The Department of Family and Protective Services (DFPS), proposes new §§707.447, 707.449, 707.451, 707.453, 707.455, 707.457, 707.459, 707.461, 707.463, 707.465, 707.467, 707.469, 707.471, 707.473, 707.477, 707.481, 707.483, 707.485, 707.487, 707.489, 707.491, 707.493, 707.495, 707.497, 707.499, 707.501, 707.503, 707.505, 707.507, 707.509, 707.511, 707.513, 707.515, 707.517, 707.549, 707.551, 707.553, 707.555, 707.557, 707.559, 707.561, 707.563, 707.565, 707.567, 707.597, 707.599, 707.601, 707.603, 707.605, 707.607, 707.609, 707.611, 707.613, 707.615, 707.617, 707.619, 707.621, 707.623, 707.625, 707.701, 707.703, 707.711, 707.713, 707.715, 707.717, 707.719, 707.721, 707.723, 707.725, 707.727, 707.729, 707.741, 707.743, 707.745, 707.747, 707.761, 707.763, 707.765, 707.767, 707.769, 707.781, 707.783, 707.785, 707.787, 707.789, 707.791, 707.793, 707.795, 707.797, 707.799, 707.801, 707.803, 707.815, 707.817, 707.819, 707.821, 707.823, 707.825, 707.827, 707.829, 707.831, 707.841, 707.843, 707.845, 707.847, 707.849, 707.851, 707.853, 707.855, 707.857, and 707.859 in new Chapter 707, concerning Child Protective Investigations.

BACKGROUND AND PURPOSE

Through the enactment of House Bill (HB) 5 and Senate Bill (SB) 11, 85th Legislature, R.S. (2017), the Texas Department of Family and Protective Services (DFPS) became a stand-alone agency on September 1, 2017, separate from the Texas Health and Human Services Commission (HHSC) but for the provision of various administrative support services as provided in Government Code § 531.00553. This entailed internal reorganization of certain programs and divisions within DFPS as well as consolidation of other DFPS functions and programs into HHSC. Specifically, HB 5, HB 249, and SB 11 amended the Government Code, Texas Family Code (TFC), and Human Resources Code (HRC) to effectuate transfer of the Child Care Licensing regulatory program from DFPS to HHSC while keeping the function of investigating abuse, neglect, and exploitation in child care operations at DFPS. HB 5 also mandated DFPS to create a division to oversee all investigations concerning abuse, neglect, and exploitation of children. Consequently, the following three investigative functions were moved under the new Child Protective Investigations (CPI) division: (1) investigations of child abuse, neglect, and exploitation in childcare operations, which are now conducted by the Child Care Investigations (CCI) program but were formerly under Child Care Licensing; (2) child protective services investigations, which are now conducted by the Investigations program but were formerly under Child Protective Services (CPS); and (3) special investigations, which are conducted by the Special Investigations (SI) program but were formerly under CPS.

As such, the overarching purpose of the rule changes is to create new chapter 707 in Title 40, Part 19, of the Texas Administrative Code that contains the rules for the CPI division of DFPS. As the division consists of functions that were already in existence in DFPS, the rule updates entail transferring already existing rules into this new chapter and further amending such rules to reflect the agency's new structure and new processes post 85th legislative session. This new chapter will include the investigation rules for traditional child protective services investigation and alternative response (formerly in 40 TAC 700, Subchapter E); rules relating to school investigations which are now handled by the SI program (formerly in 40 TAC 700, Subchapter D); and rules for investigations in child-care operations conducted by CCI (formerly in 40 TAC 745, Subchapters K and M).

Specifically regarding CCI, the rule updates reflect how CCI abuse, neglect, and exploitation investigations are conducted as of September 1, 2017 pursuant to the transfer of CCL regulatory functions to HHSC. Finally, the CCI abuse, neglect, and exploitation rules are also being updated to reflect how CCI investigates allegations of abuse, neglect, and exploitation using the definitions in Texas Family Code § 261.001 that formerly applied only to child protective services investigations. Rule changes regarding the abuse, neglect, and exploitation definitions implement HB 249 and SB 11, which directed DFPS to use standardized definitions and processes for both, child-care investigations and child protective services investigations.

SECTION-BY-SECTION SUMMARY

New §707.447 explains and defines the terminology used in new Division 1, Subchapter A, Chapter 707, concerning the Investigation program rules.

New §707.449 specifies that the purpose of Chapter 707, Subchapter A, Division 1 is to describe procedures for the report, investigation, and review of reports alleging abuse and neglect of a child by a person responsible for the child's care, custody, or welfare. In addition, the rule specifies that the rules in this division concerning the definitions of abuse and neglect are intended to further supplement and clarify the statutory definitions of abuse and neglect in Texas Family Code §261.001.

New §707.451 consolidates into one rule, the terms and definitions used in or relevant to understanding the abuse and neglect definitions used by the Investigations program, including terms and definitions from former Child Protective Services rules §§700.402, 700.451, 700.455, and 700.477, with minor edits to the definitions of: (1) "absent parent or non-custodial parent" to reflect when a parent is considered a non-custodial or absent parent; (2) "household" to clarify that if a child's parents reside separately, the child's household includes both parents' households; and (3) "strengths" to clarify that the term reflects the resources and conditions a family has that increases their ability to protect the child but does not fully address dangers to the child. The new rule also includes the following new terms and corresponding definitions: (1) "danger" and (2) "protective actions".

