By: Hernandez, et al. H.B. No. 249         (Senate Sponsor - Taylor of Collin)          (In the Senate - Received from the House May 1, 2017;   May 8, 2017, read first time and referred to Committee on Health &   Human Services; May 22, 2017, reported adversely, with favorable   Committee Substitute by the following vote:  Yeas 8, Nays 0;   May 22, 2017, sent to printer.)Click here to see the committee vote     COMMITTEE SUBSTITUTE FOR H.B. No. 249 By:  Taylor of Collin     A BILL TO BE ENTITLED   AN ACT     relating to investigations of child abuse, neglect, or exploitation   and to child protective services functions of the Department of   Family and Protective Services.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 71.004, Family Code, is amended to read   as follows:          Sec. 71.004.  FAMILY VIOLENCE. "Family violence" means:                (1)  an act by a member of a family or household against   another member of the family or household that is intended to result   in physical harm, bodily injury, assault, or sexual assault or that   is a threat that reasonably places the member in fear of imminent   physical harm, bodily injury, assault, or sexual assault, but does   not include defensive measures to protect oneself;                (2)  abuse, as that term is defined by Sections   261.001(1)(C), (E), (G), (H), (I), (J), [and] (K), and (M), by a   member of a family or household toward a child of the family or   household; or                (3)  dating violence, as that term is defined by   Section 71.0021.          SECTION 2.  Section 261.001, Family Code, is amended by   amending Subdivisions (1), (4), and (5) and adding Subdivision (3)   to read as follows:                (1)  "Abuse" includes the following acts or omissions   by a person:                      (A)  mental or emotional injury to a child that   results in an observable and material impairment in the child's   growth, development, or psychological functioning;                      (B)  causing or permitting the child to be in a   situation in which the child sustains a mental or emotional injury   that results in an observable and material impairment in the   child's growth, development, or psychological functioning;                      (C)  physical injury that results in substantial   harm to the child, or the genuine threat of substantial harm from   physical injury to the child, including an injury that is at   variance with the history or explanation given 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;                      (D)  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;                      (E)  sexual conduct harmful to a child's mental,   emotional, or physical welfare, including conduct that constitutes   the offense of continuous sexual abuse of young child or children   under Section 21.02, Penal Code, 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;                      (F)  failure to make a reasonable effort to   prevent sexual conduct harmful to a child;                      (G)  compelling or encouraging the child to engage   in sexual conduct as defined by Section 43.01, Penal Code,   including compelling or encouraging the child in a manner that   constitutes an offense of trafficking of persons under Section   20A.02(a)(7) or (8), Penal Code, prostitution under Section   43.02(b), Penal Code, or compelling prostitution under Section   43.05(a)(2), Penal Code;                      (H)  causing, permitting, encouraging, engaging   in, or allowing the photographing, filming, or depicting of the   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;                      (I)  the current use by a person of a controlled   substance as defined by Chapter 481, Health and Safety Code, in a   manner or to the extent that the use results in physical, mental, or   emotional injury to a child;                      (J)  causing, expressly permitting, or   encouraging a child to use a controlled substance as defined by   Chapter 481, Health and Safety Code;                      (K)  causing, permitting, encouraging, engaging   in, or allowing a sexual performance by a child as defined by   Section 43.25, Penal Code; [or]                      (L)  knowingly causing, permitting, encouraging,   engaging in, or allowing a child to be trafficked in a manner   punishable as an offense under Section 20A.02(a)(5), (6), (7), or   (8), Penal Code, or the failure to make a reasonable effort to   prevent a child from being trafficked in a manner punishable as an   offense under any of those sections; or                      (M)  forcing or coercing a child to enter into a   marriage.                (3)  "Exploitation" means the illegal or improper use   of a child or of the resources of a child for monetary or personal   benefit, profit, or gain by an employee, volunteer, or other   individual working under the auspices of a facility or program as   further described by rule or policy.                (4)  "Neglect":                      (A)  includes:                            (i)  the leaving of a child in a situation   where the child would be exposed to a substantial risk of physical   or mental harm, without arranging for necessary care for the child,   and the demonstration of an intent not to return by a parent,   guardian, or managing or possessory conservator of the child;                            (ii)  the following acts or omissions by a   person:                                  (a)  placing a child in or failing to   remove a child from a situation that a reasonable person would   realize requires judgment or actions beyond the child's level of   maturity, physical condition, or mental abilities and that results   in bodily injury or a substantial risk of immediate harm to the   child;                                  (b)  failing to seek, obtain, or follow   through with medical care for a child, with the failure resulting in   or presenting a substantial risk of death, disfigurement, or bodily   injury or with the failure resulting in an observable and material   impairment to the growth, development, or functioning of the child;                                  (c)  the failure to provide a child   with food, clothing, or shelter necessary to sustain the life or   health of the child, excluding failure caused primarily by   financial inability unless relief services had been offered and   refused;                                  (d)  placing a child in or failing to   remove the child from a situation in which the child would be   exposed to a substantial risk of sexual conduct harmful to the   child; or                                  (e)  placing a child in or failing to   remove the child from a situation in which the child would be   exposed to acts or omissions that constitute abuse under   Subdivision (1)(E), (F), (G), (H), or (K) committed against another   child; [or]                            (iii)  the failure by the person responsible   for a child's care, custody, or welfare to permit the child to   return to the child's home without arranging for the necessary care   for the child after the child has been absent from the home for any   reason, including having been in residential placement or having   run away; or                            (iv)  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 service   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; and                      (B)  does not include the refusal by a person   responsible for a child's care, custody, or welfare to permit the   child to remain in or return to the child's home resulting in the   placement of the child in the conservatorship of the department if:                            (i)  the child has a severe emotional   disturbance;                            (ii)  the person's refusal is based solely on   the person's inability to obtain mental health services necessary   to protect the safety and well-being of the child; and                            (iii)  the person has exhausted all   reasonable means available to the person to obtain the mental   health services described by Subparagraph (ii).                (5)  "Person responsible for a child's care, custody,   or welfare" means a person who traditionally is responsible for a   child's care, custody, or welfare, including:                      (A)  a parent, guardian, managing or possessory   conservator, or foster parent of the child;                      (B)  a member of the child's family or household   as defined by Chapter 71;                      (C)  a person with whom the child's parent   cohabits;                      (D)  school personnel or a volunteer at the   child's school; [or]                      (E)  personnel or a volunteer at a public or   private child-care facility that provides services for the child or   at a public or private residential institution or facility where   the child resides; or                      (F)  an employee, volunteer, or other person   working under the supervision of a licensed or unlicensed   child-care facility, including a family home, residential   child-care facility, employer-based day-care facility, or shelter   day-care facility, as those terms are defined in Chapter 42, Human   Resources Code.          SECTION 3.  Section 261.101(b), Family Code, is amended to   read as follows:          (b)  If a professional has cause to believe that a child has   been abused or neglected or may be abused or neglected, or that a   child is a victim of an offense under Section 21.11, Penal Code, and   the professional has cause to believe that the child has been abused   as defined by Section 261.001 [or 261.401], the professional shall   make a report not later than the 48th hour after the hour the   professional first suspects that the child has been or may be abused   or neglected or is a victim of an offense under Section 21.11, Penal   Code. A professional may not delegate to or rely on another person   to make the report.  In this subsection, "professional" means an   individual who is licensed or certified by the state or who is an   employee of a facility licensed, certified, or operated by the   state and who, in the normal course of official duties or duties for   which a license or certification is required, has direct contact   with children. The term includes teachers, nurses, doctors,   day-care employees, employees of a clinic or health care facility   that provides reproductive services, juvenile probation officers,   and juvenile detention or correctional officers.          SECTION 4.  