
Montague County (Sec. 152.1752, Human Resources Code) . . . $25;
(24) court cost on citation for contempt of court for
failure to comply with child support order in Nueces County, if
authorized by the commissioners court (Sec. 152.1844, Human
Resources Code) . . . not to exceed $10;
(25) fee on filing a suit for divorce in Orange County
(Sec. 152.1873, Human Resources Code) . . . not less than $5;
(26) court costs on citation for contempt of court in
Orange County for failure to comply with a child support order or
order providing for possession of or access to a child (Sec.
152.1873, Human Resources Code) . . . amount determined by
district clerk;
(27) fee on filing a suit requesting an adoption in
Orange County (Sec. 152.1874, Human Resources Code) . . . not less
than $25;
(28) fee on filing a suit requesting an adoption in
Wichita County (Sec. 152.2496, Human Resources Code) . . . $100;
(29) additional filing fee to fund the courthouse
security fund, if authorized by the county commissioners court
(Sec. 291.008, Local Government Code) . . . not to exceed $5;
(30) additional filing fee for filing documents not
subject to certain filing fees to fund the courthouse security
fund, if authorized by the county commissioners court (Sec.
291.008, Local Government Code) . . . $1;
(31) additional filing fee to fund the courthouse
security fund in Webb County, if authorized by the county
commissioners court (Sec. 291.009, Local Government Code) . . .
not to exceed $20;
(32) court cost in civil cases other than suits for
delinquent taxes to fund the county law library fund, if authorized
by the county commissioners court (Sec. 323.023, Local Government
Code) . . . not to exceed $35;
(33) when administering a case for the Rockwall County
Court at Law (Sec. 25.2012, Government Code) . . . civil fees and
court costs as if the case had been filed in district court;
(34) at a hearing held by an associate judge in Dallas
County, a court cost to preserve the record, in the absence of a
court reporter, by other means (Sec. 54.509, Government Code) . . .
as assessed by the referring court or associate judge; and
(35) at a hearing held by an associate judge in Duval
County, a court cost to preserve the record (Sec. 54.1151,
Government Code, as added by Chapter 1150, Acts of the 78th
Legislature, Regular Session, 2003) . . . as imposed by the
referring court or associate judge.
SECTION 1.59. Subdivision (2), Subsection (a), Section
411.114, Government Code, is amended to read as follows:
(2) The Department of Family and Protective [and
Regulatory] Services shall obtain from the department criminal
history record information maintained by the department that
relates to a person who is:
(A) an applicant for a license, registration,
certification, or listing under Chapter 42, Human Resources Code,
or Chapter 249, Health and Safety Code[, or a person who registers
with or has been issued a certificate to operate under
accreditation by the Department of Protective and Regulatory
Services under Subchapter E, Chapter 42, Human Resources Code];
(B) an owner, operator, or employee of or an
applicant for employment by a child-care facility, child-placing
agency, family home, or maternity home licensed, registered,
certified, or listed under Chapter 42, Human Resources Code, or
Chapter 249, Health and Safety Code[, or by a child-care facility or
child-placing agency that is seeking to register with or has been
issued a certificate to operate under accreditation by the
Department of Protective and Regulatory Services under Subchapter
E, Chapter 42, Human Resources Code];
(C) a person 14 years of age or older who will be
regularly or frequently working or staying in a child-care
facility, family home, or maternity home while children are being
provided care, other than a child in the care of the home or
facility;
(D) an applicant selected for a position with the
Department of Family and Protective [and Regulatory] Services, the
duties of which include direct delivery of protective services to
children, elderly persons, or persons with a disability;
(E) an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a business
entity or person that contracts with the Department of Family and
Protective [and Regulatory] Services to provide direct delivery of
protective services to children, elderly persons, or persons with a
disability, if the person's duties or responsibilities include
direct contact with children, elderly persons, or persons with a
disability;
(F) a registered volunteer with the Department of
Family and Protective [and Regulatory] Services;
(G) a person providing or applying to provide
in-home, adoptive, or foster care for children in the care of the
Department of Family and Protective [and Regulatory] Services and
other persons living in the residence in which the child will
reside;
(H) a Department of Family and Protective [and
Regulatory] Services employee who is engaged in the direct delivery
of protective services to children, elderly persons, or persons
with a disability;
(I) a person who is the subject of a report the
Department of Family and Protective [and Regulatory] Services
receives alleging that the person has abused, neglected, or
exploited a child, an elderly person, or a person with a disability,
provided that:
(i) the report alleges the person has
engaged in conduct that meets the statutory definition of abuse,
neglect, or exploitation under Chapter 261, Family Code, or Chapter
48, Human Resources Code; and
(ii) the person who is the subject of the
report is not also the victim of the alleged conduct;
(J) a person providing child care for a child who
is in the care of the Department of Family and Protective [and
Regulatory] Services and who is or will be receiving adoptive,
foster, or in-home care;
(K) through a contract with a nonprofit
management center, an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a nonprofit,
tax-exempt organization that provides any service that involves the
care of or access to children, elderly persons, or persons with a
disability; or
(L) an applicant for a child-care administrator
or child-placing agency administrator license under Chapter 43
[seeking accreditation as provided by Section 43.003], Human
Resources Code.
SECTION 1.60. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.078 to read as follows:
Sec. 531.078. POOLED FUNDING FOR FOSTER CARE PREVENTIVE
SERVICES. (a) The commission and the Department of Family and
Protective Services shall develop and implement a plan to combine,
to the extent and in the manner allowed by Section 51, Article III,
Texas Constitution, and other applicable law, funds of those
agencies with funds of other appropriate state agencies and local
governmental entities to provide services designed to prevent
children from being placed in foster care. The preventive services
may include:
(1) child and family counseling;
(2) instruction in parenting and homemaking skills;
(3) parental support services;
(4) temporary respite care; and
(5) crisis services.
(b) The plan must provide for:
(1) state funding to be distributed to other state
agencies, local governmental entities, or private entities only as
specifically directed by the terms of a grant or contract to provide
preventive services;
(2) procedures to ensure that funds received by the
commission by gift, grant, or interagency or interlocal contract
from another state agency, a local governmental entity, the federal
government, or any other public or private source for purposes of
this section are disbursed in accordance with the terms under which
the commission received the funds; and
(3) a reporting mechanism to ensure appropriate use of
funds.
(c) For the purposes of this section, the commission may
request and accept gifts and grants under the terms of a gift,
grant, or contract from a local governmental entity, a private
entity, or any other public or private source for use in providing
services designed to prevent children from being placed in foster
care. If required by the terms of a gift, grant, or contract or by
applicable law, the commission shall use the amounts received:
(1) from a local governmental entity to provide the
services in the geographic area of this state in which the entity is
located; and
(2) from the federal government or a private entity to
provide the services statewide or in a particular geographic area
of this state.
(b) Not later than November 1, 2006, the Health and Human
Services Commission shall provide to the governor and the
Legislative Budget Board a report on the status and progress of the
preventive services funding plan required by Section 531.078,
Government Code, as added by this section.
SECTION 1.61. Section 651.004, Government Code, is amended
by adding Subsection (e) to read as follows:
(e) The Department of Family and Protective Services is not
required to comply with management-to-staff ratio requirements of
this section with respect to caseworker supervisors, program
directors, and program administrators.
SECTION 1.62. (a) Subchapter C, Chapter 2155, Government
Code, is amended by adding Section 2155.1442 to read as follows:
Sec. 2155.1442. FOSTER CARE RESIDENTIAL CONTRACT
MANAGEMENT. (a) Subject to Subsection (d), the state auditor
shall conduct a management review of the residential contract
management employees of the Health and Human Services Commission
and the Department of Family and Protective Services and make
recommendations regarding the organization of, and skills and
educational requirements for, those employees. The state auditor
shall also make recommendations regarding the implementation of
financial accountability provisions and processes to ensure
effective and efficient expenditure of state and other contract
funds. The state auditor shall report annually to the governor, the
lieutenant governor, the speaker of the house of representatives,
and the comptroller on the auditor's recommendations and the
commission's and department's implementation of each
recommendation.
(b) The Health and Human Services Commission shall contract
with the state auditor to perform on-site financial audits of
selected contractors as needed subject to approval by the
legislative audit committee for inclusion in the annual audit plan
under Section 321.013. The state auditor, with input from the
Health and Human Services Commission, shall select the contractors
based on the contract's risk assessment rating, allegations of
fraud or misuse of state or other contract funds, or other
appropriate audit selection criteria. The state auditor shall
include findings from the on-site financial audits in the annual
report to the governor and other representatives of the state as
required by Subsection (a). In addition, the state auditor shall
immediately report to the governor and each person listed in
Subsection (a) any findings of fraud or other misuse of state or
other contract funds.
(c) The Department of Family and Protective Services may
develop an Internet-based system to enable residential contractors
to review their reimbursement accounts or other pertinent financial
data and reconcile their accounts.
(d) Work performed under Subsections (a) and (b) by the
state auditor is subject to approval by the legislative audit
committee for inclusion in the audit plan under Section 321.013(c).
(b) Section 2155.1442, Government Code, as added by this
section, applies only to a contract that is entered into or renewed
on or after the effective date of this section. A contract entered
into or renewed before that date is governed by the law in effect on
the date the contract is entered into or renewed, and the former law
is continued in effect for that purpose.
(c) Not later than December 1, 2005, the state auditor shall
complete and publish the management review and report required by
Subsection (a), Section 2155.1442, Government Code, as added by
this section. This subsection applies only if the auditor's work is
approved by the legislative audit committee in time to meet this
deadline.
(d) Not later than October 1, 2006, the state auditor shall
begin the on-site financial reviews of selected contractors
required by Subsection (b), Section 2155.1442, Government Code, as
added by this section.
SECTION 1.63. (a) Section 32.055, Human Resources Code, is
amended to read as follows:
Sec. 32.055. CATASTROPHIC CASE MANAGEMENT. (a) In this
section, "medically fragile child" means a child who:
(1) is under 21 years of age;
(2) has a serious, chronic illness or condition that:
(A) has continued, or is anticipated to continue,
at least 12 months;
(B) requires daily hospitalization or has
required at least one month of hospitalization;
(C) requires ongoing medical treatment and
monitoring by appropriately trained personnel, including a parent
or other family member; and
(D) presents an ongoing threat to the child's
well-being; and
(3) requires the routine use of a medical device or the
use of assistive technology to compensate for the loss of a bodily
function necessary to participate in an activity of daily life.
(b) The department shall develop and implement a
catastrophic case management system to be used in providing medical
assistance to persons with catastrophic health problems, including
medically fragile children under the conservatorship of the
Department of Family and Protective Services who are placed in
foster care.
(c) [(b)] The system must provide for the assignment of a
case manager to a recipient of medical assistance with catastrophic
health problems that are likely to:
(1) require the services of multiple, specialized
health care providers; and
(2) result in major medical costs.
(d) [(c)] The department shall identify the services to be
provided by a case manager assigned under the system. The services
must include assessment of the recipient's needs and coordination
of all available medical services and payment options. The
services may include other support services such as:
(1) assistance with making arrangements to receive
care from medical facilities;
(2) assistance with travel and lodging in connection
with receipt of medical care;
(3) education of the recipient and the recipient's
family members or foster parent, as applicable, regarding the
nature of the recipient's health problems;
(4) referral to appropriate support groups; and
(5) any other service likely to result in better care
provided in a cost-effective manner.
(e) In implementing the system for medically fragile
children, the department shall coordinate with the Department of
Family and Protective Services and may contract with children's
hospitals or other health care providers to provide case management
services to foster children.
(f) [(d)] Not later than January 15 of each odd-numbered
year, the department shall report to the legislature on the
implementation of the system. The report must include a statement
of:
(1) the number of recipients of medical assistance who
received catastrophic case management services under the system
during the preceding two years; and
(2) the estimated savings under the medical assistance
program resulting from implementation of the system during the
preceding two years.
(b) Not later than January 1, 2006, the Health and Human
Services Commission shall implement the catastrophic case
management system for medically fragile children required by
Section 32.055, Human Resources Code, as amended by this section.
SECTION 1.64. The heading to Subtitle D, Title 2, Human
Resources Code, is amended to read as follows:
SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
SERVICES; CHILD WELFARE AND PROTECTIVE SERVICES
SECTION 1.65. The heading to Chapter 40, Human Resources
Code, is amended to read as follows:
CHAPTER 40. DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
SERVICES
SECTION 1.66. Subdivisions (3) and (5), Section 40.001,
Human Resources Code, are amended to read as follows:
(3) "Department" means the Department of Family and
Protective [and Regulatory] Services.
(5) "Family preservation" includes the provision of
services designed to assist families, including adoptive and
extended families, who are at risk or in crisis, including:
(A) preventive services designed to help a child
at risk of foster care placement remain safely with the child's
family; and
(B) services designed to help a child return,
when the return is safe and appropriate, to the family from which
the child was removed [the protection of parents and their children
from needless family disruption because of unfounded accusations of
child abuse or neglect. It does not include the provision of state
social services for the rehabilitation of parents convicted of
abusing or neglecting their children].
SECTION 1.67. Subsection (b), Section 40.002, Human
Resources Code, is amended to read as follows:
(b) Notwithstanding any other law, the department shall:
(1) provide protective services for children and
elderly and disabled persons, including investigations of alleged
abuse, neglect, or exploitation in facilities of the Texas
Department of Mental Health and Mental Retardation or its successor
agency;
(2) provide family support and family preservation
services that respect the fundamental right of parents to control
the education and upbringing of their children;
(3) license, register, and enforce regulations
applicable to child-care facilities, [and] child-care
administrators, and child-placing agency administrators; and
(4) implement and manage programs intended to provide
early intervention or prevent at-risk behaviors that lead to child
abuse, delinquency, running away, truancy, and dropping out of
school.
SECTION 1.68. Section 40.003, Human Resources Code, is
amended to read as follows:
Sec. 40.003. SUNSET PROVISION. The Department of Family
and Protective [and Regulatory] Services is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the department is abolished and this
chapter expires September 1, 2009.
SECTION 1.69. Subchapter A, Chapter 40, Human Resources
Code, is amended by adding Section 40.009 to read as follows:
Sec. 40.009. QUALITY ASSURANCE PROGRAM FOR CHILD PROTECTIVE
SERVICES; QUARTERLY REPORTS. (a) The department shall develop and
implement a quality assurance program for child protective services
provided by or on behalf of the department.
(b) The program must include periodic audits of the
completeness and accuracy of investigatory and inspection-related
reports prepared or required by the department, including:
(1) reports of investigations of child abuse and
neglect;
(2) reports relating to children placed in foster
care; and
(3) reports relating to the licensing and inspection
of residential child-care facilities.
(c) An audit must be conducted in accordance with
professional standards and generally recognized sampling
techniques.
(d) The department shall retain the results of an audit
conducted under this section until at least the fifth anniversary
of the date the audit is completed.
(e) Each fiscal quarter the department shall file with the
governor and the presiding officer of each house of the legislature
a detailed written report assessing the delivery of child
protective services and examining the outcomes for children and
families served by child protective programs, foster care programs,
adoption programs, and other related programs in this state.
(f) The report required by Subsection (e) must include:
(1) a summary of the audits conducted under this
section during the preceding quarter; and
(2) a summary of the department's performance during
the preceding quarter on the most recent standards used by the
federal government to evaluate state child and family services
programs with regard to child safety, permanency, and well-being.
SECTION 1.70. (a) Subchapter A, Chapter 40, Human
Resources Code, is amended by adding Section 40.010 to read as
follows:
Sec. 40.010. PROTECTIVE SERVICES LEGISLATIVE OVERSIGHT
COMMITTEE. (a) The Protective Services Legislative Oversight
Committee is created to:
(1) facilitate the reformation of powers, duties,
functions, programs, and activities of the department; and
(2) monitor the effectiveness and efficiency of the
services provided by the department.
(b) The committee is composed of 15 members as follows:
(1) four members of the senate, appointed by the
lieutenant governor;
(2) four members of the house of representatives,
appointed by the speaker of the house of representatives; and
(3) six members of the public, appointed by the
governor as follows:
(A) one member with experience in a child–placing
agency;
(B) one member with experience in a foster family
association;
(C) one member with experience in a guardianship
program;
(D) one member with experience in mental health
care;
(E) two members with experience in law
enforcement; and
(F) one member who was formerly a child in foster
care.
(c) The commissioner serves as an ex officio member of the
committee.
(d) A member of the committee serves at the pleasure of the
appointing official.
(e) The lieutenant governor and the speaker of the house of
representatives shall alternate designating a presiding officer
for a term of one year from among their respective appointments.
(f) A member of the committee may not receive compensation
for serving on the committee but is entitled to reimbursement for
travel expenses incurred by the member while conducting the
business of the committee as provided by the General Appropriations
Act.
(g) In addition to performing the duties prescribed by
Subsection (a), the committee shall:
(1) with assistance from the department and the
commission, advise the commissioner concerning the powers, duties,
functions, programs, and activities of the department and the funds
and obligations that are related to the powers, duties, functions,
programs, or activities;
(2) meet at the call of the presiding officer;
(3) research, take public testimony, and issue reports
on other appropriate issues or specific issues requested by the
lieutenant governor, speaker, or governor; and
(4) review specific recommendations for legislation
proposed by the department or commission.
(h) The committee may request reports and other information
from the commission, the department, and the attorney general
relating to protective services in this state and other appropriate
issues.
(i) The committee shall use existing staff of the senate and
house of representatives to assist the committee in performing its
duties under this section.
(j) Chapter 551, Government Code, applies to the committee.
(k) The committee shall report to the governor, the
lieutenant governor, and the speaker of the house of
representatives not later than November 15 of each even-numbered
year. The report must include:
(1) identification of significant issues in the
protective services system, with recommendations for action;
(2) an analysis of the effectiveness and efficiency of
the protective services system, with recommendations for any
necessary research; and
(3) recommendations for legislative action.
(b) The speaker, the lieutenant governor, and the governor
shall appoint the members of the Protective Services Legislative
Oversight Committee created by Section 40.010, Human Resources
Code, as added by this section, as soon as possible after the
effective date of this section. The lieutenant governor shall
designate the initial presiding officer of the committee. The
presiding officer shall call the initial meeting of the committee
as soon as possible after the committee members are appointed.
SECTION 1.71. Section 40.030, Human Resources Code, is
amended to read as follows:
Sec. 40.030. ADVISORY COMMITTEES. The executive
commissioner or the executive commissioner's designee [board] may
appoint advisory committees in accordance with Chapter 2110,
Government Code [Article 6252-33, Revised Statutes].
SECTION 1.72. The heading to Section 40.0305, Human
Resources Code, is amended to read as follows:
Sec. 40.0305. STRATEGIC USE OF TECHNOLOGY [STEERING
COMMITTEE].
SECTION 1.73. Subsections (a) and (d), Section 40.0305,
Human Resources Code, are amended to read as follows:
(a) The department shall continually explore the strategic
use of technology as a means to improve services, reduce workload
burdens, increase accountability, and enhance the overall
efficiency and effectiveness of department operations. The
department shall develop strategic plans and seek funding to
implement technology enhancements that the department determines
are feasible and cost-effective [establish a strategic technology
steering committee within the department to evaluate major
information technology project proposals].
(d) In evaluating major information technology project
proposals, the department, in cooperation with the commission,
[steering committee] shall:
(1) assess the major information needs of the
department;
(2) define standard criteria for setting priorities
for the department's information needs;
(3) forecast the returns to the department on project
investments;
(4) evaluate the department's available information
resources; and
(5) review, approve, and evaluate the status of
projected costs and benefits related to project proposals.
SECTION 1.74. Section 40.031, Human Resources Code, is
amended to read as follows:
Sec. 40.031. DIVISIONS OF DEPARTMENT. (a) The executive
commissioner [board] may establish divisions within the department
as necessary for efficient administration and for the discharge of
the department's functions.
(b) The executive commissioner shall establish an
investigations division to oversee and direct the investigation
functions of the child protective services program, including the
receipt and screening of all reports of alleged child abuse or
neglect.
(c) The commissioner shall designate a person with law
enforcement experience as the director of the investigations
division.