New §707.453 incorporates the content from former Child Protective Services rule §700.453 concerning emotional abuse with minor, non-substantive edits.

New §707.455 incorporates the content from former Child Protective Services rule §700.455 concerning physical abuse with minor, non-substantive edits.

New §707.457 incorporates the content from former Child Protective Services rule §700.457 concerning sexual abuse with minor, non-substantive edits.

New §707.459 incorporates the content from former Child Protective Services rule §700.459 concerning labor trafficking with minor, non-substantive edits.

New §707.461 incorporates the content from former Child Protective Services rule §700.461 concerning sex trafficking with minor, non-substantive edits.

New §707.463 reiterates the statutory definition of forced marriage, a type of abuse that was added to Texas Family Code §261.001(1) pursuant to HB 249 during the 85th Legislature, R.S. (2017).

New §707.465 incorporates the content from former Child Protective Services rule §700.463 concerning abandonment with minor, non-substantive edits.

New §707.467 incorporates the content from former Child Protective Services rule §700.465 concerning neglectful supervision with minor, non-substantive edits.

New §707.469 incorporates the content from former Child Protective Services rules §700.467 and §700.517 concerning medical neglect and investigations involving lack of medical care because of religious beliefs, with minor, non-substantive edits.

New §707.471 incorporates the content from former Child Protective Services rule §700.469 concerning physical neglect with minor, non-substantive edits.

New §707.473 incorporates the content from former Child Protective Services rules §700.471 and §700.473 concerning refusal to accept parental responsibility and dispositioning of cases concerning a child with a severe emotional disturbance with minor, non-substantive edits.

New §707.477 incorporates the content from former Child Protective Services rule §700.475 concerning investigations involving domestic violence with minor edits to clarify when DFPS will designate a perpetrator of domestic violence as a perpetrator of child abuse or neglect.

New §707.481 incorporates the content from former Child Protective Services rule §700.479 concerning receipt of child abuse and neglect reports by the Statewide Intake division of DFPS with minor, non-substantive edits.

New §707.483 incorporates the content from former Child Protective Services rule §700.481 concerning reports that DFPS does not classify as child abuse or neglect with minor, non-substantive edits.

New §707.485 incorporates the content from former Child Protective Services rule §700.505 concerning priority timeframes for responding to reports of child abuse and neglect with minor, non-substantive edits.

New §707.487 incorporates the content from former Child Protective Services rule §700.506 concerning notification to law enforcement of reports of child abuse and neglect with minor, non-substantive edits.

New §707.489 incorporates the content from former Child Protective Services rule §700.507 concerning the types of actions DFPS may take on a report of child abuse and neglect, but is being updated to reflect new statutory requirements from Texas Family Code §261.3017, pursuant to Senate Bill 190 from the 85th Legislature, R.S. (2017), which: (1) permits DFPS to conduct an abbreviate investigation or administratively close an investigation that has been open for less than 60 days if certain criteria is met as specified in the rule; and (2) requires DFPS to administratively closes an investigation that has been open for more than 60 days if certain criteria has been met, as specified in the rule.

New §707.491 incorporates the content from former Child Protective Services rule §700.508 concerning applicable procedures when an investigator makes initial contact with and interviews a parent or an alleged perpetrator during an investigation with edits to make the rule text consistent with the federal Child Abuse Prevention and Treatment Act (CAPTA). Specifically, the new rule clarifies the actions the investigator must take at first contact with the parent or alleged perpetrator regardless of whether the contact is in person or via phone and the actions that the investigator must take during the first in-person contact.

New §707.493 incorporates the content from former Child Protective Services rule §700.509 concerning payment of medical exams by DFPS during an investigation but is being amended to delete outdated information concerning when Medicaid may pay for medical examinations and when DFPS may purchase medical examinations for a child during an investigation.

New §707.495 incorporates the content from former Child Protective Services rule §700.511 concerning dispositioning of abuse and neglect cases at the completion of the investigation with minor, non-substantive edits.

New §707.497 incorporates the content from former Child Protective Services rule §700.512 concerning the roles DFPS assigns to persons involved in an investigation with minor, non-substantive edits.

New §707.499 incorporates the content from former Child Protective Services rule §700.513 concerning notifications of investigation results to entitled persons but is being updated to reflect that DFPS may send a notice of findings letter for an alleged perpetrator who is a minor to the parents or another person with primary or legal responsibility.

New §707.501 incorporates the content from former Child Protective Services rule §700.514 concerning risk and safety assessments conducted during the course of an investigation, but is being rewritten to reflect when and under what circumstances DFPS assesses risk and safety and that DFPS uses the Structured Decision Making (SDM) tool to conduct formal risk and safety assessments for children whose families are involved with DFPS. The rule is also being updated to make clear that DFPS only removes a child when the applicable criteria for removal in Subchapter B of Chapter 262, Texas Family Code, is satisfied.

