The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Family and Protective Services (DFPS), new §§700.451, 700.453, 700.455, 700.457, 700.459, 700.461, 700.463, 700.465, 700.467, 700.469, 700.471, 700.473, 700.475, 700.477, 700.479, and 700.481; amendments to §§700.506, 700.507, 700.511, and 700.513; and the repeal of §§700.501, 700.502, 700.503, 700.504, and 700.510 in Chapter 700, Child Protective Services (CPS). The primary purpose of the revisions is to update the rules where they are no longer accurate. Many of the rules in this division have not been revised since the mid-nineties. Other rules need updates to reflect work CPS is currently undertaking to streamline investigations policy and practice to support better case outcomes, or to comply with legislation passed during the 2015 legislative session. Another purpose of the revisions is to further define and update CPS's current abuse and neglect definitions in order to better train CPS staff on investigating reports of abuse and neglect, provide clarification to the public on the meaning of the statutory definitions of abuse and neglect applied by CPS in reaching dispositions, and to eliminate ambiguity in interpreting the statutory definitions and current rules. Except for the four changes discussed below, the overarching aim is to explain and amplify, but not alter, current interpretation and practice. The policy and practice shifts that are included in the rule are:

(1) New §700.459 and §700.461 which provide further clarification concerning the definitions of human trafficking that were added to Texas Family Code §261.001 by SB 24, 82nd Texas Legislature, Regular Session (2011), in order to train caseworkers and inform the public on how CPS investigates reports of labor and sex trafficking involving children.

(2) New §700.455 and §700.465 related to prenatal alcohol and controlled substance exposure which provide clarity on the type of evidence needed to support a "reason to believe" (or confirmed) finding for physical abuse versus the type of evidence needed to support a "reason to believe" (or confirmed) finding for neglect.

(3) New §700.473 regarding dispositioning cases in which DFPS took conservatorship of a child with a severe emotional disturbance in order to obtain mental health care for the child, and the exclusion of a disposition in these types of cases from DFPS's central registry of child abuse and neglect, which is based on a statutory change to Texas Family Code §261.001 and §261.002 from Senate Bill (SB) 1889, 84th Texas Legislature, Regular Session (2015). SB 1889 requires DFPS to adopt rules to prohibit the inclusion in the registry when certain circumstances exist, as described in the proposed rule, and to establish guidelines for reviewing records already in the registry which meet the same criteria.

(4) New §700.475 regarding exposure to domestic violence which relates to implementing clarification on what constitutes abuse and neglect in the context of domestic violence based on recommendations from the report developed by the Task Force to Address the Relationship Between Domestic Violence and Child Abuse and Neglect. HHSC established this Task Force, as directed by SB 434, 82nd Texas Legislature, Regular Session (2011), to develop a report with policy recommendations and comprehensive statewide best practice guidelines for CPS and other entities when investigating cases of abuse and neglect that also involve domestic violence. CPS was a participant in the Task Force and has committed to achieving the agreed-upon recommendations from the Task Force. The rule related to domestic violence restates and implements pertinent guidelines from that effort.

In addition to defining and updating CPS's abuse and neglect definitions, the amendments also seek to update the rules where they are no longer accurate. Many of the rules in the division have not been amended since the mid-nineties. Other rules need updates to reflect work CPS is currently undertaking to streamline investigations policy and practice to support better case outcomes as well as to comply with legislation passed during the 2015 legislative session.

A summary of the proposed rules is as follows:

New §700.451 clarifies that terms and corresponding definitions used within Division 1 of Subchapter E of this chapter (relating to Investigations) augment and further explain existing definitions in Chapter 101 and §261.001 of the Texas Family Code.

New §700.453: (1) reiterates the statutory definitions of emotional abuse from Texas Family Code §261.001(1); (2) defines and clarifies what constitutes "mental and emotional injury" and "observable and material impairment" when CPS investigates reports of emotional abuse; and (3) clarifies when a person's use of a controlled substance will result in a reason to believe finding for emotional abuse due to "mental or emotional injury" to the child caused by the use.