(d) The investigations division shall, as appropriate,
refer children and families in need of services to other department
divisions or to other persons or entities with whom the department
contracts for the provision of the needed services.
(e) Reports of alleged child abuse or neglect investigated
under Subchapter E, Chapter 261, Family Code, are not subject to
investigation by the investigations division [board may allocate
and reallocate functions, programs, and activities among the
department's divisions].
SECTION 1.75. (a) Subchapter B, Chapter 40, Human
Resources Code, is amended by adding Section 40.0322 to read as
follows:
Sec. 40.0322. CASEWORKER REPLACEMENT PROGRAM. (a) To the
extent that funding is available, the department shall develop a
program to provide for the timely replacement of caseworkers with
trainees hired in anticipation of vacancies.
(b) In developing the program, the department shall
consider the turnover rate for caseworkers by region.
(b) Unless sufficient funds are not available, the
Department of Family and Protective Services shall develop the
program required under Section 40.0322, Human Resources Code, as
added by this section, not later than December 31, 2005.
SECTION 1.76. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.0323 to read as follows:
Sec. 40.0323. CASELOAD STANDARDS. Notwithstanding Section
531.048(d), Government Code, in an ongoing manner, the department
is encouraged to analyze and consider the appropriateness of hiring
caseworkers for the children's protective services division in
sufficient numbers to reduce those caseworkers' caseloads to the
maximum number of active caseloads recommended for best practice
casework by the Council on Accreditation for Children and Family
Services and the Child Welfare League of America.
SECTION 1.77. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.035 to read as follows:
Sec. 40.035. ENHANCED TRAINING OF CHILD PROTECTIVE SERVICES
CASEWORKERS. To improve the quality and consistency of training
provided to child protective services caseworkers, the department
shall:
(1) augment classroom-based training with a blended
learning environment using computer-based modules, structured
field experience, and simulation for skills development;
(2) use a core curriculum for all new department
caseworkers and specialized training for specific jobs;
(3) require that department caseworkers transferring
from one specialty to another must complete the core curriculum and
advanced training for the new specialty before assuming their new
responsibilities; and
(4) centralize accountability and oversight of all
department training in order to ensure statewide consistency.
SECTION 1.78. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0526 to read as follows:
Sec. 40.0526. BUILDING COMMUNITY PARTNERSHIPS TO SUPPORT
CHILDREN AND FAMILIES. (a) The department shall develop a
statewide strategy to build alliances and networks at the local
level that support the detection and treatment of child abuse and
neglect and enhance the coordination and delivery of services to
children and families.
(b) The strategy must include plans to:
(1) move staff from centralized office sites into
community-based settings to the greatest extent feasible; and
(2) enter into agreements for the establishment or
development of joint offices or workplaces with local officials and
organizations, including:
(A) children's advocacy centers;
(B) law enforcement officials;
(C) prosecutors;
(D) health care providers;
(E) schools;
(F) housing projects;
(G) domestic violence shelters; and
(H) the local juvenile probation department.
(c) The department may employ specialized staff, to the
extent that funds are appropriated for that purpose, to serve as:
(1) local legal liaisons who support the prosecution
in each region of legal cases through the judicial system by
improving coordination and cooperation in case consultation and
preparation of cases for court; and
(2) local community initiative specialists in each
region who focus on building community alliances and networks.
(d) An agreement made in accordance with this section for
the joint location of department personnel with other local
officials or organizations is not subject to Chapter 2167,
Government Code.
SECTION 1.79. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0527 to read as follows:
Sec. 40.0527. COMPREHENSIVE STAFFING AND WORKLOAD
DISTRIBUTION PLAN FOR CHILD PROTECTIVE SERVICES. (a) The
department shall develop and implement a staffing and workload
distribution plan for the child protective services program to:
(1) enhance accountability;
(2) improve the quality of investigations;
(3) eliminate delays; and
(4) ensure the most efficient and effective use of
child protective services staff and resources.
(b) In developing and implementing the plan, the department
shall, subject to available funds:
(1) develop a methodology for the equitable
distribution of investigative and other staff to ensure an
equitable assignment of cases in each area of the state;
(2) evaluate the duties of investigators and
supervisors and identify and reassign functions that may be
performed more efficiently by support or other paraprofessional
staff;
(3) ensure that investigative and service units
contain adequate supervisory and support staff;
(4) provide incentives to recruit and retain:
(A) caseworkers and supervisors assigned to
investigative units; and
(B) specialized staff with law enforcement or
forensic investigation experience;
(5) ensure that caseworkers and supervisors who are
not in an investigations unit are paid appropriately to increase
employee retention;
(6) when appropriate, identify and use alternative
work schedules;
(7) use a system of regional hiring supervisors for
targeted recruitment efforts;
(8) improve staff recruitment and screening methods to
promote the hiring of the most qualified candidates and improve an
applicant's understanding of the job requirements;
(9) reduce the time necessary to complete a plan of
service for a child and family when providing family-based safety
services; and
(10) identify methods to reduce the administrative
area that a manager is responsible for to increase accountability.
SECTION 1.80. (a) Section 40.058, Human Resources Code, is
amended by amending Subsections (b) and (c) and adding Subsections
(b-1) and (f) through (i) to read as follows:
(b) A contract for the purchase of program-related client
services must include:
(1) clearly defined goals and outcomes that can be
measured to determine whether the objectives of the program are
being achieved;
(2) clearly defined sanctions or penalties for
noncompliance with contract terms; [and]
(3) clearly specified accounting, reporting, and
auditing requirements applicable to money received under the
contract; and
(4) if applicable, clearly defined performance
standards that relate directly to the quality of care provided to
residents of foster care facilities.
(b-1) A contract for the purchase of substitute care
services, as defined by Section 264.106, Family Code, must be
procured using:
(1) department procurement procedures; or
(2) procurement procedures approved by the executive
commissioner that promote open and fair competition.
(c) The department shall monitor a contractor's performance
under a contract for the purchase of program-related client
services. In monitoring performance, the department shall:
(1) use a risk-assessment methodology to ensure
compliance with financial and performance requirements under the
contract; [and]
(2) obtain and evaluate program cost information to
ensure that all costs, including administrative costs, are
reasonable and necessary to achieve program objectives; and
(3) review each foster care services contract and
evaluate the contract for compliance with the performance standards
of the contract prescribed by Subsection (b)(4).
(f) The department shall terminate a contract with a foster
care services provider if the contractor does not meet the
performance standards prescribed by Subsection (b)(4). The
department may not award or renew a foster care services contract
with a contractor if the contractor does not meet those performance
standards.
(g) The commission shall create a foster care performance
team to develop performance criteria for foster care services
contracts. The team shall include contracting experts from
multiple state agencies, foster care services providers and
clients, performance-based contract experts of the state auditor,
and other experts in outcome-based contracts. The team shall
develop clearly defined and measurable standards for foster care
services contracts that directly relate to factors within the
control of the providers. The department shall adopt the clearly
defined performance standards for inclusion in foster care services
contracts as developed and recommended by the team. The team shall
also develop performance standards that provide measurable
criteria for identification of foster care services providers:
(1) that do not provide quality care;
(2) that should not receive additional contract
awards; and
(3) whose contracts should be revoked.
(h) The commission shall create an alternative payment plan
in all foster care services contracts to encourage the reduction of
the period that children are in intensive levels of care. The
payment plan must provide several alternative payment mechanisms to
encourage foster care services contractors to improve the quality
of care, encourage efficient use of funding, and reduce the period
of intensive care for children under program-related client
services contracts for foster care. The payment plan may not be
designed in a manner that encourages or requires a reduction in the
level of care provided to medically fragile children, as defined by
Section 32.055, children with significant developmental
disabilities, or other children with chronic conditions that
require a constant level of care.
(i) A contract for the provision of foster care services
must contain a provision requiring the department's contract
management employees to make periodic unannounced visits to the
contractor's facilities in accordance with commission rules and to
report the employees' findings to the commission.
(b) Subdivision (4), Subsection (b), Subsection (b-1),
Subdivision (3), Subsection (c), and Subsections (f), (g), and (i),
Section 40.058, Human Resources Code, as added by this section,
apply only to a contract entered into or renewed on or after the
effective date of this section. A contract entered into or renewed
before that date is governed by the law in effect on the date the
contract is entered into or renewed, and the former law is continued
in effect for that purpose.
SECTION 1.81. (a) Subchapter C, Chapter 40, Human
Resources Code, is amended by adding Section 40.071 to read as
follows:
Sec. 40.071. MISSING CHILDREN WEBSITE. (a) The department
shall develop and implement a program to display on the
department's Internet website the name, age, and photograph of, and
location information relating to, any child in the foster care
system who has been reported missing. The department may also
display other relevant information that the department determines
will be useful in efforts to locate and ensure the safety of that
child.
(b) Notwithstanding any other law, information required to
be provided under this section is public information.
(c) The department shall regularly update the website by
adding additional information that becomes available and by
deleting the information relating to a child who is no longer
missing.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules and establish standards, policies, and procedures to
implement and administer Section 40.071, Human Resources Code, as
added by this section.
SECTION 1.82. Section 42.002, Human Resources Code, is
amended by adding Subdivisions (18) and (19) to read as follows:
(18) "Controlling person" means a person who, either
alone or in connection with others, has the ability to directly or
indirectly influence or direct the management, expenditures, or
policies of a residential child-care facility.
(19) "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 1.83. Subsections (b) and (d), Section 42.021,
Human Resources Code, are amended to read as follows:
(b) The commissioner [executive director of the department]
shall appoint as director of a division designated under Subsection
(a) a person who meets the qualifications set by the executive
commissioner [board].
(d) The commissioner [director] may divide the state into
regions for the purpose of administering this chapter.
SECTION 1.84. Subsections (a) and (b), Section 42.023,
Human Resources Code, are amended to read as follows:
(a) The department [executive director] shall prepare an
annual written report regarding the department's activities under
this chapter.
(b) The annual report shall include:
(1) a report by regions of applications for licensure
or certification, of initial [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 with certification
requirements;
(2) a summary of the 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.
SECTION 1.85. (a) Subsection (c), Section 42.041, Human
Resources Code, is amended to read as follows:
(c) A single license that lists addresses and the
appropriate facilities may be issued to a child-care institution
that operates noncontiguous facilities that are across the street
from, in the same city block as, or on the same property as one
another [nearby] and that are demonstrably a single operation as
indicated by patterns of staffing, finance, administrative
supervision, and programs.
(b) Subsection (c), Section 42.041, Human Resources Code,
as amended by this section, applies only to a license issued or
renewed on or after the effective date of this section. A license
issued or renewed before the effective date of this section is
governed by the law in effect at the time the license is issued or
renewed, and the former law is continued in effect for that purpose.
SECTION 1.86. (a) Section 42.042, Human Resources Code, is
amended by adding Subsections (h-1) and (q) to read as follows:
(h-1) The executive commissioner shall adopt rules
governing:
(1) the placement and care of children by a
child-placing agency, as necessary to ensure the health and safety
of those children;
(2) the verification and monitoring of agency foster
homes, agency foster group homes, and adoptive homes by a
child-placing agency; and
(3) if appropriate, child-placing agency staffing
levels, office locations, and administration.
(q) Each residential child-care facility shall notify the
department and the appropriate local law enforcement agency
immediately on determining that a child is missing from the
facility.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules and establish standards, policies, and procedures to
implement and administer Subsections (h-1) and (q), Section 42.042,
Human Resources Code, as added by this section.
SECTION 1.87. Section 42.044, Human Resources Code, is
amended by adding Subsections (e) and (f) to read as follows:
(e) The department shall periodically conduct inspections
of a random sample of agency foster homes and agency foster group
homes. The department shall use the inspections to monitor and
enforce compliance by a child-placing agency with rules and
standards established under Section 42.042.
(f) The department shall use an inspection checklist that
includes a list of all required items for inspection in conducting a
monitoring inspection under this section.
SECTION 1.88. Section 42.0441, Human Resources Code, is
amended to read as follows:
Sec. 42.0441. INSPECTION RESULTS AND EXIT CONFERENCE.
(a) Immediately after completing a monitoring inspection of a
licensed day-care center, licensed group day-care home, or
registered family home under Section 42.044, the inspector
[authorized representative of the department] shall review the
results of the monitoring inspection with a representative of the
facility and give the facility an opportunity to respond to the
inspection results.
(b) Immediately after completing a monitoring inspection of
a residential child-care facility under Section 42.044, the
inspector shall hold an exit conference with a representative of
the 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 rules and
minimum standards related to the violations.
(c) An inspector acting under Subsection (b) shall provide
the residential child-care facility representative an opportunity
to respond to the violations discovered during the inspection.
(d) If after holding an exit conference under Subsection (b)
the inspector finds additional violations in a subsequent
inspection of the residential child-care facility, the inspector
shall conduct another exit conference to provide the information
required by Subsection (b) with respect to the additional
violations.
SECTION 1.89. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.04411 to read as follows:
Sec. 42.04411. INFORMAL DISPUTE RESOLUTION. (a) The
executive commissioner by rule shall establish an informal dispute
resolution process under which a disinterested individual may
resolve a dispute between the department and a residential
child-care facility regarding a violation discovered during an
inspection, a proposed enforcement action relating to the
violation, or another related proceeding under this chapter. The
process must require:
(1) the aggrieved residential child-care facility to
request informal dispute resolution not later than the 15th day
after the date the facility is notified of the violation, proposed
enforcement action, or other proceeding that is the basis of the
dispute; and
(2) an individual representing the aggrieved
residential child-care facility in the process to register with the
commission and disclose the following:
(A) the individual's employment history during
the preceding five years, including employment with a regulatory
agency of this state or another state;
(B) the ownership, including the identity of the
controlling person or persons, of the aggrieved residential
child-care facility the individual is representing; and
(C) the identity of other entities the individual
is representing, or has represented during the preceding 24 months,
before the commission.
(b) The executive commissioner shall adopt rules to resolve
disputes under the informal dispute resolution process. The rules
must require that the process be completed not later than the 30th
day after the date the aggrieved residential child-care facility
requests informal dispute resolution.
(c) The commission may not delegate to another state agency
the responsibility to administer the informal dispute resolution
process established under this section.
SECTION 1.90. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.04431 to read as follows:
Sec. 42.04431. RESIDENTIAL CHILD-CARE INSPECTION
INFORMATION DATABASE. (a) The department shall establish a
computerized database containing inspection information, including
violations of minimum standards, on residential child-care
facilities and child-placing agencies inspected under Section
42.044.
(b) The department shall make the information collected by
the department available to another state agency or political
subdivision of the state for the purpose of administering programs
or enforcing laws within the jurisdiction of that agency or
subdivision. If feasible using available information systems, the
department shall make the information directly available to the
Department of State Health Services and the commission through
electronic information systems. The department, the Department of
State Health Services, and the commission shall jointly plan the
development of inspection databases that, to the extent feasible,
are similar in their design and architecture to promote the sharing
of information.
(c) The department shall categorize information regarding
violations of minimum standards collected under this section by:
(1) the type and size of the residential child-care
facility in which the violation occurred;
(2) the region of this state in which the violation
occurred; and
(3) the type of violation.
(d) The department shall use the information to:
(1) identify trends in violations in relation to
regions of this state and types of residential child-care
facilities;
(2) identify minimum standards that are subject to
inconsistent interpretation;
(3) identify training needs;
(4) direct training and other resources to residential
child-care facilities that present the greatest risk to child
safety; and
(5) improve the quality of residential child-care
services without increasing expenditures.
SECTION 1.91. Section 42.046, Human Resources Code, is
amended by amending Subsection (c) and adding Subsection (e) 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 of an applicant for a
license to operate a residential child-care facility, the
department shall require the applicant to provide information about
the applicant's and each controlling person's compliance history
with the regulatory requirements in any other state in which the
applicant or controlling person operates or previously operated a
residential child-care facility.
(e) The department may deny an application under this
section if the applicant:
(1) has a residential child-care facility license
revoked in another state; or
(2) is barred from operating a residential child-care
facility in another state.
SECTION 1.92. Subsections (f) and (g), Section 42.0461,
Human Resources Code, are amended to read as follows:
(f) A child-placing agency that proposes to verify an agency
foster home or agency foster group home that is located in a county
with a population of less than 300,000 that provides child care for
24 hours a day at a location other than the actual residence of a
child's primary caretaker shall:
(1) comply with the notice and hearing requirements
imposed by Subsections (a) and (b); and
(2) after conducting the required public hearing,
provide the department with information relating to the
considerations specified in Subsection (d).
(g) The department may prohibit the child-placing agency
from verifying the proposed agency foster home or agency foster
group home on the same grounds that the department may deny an
application under Subsection (e). The department may invalidate
the verification of an agency foster home or agency foster group
home that was not verified using the procedures required by
Subsection (f) on or after September 1, 1997.
SECTION 1.93. Section 42.051, Human Resources Code, is
amended to read as follows:
Sec. 42.051. INITIAL [PROVISIONAL] LICENSE. (a) The
department shall issue an initial [a provisional] license when a
facility's plans meet the department's licensing requirements and
one of the following situations exists:
(1) the facility is not currently operating;
(2) the facility has relocated and has made changes in
the type of child-care service it provides; or
(3) there is a change in ownership of the facility
resulting in changes in policy and procedure or in the staff who
have direct contact with the children.
(b) An initial [A provisional] license is valid for six
months from the date it is issued and may be renewed for an
additional six months.
SECTION 1.94. Subsection (b), Section 42.054, Human
Resources Code, is amended to read as follows:
(b) The department shall charge each child-care facility a
fee of $35 for an initial [a provisional] license. The department
shall charge each child-placing agency a fee of $50 for an initial
[a provisional] license.
SECTION 1.95. (a) Section 42.056, Human Resources Code, is
amended by adding Subsections (a-1), (d), (e), and (f) and amending
Subsection (b) to read as follows:
(a-1) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a residential
child-care facility shall submit to the department for use in
conducting background and criminal history checks the name of each
prospective employee who will provide direct care or have direct
access to a child in the residential child-care facility.
(b) The department shall conduct background and criminal
history checks using:
(1) the information provided under Subsections
[Subsection] (a) and (a-1);
(2) the information made available by the Department
of Public Safety under Section 411.114, Government Code, and [or]
by the Federal Bureau of Investigation or other criminal justice
agency under Section 411.087, Government Code; and
(3) the department's records of reported abuse and
neglect.
(d) A person described by Subsection (a) or (a-1) may not
provide direct care or have direct access to a child in a
residential child-care facility before completion of the person's
background check and criminal history check.
(e) The department shall provide the results of a background
or criminal history check conducted under this section regarding a
prospective employee to a director, owner, or operator of a
residential child-care facility within 24 hours. If the
residential child-care facility does not receive the results of the
background or criminal history check within that time, the facility
may obtain that information for the facility's employee,
subcontractor, or volunteer directly from the Department of Public
Safety. If the information obtained verifies that the person does
not have a criminal record, the facility may allow the person to
have unsupervised client contact until the department has performed
the department's own criminal history check and notified the
facility.
(f) As part of a background check under this section, the
department shall provide any relevant information available in the
department's records regarding a person's previous employment in a
residential child-care facility to the person submitting the
request.
(b) The director, owner, or operator of a residential
child-care facility shall begin providing information to the
Department of Family and Protective Services as required by
Subsection (a-1), Section 42.056, Human Resources Code, as added by
this section, as soon as possible after the effective date of this
section and not later than January 1, 2006.
SECTION 1.96. (a) Subchapter C, Chapter 42, Human
Resources Code, is amended by adding Section 42.057 to read as
follows:
Sec. 42.057. DRUG TESTING. (a) Each residential
child-care facility shall establish a drug testing policy for
employees. A residential child-care facility may adopt the model
employee drug testing policy adopted by the executive commissioner
under Subsection (b) or may use another employee drug testing
policy approved by the executive commissioner.
(b) The executive commissioner by rule shall adopt a model
employee drug testing policy for use by a residential child-care
facility. The policy must be designed to ensure the safety of
resident children through appropriate drug testing of employees
while protecting the rights of employees. The model policy must
require:
(1) preemployment drug testing;
(2) random, unannounced drug testing of each employee
who has direct contact with a child in the care of the facility;
(3) drug testing of an employee against whom there is
an allegation of drug abuse; and
(4) drug testing of an employee whom the department is
investigating for the abuse or neglect of a child in the care of the
facility, if the allegation of abuse or neglect includes
information that provides good cause to suspect drug abuse.
