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TITLE 40SOCIAL SERVICES AND ASSISTANCE
PART 19DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
CHAPTER 707CHILD PROTECTIVE INVESTIGATIONS
SUBCHAPTER CCHILD CARE INVESTIGATIONS
DIVISION 5ABUSE, NEGLECT, AND EXPLOITATION
RULE §707.801What is neglect?

(a) For purposes of an investigation in a child care operation, neglect is defined in Texas Family Code §261.001(4)(A)(iv) as a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized services plan that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy.

(b) In this section, the following terms have the following meanings:

  (1) "Negligent act or omission" means a breach of duty by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause substantial emotional harm or substantial physical injury to a child and includes the following:

    (A) Failure to take an action that a reasonable member of that profession, reasonable caregiver, or reasonable person should take in the same situation;

    (B) Taking an action that a reasonable member of that profession, reasonable caregiver, or reasonable person should not take in the same situation;

    (C) Placing a child in or failing to remove him from a situation that a reasonable member of that profession, reasonable caregiver, or reasonable person should realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities;

    (D) Leaving a child in a situation where a reasonable member of that profession, reasonable caregiver, or reasonable person would expect the child to be exposed to substantial emotional harm or substantial physical injury without arranging for necessary care for the child;

    (E) Failure to seek, to obtain, or to follow through with medical care for a child;

    (F) Failure to provide a child with food, clothing, and shelter necessary to sustain the life or health of the child;

    (G) Placing a child in or failing to remove the child from a situation in which a reasonable member of that profession, reasonable caregiver, or reasonable person should know exposes the child to the risk of sexual conduct;

    (H) Causing, expressly permitting, or encouraging a child to use alcohol;

    (I) Using alcohol in a manner or to the extent that the use results in substantial emotional harm or physical injury to a child;

    (J) A violation or deficiency of any law, rule, or minimum standard that causes substantial emotional harm or physical injury to a child;

    (K) Repeated (two or more) violations of any law, rule, or minimum standard, after notice and an opportunity to correct the violation, that may cause substantial emotional harm or physical injury to a child;

    (L) Failure to comply with an individual treatment plan, plan of service, or individualized service plan that causes substantial emotional harm or physical injury to a child; and

    (M) Repeated failures (two or more) to comply with an individual treatment plan, plan of service, or individualized service plan, after notice and an opportunity to correct the failure, that may cause substantial emotional harm or physical injury to a child.

  (2) "Employee, volunteer, or other individual working under the auspices of a facility or program" has the same definition as specified in §707.783(b) in this division (relating to Who is considered a person responsible for a child's care, custody, or welfare for purposes of a child abuse, neglect, or exploitation investigation in a child care operation?).

  (3) Substantial emotional harm means an observable impairment in a child's psychological growth, development, or functioning that is significant enough to require treatment by a medical or mental health professional. Evidence that the emotional harm is substantial includes the nature of the act or omission, the age of the child, and/or the persistence of the symptoms. Substantial emotional harm is presumed when the act or omission is of a sexual nature, the child acts out sexually, or the child attempts suicide. A mental health professional does not have to determine that there is substantial emotional harm.

  (4) Substantial physical injury means bodily harm that warrants treatment by a medical professional, including dislocated, fractured, or broken bones; concussions; lacerations requiring stitches; second and third degree burns; and damage to internal organs. Evidence that physical injury is substantial includes the location and/or severity of the bodily harm and/or the age of the child.


Source Note: The provisions of this §707.801 adopted to be effective July 15, 2020, 45 TexReg 4780

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