New §700.455: (1) reiterates the statutory definitions of physical abuse from Texas Family Code §261.001(1) and provides definitions and clarifications for terms used in the statutory definitions as well as this rule; (2) further defines and clarifies what constitutes "physical injury that results in substantial harm to the child" and "genuine threat of substantial harm from physical injury" when a child has not necessarily been physically injured; and (3) clarifies when a pregnant woman's use of alcohol or a controlled substance will result in a reason to believe finding for physical abuse of the infant.

New §700.457: (1) reiterates the statutory definitions of sexual abuse from Texas Family Code §261.001(1) and provides definitions and clarification for terms and phrases used in the statutory definitions as well as this rule; and (2) clarifies what constitutes "sexual conduct harmful to a child's mental, emotional or physical welfare" when CPS investigates reports of sexual abuse.

New §700.459: (1) reiterates the statutory definitions of labor trafficking from Texas Family Code §261.001(1); and (2) clarifies what is considered child labor trafficking for purposes of a CPS investigation by expanding upon the core elements of labor trafficking, explaining the factors CPS evaluates to determine if a child is being trafficked for purposes of labor, and elaborating on the types of situations CPS would not consider to be labor trafficking.

New §700.461: (1) reiterates the statutory definitions of sex trafficking from Texas Family Code §261.001(1); and (2) clarifies what is considered child sex trafficking for purposes of a CPS investigation by expanding upon the core elements of sex trafficking and explaining the factors CPS evaluates to determine if a child is being trafficked for purposes of sex.

New §700.463: (1) reiterates the statutory definition of abandonment, a type of neglect, from Texas Family Code §261.001(4); and (2) provides definitions for terms used in this rule as well as in Texas Family Code §261.001(4)(A) to further clarify what constitutes abandonment.

New §700.465: (1) reiterates the statutory definitions of neglectful supervision, a type of neglect, from Texas Family Code §261.001(4); (2) defines and further clarifies what constitutes "substantial risk" to a child when CPS investigates reports of neglectful supervision; and (3) clarifies the factors CPS considers to determine if a pregnant mother's use of alcohol or a controlled substance will result in a reason to believe finding for neglectful supervision because it endangered the physical or emotional well-being of the infant.

New §700.467: (1) reiterates the statutory definition of medical neglect, a type of neglect, from Texas Family Code §261.001(4); (2) defines and further clarifies what constitutes "substantial risk" and "observable and material impairment" to a child when CPS investigates reports of medical neglect; (3) explains the factors CPS considers to determine if a child has been medically neglected; (4) clarifies when CPS does and does not investigate a parent's refusal to administer or consent to psychological or psychiatric treatment or medication for a child; and (5) clarifies that a parent is not responsible for medical neglect if the lack of medical treatment is because of the parent's legitimately held religious belief.

New §700.469: (1) reiterates the statutory definition of physical neglect, a type of neglect, from Texas Family Code §261.001(4); (2) defines and further clarifies what constitutes "substantial risk," "observable and material impairment," and "relief services" when CPS investigates reports of physical neglect; and (3) elaborates on the various factors CPS will consider to determine if a person is responsible for physically neglecting a child.

New §700.471 reiterates the statutory definition of refusal to assume parental responsibility, a type of neglect, from Texas Family Code §261.001(4).

New §700.473: (1) prohibits DFPS from including in the state's central registry a finding of abuse or neglect against a person when DFPS is named managing conservator of the person's child with a severe emotional disturbance only to obtain mental health care for the child, if the person has exhausted all reasonable means available to obtain the needed services; (2) defines "severe emotional disturbance"; both by reference to statute and with guidance for interpreting the definition; (3) outlines the factors DFPS will consider when determining whether a person's refusal to permit a child to remain in or return to the home is based solely on the person's inability to obtain mental health services for the child; and (4) directs DFPS to review records in the central registry and remove the names of persons who were included because DFPS assumed conservatorship of their child solely to provide mental health care to the child.

New §700.475 provides clarification on when victims and perpetrators of domestic violence are investigated as alleged perpetrators of abuse and/or neglect.

New §700.477 defines various terms used in the division that are not already defined elsewhere, as well as terms used in Chapters 101 and 261 of the Texas Family Code. Certain terms and definitions that were previously in rules being repealed have also been incorporated into this new rule.