(c) The department shall require a drug test of a person who
directly cares for or has access to a child in a residential
child-care facility within 24 hours after the department receives
notice of an allegation that the person has abused drugs.
(d) An employee may not provide direct care or have direct
access to a child in a residential child-care facility before
completion of the employee's initial drug test.
(e) A residential child-care facility shall pay any fee or
cost associated with performing the drug test for an employee.
(b) Not later than December 1, 2005, the executive
commissioner of the Health and Human Services Commission shall
adopt the model drug testing policy required by Section 42.057,
Human Resources Code, as added by this section.
(c) Not later than January 1, 2006, each residential
child-care facility shall adopt a drug testing policy required by
Section 42.057, Human Resources Code, as added by this section.
SECTION 1.97. (a) Subchapter C, Chapter 42, Human
Resources Code, is amended by adding Section 42.061 to read as
follows:
Sec. 42.061. RISK ASSESSMENT. (a) If an employee or
volunteer at a residential child-care facility has been convicted
of a crime, the department shall perform a risk assessment of the
person before the person is allowed access to a child in the
facility. The department shall also perform a similar risk
assessment of a person who is at least 14 years of age and who will
regularly or frequently be staying at the facility while children
are being provided care.
(b) The executive commissioner by rule shall develop and
maintain risk assessment criteria to ensure the safety and
well-being of a child's physical or mental health or welfare.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules required by Section 42.061, Human Resources Code, as
added by this section.
SECTION 1.98. 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) or who has been denied a license under Section 42.046.
SECTION 1.99. Subchapter C, Chapter 42, Human Resources
Code, is amended by adding Section 42.063 to read as follows:
Sec. 42.063. REPORTING OF INCIDENTS AND VIOLATIONS.
(a) In this section, "serious incident" means a suspected or
actual incident that threatens or impairs the basic health, safety,
or well-being of a child. The term includes:
(1) the arrest, abuse, neglect, exploitation, running
away, attempted suicide, or death of a child;
(2) a critical injury of a child; and
(3) an illness of a child that requires
hospitalization.
(b) A person licensed under this chapter shall report to the
department each serious incident involving a child who receives
services from the person, regardless of whether the department is
the managing conservator of the child.
(c) An employee of a person described by Subsection (b)
shall report suspected abuse or neglect directly to the statewide
intake system.
(d) An employee or volunteer of a child-care institution,
child-placing agency, foster home, or foster group home shall
report any serious incident directly to the department if the
incident involves a child under the care of the institution,
agency, or home.
(e) A foster parent shall report any serious incident
directly to the department if the incident involves a child under
the care of the parent.
(f) The executive commissioner by rule shall prescribe:
(1) procedures governing reporting required under
this section; and
(2) the manner in which a report under this section
must be provided.
SECTION 1.100. (a) Section 42.0705, Human Resources Code,
is amended to read as follows:
Sec. 42.0705. RANGE OF PENALTIES. (a) The department
shall revoke, suspend, or refuse to renew a license or
registration, place on probation a person whose license or
registration has been suspended, or reprimand a license holder or
registration holder for a violation of this chapter or a rule of the
board.
(b) If a license or registration suspension is probated, the
department may require the license holder or registration holder
to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit services to the areas prescribed by the
department;
(3) continue or review professional education until
the license holder or registration holder attains a degree of skill
satisfactory to the department in those areas that are the basis of
the probation; or
(4) take corrective action relating to the violation
on which the probation is based.
(c) The executive commissioner by rule shall establish
gradations of penalties in accordance with the relative seriousness
of the violation. The rules shall prescribe the violations or
number of violations that will result in the department's
automatically revoking a facility's license, certification, or
registration under Section 42.072.
(d) In determining the penalty to impose, the department
shall consider any matter that justice may require, including:
(1) the gradations of penalties established under
Subsection (c);
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the prohibited act
and the hazard or potential hazard created by the act to the health
or safety of a resident child;
(3) the history of previous violations;
(4) deterrence of future violations; and
(5) efforts to correct the violation.
(b) Not later than December 31, 2005, the executive
commissioner of the Health and Human Services Commission shall
establish the gradations of penalties required under Section
42.0705, Human Resources Code, as amended by this section.
SECTION 1.101. Section 42.072, Human Resources Code, is
amended by adding Subsection (c-1) to read as follows:
(c-1) Notwithstanding Subsection (c), the department shall
refuse to issue a license or certification for the operation of a
residential child-care facility to a person who previously held
more than a 20 percent ownership interest in or served as an
officer, director, board member, or administrator of a residential
child-care facility at the time of the occurrence of conduct that
resulted in:
(1) the license or certification of the facility being
revoked by the department or by court order; or
(2) the facility being voluntarily closed or its
license or certification relinquished after:
(A) the department took an action under
Subsection (a) in relation to the facility; or
(B) the facility received notice that the
department intended to take an action under Subsection (a) in
relation to the facility.
SECTION 1.102. Subsection (c), Section 42.073, Human
Resources Code, is amended to read as follows:
(c) An order is valid for 10 days after the effective date of
the order, except that an order relating to a residential
child-care facility is valid for 30 days after the effective date of
the order.
SECTION 1.103. Section 42.077, Human Resources Code, is
amended by adding Subsection (d-1) to read as follows:
(d-1) If the department determines that the license of a
residential child-care facility should be revoked or suspended, the
facility shall mail notification of the action or proposed action
by certified mail to a parent of each child served by the facility,
if the person's parental rights have not been terminated, and to the
child's managing conservator, as appropriate. The residential
child-care facility shall mail the notification not later than the
fifth day after the date the facility is notified of the
department's determination that revocation or suspension of the
license is appropriate.
SECTION 1.104. (a) Section 42.078, Human Resources Code,
is amended by amending Subsections (a) through (i) and (l), (m), and
(n) and adding Subsection (a-1) to read as follows:
(a) The department may impose an administrative penalty
against a facility or family home licensed or registered under this
chapter that violates this chapter or a rule or order adopted under
this chapter. In addition, the department may impose an
administrative penalty against a residential child-care facility
or a controlling person of a residential child-care facility if the
facility or controlling person:
(1) violates a term of a license or registration
issued under this chapter;
(2) makes a statement about a material fact that the
facility or person knows or should know is false:
(A) on an application for the issuance or renewal
of a license or registration or an attachment to the application; or
(B) in response to a matter under investigation;
(3) refuses to allow a representative of the
department to inspect:
(A) a book, record, or file required to be
maintained by the facility; or
(B) any part of the premises of the facility;
(4) purposefully interferes with the work of a
representative of the department or the enforcement of this
chapter; or
(5) fails to pay a penalty assessed under this chapter
on or before the date the penalty is due, as determined under this
section.
(a-1) Nonmonetary, administrative penalties or remedies,
including but not limited to corrective action plans, probation,
and evaluation periods, shall be imposed when appropriate before
monetary penalties.
(b) Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty. The penalty for a
violation may be in an amount not to exceed the following limits,
based on the maximum number of children for whom the facility or
family home was authorized to provide care or the number of children
under the care of the child-placing agency when the violation
occurred [receiving care at the facility or family home at the time
of the violation]:
(1) for violations that occur in a facility other than
a residential child-care facility:Number of children Maximum amount of penalty
20 or less $20
21-40 $30
41-60 $40
61-80 $50
81-100 $75
More than 100 $100and
(2) for violations that occur in a residential
child-care facility: Number of children Maximum amount of penalty
20 or less $100
21-40 $150
41-60 $200
61-80 $250
81-100 $375
More than 100 $500
(c) In addition to the number of children, the [The] amount
of the penalty shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited acts,
and the hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) Monetary penalties shall not be assessed for violations
that are the result of clerical errors [or standards which do not
clearly apprise the facility or family home of the action required
by the standard].
(e) If the department [executive director] determines that
a violation has occurred, the department [executive director] may
issue a recommendation on the imposition of a penalty, including a
recommendation on the amount of the penalty.
(f) Within 14 days after the date the recommendation is
issued, the department [executive director] shall give written
notice of the recommendation to the person owning or operating the
facility or family home or to the controlling person, if
applicable. The notice may be given by certified mail. The notice
must include a brief summary of the alleged violation and a
statement of the amount of the recommended penalty and must inform
the person that the person has a right to a hearing on the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(g) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the department [executive director] or may
make a written request for a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(h) If the person accepts the determination and recommended
penalty of the department [executive director] or fails to respond
to the notice in a timely manner, the department [executive
director] shall issue an order and impose the recommended penalty.
(i) If the person requests a hearing, the department
[executive director] shall set a hearing and give notice of the
hearing to the person. The hearing shall be held by an
administrative law judge of the State Office of Administrative
Hearings. The administrative law judge shall make findings of fact
and conclusions of law and issue a final decision finding that a
violation has occurred and imposing a penalty or finding that no
violation occurred.
(l) Within the 30-day period, a person who acts under
Subsection (k)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
department [executive director] by certified mail.
(m) On receipt of a copy of an affidavit under Subsection
(l)(2), the department [executive director] may file with the
court, within five days after the date the copy is received, a
contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall stay
the enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(n) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the department
[executive director] may refer the matter to the attorney general
for collection of the amount of the penalty.
(b) Section 42.078, Human Resources Code, as amended by this
section, applies to conduct that occurs on or after the effective
date of this section. Conduct that occurs before the effective date
of this section is governed by Section 42.078, Human Resources
Code, as it existed before amendment by this section, and the former
law is continued in effect for that purpose.
SECTION 1.105. The heading to Chapter 43, Human Resources
Code, is amended to read as follows:
CHAPTER 43. REGULATION OF CHILD-CARE
AND CHILD-PLACING AGENCY ADMINISTRATORS
SECTION 1.106. Section 43.001, Human Resources Code, is
amended by amending Subdivision (1) and adding Subdivisions (3) and
(4) to read as follows:
(1) "Child-care institution" has the meaning assigned
by Section 42.002 [means a profit or nonprofit children's home,
orphanage, institution, or other place that receives and provides
24-hour-a-day care for more than six children who are dependent,
neglected, handicapped, delinquent, in danger of becoming
delinquent, or in need of group care].
(3) "Child-placing agency" has the meaning assigned in
Section 42.002.
(4) "Child-placing agency administrator" means a
person who supervises and exercises direct control over a
child-placing agency and who is responsible for the child-placing
agency's program and personnel, regardless of whether the person
has an ownership interest in the child-placing agency or shares
duties with other persons.
SECTION 1.107. (a) Section 43.003, Human Resources Code,
is amended by adding Subsection (c) to read as follows:
(c) A person may not serve as a child-placing agency
administrator without a license issued by the department under this
chapter.
(b) Notwithstanding Subsection (c), Section 43.003, Human
Resources Code, as added by this section, a person is not required
to hold a license issued under Chapter 43, Human Resources Code, to
act as a child-placing agency administrator until January 1, 2006.
SECTION 1.108. (a) Section 43.004, Human Resources Code,
is amended to read as follows:
Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be
eligible for a child-care administrator's license a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c) [present evidence in writing of good moral character, ethical
commitment, and sound physical and emotional health];
(2) pass an examination developed [devised] and
administered by the department that demonstrates competence in the
field of child-care administration;
(3) have one year of full-time experience in
management or supervision of child-care personnel and programs; and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctor of philosophy degree in
social work or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in child care or a closely related field[;
[(C) an associate degree from a junior college
and four years' experience in child care or a closely related field;
or
[(D) a high school diploma or its equivalent and
six years' experience in child care or a closely related field].
(b) To be eligible for a child-placing agency
administrator's license a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c);
(2) pass an examination developed and administered by
the department that demonstrates competence in the field of placing
children in residential settings or adoptive homes;
(3) have one year of full-time experience in
management or supervision of child-placing personnel and programs;
and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctor of philosophy degree in
social work or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in the field of placing children in residential settings
or adoptive homes or a closely related field.
(c) Before the department issues a license under this
chapter, the department must conduct a criminal history and
background check of the applicant using:
(1) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code; and
(2) the information in the central registry of
reported cases of child abuse or neglect established under Section
261.002, Family Code.
(b) Subsection (a), Section 43.004, Human Resources Code,
as added by this section, applies only to a person who applies for a
license or license renewal on or after the effective date of this
section.
SECTION 1.109. (a) Section 43.0041, Human Resources Code,
is amended by adding Subsection (c) to read as follows:
(c) A person who fails an examination three times may not
submit a new application for a license until after the first
anniversary of the date the person last failed the examination.
(b) Subsection (c), Section 43.0041, Human Resources Code,
as added by this section, applies only to an examination taken on or
after the effective date of this section. An examination taken
before the effective date of this section is not considered in
determining whether a person is prohibited from seeking a new
license for the period specified by Subsection (c), Section
43.0041, Human Resources Code, as added by this section.
SECTION 1.110. Subsection (a), Section 43.0081, Human
Resources Code, is amended to read as follows:
(a) The department may issue a provisional child-care
administrator's license to an applicant licensed in another state
who applies for a license in this state. An applicant for a
provisional license under this section must:
(1) be licensed in good standing as a child-care
administrator for at least two years in another state, the District
of Columbia, a foreign country, or a territory of the United States
that has licensing requirements that are substantially equivalent
to the requirements of this chapter;
(2) have passed a national or other examination
recognized by the department that demonstrates competence in the
field of child-care administration; and
(3) be sponsored by a person licensed by the
department under this chapter with whom the provisional license
holder may practice under this section.
SECTION 1.111. (a) Subsection (a), Section 43.009, Human
Resources Code, is amended to read as follows:
(a) To be eligible for license renewal, a license holder
shall present evidence to the department of participation in a
program of continuing education for 15 [approximating 15 actual]
hours of formal study each year during the two-year period before
the renewal.
(b) Subsection (a), Section 43.009, Human Resources Code,
as amended by this section, applies to a person who seeks license
renewal on or after September 1, 2007. A person who seeks license
renewal before September 1, 2007, is governed by the law in effect
before amendment by this section, and the former law is continued in
effect for that purpose.
SECTION 1.112. The heading to Section 43.010, Human
Resources Code, is amended to read as follows:
Sec. 43.010. LICENSE DENIAL, REVOCATION, SUSPENSION, OR
REFUSAL TO RENEW; REPRIMAND OR PROBATION.
SECTION 1.113. (a) Subsections (a), (b), and (d), Section
43.010, Human Resources Code, are amended to read as follows:
(a) The department may deny, [shall] revoke, suspend, or
refuse to renew a license, or place on probation [a person whose
license has been suspended,] or reprimand a license holder for:
(1) violating [a violation by the license holder of]
this chapter or a rule adopted under this chapter;
(2) circumventing or attempting to circumvent the
requirements of this chapter or a rule adopted under this chapter;
(3) engaging in fraud or deceit related to the
requirements of this chapter or a rule adopted under this chapter;
(4) providing false or misleading information to the
department during the license application or renewal process for
any person's license;
(5) making a statement about a material fact during
the license application or renewal process that the person knows or
should know is false;
(6) having a criminal history or central registry
record that would prohibit a person from working in a child-care
facility, as defined by Section 42.002, under rules applicable to
that type of facility;
(7) using drugs or alcohol in a manner that
jeopardizes the person's ability to function as an administrator;
or
(8) [of the board.
[(b) The department may revoke a license if the license
holder is:
[(1) convicted of a felony;
[(2) convicted of a misdemeanor involving fraud or
deceit;
[(3) addicted to a dangerous drug or intemperate in
the use of alcohol; or
[(4) grossly negligent in] performing duties as a
child-care administrator in a negligent manner.
(b) A person whose license is revoked under Subsection (a)
is not eligible to apply for another license under this chapter.
(d) If a license holder is placed on probation [suspension
is probated], the department may require the license holder:
(1) to report regularly to the department on the
conditions of the probation;
(2) to limit practice to the areas prescribed by the
department; or
(3) to continue or renew professional education until
the practitioner attains a degree of skill satisfactory to the
department in those areas in which improvement is a condition of the
probation.
(b) Subsection (b), Section 43.010, Human Resources Code,
as amended by this section, applies only to a person whose license
is revoked on or after the effective date of this section. A person
whose license is revoked before the effective date of this section
is governed by the law in effect at the time of the revocation, and
the former law is continued in effect for that purpose.
SECTION 1.114. Section 43.0105, Human Resources Code, is
amended to read as follows:
Sec. 43.0105. REVOCATION OF PROBATION. The department may
revoke the probation of a license holder [whose license is
suspended] if the license holder violates a term of the conditions
of probation.
SECTION 1.115. Section 43.0106, Human Resources Code, is
amended to read as follows:
Sec. 43.0106. ADMINISTRATIVE [DISCIPLINARY] HEARING.
(a) If the department denies a license or proposes to suspend,
revoke, or refuse to renew a person's license, the person is
entitled to a hearing conducted by the State Office of
Administrative Hearings. Proceedings for a disciplinary action are
governed by the administrative procedure law, Chapter 2001,
Government Code. Rules of practice adopted by the executive
commissioner [board] under Section 2001.004, Government Code,
applicable to the proceedings for a disciplinary action may not
conflict with rules adopted by the State Office of Administrative
Hearings.
(b) A person may not continue to operate as a licensed
child-care administrator or child-placing agency administrator
during the appeal process if the department determines that the
person is an immediate threat to the health or safety of a child.
(c) The department must notify the person, and if
applicable, the governing body of the facility that employs the
person, of the department's determination under Subsection (b).
SECTION 1.116. Section 43.012, Human Resources Code, is
amended to read as follows:
Sec. 43.012. PENALTY. A person who serves as a child-care
or child-placing agency administrator without the license required
by this chapter commits a Class C misdemeanor.
SECTION 1.117. Subdivision (3), Article 56.01, Code of
Criminal Procedure, is amended to read as follows:
(3) "Victim" means a person who is the victim of the
offense of sexual assault, kidnapping, [or] aggravated robbery, or
injury to a child, elderly individual, or disabled individual or
who has suffered bodily injury or death as a result of the criminal
conduct of another.
SECTION 1.118. (a) Section 22.04, Penal Code, is amended
by amending Subsections (b) through (g) and adding Subsection (a-1)
to read as follows:
(a-1) A person commits an offense if the person is an owner,
operator, or employee of a group home, nursing facility, assisted
living facility, intermediate care facility for persons with mental
retardation, or other institutional care facility and the person
intentionally, knowingly, recklessly, or with criminal negligence
by omission causes to a child, elderly individual, or disabled
individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;
(3) bodily injury; or
(4) exploitation.
(b) An omission that causes a condition described by
Subsection (a)(1), (2), or (3) or (a-1)(1), (2), (3), or (4)
[Subsections (a)(1) through (a)(3)] is conduct constituting an
offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or disabled individual.
(c) In this section:
(1) "Child" means a person 14 years of age or younger.
(2) "Elderly individual" means a person 65 years of
age or older.
(3) "Disabled individual" means a person older than 14
years of age who by reason of age or physical or mental disease,
defect, or injury is substantially unable to protect himself from
harm or to provide food, shelter, or medical care for himself.
(4) "Exploitation" means the illegal or improper use
of an individual or of the resources of the individual for monetary
or personal benefit, profit, or gain.
(d) For purposes of an omission that causes a condition
described by Subsection (a)(1), (2), or (3), the [The] actor has
assumed care, custody, or control if he has by act, words, or course
of conduct acted so as to cause a reasonable person to conclude that
he has accepted responsibility for protection, food, shelter, and
medical care for a child, elderly individual, or disabled
individual. For purposes of an omission that causes a condition
described by Subsection (a-1)(1), (2), (3), or (4), the actor
acting during the actor's capacity as owner, operator, or employee
of a group home or facility described by Subsection (a-1) is
considered to have accepted responsibility for protection, food,
shelter, and medical care for the child, elderly individual, or
disabled individual who is a resident of the group home or facility.
(e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or
(2) is a felony of the first degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is [it shall be] a felony of the second
degree.