New §707.503 incorporates the content from former Child Protective Services rule §700.515 concerning DFPS intervention for purposes of providing immediate or short-term protection to a child, with minor edits to reflect current terminology, including updating "evaluation" to "assessment" and "cannot or will not protect" to "unwilling or unable to protect".

New §707.505 incorporates the content from former Child Protective Services rule §700.516 concerning administrative review of investigation findings, but is being updated to: (1) reflect the agency's current practice of granting an administrative review of investigation findings (ARIF) to an individual who was designated as a perpetrator of abuse or neglect as a minor but is requesting an ARIF as an adult, even though the request is not within the ARIF timeframes; and (2) include language concerning good cause exceptions for extending ARIF timeframes, as permitted by Texas Family Code §261.309(d).

New §707.507 incorporates the content from former Child Protective Services rule §700.518 concerning notification requirements for an investigation on a person that has placement of children in DFPS conservatorship or is a foster or adoptive home with minor edits to reflect that the regional director must consult with a Child Protective Services State Office director prior to deciding that closure is not required based on a determination that there is not a continuing risk of substantial harm to children placed in the home.

New §707.509 incorporates the content from former Child Protective Services rule §700.519 concerning investigation standards with edits to remove unnecessary and outdated language, clarify that investigators receive a minimum of 12 hours of annual professional training, update the investigation standards for making recordings of interviews, and remove content regarding application of minimum standards to DFPS foster and adoptive homes as it is not relevant to the scope of the rule.

New §707.511 incorporates the content from former Child Protective Services rule §700.520 concerning criminal history records checks but is being rewritten to make the rule consistent with Texas Government Code §411.114, the governing state law concerning criminal background checks conducted by the Department of Family and Protective Services, which was amended pursuant to House Bill 4094 from the 85th Legislature, R.S. (2017).

New §707.513 incorporates, by reference, the confidentiality and release requirements of Child Protective Services records in Chapter 700, Subchapter B, of Title 40.

New §707.515 incorporates the content from former Child Protective Services rule §700.521 concerning the roles DFPS assigns to persons involved in an investigation upon receipt of an abuse and neglect report with minor, non-substantive edits.

New §707.517 incorporates the content from former Child Protective Services rule §700.523 concerning the removal of alleged perpetrator role information from DFPS records with minor edits to clarify that a notice for role removal can be sent to the parents of the alleged perpetrator if the individual is a minor.

New §707.549 explains and defines the terminology used in new Division 2, Subchapter A, Chapter 707, concerning the Department of Family and Protective Services Alternative Response Program.

New §707.551 incorporates the content from former Child Protective Services rule §700.551 concerning the purpose of alternative response interventions with minor, non-substantive edits.

New §707.553 incorporates the content from former Child Protective Services rule §700.553 concerning the types of cases that may be conducted as alternative response but is being updated to clarify that while DFPS does not generally conduct an alternative response when there is a child in the home under the age of six, DFPS will continue handling a case as an alternative response case if after the case is initiated, DFPS learns that a child under the age of six is living in the home, except if there are allegations of physical or sexual abuse.

New §707.555 incorporates the content from former Child Protective Services rule §700.555 concerning when DFPS will conduct a traditional investigation on a case initially assigned for an alternative response with minor, non-substantive edits.

New §707.557 incorporates the content from former Child Protective Services rule §700.557 concerning the Texas Family Code provision that governs alternative response cases with minor, non-substantive edits.

New §707.559 incorporates the content from former Child Protective Services rule §700.559 concerning the basic components of alternative response cases with minor, non-substantive edits.

New §707.561 incorporates the content from former Child Protective Services rule §700.561 concerning appropriate investigative actions for alternative response cases with minor, non-substantive edits.

New §707.563 incorporates the content from former Child Protective Services rule §700.563 concerning DFPS maintaining written records for alternative response cases with minor, non-substantive edits.

New §707.565 incorporates the content from former Child Protective Services rule §700.565 concerning release and confidentiality of alternative response case records with minor, non-substantive edits.

New §707.567 incorporates the content from former Child Protective Services rule §700.567 concerning actions DFPS takes at the completion of an alternative response case with minor, non-substantive edits.

New §707.597 explains and defines the terminology used in new Subchapter B, Chapter 707, concerning School Investigations.

New §707.599 incorporates the content from former Child Protective Services rule §700.401 concerning the purpose of Subchapter B of Chapter 707 with minor, non-substantive edits.

New §707.601 clarifies that the Special Investigations program of the Texas Department of Family and Protective Services' Child Protective Investigations division conducts investigations of child abuse or neglect occurring in a school setting.

New §707.603 implements Texas Family Code §261.310 which requires DFPS to develop and adopt investigation standards.

New §707.605 incorporates the content from former Child Protective Services rule §700.402 concerning the terms and definitions used in or relevant to understanding how the Special Investigations program conducts school investigations with minor, non-substantive edits.

New §707.607 incorporates the content from former Child Protective Services rule §700.403 concerning how DFPS defines child abuse and neglect for purposes of a school investigation with minor, non-substantive edits