Sections 261.301(b) and (c), Family Code, are   amended to read as follows:          (b)  A state agency shall investigate a report that alleges   abuse, [or] neglect, or exploitation occurred in a facility   operated, licensed, certified, or registered by that agency as   provided by Subchapter E. In conducting an investigation for a   facility operated, licensed, certified, registered, or listed by   the department, the department shall perform the investigation as   provided by:                (1)  Subchapter E; and                (2)  the Human Resources Code.          (c)  The department is not required to investigate a report   that alleges child abuse, [or] neglect, or exploitation by a person   other than a person responsible for a child's care, custody, or   welfare. The appropriate state or local law enforcement agency   shall investigate that report if the agency determines an   investigation should be conducted.          SECTION 5.  Section 261.401(b), Family Code, is amended to   read as follows:          (b)  Except as provided by Section 261.404 and Section   531.02013(1)(D), Government Code, a state agency that operates,   licenses, certifies, registers, or lists a facility in which   children are located or provides oversight of a program that serves   children shall make a prompt, thorough investigation of a report   that a child has been or may be abused, neglected, or exploited in   the facility or program. The primary purpose of the investigation   shall be the protection of the child.          SECTION 6.  Sections 261.405(a) and (c), Family Code, are   amended to read as follows:          (a)  Notwithstanding Section 261.001, in [In] this section:                (1)  "Abuse" means an intentional, knowing, or reckless   act or omission by an employee, volunteer, or other individual   working under the auspices of a facility or program that causes or   may cause 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.                (2)  "Exploitation" means the illegal or improper use   of a child or of the resources of a child for monetary or personal   benefit, profit, or gain by an employee, volunteer, or other   individual working under the auspices of a facility or program as   further described by rule or policy.                (3)  "Juvenile justice facility" means a facility   operated wholly or partly by the juvenile board, by another   governmental unit, or by a private vendor under a contract with the   juvenile board, county, or other governmental unit that serves   juveniles under juvenile court jurisdiction. The term includes:                      (A)  a public or private juvenile   pre-adjudication secure detention facility, including a holdover   facility;                      (B)  a public or private juvenile   post-adjudication secure correctional facility except for a   facility operated solely for children committed to the Texas   Juvenile Justice Department; and                      (C)  a public or private non-secure juvenile   post-adjudication residential treatment facility that is not   licensed by the Department of Family and Protective Services or the   Department of State Health Services.                (4) [(2)]  "Juvenile justice program" means a program   or department operated wholly or partly by the juvenile board or by   a private vendor under a contract with a juvenile board that serves   juveniles under juvenile court jurisdiction. The term includes:                      (A)  a juvenile justice alternative education   program;                      (B)  a non-residential program that serves   juvenile offenders under the jurisdiction of the juvenile court;   and                      (C)  a juvenile probation department.                (5)  "Neglect" means 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 service   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.          (c)  The Texas Juvenile Justice Department shall make a   prompt, thorough [conduct an] investigation as provided by this   chapter if that department receives a report of alleged abuse,   neglect, or exploitation in any juvenile justice program or   facility. The primary purpose of the investigation shall be the   protection of the child.          SECTION 7.  Section 531.02013, Government Code, is amended   to read as follows:          Sec. 531.02013.  FUNCTIONS REMAINING WITH CERTAIN   AGENCIES.  The following functions are not subject to transfer   under Sections 531.0201 and 531.02011:                (1)  the functions of the Department of Family and   Protective Services, including the statewide intake of reports and   other information, related to the following:                      (A)  child protective services, including   services that are required by federal law to be provided by this   state's child welfare agency;                      (B)  adult protective services, other than   investigations of the alleged abuse, neglect, or exploitation of an   elderly person or person with a disability:                            (i)  in a facility operated, or in a facility   or by a person licensed, certified, or registered, by a state   agency; or                            (ii)  by a provider that has contracted to   provide home and community-based services; [and]                      (C)  prevention and early intervention services;   and                      (D)  investigations of alleged abuse, neglect, or   exploitation occurring at a child-care facility, as that term is   defined in Section 40.042, Human Resources Code; and                (2)  the public health functions of the Department of   State Health Services, including health care data collection and   maintenance of the Texas Health Care Information Collection   program.          