(f) An offense under Subsection (a)(3) or (a-1)(3) or (4) is
a felony of the third degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is [it shall be] a state jail felony.
(g) An offense under Subsection (a) is a state jail felony
when the person acts with criminal negligence [shall be a state jail
felony]. An offense under Subsection (a-1) is a state jail felony
when the person, with criminal negligence and by omission, causes a
condition described by Subsection (a-1)(1), (2), (3), or (4).
(b) The change in law made by this section applies only to an
offense committed on or after the effective date of this section.
An offense committed before the effective date of this section is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For the
purposes of this subsection, an offense was committed before the
effective date of this section if any element of the offense was
committed before that date.
SECTION 1.119. AT-RISK PREVENTION SERVICES TASK FORCE.
(a) In this section:
(1) "Department" means the Department of Family and
Protective Services.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(3) "Prevention service" means a community-based
prevention program to alleviate the conditions that lead to child
abuse or neglect and juvenile crime.
(4) "Task force" means the at-risk prevention services
task force established under this section.
(b) The at-risk prevention services task force is
established to create a strategic plan to improve the availability
of prevention services in this state and the manner in which those
services are provided.
(c) The task force is composed of 11 members appointed by
the governor.
(d) Each member of the task force must have demonstrated
experience in the prevention of child abuse or neglect, or juvenile
crime. Consideration shall be given to inclusion of prevention
service providers, research professionals, representatives from
mental health and juvenile justice fields, and the judicial system.
One member of the task force must be a person who was formerly a
child in foster care.
(e) The task force shall:
(1) examine the provision of prevention services in
this state and identify gaps in services and opportunities to
coordinate service delivery;
(2) identify federal, state, and community sources of
funding for prevention services and methods for combining resources
for those services; and
(3) create a strategic plan that would address current
gaps in services and would result in the extension of prevention
services that are evidence-based and utilize best practices to more
at-risk families in this state.
(f) To the extent that money is appropriated for this
purpose, the department shall establish and administer a child
abuse and neglect prevention grant program that addresses gaps and
strategies recommended by the task force. The grant program shall
fund evidence-based programs offered by community-based or county
organizations that are designed to prevent or ameliorate child
abuse and neglect. The task force shall advise the department in
the evaluation of the evidence-based abuse and neglect prevention
programs to determine the continued effectiveness of the programs.
(g) The department shall provide administrative support and
services to the task force.
(h) Not later than September 1, 2006, the task force shall
present to the department and executive commissioner the strategic
plan created under Subsection (e) of this section.
(i) Not later than the 90th day after the date on which the
task force presents the strategic plan, the executive commissioner
shall submit to the governor, the lieutenant governor, the speaker
of the house of representatives, and the presiding officer of each
house and senate standing committee having jurisdiction over family
protective services a written report concerning the strategic plan
of the task force. The report shall include:
(1) recommendations for implementing the strategic
plan of the task force, if appropriate;
(2) recommendations for modifications to the
strategic plan of the task force; and
(3) recommendations for legislation that the task
force or executive commissioner considers necessary to implement
the strategic plan.
(j) This section expires and the task force is abolished
June 1, 2007.
SECTION 1.120. THINK TANK MEETING ON CHILD ABUSE AND
NEGLECT INVESTIGATIONS. Not later than January 1, 2006, the
Department of Family and Protective Services shall conduct a
meeting with employees of the department and law enforcement
professionals who have responsibility for investigating reports of
child abuse and neglect to explore standards for:
(1) training to be provided for personnel who conduct
investigations of child abuse and neglect, including techniques for
interviewing, investigating, and communicating with children with
disabilities;
(2) protocols for conducting investigations; and
(3) the coordination of investigations between the
department and law enforcement agencies.
SECTION 1.121. CASEWORKER FUNCTION STUDY. (a) The
Department of Family and Protective Services shall conduct a study
on the merits of revising the functions performed by caseworkers
employed by the department. In conducting the study required by
this section, the department shall explore the benefits of using
one caseworker to coordinate efforts on behalf of the child and the
child's parents.
(b) The department shall report the results of the study
conducted under Subsection (a) of this section to the lieutenant
governor and the speaker of the house of representatives not later
than January 1, 2006.
SECTION 1.122. USE OF LOCAL CASEWORKERS. If the Department
of Family and Protective Services places a child in a home in an
administrative region other than the region in which the child's
caseworker is located, the department shall consider using a
caseworker from the region in which the child is placed to conduct
home visits for that child.
SECTION 1.123. STUDY OF CHILD PROTECTIVE SERVICES AND ADULT
PROTECTIVE SERVICES CERTIFICATION FOR PEACE OFFICERS. (a) In this
section, "peace officer" means a person elected, employed, or
appointed as a peace officer under Article 2.12, Code of Criminal
Procedure, or other law.
(b) The Commission on Law Enforcement Officer Standards and
Education shall study the feasibility of issuing certificates of
professional achievement or proficiency to peace officers who
receive specialized training for law enforcement assignments
related to child protective services or adult protective services.
The commission must consider:
(1) the need for specialized training of peace
officers who work with issues related to child protective services
or adult protective services;
(2) the feasibility of creating and administering the
proposed certification;
(3) potential incentives, including financial
incentives, that may encourage peace officers to obtain the
certification; and
(4) the development of required training for the
certification that will address the legal, social, and operational
issues that peace officers are likely to encounter when working
with children or aging persons.
(c) In conducting the study, the Commission on Law
Enforcement Officer Standards and Education shall seek the
participation of:
(1) state agency employees and peace officers who
currently work with issues related to child protective services and
adult protective services;
(2) community advocates for children and aging
persons; and
(3) other interested persons.
(d) Not later than September 1, 2006, the Commission on Law
Enforcement Officer Standards and Education shall submit to the
legislature a report regarding the results of the study conducted
under this section.
SECTION 1.124. The following provisions of the Human
Resources Code are repealed:
(1) Subdivision (1), Section 40.001;
(2) Section 40.028;
(3) Section 40.029;
(4) Subsections (b), (c), and (e), Section
40.0305;
(5) Subsection (c), Section 40.0525, Human Resources
Code; and
(6) Subsection (c), Section 43.010.
ARTICLE 2. ADULT PROTECTIVE SERVICES
SECTION 2.01. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.0315 to read as follows:
Sec. 40.0315. INVESTIGATION UNIT FOR ADULT PROTECTIVE
SERVICES. (a) The adult protective services division of the
department shall maintain an investigation unit to investigate
allegations of abuse, neglect, and exploitation of elderly and
disabled persons reported to the division.
(b) An investigator in the unit shall determine whether an
elderly or disabled person who is the subject of a report made under
Section 48.051(a) may have suffered from abuse, neglect, or
exploitation as a result of the criminal conduct of another person.
If the investigator determines that criminal conduct may have
occurred, the investigator shall immediately notify the
appropriate law enforcement agency.
(c) Not later than the 30th day after the date a law
enforcement agency is notified by an investigator as provided by
Subsection (b), the agency shall, if feasible, provide to the unit
information regarding the disposition of the agency's
investigation of the conduct that was the subject of the notice.
SECTION 2.02. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.0323 to read as follows:
Sec. 40.0323. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES
PERSONNEL. (a) In hiring department employees whose duties
include providing services as part of, or relating to, the
provision of adult protective services directly to an elderly or
disabled person, the commissioner shall ensure that the department
gives preference to applicants with professional credentials
related to adult protective services, including applicants who are
licensed master social workers, as defined by Section 505.002,
Occupations Code, or licensed professional counselors.
(b) Subject to the availability of funds, the executive
commissioner by rule shall develop and the department shall
implement an incentive program to encourage each department
employee whose duties include the duties described by Subsection
(a) to obtain professional credentials described by that subsection
if the employee does not have those credentials.
SECTION 2.03. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.035 to read as follows:
Sec. 40.035. TRAINING PROGRAM FOR ADULT PROTECTIVE
SERVICES; CONTINUING EDUCATION. (a) The department shall develop
and implement a training program that each newly hired or assigned
department employee must complete before:
(1) initiating an investigation of a report of alleged
abuse, neglect, or exploitation of an elderly or disabled person
under Chapter 48; or
(2) providing protective services to elderly or
disabled persons under that chapter.
(b) The training program must:
(1) provide the person with appropriate comprehensive
information regarding:
(A) the incidence and types of reports of abuse,
neglect, and exploitation of elderly or disabled persons that are
received by the department, including information concerning false
reports; and
(B) the use and proper implementation of:
(i) the risk assessment criteria developed
under Section 48.004; and
(ii) the legal procedures available under
Chapter 48 for the protection of elderly or disabled persons,
including the procedures for obtaining a court order for emergency
protective services under Section 48.208;
(2) include best practices for management of a case
from the intake process to the provision of protective services, if
any, including criteria that specify the circumstances under which
an employee should:
(A) consult a supervisor regarding a case; or
(B) refer an elderly or disabled person to an
appropriate public agency or community service provider for
guardianship or other long-term services after the delivery of
protective services to that person has been completed;
(3) provide appropriate specialized training in any
necessary topics, including:
(A) investigation of suspected financial
exploitation and self-neglect; and
(B) establishment and maintenance of working
relationships with community organizations and other local
providers who provide services to elderly and disabled persons;
(4) include on-the-job training, which must require:
(A) a supervisor to accompany and train a
department caseworker in the field throughout the first case
assigned to the caseworker; and
(B) the supervisor to make a detailed, written
progress report regarding the caseworker's performance during a
three-month review period that:
(i) identifies the strengths and weaknesses
of the caseworker that the supervisor observed during that period;
and
(ii) specifies the policies and tools the
caseworker used during that period;
(5) provide for the development of individualized
training plans;
(6) include training in working with law enforcement
agencies and the court system when legal intervention is sought for
investigations or emergency orders; and
(7) to the maximum extent possible, include nationally
recognized best practices in addition to the best practices
required under Subdivision (2).
(c) The department at least annually shall provide
comprehensive case management training to supervisors of
department employees who conduct investigations under Chapter 48.
The training must be designed to enable the supervisors to provide
guidance on investigations of reports of alleged abuse, neglect, or
exploitation that are complex or present unique problems.
(d) The department shall develop and implement appropriate
continuing education programs for employees of the adult protective
services division who have completed initial training under this
section. The continuing education programs must include nationally
recognized best practices to the maximum extent possible and must
be designed to provide an annual update regarding changes in:
(1) adult protective services division policies and
procedures; and
(2) applicable law, including statutory changes
affecting the adult protective services division or elderly or
disabled persons served by the division.
(e) A department employee required to participate in a
continuing education program under this section must complete the
program at least once each calendar year.
(f) The department shall:
(1) make curriculum developed for a training or
continuing education program under this section readily available
to department employees in written form; and
(2) periodically revise a training and continuing
education program established under this section as necessary to
satisfy training needs identified by the department or department
employees.
(g) The circumstances specified under Subsection (b)(2)
under which an employee should consult a supervisor regarding a
case must be consistent with the risk assessment criteria developed
under Section 48.004 that require consultation with a supervisor.
(h) The executive commissioner by rule shall provide
policies and procedures by which the department incorporates
examples of actual cases investigated by the department in the
training programs under this section for use as training tools.
(i) In implementing the training program and continuing
education programs under this section, the department, to the
maximum extent possible, shall contract with persons who are not
department employees to conduct the programs.
SECTION 2.04. (a) Subchapter C, Chapter 40, Human
Resources Code, is amended by adding Section 40.0515 to read as
follows:
Sec. 40.0515. QUALITY ASSURANCE PROGRAM FOR ADULT
PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall
develop and implement a quality assurance program for adult
protective services provided by or on behalf of the department.
(b) In developing the program, the department shall
establish:
(1) client-centered outcome measures for each of the
following functions of the adult protective services program:
(A) intake process;
(B) investigations;
(C) risk assessment determinations; and
(D) delivery of protective services;
(2) minimum job performance standards for personnel
and each work department of the adult protective services division
of the department; and
(3) procedures for conducting periodic performance
reviews to monitor compliance with the standards established under
Subdivision (2), which must include requirements that, for each
caseworker in the adult protective services division of the
department, a supervisor shall conduct:
(A) at least two performance reviews each year,
if the employee has less than two years of adult protective services
casework experience; and
(B) at least one performance review each year, if
the employee has at least two years of adult protective services
casework experience.
(c) The department shall promptly address a person's or work
department's failure to meet minimum job performance standards
established under Subsection (b)(2):
(1) by issuing to the person or work department, as
appropriate, a corrective action plan detailing the actions
required to comply with the standards; or
(2) if necessary, through disciplinary action,
including a person's demotion or discharge, for repeated failure to
meet the standards.
(d) A performance review conducted under Subsection (b)(3)
is considered a performance evaluation for purposes of Section
40.032(c). The department shall ensure that disciplinary or other
corrective action is taken against a supervisor or other managerial
employee who is required to conduct a performance evaluation under
Section 40.032(c) or a performance review under Subsection (b)(3)
and who fails to complete that evaluation or review in a timely
manner.
(e) The annual performance evaluation required under
Section 40.032(c) of the performance of a supervisor in the adult
protective services division must:
(1) be performed by an appropriate program
administrator; and
(2) include:
(A) an evaluation of the supervisor with respect
to the job performance standards applicable to the supervisor's
assigned duties; and
(B) an evaluation of the supervisor with respect
to the compliance of employees supervised by the supervisor with
the job performance standards applicable to those employees'
assigned duties.
(f) A summary of the findings of outcome measures
established and performance reviews conducted under this section
must be reported to regional directors and other senior management
employees of the adult protective services division.
(g) Each fiscal quarter the department shall file with the
governor and the presiding officer of each house of the legislature
a report that includes:
(1) a comprehensive review of the adult protective
services division's overall performance during the preceding
quarter; and
(2) a summary of the adult protective services
division's performance during the preceding quarter on each of the
outcome measures established under Subsection (b)(1).
(b) The Department of Family and Protective Services shall
submit the initial report required under Section 40.0515, Human
Resources Code, as added by this section, not later than October 1,
2005.
SECTION 2.05. Subdivision (4), Subsection (a), Section
48.002, Human Resources Code, is amended to read as follows:
(4) "Neglect" means the failure to provide for one's
self the goods or services, including medical services, which are
necessary to avoid physical or emotional harm or pain or the failure
of a caretaker to provide such goods or services. This term
includes a person leaving a facility that provides medical care,
against medical advice, if leaving places the person at imminent
risk of physical or emotional harm and a physician has issued a
written letter or certificate stating the person is not mentally
competent.
SECTION 2.06. Subchapter A, Chapter 48, Human Resources
Code, is amended by adding Section 48.004 to read as follows:
Sec. 48.004. RISK ASSESSMENT. The executive commissioner
by rule shall develop and maintain risk assessment criteria for use
by department personnel in determining whether an elderly or
disabled person is in imminent risk of abuse, neglect, or
exploitation or in a state of abuse, neglect, or exploitation and
needs protective services. The criteria must:
(1) provide for a comprehensive assessment of the
person's:
(A) environmental, physical, medical, mental
health, and financial condition;
(B) social interaction and support; and
(C) need for legal intervention; and
(2) specify the circumstances under which a caseworker
must consult with a supervisor regarding a case.
SECTION 2.07. Subchapter A, Chapter 48, Human Resources
Code, is amended by adding Sections 48.005 and 48.006 to read as
follows:
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding
Chapter 441, Government Code, or any other law, the department
shall maintain in an electronic format a summary of all records
related to investigations of reports made under Section 48.051 that
includes only critical information with respect to those
investigations that will enable the department to research the
history of a person's involvement in the investigated cases.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) The
department shall develop a community satisfaction survey that
solicits information regarding the department's performance with
respect to providing investigative and adult protective services.
In each region, the department shall send the survey at least
annually to:
(1) stakeholders in the adult protective services
system, including local law enforcement agencies and prosecutors'
offices;
(2) protective services agencies, including nonprofit
agencies; and
(3) courts with jurisdiction over probate matters.
(b) The department shall send the results of each region's
survey to:
(1) the region for evaluation by regional and program
administrators and implementation of changes necessary to address
community concerns;
(2) the presiding judge of the statutory probate
courts in that region; and
(3) courts with jurisdiction over probate matters in
that region.
(c) The department may not include any confidential
information in the results of the survey provided under Subsection
(b)(2) or (3) unless ordered by a court.
SECTION 2.08. Section 48.051, Human Resources Code, is
amended by adding Subsection (e) to read as follows:
(e) If a person who makes a report under this section
chooses to give self-identifying information, the caseworker who
investigates the report shall contact the person if necessary to
obtain any additional information required to assist the person who
is the subject of the report.
SECTION 2.09. Section 48.101, Human Resources Code, is
amended by amending Subsections (d) and (e) and adding Subsections
(d-1), (e-1), (g), and (g-1) to read as follows:
(d) The executive commissioner shall adopt rules providing
[department or investigating state agency by rule shall provide]
for the release, on request, to a person who is the subject of a
report of abuse, neglect, or exploitation or to that person's legal
representative of otherwise confidential information relating to
that report. The department or investigating state agency shall
edit the information before release to protect the confidentiality
of information relating to the reporter's identity and to protect
any other individual whose safety or welfare may be endangered by
disclosure.
(d-1) Subject to Subsection (e-1), the executive
commissioner shall adopt rules providing for the release, on
request, by the department or investigating state agency of
otherwise confidential information relating to a person who is the
subject of a report or investigation of abuse, neglect, or
exploitation or to whom the department has provided protective
services, to:
(1) a court that has a matter pending before it that
involves the person;
(2) the attorney ad litem or any other legal
representative, other than a guardian, appointed for the person;
and
(3) the person's legal guardian.
(e) The executive commissioner [department or investigating
state agency] may adopt rules relating to the release of
information by the department or investigating state agency that is
contained in the record of a deceased individual who was the subject
of an investigation conducted by the department or investigating
state agency or to whom the department has provided protective
services. The rules must be consistent with the purposes of this
chapter and any applicable state or federal law. The executive
commissioner shall adopt rules, subject to Subsection (e-1), that
provide for the release, on request, of otherwise confidential
information in the deceased person's record to the personal
representative appointed for the person's estate.
(e-1) Information released by the department or an
investigating state agency under Subsection (d-1) or to a personal
representative under Subsection (e) may not include the identity of
the person who made the report of abuse, neglect, or exploitation.
(g) The department may establish procedures to exchange
with a community service provider or local governmental entity
confidential information relating to a report made under Section
48.051(a) that is necessary for the department, provider, or entity
to provide protective services, health care services, housing
services, or social services to the person who is the subject of the
report. An exchange of information under this subsection does not
affect whether the information is subject to disclosure under
Chapter 552, Government Code.
(g-1) The executive commissioner by rule shall provide
policies and procedures that are designed to guard against the
unauthorized release or dissemination of confidential information
that is exchanged under Subsection (g).
SECTION 2.10. (a) Subchapter D, Chapter 48, Human
Resources Code, is amended by adding Section 48.1521 to read as
follows:
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The
department shall develop and implement a system to ensure that, to
the greatest extent possible, investigations conducted by the
department that involve especially complex issues of abuse,
neglect, or exploitation, such as issues associated with
self-neglect, mental health, or financial exploitation, are:
(1) assigned to personnel who have experience and
training in those issues; and
(2) monitored by a special task unit for complex
cases.
(b) Each county with a population of 250,000 or more shall
appoint persons to serve as standing members of a special task unit
to monitor cases that arise in the county and require monitoring as
provided by Subsection (a). The standing members of each special
task unit must include:
(1) a provider of mental health services or aging
services or a representative of a nonprofit entity serving persons
with disabilities;
(2) a representative of a law enforcement agency; and
(3) a legal expert.
(c) In addition to the standing members specified by
Subsection (b), the special task unit:
(1) must include, for purposes of monitoring a
particular case, the caseworker on the case and the caseworker's
supervisor; and
(2) may include a financial forensics expert and any
other person with expertise that would be useful in monitoring a
particular case.
(d) The department shall develop and make available to each
county described by Subsection (b) a manual to assist the county in
establishing and operating the special task unit required by this
section. The manual must describe:
(1) the purpose and potential benefits of the unit;
(2) a description of the monitoring process the unit
is expected to follow and potential problems the unit may
encounter;
(3) the composition and administration of the unit;
and
(4) the department's criteria for selecting cases to
be monitored by the unit.