New §700.479: clarifies (1) the responsibilities of DFPS when reports of child abuse or neglect are received, including when DFPS is able to receive reports; (2) DFPS's role in assisting the public in understanding when to make a report and which protective interventions are available; and (3) how DFPS may respond to reports that do not involve allegations of abuse or neglect or risk of abuse or neglect.

New §700.481 clarifies the types of allegations DFPS does not classify as reports of abuse or neglect. Certain terms and definitions that were previously in §700.503 are incorporated into this new rule.

Section 700.501 is repealed. The terms and definitions in this rule have been rewritten and incorporated into new §§700.453, 700.455, 700.457, 700.459, 700.461, 700.463, 700.465, 700.467, 700.469, 700.471, 700.473, 700.475, and 700.477.

Section 700.502 is repealed. The terms and definitions from this rule have been incorporated into new §700.477, except for terms such as affinity, consanguinity, serious physical abuse, and serious sexual abuse, which have been entirely deleted as they are not used in this division.

Section 700.503 is repealed. The terms and definitions from this rule have been included in new §700.481, except for "reasonable physical discipline" which has been redefined and included in new §700.455. In addition, paragraph (1) of this rule, concerning DFPS's responsibility in assisting the public in understanding what to report and available protective interventions as well as how DFPS handles reports that do not involve child abuse or neglect or risk of abuse or neglect, has been rewritten and incorporated into subsection (b) of new §700.479.

Section 700.504 is repealed and the content is incorporated into subsection (a) of new §700.479.

The amendment to §700.506: (1) deletes the requirement that initial notification of reports of child abuse or neglect be given by DFPS orally or through facsimile and instead allows initial notification to be provided through a manner agreed upon by DFPS and the appropriate law enforcement agency; (2) clarifies that reports submitted electronically are considered written notification for purposes of this rule; and (3) updates the agency name to DFPS.

The amendment to §700.507: (1) reflects that administrative closures are not limited to preliminary investigations; (2) ensures that language used herein concerning who is considered a person responsible for the care of the child as well as language concerning protective actions of a person responsible is consistent with language in policy and safety assessment tools that will be implemented for use by caseworkers to determine when DFPS intervention in the family is necessary; (3) deletes language that is duplicative of other rules within this division; (4) renumbers subsection (c); and (5) updates the agency name.

Section §700.510 is repealed because the information is contained in or has been superseded by §700.507.

The amendment to §700.511 adds new subsection (a) to clarify that DFPS is required to assign a disposition to each allegation and to further clarify the purpose of assigning a disposition to each allegation. As a result, current subsections (a) and (b) have been renumbered. Also, the references to §700.507 have been changed to the correct title. In addition, in new subsection (c), the definition of ruled out was amended to clarify that when allegation dispositions are a mixture of "ruled out" and "administrative closure," the overall disposition will be "ruled out."

The amendment to §700.513: (1) deletes subsection (a)(1)(A) that requires DFPS to notify each alleged victim who was interviewed during an investigation of the results of the investigation. As the rule already requires that notification be given to the person responsible for the care of the child, there is a presumption that the child will be notified of the results through that individual. It would be duplicative to mail a separate notification letter for the child when the child is living with the person responsible for the child; (2) updates the rule to clarify that any person with primary or legal responsibility for the alleged victim, and not just the parent, is entitled to notification of the results of an abuse and neglect investigation; (3) updates the rule to clarify that when an investigation is administratively closed because the report was referred for investigation to another authorized entity, DFPS must not provide notification to anyone; (4) renumbers parts of subsections (a) and (b); and (5) updates the agency name.

Tracy Henderson, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Henderson also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rules regarding investigations will be updated to reflect current policy and practice, and that the public will gain a better understanding of what constitutes the different types of child abuse and neglect that DFPS investigates, such as emotional abuse, physical abuse, etc., as well as a better understanding of the factors DFPS considers when determining if a child is a victim of a specific type of abuse or neglect. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business and do not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

HHSC has determined that the proposed sections do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

Questions about the content of the proposal may be directed to Sophia Karimjee at (512) 438-4358 in DFPS's Legal Division. Electronic comments may be submitted to Sophia.Karimjee@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-518, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

The new sections and amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new sections and amendments also implement Texas Family Code §261.001 and §261.002, as amended by SB 1889 in the 84th Texas legislature, and §261.105.