Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

SUBCHAPTER B. AGENCY RECORDS AND INFORMATION

The Department of Family and Protective Services (DFPS) proposes a new agency rule §702.223 in Title 40, Texas Administrative Code (TAC), Chapter 702, Subchapter B, relating to Agency Records and Information.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Proposed new §702.223(a)(1)-(3) tracks the language of the statute, which specifies that DFPS and SSCC employees are only allowed access to the identity of the individual making a report of child abuse or neglect in certain circumstances. Section (a)(1) allows access to a reporter's identity if the employee is directly involved with an investigation, case, or other process involving the child who is the subject of the report or the child's parent or the person who has legal custody of the child. Section (a)(2) allows access to a reporter's identity if the employee supervises, directly or indirectly an employee described in subsection (a)(1) of this section. Section (a)(2) allows access to a reporter's identity if the employee has a legitimate professional interest in an investigation, case, or other process involving the child who is the subject of the report or the child's parent or other person who has legal custody of the child that requires access to the reporter's identity. Section (b) defines that "other process" includes but is not limited to quality assurance, locating a missing child, new and ongoing training of DFPS or SSCC staff, and necessary technical support to maintain or update the case management system. Lastly, under Section (c) a reporter's identity is confidential and may only be disclosed if waived in writing by the individual making the report, as provided by Texas Family Code §261.201, or to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

FISCAL NOTE

Lea Ann Biggar, Chief Financial Officer of DFPS, has determined that for each year of the first five years that the section will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the section as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

DFPS has determined that during the first five years that the proposed rules will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of employee positions;

(3) implementation of the proposed rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rule will not affect fees paid to the agency;

(5) the proposed rule will create a new regulation;

(6) the proposed rule will limit an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Biggar has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as the rule does not apply to small or micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the section as proposed.

There is no anticipated negative impact on local employment.

There is an anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Pursuant to subsection (c)(7) of Texas Government Code §2001.0045, the statute does not apply to a rule that is adopted by the Department of Family and Protective Services

PUBLIC BENEFIT

Ms. Biggar has determined that for each year of the first five years the sections in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the section will be implementation of HB 63 of the 88th Texas Regular Legislative Session. 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

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

DFPS has determined that the proposal does 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, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments and questions on this proposal must be submitted within 30 days of publication of the proposal in the Texas Register. Electronic comments and questions may be submitted to Christine Steinberg, Statewide Intake, Christine.Steinberg2@dfps.texas.gov or RULES@dfps.texas.gov. Hard copy comments may be submitted to the DFPS Rules Coordinator, Legal Services Sanjuanita Maltos, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030.

STATUTORY AUTHORITY

The new rule §702.223 is authorized pursuant to Texas Human Resources Code (HRC) §40.027, which provides that the DFPS Commissioner shall adopt rules for the operation and provision of services by the agency and Texas Family Code (TFC) §261.201(n), which directs DFPS to adopt rules concerning employee access to a reporter's identity.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall adopt rules for the operation and provision of services by the department.

CROSS REFERENCE TO STATUTES

The new rule implements Texas Family Code §263.1021. §261.201(m) and (n) and §261.304(a).

§702.223.Which DFPS employee or Single Source Continuum Contractor (SSCC) employee can have access to the identity of an individual reporting child abuse or neglect?

(a) A DFPS employee and a Single Source Continuum Contractor (SSCC) employee, is only allowed access to the identity of the person making a report of alleged or suspected child abuse or neglect under the following circumstances:

(1) the employee is directly involved with an investigation, case, or other process involving the child who is the subject of the report or the child's parent or the person who has legal custody of the child;

(2) the employee supervises, directly or indirectly an employee described in subsection (a)(1) of this section; or

(3) the employee has a legitimate professional interest in an investigation, case, or other process involving the child who is the subject of the report or the child's parent or other person who has legal custody of the child that requires access to the reporter's identity.

(b) For this section "other process" includes but is not limited to quality assurance, locating a missing child, new and ongoing training of DFPS or SSCC staff, and necessary technical support to maintain or update the case management system.

(c) A reporter's identity is confidential and may only be disclosed if waived in writing by the individual making the report, as provided by Texas Family Code §261.201, or to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 11, 2024.

TRD-202401116

Quyona Gregg

Rules Coordinator

Department of Family and Protective Services

Earliest possible date of adoption: April 28, 2024

For further information, please call: (512) 929-6633

CHAPTER 707. CHILD PROTECTIVE INVESTIGATIONS

SUBCHAPTER A. INVESTIGATIONS

40 TAC §707.489

The Department of Family and Protective Services (DFPS) proposes an amendment to §707.489(c)(1)(D) in Title 40, Texas Administrative Code (TAC), Chapter 707, Subchapter A, relating to Child Protective Services Intake, Investigation, and Assessment.