(e) Before the special task unit makes a recommendation that
a guardian be appointed for a person in a case being monitored by
the unit, the unit shall thoroughly consider all less-restrictive
alternatives for legal intervention in the case.
(b) Subchapter D, Chapter 48, Human Resources Code, is
amended by adding Section 48.1521 to read as follows:
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) In this
section, "local aging and disabled authority" means a local aging
and disabled authority that provides aging and disabled services in
a local service region under Subchapter M, Chapter 531, Government
Code.
(b) The department shall develop and implement a system to
ensure that, to the greatest extent possible, investigations
conducted by the department that involve especially complex issues
of abuse, neglect, or exploitation, such as issues associated with
self-neglect, mental health, or financial exploitation, are:
(1) assigned to personnel who have experience and
training in those issues; and
(2) monitored by a special task unit for complex
cases.
(c) Each local aging and disabled authority shall appoint
persons to serve as standing members of a special task unit to
monitor cases that arise in the authority's local service region
and require monitoring as provided by Subsection (b). The standing
members of each special task unit must include:
(1) a provider of mental health services or aging
services or a representative of a nonprofit entity serving persons
with disabilities;
(2) a representative of a law enforcement agency; and
(3) a legal expert.
(d) In addition to the standing members specified by
Subsection (c), the special task unit:
(1) must include, for purposes of monitoring a
particular case, the caseworker on the case and the caseworker's
supervisor; and
(2) may include a financial forensics expert and any
other person with expertise that would be useful in monitoring a
particular case.
(e) The department shall develop and make available to each
local aging and disabled authority a manual to assist the authority
in establishing and operating the special task unit required by
this section. The manual must describe:
(1) the purpose and potential benefits of the unit;
(2) a description of the monitoring process the unit
is expected to follow and potential problems the unit may
encounter;
(3) the composition and administration of the unit;
and
(4) the department's criteria for selecting cases to
be monitored by the unit.
(f) Before the special task unit makes a recommendation that
a guardian be appointed for a person in a case being monitored by
the unit, the unit shall thoroughly consider all less-restrictive
alternatives for legal intervention in the case.
(c) The Department of Family and Protective Services shall
develop the manual required by Subsection (d), Section 48.1521,
Human Resources Code, as added by Subsection (a) of this section, or
Subsection (e), Section 48.1521, Human Resources Code, as added by
Subsection (b) of this section, as soon as possible after the
effective date of this article. In developing the manual, the
department shall use Wisconsin's Elder Abuse Interdisciplinary
Team Manual as a model.
(d) Section 48.1521, Human Resources Code, as added by
Subsection (a) of this section, takes effect only if neither Senate
Bill 194 nor House Bill 470, proposed by the 79th Legislature,
Regular Session, 2005, relating to the local delivery of aging,
disability, behavioral health, and mental retardation services, is
enacted and becomes law. If Senate Bill 194 or House Bill 470 is
enacted and becomes law, Subsection (a) of this section has no
effect and Section 48.1521, Human Resources Code, as added by
Subsection (b) of this section, takes effect. If neither bill is
enacted or becomes law, Subsection (b) of this section has no
effect.
SECTION 2.11. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.1522 to read as follows:
Sec. 48.1522. MANAGEMENT REVIEW FOLLOWING CERTAIN
INVESTIGATIONS. If the department receives and investigates a
report made under Section 48.051, the subject of which is a person
with respect to whom the department received and investigated two
previous reports under that section and closed those
investigations, an adult protective services supervisor shall:
(1) classify the case as a recidivist case;
(2) review the reports and investigation files
concerning that person; and
(3) assist the caseworker and supervisor
investigating the third report in developing a long-term plan for
resolving the issues involved in the case.
SECTION 2.12. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.158 to read as follows:
Sec. 48.158. STATUS REPORT OF INVESTIGATION.
(a) Notwithstanding any other law, the department, on written
request, shall provide to a person who makes a report of alleged
abuse, neglect, or exploitation under Section 48.051(a)
information on the status of the investigation conducted with
respect to the report, unless the department determines that
providing the information would:
(1) jeopardize the investigation; or
(2) endanger the safety or welfare of the person who is
the subject of the report.
(b) For purposes of Subsection (a), the status of an
investigation must be designated as:
(1) ongoing;
(2) closed, with a determination that the person who
was the subject of the report needs protective services; or
(3) closed, with a determination that the person who
was the subject of the report does not need protective services.
(c) The information provided under Subsection (a) must
include information relating to whether protective services are
being provided to the person who was the subject of the report.
SECTION 2.13. Subchapter D, Chapter 48, Human Resources
Code, is amended by adding Section 48.159 to read as follows:
Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION.
(a) The department shall establish procedures for conducting an
internal review of completed investigations conducted by the
department under this chapter to:
(1) determine whether information obtained during the
intake process was sufficient and accurate;
(2) assess whether telephone calls were appropriately
routed;
(3) assess whether investigations were appropriately
classified and prioritized;
(4) evaluate the case reports for any special issues
or requirements;
(5) assess whether appropriate law enforcement
agencies were notified of any suspected criminal conduct; and
(6) identify other relevant information to enable the
department to take any corrective action necessary to improve the
process of conducting investigations under this chapter.
(b) The department shall ensure that an internal review of a
completed investigation is conducted before the investigation is
closed or before the case results in the delivery of protective
services.
SECTION 2.14. Section 48.202, Human Resources Code, is
amended to read as follows:
Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY.
(a) In an investigation the department or state agency, as
appropriate, shall determine:
(1) whether the person needs protective services from
the department;
(2) what services are needed;
(3) whether services are available from the
department, from the state agency, or in the community and how they
can be provided;
(4) whether the person, acting alone, would be capable
of obtaining needed services and could bear the cost or would be
eligible for services from the department or state agency;
(5) whether a caretaker would be willing to provide
services or would agree to their provision [provisions];
(6) whether the elderly or disabled person desires the
services; [and]
(7) whether the person needs legal intervention to
resolve the person's abuse, neglect, or exploitation and, if so,
what type of intervention is needed; and
(8) other pertinent data.
(b) If the department or state agency, as appropriate,
determines under Subsection (a)(1) that a person needs protective
services, the department or agency shall, in determining how those
services can be provided as required by Subsection (a)(3),
determine whether the person is eligible for community-based
long-term care services and whether those services are available.
If the person is eligible for those services, but the services are
not immediately available, the department or state agency shall
ensure that the person is placed on an appropriate waiting list for
the services and that the person's abuse, neglect, or exploitation
is resolved before the department closes the case.
SECTION 2.15. Subchapter E, Chapter 48, Human Resources
Code, is amended by adding Section 48.2055 to read as follows:
Sec. 48.2055. TEMPORARY EMERGENCY SHELTERS. (a) The
department, in conjunction with the Department of Aging and
Disability Services and the Department of State Health Services,
shall develop and implement a program to provide, subject to
availability of funds, temporary emergency shelter to an elderly or
disabled person for whom the department obtains an emergency order
under Section 48.208 requiring that the person be moved to safer
surroundings.
(b) The department, the Department of Aging and Disability
Services, and the Department of State Health Services shall enter
into a memorandum of understanding to clearly define the
responsibilities of each agency under this section.
(c) Temporary emergency shelter under this section:
(1) may not be provided for more than 30 days; and
(2) must be provided in a community-based facility
that is the least restrictive environment available, if possible.
(d) If temporary emergency shelter described by Subsection
(c)(2) is not available and a person is placed in an institution,
including a nursing facility, an ICF-MR, as defined by Section
531.002, Health and Safety Code, and an institution for the
mentally retarded licensed by a health and human services agency,
as defined by Section 531.001, Government Code, the department
shall ensure that the person is evaluated for community-based
services and, if appropriate, is provided transition services
through Department of Aging and Disability Services programs to
enable the person to leave the institution and receive
community-based services.
(e) The executive commissioner shall adopt rules to
implement this section.
SECTION 2.16. Section 48.208, Human Resources Code, is
amended by amending Subsection (e) and adding Subsections (c-1),
(c-2), (c-3), and (d-1) to read as follows:
(c-1) Notwithstanding Subsection (c)(4), the petition may
include an assessment of the elderly or disabled person's health or
psychological status as described by Subsection (c-2) or (c-3) in
lieu of a medical report described by Subsection (c)(4) if the
department determines after making a good faith effort that a
physician from whom the department may obtain the medical report is
unavailable. The department shall ensure that the person who
performs an assessment of the elderly or disabled person's health
or psychological status has training and experience in performing
the applicable assessment.
(c-2) An assessment of the elderly or disabled person's
health may be completed by a physician assistant or advanced
practice nurse and must state:
(1) that the person is reported to be suffering from
abuse, neglect, or exploitation, which may present a threat to life
or physical safety;
(2) whether the person has provided the person's
medical history to the physician assistant or advanced practice
nurse, as applicable; and
(3) the professional opinion of the physician
assistant or advanced practice nurse, as applicable, that under the
circumstances a temporary order of emergency services without the
person's consent is necessary.
(c-3) An assessment of the elderly or disabled person's
psychological status may be completed by a licensed psychologist or
master social worker who has training and expertise in issues
related to abuse, neglect, and exploitation, and must state:
(1) that the person is reported to be suffering from
abuse, neglect, or exploitation, which may present a threat to life
or physical safety; and
(2) the professional opinion of the psychologist or
master social worker, as applicable, that under the circumstances a
temporary order of emergency services without the person's consent
is necessary.
(d-1) If the court enters an order described by Subsection
(d) that is based on a petition that did not include a medical
report described by Subsection (c)(4), the court shall order that
the elderly or disabled person be examined by a physician not later
than 72 hours after the provision of protective services begins.
(e) The emergency order expires at the end of 72 hours from
the time of the order unless the 72-hour period ends on a Saturday,
Sunday, or legal holiday in which event the order is automatically
extended to 4 p.m. on the first succeeding business day. An order
may be renewed for not more than 30 [14] additional days, except
that an order that was based on a petition that did not include a
medical report described by Subsection (c)(4) may not be renewed
unless a medical report described by Subsection (c)(4) is filed
with the request for the renewal. A renewal order that ends on a
Saturday, Sunday, or legal holiday is automatically extended to 4
p.m. on the first succeeding business day. The court may modify or
terminate the emergency order on petition of the department, the
incapacitated person, or any person interested in his welfare.
SECTION 2.17. Chapter 48, Human Resources Code, is amended
by adding Subchapter J to read as follows:
SUBCHAPTER J. OPTION FOR LOCAL PROVISION OF SERVICES
Sec. 48.451. DEFINITION. In this subchapter, "local
entity" means a local public or private agency, corporation, board,
or organization.
Sec. 48.452. PRELIMINARY INFORMATION PROVIDED BY
DEPARTMENT. On the request of the commissioners court of a county
or the commissioners courts of two or more counties that want to
explore forming a cooperative for purposes of this subchapter, the
department shall provide sufficient information to the
commissioners court or commissioners courts, as applicable, to
enable an assessment of whether one or more functions and duties of
the department under this chapter could be performed by the county
or counties directly, through contracts with local entities, or
both, in a more efficient and effective manner than the manner in
which the functions and duties are performed by the department.
Sec. 48.453. PROVISION OF SERVICES BY COUNTIES AUTHORIZED.
(a) A county or two or more counties that form a cooperative as
provided by Section 48.454 may, subject to the requirements of this
subchapter, opt to perform one or more functions and duties of the
department under this chapter if the county or counties, as
applicable, determine that those functions and duties could be
performed more efficiently and effectively in the manner described
by Section 48.452.
(b) Functions and duties of the department that a county or
counties may opt to perform include:
(1) conducting investigations of reports of abuse,
neglect, or exploitation of an elderly or disabled person, other
than an investigation under Subchapter F, G, or H; and
(2) providing protective services as necessary to a
person who is the subject of an investigation.
(c) A county or cooperative that opts to conduct
investigations described by Subsection (b)(1) and to provide
protective services described by Subsection (b)(2) shall ensure
that:
(1) if the county or cooperative directly conducts
investigations, the county or cooperative does not also directly
provide protective services; and
(2) if a local entity conducts investigations under a
contract with the county or cooperative, that local entity does not
also provide protective services.
Sec. 48.454. FORMATION OF COUNTY COOPERATIVE. Two or more
counties may form a cooperative to perform functions and duties of
the department as authorized by Section 48.453. To form a
cooperative, the counties must:
(1) enter into an interlocal cooperation contract
under Chapter 791, Government Code; and
(2) designate one of the counties that is a party to
the interlocal cooperation contract as the entity that, on behalf
of the cooperative, will contract with the department under this
subchapter and monitor and enforce any contracts the cooperative
enters into with local entities.
Sec. 48.455. LOCAL ADULT PROTECTIVE SERVICES PLAN.
(a) Before a county or cooperative may perform one or more
functions and duties of the department as authorized by Section
48.453, the county or cooperative must submit to the department for
approval a local adult protective services plan under which the
county or cooperative will assume and provide for the performance
of those functions and duties.
(b) If a county or cooperative intends to perform all or
part of those functions and duties through contracts with local
entities, the county or cooperative, as applicable, shall solicit
and accept proposals from local entities for performing those
functions and duties.
(c) A local adult protective services plan required under
this section must:
(1) specify which of the department's functions and
duties the county or cooperative is proposing to perform directly
or through contracts with local entities;
(2) include proposals submitted to the county or
cooperative, as applicable, by local entities, if the county or
cooperative intends to perform all or part of the specified
functions and duties through contracts with local entities; and
(3) demonstrate that the county or cooperative or the
local entities through which the county or cooperative would
perform the specified functions and duties will:
(A) on entering into a contract to perform the
functions and duties, have sufficient resources, including
personnel, and adequate technological support, training, and
expertise to perform those functions and duties; and
(B) if appropriate, provide persons needing
adult protective services with immediate access to community-based
services that may prevent the need for the appointment of guardians
for those persons.
(d) The department shall evaluate the local adult
protective services plan submitted under Subsection (a) and, not
later than the 60th day after the plan is submitted, approve or
disapprove the plan in writing. If during the 60-day period the
department determines that additional information is needed to
adequately assess the plan, the department shall:
(1) notify the county or cooperative, as applicable,
of that determination;
(2) request the necessary information with sufficient
specificity as to allow the county or cooperative, as applicable,
to respond with the information; and
(3) provide the county or cooperative, as applicable,
a reasonable period in which to respond with the necessary
information.
Sec. 48.456. DEPARTMENT CONTRACT WITH COUNTY OR
COOPERATIVE. (a) Not later than the 30th day after the date the
department approves a local adult protective services plan under
Section 48.455, the department shall enter into a contract with the
county or cooperative, as applicable, under which the county or
cooperative, either directly or through contracts with the local
entities whose proposals were included in the plan, performs the
department's functions and duties that are specified in the plan.
(b) The department may not pay less under the terms of a
contract under this section for the performance of the functions
and duties specified in the contract than the department would
otherwise spend in directly performing those functions and duties
in the county or counties included in the cooperative.
(c) A contract under Subsection (a) between the department
and a county or cooperative must:
(1) provide for a 90-day transition period during
which:
(A) the performance of functions and duties
specified in the contract will transfer from the department to the
county, cooperative, or local entity that will ultimately perform
the functions and duties; and
(B) the department will cooperate with each
county, cooperative, or local entity that will perform the
specified functions and duties to provide technical assistance,
adequate training, and expertise to the county, cooperative, or
entity before the transfer occurs;
(2) require the county or cooperative to file a report
with the department once each calendar quarter that includes
information required by rules adopted by the executive commissioner
regarding the performance of the functions and duties; and
(3) include provisions:
(A) imposing fiscal accountability measures; and
(B) allowing the department to monitor the
performance of the functions and duties by local entities with
which the county or cooperative contracts under Section 48.457, if
applicable.
(d) The department shall ensure that, under a contract
entered into with a county or cooperative under this section, the
department's functions and duties under this chapter are performed
in accordance with all applicable laws. The department shall
monitor and enforce the terms of the contract, including the fiscal
accountability measures. The department shall include a provision
in the contract that allows the department to terminate the
contract and resume performing the functions and duties specified
in the contract if, under the contract between the department and
the county or cooperative or under a contract between the county or
cooperative and a local entity, the functions and duties are not
performed in accordance with all applicable laws or the terms of the
applicable contract.
Sec. 48.457. COUNTY OR COOPERATIVE CONTRACTS WITH LOCAL
ENTITIES. (a) A county or cooperative may contract with a local
entity whose proposal was included in the county's or cooperative's
local adult protective services plan to perform one or more of the
department's functions and duties specified in the plan. The
county or cooperative may contract with any other local entity to
perform one or more of those functions and duties with the
department's written approval.
(b) A contract under this section must require the local
entity to provide the county or cooperative with information as
needed to enable the county or cooperative to comply with the
reporting requirement specified by Section 48.456(c)(2). The
contract must also specify that the department is authorized to
monitor the local entity's performance of functions and duties
specified in the contract and require the entity to cooperate with
that monitoring.
Sec. 48.458. DEPARTMENT PROHIBITED FROM DIRECT PROVISION OF
CERTAIN SERVICES. Except as provided by Section 48.456(d) and
notwithstanding any other provision of this chapter, beginning on
the 91st day after the date the department enters into a contract
with a county or cooperative under Section 48.456:
(1) the department may not directly perform the
functions and duties specified in the contract; and
(2) the county or cooperative and any local entities
with which the county or cooperative contracts under Section 48.457
have all powers and privileges granted to and duties imposed on the
department under this chapter with respect to those functions and
duties.
SECTION 2.18. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.0551 to read as follows:
Sec. 531.0551. MEMORANDUM OF UNDERSTANDING ON SERVICES FOR
CERTAIN ELDERLY OR DISABLED PERSONS NEEDING MULTIAGENCY SERVICES.
(a) In this section, "disabled person," "elderly person," and
"protective services" have the meanings assigned by Section 48.002,
Human Resources Code.
(b) The commission and each health and human services agency
shall adopt a joint memorandum of understanding to implement a
system of local-level interagency staffing groups to coordinate
services for an elderly or disabled person who needs multiagency
services in addition to receiving protective services from or on
behalf of the Department of Family and Protective Services.
(c) The memorandum must:
(1) clarify the financial and statutory
responsibilities of each agency with respect to elderly or disabled
persons needing multiagency services in addition to protective
services, including subcategories of funding for different
services such as case management, arranging for psychiatric and
health evaluation, home care, health care, and investigation
services;
(2) include a functional definition of "elderly and
disabled persons needing multiagency services in addition to
protective services";
(3) define procedures for cost sharing among the
commission and the health and human services agencies adopting the
memorandum;
(4) define procedures aimed at eliminating
duplication of services relating to assessment and diagnosis,
treatment, social services, residential placement and care, and
case management of elderly and disabled persons needing multiagency
services in addition to protective services;
(5) define procedures for addressing disputes between
the agencies that relate to the agencies' areas of service
responsibilities;
(6) provide that each local-level interagency
staffing group includes:
(A) a local representative of each agency;
(B) one or more representatives of local private
sector agencies;
(C) a representative of a local law enforcement
agency;
(D) a health care provider; and
(E) one or more family members or caregivers of
elderly or disabled persons needing multiagency services in
addition to protective services;
(7) provide that the local representative of each
agency has authority to contribute agency resources to solving
problems identified by the local-level interagency staffing group;
(8) provide that if an elderly or disabled person's
needs exceed the resources of an agency or an agency is not able to
provide all the services an elderly or disabled person requires,
the agency may, with the consent of the person's legal guardian, if
applicable, submit a referral on behalf of the person or the
person's case history to the local-level interagency staffing group
for consideration;
(9) provide that a local-level interagency staffing
group may be called together by a representative of any member
agency;
(10) provide that an agency representative may be
excused from attending a meeting if the staffing group determines
that the age or needs of the person to be considered are clearly not
within the agency's service responsibilities, provided that each
agency representative is encouraged to attend all meetings to
contribute to the collective ability of the staffing group to solve
an elderly or disabled person's need for multiagency services in
addition to protective services;
(11) provide that records that are used or developed
by a local-level interagency staffing group or its members and that
relate to a particular elderly or disabled person are confidential
and may not be released to any other person or agency except as
provided by this section or by other law; and
(12) subject to the requirements of the Health
Insurance Portability and Accountability Act of 1996 (42 U.S.C.