BACKGROUND AND PURPOSE

In the 88th Texas legislative session the legislature enacted House Bill (HB) 63, which concerns reporting requirements for child abuse and neglect to the Department of Family and Protective Services (DFPS). Specifically, in Section 2 of HB 63, the bill requires DFPS to adopt rules concerning employee access to the identity of an individual who reports child abuse and neglect. Rule amendment 40 TAC §707.489(c)(1)(D) clarifies that investigation tasks performed on anonymous reports pursuant to Texas Family Code §261.304(a) are only those reports that are referred to DFPS by local or state law enforcement.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §707.489(c)(1)(D) clarifies that tasks performed on anonymous reports pursuant to Texas Family Code §261.304 are those reports that are referred to DFPS by local or state law enforcement.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

DFPS has determined that during the first five years that the proposed rule will be in effect:

(1) the proposed rule amendment will not create or eliminate a government program;

(2) implementation of the proposed rule amendment will not affect the number of employee positions;

(3) implementation of the proposed rule amendment will not require an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rule amendment will not affect fees paid to the agency;

(5) the proposed rule amendment will create a new regulation;

(6) the proposed rule amendment will limit an existing regulation;

(7) the proposed rule amendment will not change the number of individuals subject to the rule; and

(8) the proposed rule amendment will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the section as proposed.

There is no anticipated negative impact on local employment.

There is an anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Pursuant to subsection (c)(7) of Texas Government Code §2001.0045, the statute does not apply to a rule that is adopted by the Department of Family and Protective Services

PUBLIC BENEFIT

Ms. Biggar has determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the section will be implementation of HB 63 of the 88th Texas Regular Legislative Session. 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

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The rule amendment to section 707.489(c)(1)(D) is authorized pursuant to Texas Human Resources Code (HRC) §40.027, which provides that the DFPS Commissioner shall adopt rules for the operation and provision of services by the agency and Texas Family Code (TFC) §261.201(n), which directs DFPS to adopt rules concerning employee access to a reporter's identity.

CROSS REFERENCE TO STATUTES

The rule implements Texas Family Code §263.1021. §261.201(m) and (n) and §261.304(a).

§707.489.How do we respond to reports of child abuse or neglect?

(a) When the Statewide Intake (SWI) division of the Texas Department of Family and Protective Services (DFPS) receives a report of alleged abuse or neglect of a child, we may respond with any of the following protective interventions, as further described in this section:

(1) Closure without assignment for investigation following screening;

(2) Administrative closure;

(3) An abbreviated investigation;

(4) A thorough investigation; or

(5) An alternative response.

(b) Intake closed without assignment for investigation

(1) SWI screeners may screen out less serious reports of abuse and neglect if they determine after contacting a professional or other credible source that the child's safety can be assured without conducting an investigation or alternative response and the report meets the following criteria:

(A) the report is assigned a priority other than Priority I;

(B) there are no alleged victims younger than six; and

(C) the family does not have an open investigation or alternative response case, and is not receiving services through DFPS.

(2) Both, SWI screeners and Investigations supervisory staff, may close a report without assigning for investigation if they determine, after contacting collateral sources, that the report is not appropriate for an investigation by us for reasons including:

(A) the reported information has already been investigated in a case closed before the date of the new intake;

(B) the investigation is the responsibility of an entity other than the Investigations program;

(C) the report does not give enough information to locate the child or the child's family, after the staff makes reasonable efforts to find additional locating information based on details in the report; or

(D) the incident does not meet the statutory definitions of abuse or neglect or the situation does not appear to involve a reasonable likelihood that a child will be abused or neglected in the foreseeable future.

(3) If the report of abuse and neglect concerns a child in the conservatorship of DFPS, SWI screeners and Investigations supervisory staff may not screen out the report. However, in the following limited circumstances, SWI screeners may screen out such a report if:

(A) DFPS has previously investigated all current allegations; or

(B) DFPS lacks jurisdiction to investigate.

(4) Before making a decision to close a report without assignment for investigation or alternative response, SWI screeners and Investigations supervisory staff must consider the following:

(A) the behavior of the family, including a review of all relevant prior history the family has with DFPS and any concerning involvement the family has with other agencies, such as law enforcement or service providers;

(B) the nature of the allegations and other relevant information such as the ages of each child in the home, alleged conditions in the home, and the types and seriousness of any alleged injuries;

(D) any additional information obtained from the reporter or collateral sources.

(1) Under certain circumstances, we may administratively close a report which was initially assigned for investigation if we obtain additional information indicating that an investigation is no longer warranted. Criteria we consider when deciding to administratively close an investigation include, but are not limited to, situations in which:

(A) The allegations have already been investigated by us;

(B) The allegations have been refuted based on a credible source and all of the following criteria are met:

(i) There are no previous findings of abuse or neglect against the parent or caregiver in the current investigation or alternative response case;

(ii) We have not received any subsequent reports of abuse or neglect of any alleged victim, with the exception of reports that involve the same incidents and allegations as in the original report;

(iii) After contacting a professional or other credible sources with direct knowledge about the child's condition, we have determined that the child's safety can be assured without further assessment, response, services, or assistance; and

(iv) we determine that no abuse or neglect occurred.