Section 1320d et seq.), provide a procedure that permits the
agencies and local-level interagency staffing groups to share
confidential information while preserving the confidential nature
of the information.
(d) The agencies that participate in the formulation of the
memorandum of understanding shall consult with and solicit input
from advocacy and consumer groups.
(e) Each agency shall adopt the memorandum of understanding
and all revisions to the memorandum. Not later than the last month
of each state fiscal year, each agency shall review and update the
memorandum. The agencies shall develop revisions as necessary to
reflect major agency reorganizations or statutory changes
affecting the agencies.
(f) The agencies shall ensure that a state-level
interagency staffing group provides to the executive commissioner
of the Health and Human Services Commission, the commissioner of
each agency, the governor, the lieutenant governor, the speaker of
the house of representatives, and the presiding officers of each
house and senate standing committee having jurisdiction over adult
protective services a biennial report that includes:
(1) the number of elderly or disabled persons served
through the local-level interagency staffing groups established
under this section and the outcomes of the services provided;
(2) a description of any barriers identified to the
state's ability to provide effective services to elderly or
disabled persons needing multiagency services in addition to
protective services; and
(3) any other information relevant to improving the
delivery of services to elderly or disabled persons needing
multiagency services in addition to protective services.
(b) Not later than March 1, 2006, the Department of Family
and Protective Services, the Health and Human Services Commission,
the Department of Aging and Disability Services, the Department of
State Health Services, and the Department of Assistive and
Rehabilitative Services shall adopt a joint memorandum of
understanding as prescribed by Section 531.0551, Government Code,
as added by this section.
SECTION 2.19. The heading of Section 531.055, Government
Code, is amended to read as follows:
Sec. 531.055. MEMORANDUM OF UNDERSTANDING ON SERVICES FOR
CERTAIN PERSONS NEEDING MULTIAGENCY SERVICES.
SECTION 2.20. Subsections (a), (b), and (e), Section
531.055, Government Code, are amended to read as follows:
(a) Each health and human services agency, the Texas Council
on Offenders with Mental Impairments, the Texas Department of
Criminal Justice, the Texas Department of Housing and Community
Affairs, the Texas Education Agency, the Texas Workforce
Commission, and the Texas Youth Commission shall adopt a joint
memorandum of understanding to promote a system of local-level
interagency staffing groups to coordinate services for persons
needing multiagency services other than elderly or disabled persons
served through the local-level interagency staffing groups
established under Section 531.0551.
(b) The memorandum must:
(1) clarify the statutory responsibilities of each
agency in relation to persons needing multiagency services other
than elderly or disabled persons served under Section 531.0551,
including subcategories for different services such as prevention,
family preservation and strengthening, aging in place, emergency
shelter, diagnosis and evaluation, residential care, after-care,
information and referral, medical care, and investigation
services;
(2) include a functional definition for purposes of
this section of "persons needing multiagency services";
(3) outline membership, officers, and necessary
standing committees of local-level interagency staffing groups;
(4) define procedures aimed at eliminating
duplication of services relating to assessment and diagnosis,
treatment, residential placement and care, and case management of
persons needing multiagency services;
(5) define procedures for addressing disputes between
the agencies that relate to the agencies' areas of service
responsibilities;
(6) provide that each local-level interagency
staffing group includes:
(A) a local representative of each agency;
(B) representatives of local private sector
agencies; and
(C) family members or caregivers of persons,
other than elderly or disabled persons served under Section
531.0551, who need [needing] multiagency services or other current
or previous consumers of multiagency services acting as general
consumer advocates;
(7) provide that the local representative of each
agency has authority to contribute agency resources to solving
problems identified by the local-level interagency staffing group;
(8) provide that if a person's needs exceed the
resources of an agency, the agency may, with the consent of the
person's legal guardian, if applicable, submit a referral on behalf
of the person to the local-level interagency staffing group for
consideration;
(9) provide that a local-level interagency staffing
group may be called together by a representative of any member
agency;
(10) provide that an agency representative may be
excused from attending a meeting if the staffing group determines
that the age or needs of the person to be considered are clearly not
within the agency's service responsibilities, provided that each
agency representative is encouraged to attend all meetings to
contribute to the collective ability of the staffing group to solve
a person's need for multiagency services;
(11) define the relationship between state-level
interagency staffing groups and local-level interagency staffing
groups in a manner that defines, supports, and maintains local
autonomy;
(12) provide that records that are used or developed
by a local-level interagency staffing group or its members that
relate to a particular person are confidential and may not be
released to any other person or agency except as provided by this
section or by other law; and
(13) provide a procedure that permits the agencies to
share confidential information while preserving the confidential
nature of the information.
(e) The agencies shall ensure that a state-level
interagency staffing group provides a biennial report to the
executive director of each agency, the legislature, and the
governor that includes:
(1) the number of persons served through the
local-level interagency staffing groups established under this
section and the outcomes of the services provided;
(2) a description of any barriers identified to the
state's ability to provide effective services to persons needing
multiagency services other than elderly or disabled persons served
through the local-level interagency staffing groups established
under Section 531.0551; and
(3) any other information relevant to improving the
delivery of services to persons needing multiagency services other
than elderly or disabled persons described by Subdivision (2).
SECTION 2.21. IMPLEMENTATION MONITORING; REPORT. (a) In
this section, "caseload" means the total number of open cases that
an adult protective services caseworker is assigned, regardless of
the number of cases with respect to which the caseworker performs
functions on a specified day.
(b) The Legislative Budget Board shall:
(1) monitor the implementation of this article by the
Department of Family and Protective Services; and
(2) not later than January 1, 2007, report to the
legislature regarding:
(A) the status of the implementation of this
article;
(B) whether department personnel are meeting
expectations with respect to the client-centered outcome measures
and minimum job performance standards established under Section
40.0515, Human Resources Code, as added by this article;
(C) the average caseload of each adult protective
services caseworker;
(D) the average amount of time spent
investigating an adult protective services case from the initial
report made under Section 48.051, Human Resources Code, as amended
by this article, to final disposition of the case, including the
average amount of time a caseworker spends writing reports and
completing other documentation in the case;
(E) the incidence of reports made under Section
48.051, Human Resources Code, as amended by this article, that
involve as their subject an elderly or disabled person with respect
to whom a report was previously made under that section; and
(F) the average amount of time department
personnel spend providing non-investigative services to a person
who is the subject of a report made under Section 48.051, Human
Resources Code, as amended by this article.
SECTION 2.22. LOCAL ADULT PROTECTIVE SERVICES BOARDS.
(a) The standing committee of the senate having jurisdiction over
adult protective services shall conduct a study regarding the
feasibility of establishing a system by which adult protective
services are provided through a statewide network of local adult
protective services boards. Each local adult protective services
board would:
(1) serve a designated local adult protective services
area;
(2) develop a local adult protective services plan for
approval by the Department of Family and Protective Services; and
(3) receive a block grant through the department to
provide adult protective services in accordance with the approved
local adult protective services plan.
(b) The standing committee of the senate having
jurisdiction over adult protective services must include the
results of the study conducted under this section and
recommendations regarding implementation of the local adult
protective services board system in the committee's interim report
to the 80th Legislature.
ARTICLE 3. GUARDIANSHIP AND RELATED SERVICES
SECTION 3.01. The heading to Subchapter E, Chapter 48,
Human Resources Code, is amended to read as follows:
SUBCHAPTER E. PROVISION OF SERVICES; [GUARDIANSHIP SERVICES;]
EMERGENCY PROTECTION
SECTION 3.02. The heading to Section 48.209, Human
Resources Code, is amended to read as follows:
Sec. 48.209. SUBMISSION OF INFORMATION TO PROBATE COURT
[GUARDIANSHIPS].
SECTION 3.03. Subsections (a), (b), and (c), Section
48.209, Human Resources Code, are amended to read as follows:
(a) At least six months before the individual's 18th
birthday, the [The] department shall submit to the appropriate
court having probate jurisdiction an information letter about [file
an application under Section 682 or 875, Texas Probate Code, to be
appointed guardian of the person or estate or both of] an individual
who is a minor, is a conservatee of the department, and, because of
a physical or mental condition, will be substantially unable to
provide food, clothing, or shelter for himself or herself, to care
for the individual's own physical health, or to manage the
individual's own financial affairs when the individual becomes an
adult. The information letter must satisfy the requirements of
Section 683A, Texas Probate Code. If a less restrictive
alternative to guardianship is available for an individual, the
department shall pursue the alternative before submitting the
information letter. On exhausting the alternative and determining
that no other less restrictive alternative to guardianship is
available, the department shall inform the appropriate court that a
guardianship may be necessary for the individual by submitting the
letter under this section [instead of applying for appointment as a
guardian].
(b) The [As a last resort, the] department shall submit to
the appropriate court having probate jurisdiction an information
letter about [may apply to be appointed guardian of the person or
estate of] an elderly or disabled person who is found by the
department to be in a state of abuse, neglect, or exploitation, and
who, because of a physical or mental condition, will be
substantially unable to provide food, clothing, or shelter for
himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs. The
information letter must:
(1) satisfy the requirements of Section 683A, Texas
Probate Code;
(2) include information relating to whether the
department is providing protective services to the individual;
(3) state whether [A representative of the department
shall take the oath required by the Texas Probate Code on behalf of
the department if the department is appointed guardian. If] the
department is aware of any [knows that an] individual who is willing
and able to serve as the guardian; and
(4) be submitted not later than the 14th day after the
date the department finds the individual [, the department may
inform the court of that individual's willingness and ability].
(c) [If appropriate, the department may contract with a
political subdivision of this state, a private agency, or another
state agency for the provision of guardianship services under this
section.] The department [or a political subdivision of the state
or state agency with which the department contracts under this
section] is not required to [post a bond or] pay any cost or fee
otherwise required by the Texas Probate Code, including a fee
associated with the appointment of a guardian ad litem or attorney
ad litem.
SECTION 3.04. Section 161.071, Human Resources Code, is
amended to read as follows:
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code;
(7) performing all licensing and enforcement
activities related to assisted living facilities under Chapter 247,
Health and Safety Code;
(8) performing all licensing and enforcement
activities related to intermediate care facilities for persons with
mental retardation under Chapter 252, Health and Safety Code; [and]
(9) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code; and
(10) serving as last resort as the guardian of the
person or estate, or both, of an incapacitated person under Chapter
XIII, Texas Probate Code.
SECTION 3.05. Subchapter D, Chapter 161, Human Resources
Code, is amended by adding Section 161.074 to read as follows:
Sec. 161.074. GUARDIANSHIP SERVICES AS LAST RESORT. (a) A
representative of the department shall take the oath required by
the Texas Probate Code on behalf of the department if the department
is appointed guardian of the person or estate, or both, of a ward
under Chapter XIII of that code.
(b) The department is not required to post a bond or pay any
cost or fee associated with a guardianship proceeding under the
Texas Probate Code, including any fee associated with the
appointment of a guardian ad litem or attorney ad litem.
(c) If the department is appointed guardian, the department
is not liable for funding services provided to the department's
ward, including long-term care or burial expenses.
(d) The department shall review each of the department's
pending guardianship cases at least annually to determine whether a
more suitable person, including a guardianship program or private
professional guardian, is willing and able to serve as successor
guardian for a ward of the department. If the department becomes
aware of any person's willingness and ability to serve as successor
guardian, the department shall notify the court in which the
guardianship is pending as required by Section 695A, Texas Probate
Code.
(e) The number of wards of the department at any one time may
not exceed 1,500.
SECTION 3.06. Section 601, Texas Probate Code, is amended
by amending Subdivisions (13), (21), and (24) and adding
Subdivision (12-a) to read as follows:
(12-a) "Guardianship Alliance Office" means the
Guardianship Alliance Office established under Chapter 111,
Government Code.
(13) "Guardianship program" has the meaning assigned
by Section 111.001, Government Code [means a local, county, or
regional program that provides guardianship and related services to
an incapacitated person or other person who needs assistance in
making decisions concerning the person's own welfare or financial
affairs].
(21) "Person" includes natural persons, corporations,
governmental entities, private professional guardians, and
guardianship programs.
(24) "Private professional guardian" has the meaning
assigned by Section 111.001, Government Code [means a person, other
than an attorney or a corporate fiduciary, who is engaged in the
business of providing guardianship services].
SECTION 3.07. Section 625, Texas Probate Code, is amended
to read as follows:
Sec. 625. CASE FILES. (a) The county clerk shall maintain
a case file for each person's filed guardianship proceedings. The
case file must contain all orders, judgments, and proceedings of
the court and any other guardianship filing with the court,
including all:
(1) applications for the granting of guardianship;
(2) citations and notices, whether published or
posted, with the returns on the citations and notices;
(3) bonds and official oaths;
(4) inventories, appraisements, and lists of claims;
(5) exhibits and accounts;
(6) reports of hiring, renting, or sale;
(7) applications for sale or partition of real estate
and reports of sale and of commissioners of partition;
(8) applications for authority to execute leases for
mineral development, or for pooling or unitization of lands,
royalty, or other interest in minerals, or to lend or invest money;
(9) reports of lending or investing money; and
(10) reports of guardians of the persons.
(b) The county clerk may not post any information contained
in a person's case file on the Internet.
SECTION 3.08. The heading to Subpart J, Part 2, Chapter
XIII, Texas Probate Code, is amended to read as follows:
SUBPART J. LIABILITY OF GUARDIAN [FOR CONDUCT OF WARD]
SECTION 3.09. The heading to Section 673, Texas Probate
Code, is amended to read as follows:
Sec. 673. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD.
SECTION 3.10. Subpart J, Part 2, Chapter XIII, Texas
Probate Code, is amended by adding Section 674 to read as follows:
Sec. 674. IMMUNITY OF GUARDIANSHIP PROGRAM. A guardianship
program is not liable for civil damages arising from an action taken
or omission made by a person while providing guardianship services
to a ward on behalf of the guardianship program, unless the action
or omission:
(1) was wilfully wrongful;
(2) was taken or made with conscious indifference or
reckless disregard to the safety of the incapacitated person or
another;
(3) was taken or made in bad faith or with malice; or
(4) was grossly negligent.
SECTION 3.11. Section 677, Texas Probate Code, is amended
by adding Subsection (f) to read as follows:
(f) If there is no eligible person willing and able to serve
as guardian, the court shall determine whether it is in the adult
individual's best interest to appoint as guardian a guardianship
program, a private professional guardian, or, as last resort, the
Department of Aging and Disability Services. Before appointing the
department as guardian, the court must enter a specific finding
that the department is the most suitable person to serve as guardian
for the proposed ward and that the appointment is in the best
interest of the proposed ward.
SECTION 3.12. Section 682, Texas Probate Code, is amended
to read as follows:
Sec. 682. APPLICATION; CONTENTS. Any person may commence a
proceeding for the appointment of a guardian by filing a written
application in a court having jurisdiction and venue. The
application must be sworn to by the applicant and state:
(1) the name, sex, date of birth, and address of the
proposed ward;
(2) the name, relationship, and address of the person
the applicant desires to have appointed as guardian;
(3) whether guardianship of the person or estate, or
both, is sought;
(4) the nature and degree of the alleged incapacity,
the specific areas of protection and assistance requested, and the
limitation of rights requested to be included in the court's order
of appointment;
(5) the facts requiring that a guardian be appointed
and the interest of the applicant in the appointment;
(6) the nature and description of any guardianship of
any kind existing for the proposed ward in any other state;
(7) the name and address of any person or institution
having the care and custody of the proposed ward;
(8) the approximate value and description of the
proposed ward's property, including any compensation, pension,
insurance, or allowance to which the proposed ward may be entitled;
(9) the name and address of any person whom the
applicant knows to hold a power of attorney signed by the proposed
ward and a description of the type of power of attorney;
(10) if the proposed ward is a minor and if known by
the applicant:
(A) the name of each parent of the proposed ward
and state the parent's address or that the parent is deceased;
(B) the name and age of each sibling, if any, of
the proposed ward and state the sibling's address or that the
sibling is deceased; and
(C) if each of the proposed ward's parents and
siblings are deceased, the names and addresses of the proposed
ward's next of kin who are adults;
(11) if the proposed ward is a minor, whether the minor
was the subject of a legal or conservatorship proceeding within the
preceding two-year period and, if so, the court involved, the
nature of the proceeding, and the final disposition, if any, of the
proceeding;
(12) if the proposed ward is an adult and if known by
the applicant:
(A) the name of the proposed ward's spouse, if
any, and state the spouse's address or that the spouse is deceased;
(B) the name of each of the proposed ward's
parents and state the parent's address or that the parent is
deceased;
(C) the name and age of each of the proposed
ward's siblings, if any, and state the sibling's address or that the
sibling is deceased;
(D) the name and age of each of the proposed
ward's children, if any, and state the child's address or that the
child is deceased; and
(E) if the proposed ward's spouse and each of the
proposed ward's parents, siblings, and children are deceased, or,
if there is no spouse, parent, adult sibling, or adult child, the
names and addresses of the proposed ward's next of kin who are
adults;
(13) facts showing that the court has venue over the
proceeding; and
(14) if applicable, that the person whom the applicant
desires to have appointed as a guardian is a private professional
guardian who is certified under Subchapter D, Chapter 111,
Government Code, and has complied with the requirements of Section
697 of this code.
SECTION 3.13. Section 683, Texas Probate Code, is amended
by amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) If a court has probable cause to believe that a person
domiciled or found in the county in which the court is located is an
incapacitated person, including the receipt of an information
letter about a person submitted under Section 48.209, Human
Resources Code, and the person does not have a guardian in this
state, the court, except as provided by Subsection (a-1) of this
section, shall appoint a guardian ad litem or court investigator to
investigate and file an application for the appointment of a
guardian of the person or estate, or both, of the person believed to
be incapacitated.
(a-1) The court in a county that does not have a statutory
probate court, in lieu of appointing a guardian ad litem under
Subsection (a) of this section, may appoint the Department of
Family and Protective Services, subject to the availability of
funds, to investigate and file a report with the court as to whether
a guardian may be necessary or whether a less restrictive
alternative to guardianship might meet the needs of the proposed
ward. If the court, after considering the report filed under this
subsection, determines that a guardianship may be necessary, the
court shall appoint a guardian ad litem, the county attorney, the
district attorney, or a guardianship program to file an application
for the appointment of a suitable person to serve as guardian for
the proposed ward.
SECTION 3.14. Section 684, Texas Probate Code, is amended
by amending Subsection (b) and adding Subsection (b-1) to read as
follows:
(b) Before appointing a guardian and except as provided by
Subsection (b-1) of this section, the court must find by a
preponderance of the evidence that:
(1) the court has venue of the case;
(2) the person to be appointed guardian is eligible to
act as guardian and is entitled to appointment, or, if no eligible
person entitled to appointment applies, the person appointed is:
(A) a proper person to act as guardian; and
(B) the most suitable person to serve as guardian
for the proposed ward;
(3) if a guardian is appointed for a minor, the
guardianship is not created for the primary purpose of enabling the
minor to establish residency for enrollment in a school or school
district for which the minor is not otherwise eligible for
enrollment; and
(4) the proposed ward is totally without capacity as
provided by this code to care for himself or herself and to manage
the individual's property, or the proposed ward lacks the capacity
to do some, but not all, of the tasks necessary to care for himself
or herself or to manage the individual's property.
(b-1) Before appointing the Department of Aging and
Disability Services as guardian, the court, in addition to making
the findings required by Subsection (a) of this section, must:
(1) make the findings required by Subsections (b)(1),
(b)(3), and (b)(4) of this section; and
(2) find by clear and convincing evidence that the
department is the person most suitable to serve as guardian of the
proposed ward and that the appointment is in the proposed ward's
best interest.