(i) Another authorized entity, such as law enforcement or another state agency, has jurisdiction to conduct the investigation;

(ii) The alleged victim is not a child or was not born alive; or

(iii) The abuse or neglect, a danger, or risk of abuse or neglect is not occurring in Texas.

(D) The investigation was initiated on the basis of an anonymous report referred by local or state law enforcement and after completing any necessary initial tasks, including any required interviews or collateral contacts, we determine that:

(i) There is no corroborating evidence; and

(ii) A parent has taken actions to protect the alleged victims from any identified dangers.

(2) If an investigation has been open for more than sixty days after the date of the intake, the supervisor must administratively close the investigation if all the following criteria are met:

(A) There are no previous findings of abuse or neglect against the parent or caregiver in the current investigation or alternative response case;

(B) We have not received any additional reports of abuse or neglect of any alleged victim, with the exception of reports that involve the same incidents and allegations as in the original report;

(C) After contacting a professional or other credible sources with direct knowledge about the child's condition, the supervisor determined that the child's safety can be assured without further investigation, response, services, or assistance;

(D) No abuse or neglect occurred;

(E) Closing the case would not expose the child to undue risk of harm; and

(F) The program director reviews and determines that administratively closing the case is appropriate.

(3) Exception. Notwithstanding the criteria in subparagraph (B) of paragraph 1 of this subsection, if we have made contact with the alleged victim or alleged perpetrator, the investigation is not eligible for administrative closure under subparagraph (B). However, the case may still be eligible for other types of administrative closure or abbreviated rule out, if applicable.

(d) Abbreviated investigation with a disposition of "ruled out".

(1) Cases assigned for investigation may be handled with an abbreviated investigation with findings of "ruled out", if we determine that no abuse or neglect has occurred and the child's safety can be assured without further investigation, response, services or assistance. We may submit an investigation as an abbreviated rule out, which does not require completing the formal risk assessment tool, when all of the following criteria in addition to any other criteria defined policy are met:

(A) There are no previous findings of abuse or neglect against the parent or caregiver in the current investigation or alternative response case;

(B) We have not received any subsequent reports of abuse or neglect of any alleged victim unless the new report involves the same incident(s) and allegation(s) under investigation; and

(2) We must at a minimum perform the following tasks before submitting the investigation as an abbreviated rule out:

(A) Interview and visually inspect each alleged victim;

(B) Interview at least one parent or other person with primary or legal responsibility for each alleged victim;

(C) Complete a safety assessment and document whether any noted dangers are controlled by protective actions that have been or will be taken by the child's parent or other person with primary or legal responsibility for the child; and

(D) Conduct any required home visit.

(e) Thorough investigation.

(1) Except as provided in subsection (f) of this section and division 2 of this subchapter (relating to Alternative Response), we must complete a thorough investigation if we obtain information indicating that:

(A) There are dangers to the child because of abuse or neglect;

(B) Risk of abuse or neglect is indicated; or

(C) Based on information in the report and any initial contacts, it is impossible to determine whether or not there are dangers to the child because of abuse or neglect or whether risk of abuse or neglect is indicated.

(2) Before closing a thorough investigation, we must at a minimum perform the following tasks:

(A) Interview each alleged victim child;

(B) Interview at least one of the parents or other person with primary or legal responsibility for the victim child;

(D) Interview other individuals who have information that is relevant or potentially relevant to the report of abuse or neglect;

(E) Complete a safety assessment and document whether any noted dangers are controlled by protective actions that have been or will be taken by the child's parent or other person with primary or legal responsibility for the child, unless the investigation relates to a deceased child and there is no other child in the home; and

(F) Assess the risk of future abuse or neglect, unless the investigation relates to a deceased child and there is no other child in the home.

(f) Alternative response. An alternative response is a protective intervention governed by division 2 of this subchapter and Texas Family Code, §261.3015, that involves an assessment of the family, including a safety assessment, and provision of necessary services and supports. Alternative response does not result in a formal finding of abuse or neglect or the designation of a perpetrator.

(g) Exceptions to required interviews. We are not required to conduct an interview to close an abbreviated or thorough investigation as described in subsections (c) and (d) of this section if we exhaust all reasonable efforts to conduct the interview but are unable to do so because:

(1) The person to be interviewed is unable to be interviewed because of age or other exceptional circumstance;

(2) The person to be interviewed, the person's parent or other legal guardian, or the attorney representing the person refuses to permit the interview;

(3) The alleged perpetrator has been arrested or is under investigation by a law enforcement agency and the interview would interfere with the investigation or violate the alleged perpetrator's rights; or, the alleged perpetrator is detained and the jail, prison, or other detention facility in which the alleged perpetrator is detained will not permit the interview; or

(4) The person to be interviewed has been interviewed by another entity and we accept the substitute interview. If the person, the person's parent or other legal guardian, or the attorney representing the person requests that the person also be interviewed by us, the investigator must conduct one supplemental interview.