SECTION 3.15. Subpart A, Part 3, Chapter XIII, Texas
Probate Code, is amended by adding Sections 691 and 691A to read as
follows:
Sec. 691. STATE AS GUARDIAN OF LAST RESORT. (a) Except as
a last resort, the court may not appoint the Department of Aging and
Disability Services to serve as guardian of the person or estate, or
both, of an incapacitated person.
(b) This section may not be construed to permit the
appointment of a state entity other than the Department of Aging and
Disability Services as a guardian under this chapter.
Sec. 691A. AGREEMENTS FOR APPOINTMENT AS PUBLIC GUARDIANS.
(a) A county may enter into an agreement with a person operating a
guardianship program located in the county or in an adjacent county
or with a private professional guardian located in the county or in
an adjacent county regarding the willingness and ability of the
parties to provide guardianship and related services to
incapacitated persons who:
(1) may need guardianship services or similar
assistance; and
(2) do not have a family member, friend, or other
interested person who is willing, able, and qualified to serve as
guardian of the person or estate, or both.
(b) Consideration for an agreement under Subsection (a) of
this section may be monetary or in-kind, such as office space,
transportation, or utilities.
(c) On execution of the agreement, the county shall provide
a copy of the agreement to the Guardianship Alliance Office and to
each of the courts having probate jurisdiction over a county
participating in the agreement.
(d) A county that enters into an agreement under Subsection
(a) of this section may determine that the county or each other
party to the agreement may not be the person most suitable to serve
as guardian for an incapacitated person residing in the county,
and, if the court appoints the Department of Aging and Disability
Services as guardian of last resort for the incapacitated person,
the county shall reimburse the department for a portion of the costs
incurred in providing guardianship services to the incapacitated
person if the person's estate is insufficient to pay for the
services.
(e) A person, including the court, may infer that a county,
by failing to enter into or submit a copy of an agreement to the
court under this section, has made a determination that the state
may be more suitable than the county to provide guardianship and
related services to residents of the county described by Subsection
(a) of this section. If, as a last resort, the Department of Aging
and Disability Services is appointed guardian of an incapacitated
person residing in the county, the county shall reimburse the
department for a portion of the costs incurred in providing
guardianship services to the incapacitated person if the person's
estate is insufficient to pay for the services.
(f) The amount to be reimbursed to the Department of Aging
and Disability Services under Subsection (d) or (e) of this section
must be a reasonable amount as determined jointly by the department
and the Guardianship Alliance Office, and must be approved by the
judge of the court having jurisdiction over the guardianship
proceedings. Reimbursements paid to the Department of Aging and
Disability Services by a county shall be paid from funds budgeted by
the commissioners court of the county for that purpose.
(g) The Department of Aging and Disability Services shall
deposit all amounts received from a county under Subsection (d) or
(e) of this section to the credit of the guardianship services
account in the general revenue fund. Money in the account may be
appropriated only to the department for the provision of
guardianship services, as a last resort, to wards of the
department.
(h) A county or guardianship program that enters into an
agreement under this section remains eligible to receive
supplemental funds from the Guardianship Alliance Office under
Section 111.048, Government Code, to provide guardianship and
related services to incapacitated persons.
SECTION 3.16. Section 693, Texas Probate Code, is amended
by adding Subsection (f) to read as follows:
(f) An order appointing the Department of Aging and
Disability Services as guardian must specify that the department is
the most suitable person to serve as guardian for the proposed ward
and that the appointment is in the best interest of the proposed
ward.
SECTION 3.17. Section 695A, Texas Probate Code, is amended
by adding Subsections (a-1) and (d) to read as follows:
(a-1) If, while serving as a guardian for a ward under this
chapter, the Department of Aging and Disability Services becomes
aware of a guardianship program or private professional guardian
willing and able to serve as the ward's successor guardian and the
department is not aware of a family member or friend of the ward or
any other interested person who is willing and able to serve as the
ward's successor guardian, the department shall notify the court in
which the guardianship is pending of the guardianship program's or
private professional guardian's willingness and ability to serve.
(d) If the court finds under Subsection (a-1) of this
section that the proposed successor guardian for a ward is eligible
to be appointed as the ward's successor guardian and that the
appointment is in the ward's best interest, the Department of Aging
and Disability Services, or the court on the court's own motion, may
file an application to appoint the guardianship program or private
professional guardian as the ward's successor guardian. Service of
notice on an application filed under this subsection shall be made
as directed by the court.
SECTION 3.18. Section 696, Texas Probate Code, is amended
to read as follows:
Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
court may not appoint a private professional guardian to serve as a
guardian or permit a private professional guardian to continue to
serve as a guardian under this code if the private professional
guardian:
(1) has not complied with the requirements of Section
697 of this code; or
(2) is not certified as provided by Section 697B of
this code.
SECTION 3.19. Subpart A, Part 3, Texas Probate Code, is
amended by adding Sections 696A and 696B to read as follows:
Sec. 696A. APPOINTMENT OF PUBLIC GUARDIANS. (a) An
individual employed by or contracting with a guardianship program
must be certified as provided by Section 697B of this code to
provide guardianship services to a ward of the guardianship
program.
(b) An employee of the Department of Aging and Disability
Services must be certified as provided by Section 697B of this code
to provide guardianship services to a ward of the department.
Sec. 696B. APPOINTMENT OF FAMILY MEMBERS OR FRIENDS. A
family member or friend of an incapacitated person is not required
to be certified under Subchapter D, Chapter 111, Government Code,
or any other law to serve as the person's guardian.
SECTION 3.20. Subsections (a), (c), and (e), Section 697,
Texas Probate Code, are amended to read as follows:
(a) A private professional guardian must apply annually to
the clerk of the county having venue over the proceeding for the
appointment of a guardian for a certificate of registration
[certification]. The application must include a sworn statement
containing the following information concerning a private
professional guardian or each person who represents or plans to
represent the interests of a ward as a guardian on behalf of the
private professional guardian:
(1) educational background and professional
experience;
(2) three or more professional references;
(3) the names of all of the wards the private
professional guardian or person is or will be serving as a guardian;
(4) the aggregate fair market value of the property of
all wards that is being or will be managed by the private
professional guardian or person;
(5) place of residence, business address, and business
telephone number; and
(6) whether the private professional guardian or
person has ever been removed as a guardian by the court or resigned
as a guardian in a particular case, and, if so, a description of the
circumstances causing the removal or resignation, and the style of
the suit, the docket number, and the court having jurisdiction over
the proceeding.
(c) The term of the registration [certification] begins on
the date that the requirements are met and extends through December
31 of the initial year. After the initial year of registration
[certification], the term of the registration [certification]
begins on January 1 and ends on December 31 of each year. A renewal
application must be completed during December of the year preceding
the year for which the renewal is requested.
(e) Not later than February 1 of each year, the clerk shall
submit to the Guardianship Alliance Office [Health and Human
Services Commission] the names and business addresses of private
professional guardians who have satisfied the registration
[certification] requirements under this section during the
preceding year.
SECTION 3.21. Subpart A, Part 3, Texas Probate Code, is
amended by adding Sections 697A and 697B to read as follows:
Sec. 697A. LIST OF PUBLIC GUARDIANS MAINTAINED BY COUNTY
CLERKS. (a) Each guardianship program operating in a county shall
submit annually to the county clerk a statement containing the
name, address, and telephone number of each individual employed by
or volunteering or contracting with the program to provide
guardianship services to a ward or proposed ward of the program.
(b) The Department of Aging and Disability Services, if the
department is appointed to serve as guardian of last resort for one
or more incapacitated persons residing in the county, shall submit
annually to the county clerk the information required under
Subsection (a) of this section for each department employee who is
or will be providing guardianship services in the county on the
department's behalf.
(c) Not later than February 1 of each year, the county clerk
shall submit to the Guardianship Alliance Office the information
received under Subsection (a) of this section during the preceding
year.
Sec. 697B. CERTIFICATION REQUIREMENT FOR PRIVATE
PROFESSIONAL GUARDIANS AND PUBLIC GUARDIANS. (a) The following
persons must be certified under Subchapter D, Chapter 111,
Government Code:
(1) an individual who is a private professional
guardian;
(2) an individual who will represent the interests of
a ward as a guardian on behalf of a private professional guardian;
(3) an individual providing guardianship services to a
ward of a guardianship program on the program's behalf, except as
provided by Subsection (d) of this section; and
(4) an employee of the Department of Aging and
Disability Services providing guardianship services to a ward of
the department.
(b) A person whose certification has expired must obtain a
new certification under Subchapter D, Chapter 111, Government Code,
to be allowed to provide or continue to provide guardianship
services to a ward under this code.
(c) The court shall notify the Guardianship Alliance Office
if the court becomes aware of a person who is not complying with the
terms of a certification issued under Subchapter D, Chapter 111,
Government Code, or with the standards and rules adopted under that
subchapter.
(d) An individual volunteering with a guardianship program
is not required to be certified as provided by this section to
provide guardianship services on the program's behalf.
SECTION 3.22. Subsections (a) and (c), Section 698, Texas
Probate Code, are amended to read as follows:
(a) The clerk of the county having venue over the proceeding
for the appointment of a guardian shall obtain criminal history
record information that is maintained by the Department of Public
Safety or the Federal Bureau of Investigation identification
division relating to:
(1) a private professional guardian;
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of the private
professional guardian; [or]
(3) each person employed by a private professional
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate;
(4) each person employed by or volunteering or
contracting with a guardianship program to provide guardianship
services to a ward of the program on the program's behalf; or
(5) an employee of the Department of Aging and
Disability Services who is or will be providing guardianship
services to a ward of the department.
(c) The court shall use the information obtained under this
section only in determining whether to appoint, remove, or continue
the appointment of a private professional guardian, a guardianship
program, or the Department of Aging and Disability Services.
SECTION 3.23. Subsection (b), Section 700, Texas Probate
Code, is amended to read as follows:
(b) A representative of the Department of Aging and
Disability [Protective and Regulatory] Services shall take the oath
required by Subsection (a) of this section if the department is
appointed guardian.
SECTION 3.24. Subsection (a), Section 767, Texas Probate
Code, is amended to read as follows:
(a) The guardian of the person is entitled to take [the]
charge [and control] of the person of the ward, and the duties of
the guardian correspond with the rights of the guardian. A guardian
of the person has:
(1) the right to have physical possession of the ward
and to establish the ward's legal domicile;
(2) the duty to provide [of] care, supervision
[control], and protection for [of] the ward;
(3) the duty to provide the ward with clothing, food,
medical care, and shelter;
(4) the power to consent to medical, psychiatric, and
surgical treatment other than the in-patient psychiatric
commitment of the ward; and
(5) on application to and order of the court, the power
to establish a trust in accordance with 42 U.S.C. Section
1396p(d)(4)(B), as amended, and direct that the income of the ward
as defined by that section be paid directly to the trust, solely for
the purpose of the ward's eligibility for medical assistance under
Chapter 32, Human Resources Code.
SECTION 3.25. Subsections (c) and (j), Section 875, Texas
Probate Code, are amended to read as follows:
(c) A sworn, written application for the appointment of a
temporary guardian shall be filed before the court appoints a
temporary guardian. The application must state:
(1) the name and address of the person who is the
subject of the guardianship proceeding;
(2) the danger to the person or property alleged to be
imminent;
(3) the type of appointment and the particular
protection and assistance being requested;
(4) the facts and reasons supporting the allegations
and requests;
(5) the name, address, and qualification of the
proposed temporary guardian;
(6) the name, address, and interest of the applicant;
and
(7) if applicable, that the proposed temporary
guardian is a private professional guardian who is certified under
Subchapter D, Chapter 111, Government Code, and has complied with
the requirements of Section 697 of this code.
(j) The court may not customarily or ordinarily appoint the
Department of Aging and Disability [Protective and Regulatory]
Services as a temporary guardian under this section. The
appointment of the department as a temporary guardian under this
section should be made only as a last resort.
SECTION 3.26. Title 2, Government Code, is amended by
adding Subtitle J to read as follows:
SUBTITLE J. GUARDIANSHIPS
CHAPTER 111. GUARDIANSHIP ALLIANCE OFFICE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 111.001. DEFINITIONS. In this chapter:
(1) "Administrative director" means the
administrative director of the courts as appointed by Chapter 72.
(2) "Board" means the Guardianship Alliance Board.
(3) "Corporate fiduciary" has the meaning assigned by
Section 601, Texas Probate Code.
(4) "Guardian" has the meaning assigned by Section
601, Texas Probate Code.
(5) "Guardianship program" means a local, county, or
regional program that provides guardianship and related services to
an incapacitated person or other person who needs assistance in
making decisions concerning the person's own welfare or financial
affairs.
(6) "Incapacitated person" has the meaning assigned by
Section 601, Texas Probate Code.
(7) "Office" means the Guardianship Alliance Office.
(8) "Office of Court Administration" means the Office
of Court Administration of the Texas Judicial System.
(9) "Private professional guardian" means a person,
other than an attorney or a corporate fiduciary, who is engaged in
the business of providing guardianship services.
(10) "Statutory probate court" has the meaning
assigned by Section 601, Texas Probate Code.
(11) "Ward" has the meaning assigned by Section 601,
Texas Probate Code.
Sec. 111.002. RULES. The supreme court may adopt rules
consistent with this chapter, including rules governing the
certification of individuals providing guardianship services.
Sec. 111.003. SUNSET PROVISION. The office is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the office is abolished
and this chapter expires September 1, 2015.
[Sections 111.004-111.010 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 111.011. GUARDIANSHIP ALLIANCE OFFICE; ADMINISTRATIVE
ATTACHMENT. (a) The Guardianship Alliance Office is
administratively attached to the Office of Court Administration.
(b) Notwithstanding any other law, the Office of Court
Administration shall:
(1) provide administrative assistance, services, and
materials to the office;
(2) accept, deposit, and disburse money made available
to the office;
(3) accept gifts and grants on behalf of the office
from any public or private entity;
(4) pay the salaries and benefits of the director and
staff of the office;
(5) reimburse the travel expenses and other actual and
necessary expenses of the board, director, and staff of the office
incurred in the performance of a function of the office, as provided
by the General Appropriations Act;
(6) apply for and receive on behalf of the office any
appropriations or other money from the state or federal government
or any other public or private entity, subject to limitations and
conditions prescribed by legislative appropriation; and
(7) provide the office with adequate computer
equipment and support.
Sec. 111.012. BOARD. (a) The Guardianship Alliance Board
is composed of:
(1) 11 members appointed by the presiding judge of the
statutory probate courts, elected as provided by Chapter 25;
(2) three public members appointed by the supreme
court from a list of nominees submitted by the governor; and
(3) a representative of the Department of Aging and
Disability Services appointed by the supreme court from a list of
nominees submitted by the commissioner of aging and disability
services.
(b) The presiding judge of the statutory probate courts
shall appoint members under Subsection (a)(1) from the different
geographical areas of this state.
(c) In making an appointment under Subsection (a)(2), the
supreme court may reject one or more of the nominees on a list
submitted by the governor and request a new list of different
nominees. In making an appointment under Subsection (a)(3), the
supreme court may reject one or more of the nominees on a list
submitted by the commissioner of aging and disability services and
request a new list of different nominees.
(d) To be eligible for appointment to the board other than
as a public member, an individual must have demonstrated experience
working with:
(1) a guardianship program;
(2) an organization that advocates on behalf of or in
the interest of elderly individuals;
(3) an organization that advocates on behalf of or in
the interest of individuals with mental illness or mental
retardation or individuals with physical disabilities; or
(4) incapacitated individuals.
(e) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointees.
(f) The members of the board serve for staggered six-year
terms, with the terms of one-third of the members expiring on
February 1 of each odd-numbered year. Board members receive no
compensation but are entitled to reimbursement of actual and
necessary expenses incurred in the performance of their duties.
(g) The board shall elect from among its members a presiding
officer and other officers considered necessary.
(h) The board shall meet at least quarterly at the call of
the presiding officer.
(i) Any action taken by the board must be approved by a
majority vote of the members present.
Sec. 111.013. ELIGIBILITY OF PUBLIC MEMBERS. A person is
not eligible for appointment as a public member of the board if the
person or the person's spouse:
(1) is registered, certified, or licensed by a
regulatory agency in the field of guardianship;
(2) is employed by or participates in the management
of a business entity or other organization regulated by the office
or receiving money from the Office of Court Administration;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by the office or receiving money from the
Office of Court Administration; or
(4) uses or receives a substantial amount of tangible
goods, services, or funds from the Office of Court Administration,
other than compensation or reimbursement authorized by law for
board membership, attendance, or expenses.
Sec. 111.014. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(a) In this section, "Texas trade association" means a cooperative
and voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or professional problems and in promoting their common
interest.
(b) A person may not be a member of the board or may not be an
employee of the office employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of
guardianship; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of
guardianship.
(c) A person may not be a member of the board if the person
is required to register as a lobbyist under Chapter 305 because of
the person's activities for compensation on behalf of a profession
related to the operation of the office.
Sec. 111.015. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a
ground for removal from the board that a member:
(1) does not have at the time of appointment the
qualifications required by Section 111.012;
(2) does not maintain during service on the board the
qualifications required by Section 111.012;
(3) is ineligible for membership under Section 111.013
or 111.014;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the board.
(b) The validity of an action of the board is not affected by
the fact that it is taken when a ground for removal of a board member
exists.
(c) If the director of the office has knowledge that a
potential ground for removal exists, the director shall notify the
presiding officer of the board of the potential ground. The
presiding officer shall then notify the presiding judge of the
statutory probate courts and the chief justice of the supreme court
that a potential ground for removal exists. If the potential ground
for removal involves the presiding officer, the director shall
notify the next highest ranking officer of the board, who shall then
notify the presiding judge of the statutory probate courts and the
chief justice of the supreme court that a potential ground for
removal exists.
Sec. 111.016. POWERS AND DUTIES OF BOARD. (a) The board is
charged with the executive functions necessary to carry out the
purposes of this chapter under rules adopted by the supreme court.
(b) The board shall:
(1) administer and enforce this chapter;
(2) develop and recommend proposed rules and
procedures to the supreme court as necessary to implement this
chapter;
(3) set the amount of each fee prescribed by Section
111.062, subject to the approval of the supreme court;
(4) establish the qualifications for obtaining
certification or recertification under Section 111.062;
(5) issue certificates to individuals who meet the
certification requirements of Section 111.062; and
(6) perform any other duty required by this chapter or
other law.
(c) The board may appoint any necessary or proper
subcommittee.
(d) The board shall maintain:
(1) a complete record of each board proceeding; and
(2) a complete record of each certification issued,
renewed, suspended, or revoked under Section 111.062.
Sec. 111.017. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the board may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the board until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter;
(2) the role and functions of the board;
(3) the current budget for the office;
(4) the results of the most recent formal audit of the
office; and
(5) any applicable ethics policies adopted by the
board.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
Sec. 111.018. USE OF TECHNOLOGY. The Office of Court
Administration shall research and propose appropriate
technological solutions to improve the board's and office's ability
to perform its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the board and office on the Internet;
(2) ensure that persons who want to use the office's
services are able to:
(A) interact with the board and office through
the Internet; and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
board's and office's planning processes.
Sec. 111.019. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) The board shall develop and implement a policy to encourage
the use of appropriate alternative dispute resolution procedures to
assist in the resolution of internal and external disputes under
the office's jurisdiction.
(b) The procedures relating to alternative dispute
resolution under this section must conform, to the extent possible,
to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
Sec. 111.020. PUBLIC ACCESS. The board shall develop and
implement policies that provide the public with a reasonable
opportunity to appear before the board and to speak on any issue
under the jurisdiction of the office.
Sec. 111.021. DIRECTOR OF OFFICE; STAFF. The
administrative director, after consulting with the board, may hire
a director to perform the administrative duties of the office. The
administrative director may hire staff as necessary for the office.
Sec. 111.022. DIVISION OF RESPONSIBILITIES. The board
shall develop and implement policies that clearly separate the
policymaking responsibilities of the board and the management
responsibilities of the director and the staff of the office.
Sec. 111.023. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The director of the office or the director's designee
shall provide to members of the board and to office staff, as often
as necessary, information regarding the requirements for office or
employment under this chapter, including information regarding a
person's responsibilities under applicable laws relating to
standards of conduct for state officers or employees.
Sec. 111.024. STRATEGIC PLAN. (a) The office shall
develop a comprehensive, long-range strategic plan for its
operations. Each even-numbered year, the office shall issue a plan
covering five fiscal years beginning the next odd-numbered fiscal
year.
(b) The strategic plan must include measurable goals and a
system of performance measures that:
(1) relates directly to the purposes of the office;
and
(2) focuses on the results and outcomes of the office's
operations.
(c) Not later than December 15 of each year, the office
shall report the performance measures included in the strategic
plan under this section to:
(1) the administrative director;
(2) the supreme court;
(3) the Department of Aging and Disability Services;
(4) the governor;
(5) the lieutenant governor; and
(6) the speaker of the house of representatives.
(d) In preparing the budget for the Office of Court
Administration, the administrative director shall:
(1) consider the goals and performance measures
identified in the strategic plan; and
(2) identify additional goals and performance
measures as necessary.
[Sections 111.025-111.040 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec. 111.041. GENERAL POWERS AND DUTIES OF OFFICE REGARDING
GUARDIANSHIP MATTERS. The office shall:
(1) develop a statewide, uniform system for use by
county clerks in identifying guardianships pending in each county;
(2) establish other methods to facilitate and
encourage use of appropriate and less restrictive alternatives to
guardianship in addition to the informational brochure developed
under Section 111.049;
(3) periodically review state funding received for the
provision of guardianship services or other less restrictive types
of assistance to incapacitated persons and make legislative
recommendations as necessary;
(4) apply for any grants or other sources of federal
funds for which the office may be eligible, including any federal
funds that may be available under the federal Older Americans Act of
1965 (42 U.S.C. Section 3001 et seq.);
(5) provide support and technical expertise regarding
guardianship-related issues to members of the judiciary;
(6) educate members of the judiciary and the public
about less restrictive alternatives to guardianship; and
(7) review and comment on the guardianship policies of
all health and human services agencies and recommend changes to the
policies the office considers necessary or advisable.
Sec. 111.042. REGISTRY OF GUARDIANSHIP PROGRAMS. The
office shall establish and maintain a central registry of all
guardianship programs operating in this state.
Sec. 111.043. REGISTRY OF PRIVATE PROFESSIONAL GUARDIANS.
The office shall establish and maintain a central registry of all
private professional guardians registered with county clerks under
Section 697, Texas Probate Code.
Sec. 111.044. COLLECTION OF GUARDIANSHIP STATISTICS.
(a) The Texas Judicial Council shall collect, maintain, and
publish statistics by county relating to guardianship proceedings
of incapacitated persons other than minors, as defined by Section
601, Texas Probate Code, in the form and manner prescribed by
Section 71.035.
(b) The Texas Judicial Council shall report:
(1) the number of court-initiated guardianship
requests under Section 683, Texas Probate Code;
(2) the number of applications filed for guardianship
of the person of an adult who is alleged to be incapacitated;
(3) the number of applications filed for guardianship
of the estate of an adult who is alleged to be incapacitated;
(4) the number of applications filed for guardianship
of both the person and estate of an adult who is alleged to be
incapacitated;
(5) whether the person applying for a guardianship is
a family member or friend of the proposed ward or is a guardian ad
litem, private professional guardian, or local guardianship
program;
(6) a categorical description of the alleged
incapacity of the proposed wards, such as dementia, stroke, mental
retardation, brain injury, or chronic mental illness;
(7) whether the filing fee was waived based on the fact
that the alleged incapacitated adult is indigent;
(8) the number of guardianships of the person granted
by the court during the period;
(9) the number of guardianships of the estate granted
by the court during the period;
(10) the number of guardianships of both the person
and estate that were granted by the court during the period;
(11) the number of applications for complete
restoration of a ward's capacity or for modification of a
guardianship filed during the period;
(12) the number of guardianships of the person closed
by the court during the period;
(13) the number of guardianships of the estate closed
by the court during the period;
(14) the number of guardianships of both the person
and estate that were closed by the court during the period; and
(15) any other information considered necessary by the
office.
Sec. 111.045. DIRECTORY. (a) The office shall compile, in
the most cost-efficient form, a directory of guardianship programs
and private professional guardians operating in this state.
(b) The office at least annually shall update the directory
and provide access to the directory on the Internet website of the
Office of Court Administration or in another written form.
Sec. 111.046. GUARDIANSHIP RESOURCE ACCOUNT. (a) The
guardianship resource account is created as a dedicated account in
the general revenue fund. Money in the fund may be appropriated
only to provide funding for purposes consistent with this chapter.
(b) The administrative director shall deposit in the
guardianship resource account all funds collected for the office or
appropriated to the Office of Court Administration for purposes of
the office as provided by:
(1) this chapter; and
(2) Chapter X, Texas Probate Code.
(c) Each fiscal year, the office shall set aside an amount
of funds from the guardianship resource account sufficient to pay
anticipated expenses and claims on the guardianship resource
account under Chapter X, Texas Probate Code.
Sec. 111.047. DONATIONS. The office may accept and solicit
gifts or grants of property from public or private sources for the
purposes of this chapter. Funds received under this section shall
be deposited in the guardianship resource account.
Sec. 111.048. FUNDING FOR GUARDIANSHIP AND RELATED
SERVICES. (a) The office shall develop and implement a plan for
the distribution of state and other funds received for purposes of
this chapter to guardianship programs and other providers of
services that are considered alternatives to guardianship.
(b) The plan must provide for:
(1) state funding to be distributed to guardianship
programs and providers of services that are considered alternatives
to guardianship:
(A) only as specifically directed by the terms of
a grant or contract to provide guardianship and related services;
and
(B) in a manner that rewards a county that
chooses to make significant contributions to the funding of
guardianship programs operated by or located in the county;
(2) procedures to ensure that funds received by the
Office of Court Administration for purposes of the office are
disbursed in accordance with the terms under which that agency
received the funds; and
(3) a reporting mechanism to ensure appropriate use of
funds.
(c) The plan must also be designed in a manner that fosters
the establishment and growth of guardianship programs to provide
guardianships or other less restrictive types of assistance or
services to incapacitated individuals residing in the areas served
by those programs.
Sec. 111.049. INFORMATIONAL BROCHURE. (a) The office
shall develop and update as necessary an informational brochure
describing various types of less restrictive alternatives to
guardianship that are available to elderly or disabled persons,
including:
(1) a durable power of attorney;
(2) a special needs trust;
(3) a representative payee designated by a federal
agency to manage a person's federal benefits; and
(4) a bill payer.
(b) The board shall prescribe the form and contents of the
informational brochure.
(c) Instead of publishing the informational brochure in
written form, the office may distribute the informational brochure
to the Department of Aging and Disability Services for purposes of
displaying the contents of the brochure on the department's
Internet website.
Sec. 111.050. USE OF OFFICE FUNDS. (a) The office may not
spend for the office's administrative costs more than 22 percent of
the funds received each fiscal year to implement this chapter.
(b) The portion of the funds received by the office to
implement this chapter that are not spent for the office's
administrative costs must be distributed as directed by grants or
contracts in accordance with the plan established under Section
111.048.
[Sections 111.051-111.060 reserved for expansion]
SUBCHAPTER D. REGULATION OF CERTAIN GUARDIANS
Sec. 111.061. STANDARDS FOR CERTAIN GUARDIANSHIPS AND
ALTERNATIVES TO GUARDIANSHIP. (a) The board shall adopt minimum
standards for:
(1) the provision of guardianship services or other
similar but less restrictive types of assistance or services by:
(A) guardianship programs; and
(B) private professional guardians; and
(2) the provision of guardianship services by the
Department of Aging and Disability Services.
(b) The board shall design the standards to protect the
interests of an incapacitated person or other person needing
assistance making decisions concerning the person's own welfare or
financial affairs.
Sec. 111.062. CERTIFICATION REQUIRED FOR CERTAIN
GUARDIANS. (a) To provide guardianship services in this state,
the following individuals must hold a certificate issued under this
section:
(1) an individual who is a private professional
guardian;
(2) an individual who will provide those services to a
ward of a private professional guardian or the Department of Aging
and Disability Services on the guardian's or department's behalf;
and
(3) an individual, other than a volunteer, who will
provide those services to a ward of a guardianship program on the
program's behalf.
(b) An applicant for a certificate under this section must:
(1) apply to the office on a form prescribed by the
board; and
(2) submit with the application a nonrefundable
application fee in an amount determined by the board, subject to the
approval of the supreme court.
(c) The supreme court may adopt rules and procedures for
issuing a certificate and for renewing, suspending, or revoking a
certificate issued under this section. Any rules adopted by the
supreme court under this section must:
(1) ensure compliance with the standards adopted under
Section 111.061;
(2) provide that the board establish qualifications
for obtaining and maintaining certification;
(3) provide that the board issue certificates under
this section;
(4) provide that a certificate expires on the second
anniversary of the date the certificate is issued;
(5) prescribe procedures for accepting complaints and
conducting investigations of alleged violations of the minimum
standards adopted under Section 111.061 or other terms of the
certification by certificate holders; and
(6) prescribe procedures by which the office, after
notice and hearing, may suspend or revoke the certificate of a
holder who fails to substantially comply with appropriate standards
or other terms of the certification.
(d) If the requirements for issuing a certificate under this
section include passage of an examination covering guardianship
education requirements, the office shall:
(1) develop and administer the examination; or
(2) contract with another person or entity the board
determines has the expertise and resources to develop and
administer the examination.
(e) In lieu of the certification requirements imposed under
this section, the board may issue a certificate to an individual to
engage in business as a guardian or to provide guardianship
services in this state if the individual:
(1) submits an application to the office in the form
prescribed by the board;
(2) pays a fee in a reasonable amount determined by the
board, subject to the approval of the supreme court;
(3) is certified, registered, or licensed as a
guardian by a national organization or association the board
determines has requirements at least as stringent as those
prescribed by the board under this subchapter; and
(4) is in good standing with the organization or
association with whom the person is licensed, certified, or
registered.
(f) An application or other fee collected under this section
shall be deposited in the guardianship resource account.
Sec. 111.063. INFORMATION FROM PRIVATE PROFESSIONAL
GUARDIANS. In addition to the information submitted under Section
697(e), Texas Probate Code, the office may require a private
professional guardian or a person who represents or plans to
represent the interests of a ward as a guardian on behalf of the
private professional guardian to submit information considered
necessary to monitor the person's compliance with the applicable
standards adopted under Section 111.061 or with the certification
requirements of Section 111.062.
SECTION 3.27. Section 3, Texas Probate Code, is amended by
adding Subsection (nn) to read as follows:
(nn) "Guardianship Alliance Office" means the Guardianship
Alliance Office established under Chapter 111, Government Code.
SECTION 3.28. The heading of Chapter X, Texas Probate Code,
is amended to read as follows:
CHAPTER X. PAYMENT OF ESTATES TO GUARDIANSHIP RESOURCE ACCOUNT
[INTO STATE TREASURY]
SECTION 3.29. Sections 427, 430, and 431, Texas Probate
Code, are amended to read as follows:
Sec. 427. WHEN ESTATES TO BE PAID TO GUARDIANSHIP RESOURCE
ACCOUNT [INTO STATE TREASURY]. (a) If any person entitled to a
portion of an estate, except a resident minor without a guardian,
shall not demand his portion from the executor or administrator
within six months after an order of court approving the report of
commissioners of partition, or within six months after the
settlement of the final account of an executor or administrator, as
the case may be, the court by written order shall require the
executor or administrator to pay so much of said portion as is in
money to the comptroller; and such portion as is in other property
he shall order the executor or administrator to sell on such terms
as the court thinks best, and, when the proceeds of such sale are
collected, the court shall order the same to be paid to the
comptroller, in all such cases allowing the executor or
administrator reasonable compensation for his services. A suit to
recover proceeds of the sale is governed by Section 433 of this
Code.
(b) The comptroller shall deposit funds received under this
section to the credit of the guardianship resource account
established under Subchapter C, Chapter 111, Government Code.
Sec. 430. RECEIPT [OF COMPTROLLER]. Whenever an executor
or administrator pays the comptroller any funds of the estate he
represents, under the preceding provisions of this Code, he shall
take from the comptroller a receipt for such payment, with official
seal attached, and shall file the same with the clerk of the court
ordering such payment; and such receipt shall be recorded in the
minutes of the court.
Sec. 431. PENALTY FOR FAILURE TO MAKE PAYMENTS [TO
COMPTROLLER]. When an executor or administrator fails to pay to the
comptroller any funds of an estate which he has been ordered by the
court so to pay, within 30 days after such order has been made, such
executor or administrator shall, after personal service of citation
charging such failure and after proof thereof, be liable to pay out
of his own estate to the comptroller damages thereon at the rate of
five per cent per month for each month, or fraction thereof, that he
fails to make such payment after 30 days from such order, which
damages may be recovered in any court of competent jurisdiction.
SECTION 3.30. Subsections (a) and (c), Section 433, Texas
Probate Code, are amended to read as follows:
(a) Mode of Recovery. When funds of an estate have been paid
to the comptroller under this chapter, any heir, devisee, or
legatee of the estate, or their assigns, or any of them, may recover
the portion of such funds to which he, she, or they are entitled.
The person claiming such funds shall institute suit on or before the
fourth anniversary of the date of the order requiring payment to the
comptroller, by petition filed in the district court of Travis
County, against the comptroller, setting forth the plaintiff's
right to such funds, and the amount claimed by him.
(c) Procedure. The proceedings in such suit shall be
governed by the rules for other civil suits; and, should the
plaintiff establish his right to the funds claimed, he shall have a
judgment therefor, which shall specify the amount to which he is
entitled; and a certified copy of such judgment shall be sufficient
authority for the comptroller to pay the same from the guardianship
resource account established under Subchapter C, Chapter 111,
Government Code. To the extent that funds are not available in the
guardianship resource account, the comptroller shall pay the amount
to which the plaintiff is entitled from the general revenue fund
until funds become available in the guardianship resource account.
SECTION 3.31. STUDY. (a) The Guardianship Alliance Office
shall conduct a study regarding the feasibility of establishing and
administering a pooled income trust for families of incapacitated
individuals in this state.
(b) Not later than January 1, 2007, the Guardianship
Alliance Office shall report the findings and conclusions of the
study required under this section to the governor, lieutenant
governor, speaker of the house of representatives, and presiding
officer of each standing committee of the senate and house of
representatives having jurisdiction over guardianship matters.
SECTION 3.32. TRANSFERS TO THE DEPARTMENT OF AGING AND
DISABILITY SERVICES. (a) On September 1, 2005:
(1) all powers, duties, functions, programs, and
activities of the Department of Family and Protective Services
related to providing guardianship services for incapacitated
persons under Chapter 48, Human Resources Code, Chapter XIII, Texas
Probate Code, or other law are transferred to the Department of
Aging and Disability Services;
(2) all employees of the Department of Family and
Protective Services who primarily perform duties related to
providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law become employees of the Department of Aging and
Disability Services;
(3) a rule or form adopted by the executive
commissioner of the Health and Human Services Commission that
relates to the provision of guardianship services by the Department
of Family and Protective Services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law, as those laws existed immediately before that date, is
a rule or form of the Department of Aging and Disability Services
and remains in effect until altered by the executive commissioner;
(4) a reference in law to the Department of Family and
Protective Services that relates to providing guardianship
services for incapacitated persons under Chapter 48, Human
Resources Code, Chapter XIII, Texas Probate Code, or other law
means the Department of Aging and Disability Services;
(5) a waiver in effect that was issued by the
Department of Family and Protective Services relating to the
provision of guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law is continued in effect as a waiver of the Department of
Aging and Disability Services;
(6) a proceeding involving the Department of Family
and Protective Services that is related to providing guardianship
services for incapacitated persons under Chapter 48, Human
Resources Code, Chapter XIII, Texas Probate Code, or other law is
transferred without change in status to the Department of Aging and
Disability Services, and the Department of Aging and Disability
Services assumes, without a change in status, the position of the
Department of Family and Protective Services in a proceeding
relating to guardianship matters to which the Department of Family
and Protective Services is a party;
(7) all money, contracts, leases, rights, and
obligations of the Department of Family and Protective Services
related to providing guardianship services for incapacitated
persons under Chapter 48, Human Resources Code, Chapter XIII, Texas
Probate Code, or other law are transferred to the Department of
Aging and Disability Services, subject to Subsection (b) of this
section;
(8) all property and records in the custody of the
Department of Family and Protective Services related to providing
guardianship services for incapacitated persons under Chapter 48,
Human Resources Code, Chapter XIII, Texas Probate Code, or other
law shall be transferred to the Department of Aging and Disability
Services; and
(9) all funds appropriated by the legislature to the
Department of Family and Protective Services for purposes related
to providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law are transferred to the Department of Aging and
Disability Services.
(b) The Department of Aging and Disability Services shall
administer a contract of the Department of Family and Protective
Services transferred under Subdivision (7), Subsection (a), of this
section, until the contract expires or is otherwise lawfully
terminated. The Department of Aging and Disability Services,
however, may not renew the contract.
SECTION 3.33. TRANSITION PLAN. The executive commissioner
of the Health and Human Services Commission shall establish a plan
for the transfer of guardianship cases of the Department of Family
and Protective Services to the Department of Aging and Disability
Services on or before the period prescribed by the executive
commissioner.
SECTION 3.34. PLAN TO TRANSFER STATE GUARDIANSHIPS TO LOCAL
ENTITIES. (a) Notwithstanding any other provision of this Act,
the Guardianship Alliance Office established under Chapter 111,
Government Code, as added by this Act, shall develop a plan for the
transfer of all powers, duties, functions, programs, and activities
of the Department of Aging and Disability Services related to
providing guardianship services for incapacitated persons under
Chapter 161, Human Resources Code, as amended by this Act, Chapter
XIII, Texas Probate Code, as amended by this Act, or other law to
the counties.
(b) Not later than November 1, 2006, the Guardianship
Alliance Office shall submit to the 79th Legislature a report
regarding the plan developed by the office under this section. The
report must include the office's recommendations for any statutory
changes required to facilitate the plan and any modifications to
the Department of Aging and Disability Services' policies,
procedures, or administration that are necessary to facilitate the
transfer.
SECTION 3.35. ABOLITION OF GUARDIANSHIP ADVISORY BOARD. On
the effective date of this Act:
(1) the term of a member of the Guardianship Advisory
Board created under Subchapter D, Chapter 531, Government Code,
repealed by this Act, serving immediately before that date expires;
and
(2) the advisory board is abolished.
SECTION 3.36. PROPOSED RULES AND PROCEDURES. Not later
than March 1, 2006, the Guardianship Alliance Board established
under Chapter 111, Government Code, as added by this Act, shall
develop rules and procedures for consideration by the supreme court
as required by Chapter 111, Government Code, as added by this Act.
SECTION 3.37. APPOINTMENT OF BOARD MEMBERS. (a) As soon
as practicable after the effective date of this Act, the presiding
judge of the statutory probate courts shall appoint 11 members to
the Guardianship Alliance Board in accordance with Chapter 111,
Government Code, as added by this Act. In making the initial
appointments, the presiding judge shall designate three members for
terms expiring February 1, 2007, four members for terms expiring
February 1, 2009, and four members for terms expiring February 1,
2011.
(b) As soon as practicable after the effective date of this
Act, the supreme court shall appoint four members to the
Guardianship Alliance Board in accordance with Chapter 111,
Government Code, as added by this Act. In making the initial
appointments, the supreme court shall designate two members for
terms expiring February 1, 2007, one member for a term expiring
February 1, 2009, and one member for a term expiring February 1,
2011.
SECTION 3.38. EFFECTIVE DATE OF CERTIFICATION. A person is
not required to hold a certificate issued under Subchapter D,
Chapter 111, Government Code, as added by this Act, to provide or
continue to provide guardianship services to a ward before
September 1, 2007.
SECTION 3.39. The following are repealed:
(1) Subsections (d), (e), and (f), Section 48.209,
Human Resources Code; and
(2) Subchapter D, Chapter 531, Government Code.
ARTICLE 4. EFFECTIVE DATE
SECTION 4.01. This Act takes effect September 1, 2005.