SECTION 8.  (a)  Subchapter B, Chapter 40, Human Resources   Code, is amended by adding Sections 40.039, 40.040, 40.041, and   40.042 to read as follows:          Sec. 40.039.  REVIEW OF RECORDS RETENTION POLICY. The   department shall periodically review the department's records   retention policy with respect to case and intake records relating   to department functions.  The department shall make changes to the   policy consistent with the records retention schedule submitted   under Section 441.185, Government Code, that are necessary to   improve case prioritization and the routing of cases to the   appropriate division of the department.  The department may adopt   rules necessary to implement this section.          Sec. 40.040.  CASE MANAGEMENT VENDOR QUALITY OVERSIGHT AND   ASSURANCE DIVISION; MONITORING OF CONTRACT ADHERENCE. (a)  In this   section, "case management," "catchment area," and "community-based   care" have the meanings assigned by Section 264.151, Family Code.          (b)  The department shall create within the department the   case management services vendor quality oversight and assurance   division. The division shall:                (1)  oversee quality and ensure accountability of any   vendor that provides community-based care and full case management   services for the department under community-based care; and                (2)  monitor the transfer from the department to a   vendor of full case management services for children and families   receiving services from the vendor, including any transfer   occurring under a pilot program.          (c)  The commission shall contract with an outside vendor   with expertise in quality assurance to develop, in coordination   with the department, a contract monitoring system and standards for   the continuous monitoring of the adherence of a vendor providing   foster care services under community-based care to the terms of the   contract entered into by the vendor and the commission.  The   standards must include performance benchmarks relating to the   provision of case management services in the catchment area where   the vendor operates.          (d)  The division shall collect and analyze data comparing   outcomes on performance measures between catchment areas where   community-based care has been implemented and regions where   community-based care has not been implemented.          Sec. 40.041.  OFFICE OF DATA ANALYTICS. The department   shall create an office of data analytics.  The office shall report   to the deputy commissioner and may perform any of the following   functions, as determined by the department:                (1)  monitor management trends;                (2)  analyze employee exit surveys and interviews;                (3)  evaluate the effectiveness of employee retention   efforts, including merit pay;                (4)  create and manage a system for handling employee   complaints submitted by the employee outside of an employee's   direct chain of command, including anonymous complaints;                (5)  monitor and provide reports to department   management personnel on:                      (A)  employee complaint data and trends in   employee complaints;                      (B)  compliance with annual department   performance evaluation requirements; and                      (C)  the department's use of positive performance   levels for employees;                (6)  track employee tenure and internal employee   transfers within both the child protective services division and   the department;                (7)  use data analytics to predict workforce shortages   and identify areas of the department with high rates of employee   turnover, and develop a process to inform the deputy commissioner   and other appropriate staff regarding the office's findings;                (8)  create and monitor reports on key metrics of   agency performance;                (9)  analyze available data, including data on employee   training, for historical and predictive department trends; and                (10)  conduct any other data analysis the department   determines to be appropriate for improving performance, meeting the   department's current business needs, or fulfilling the powers and   duties of the department.          Sec. 40.042.  INVESTIGATIONS OF CHILD ABUSE, NEGLECT, AND   EXPLOITATION.  (a)  In this section, "child-care facility" includes   a facility, licensed or unlicensed child-care facility, family   home, residential child-care facility, employer-based day-care   facility, or shelter day-care facility, as those terms are defined   in Chapter 42.          (b)  For all investigations of child abuse, neglect, or   exploitation conducted by the child protective services division of   the department, the department shall adopt the definitions of   abuse, neglect, and exploitation provided in Section 261.001,   Family Code.          (c)  The department shall establish standardized policies to   be used during investigations.          (d)  The commissioner shall establish units within the child   protective services division of the department to specialize in   investigating allegations of child abuse, neglect, or exploitation   occurring at a child-care facility.          (e)  The department may require that investigators who   specialize in allegations of child abuse, neglect, and exploitation   occurring at child-care facilities receive ongoing training on the   minimum licensing standards for any facilities that are applicable   to the investigator's specialization.          (f)  After an investigation of abuse, neglect, or   exploitation occurring at a child-care facility, the department   shall provide the state agency responsible for regulating the   facility with access to any information relating to the   department's investigation.  Providing access to confidential   information under this subsection does not constitute a waiver of   confidentiality.          (g)  The executive commissioner or the commissioner of the   department, as appropriate, may adopt rules to implement this   section.          (b)  As soon as possible after the effective date of this   Act, the commissioner of the Department of Family and Protective   Services shall establish the office of data analytics required by   Section 40.041, Human Resources Code, as added by this section.  The   commissioner and the executive commissioner of the Health and Human   Services Commission shall transfer appropriate staff as necessary   to conduct the duties of the office.          SECTION 9.  Section 40.051, Human Resources Code, is amended   to read as follows:          Sec. 40.051.  STRATEGIC PLAN FOR DEPARTMENT. The department   shall develop a departmental strategic plan based on the goals and   priorities stated in the commission's coordinated strategic plan   for health and human services. The department shall also develop   its plan based on:                (1)  furthering the policy of family preservation;                (2)  the goal of ending the abuse and neglect of   children in the conservatorship of the department; and                (3)  the goal of increasing the capacity and   availability of foster, relative, and kinship placements in this   state.          SECTION 10.  (a)  Section 40.058(f), Human Resources Code,   is amended to read as follows:          (f)  A contract for residential child-care services provided   by a general residential operation or by a child-placing agency   must include provisions that:                (1)  enable the department and commission to monitor   the effectiveness of the services;                (2)  specify performance outcomes, financial penalties   for failing to meet any specified performance outcomes, and   financial incentives for exceeding any specified performance   outcomes;                (3)  authorize the department or commission to   terminate the contract or impose monetary sanctions for a violation   of a provision of the contract that specifies performance criteria   or for underperformance in meeting any specified performance   outcomes;                (4)  authorize the department or commission, an agent   of the department or commission, and the state auditor to inspect   all books, records, and files maintained by a contractor relating   to the contract; and                (5)  are necessary, as determined by the department or   commission, to ensure accountability for the delivery of services   and for the expenditure of public funds.          (b)  The Health and Human Services Commission shall, in a   contract for residential child-care services between the   commission and a general residential operation or child-placing   agency that is entered into on or after the effective date of this   section, including a renewal contract, include the provisions   required by Section 40.058(f), Human Resources Code, as amended by   this section.          (c)  The Health and Human Services Commission shall seek to   amend contracts for residential child-care services entered into   with general residential operations or child-placing agencies   before the effective date of this section to include the provisions   required by Section 40.058(f), Human Resources Code, as amended by   this section.          (d)  The Department of Family and Protective Services and the   Health and Human Services Commission may not impose a financial   penalty against a general residential operation or child-placing   agency under a contract provision described by Section 40.058(f)(2)   or (3), Human Resources Code, as amended by this section, until   September 1, 2018.          SECTION 11.  (a)  Subchapter C, Chapter 40, Human Resources   Code, is amended by adding Section 40.0581 to read as follows:          Sec. 40.0581.  PERFORMANCE MEASURES FOR CERTAIN SERVICE   PROVIDER CONTRACTS. (a)  The commission, in collaboration with the   department, shall contract with a vendor or enter into an agreement   with an institution of higher education to develop, in coordination   with the department, performance quality metrics for family-based   safety services and post-adoption support services providers.  The   quality metrics must be included in each contract with those   providers.          (b)  Each provider whose contract with the commission to   provide department services includes the quality metrics developed   under Subsection (a) must prepare and submit to the department a   report each calendar quarter regarding the provider's performance   based on the quality metrics.          (c)  The commissioner shall compile a summary of all reports   prepared and submitted to the department by family-based safety   services providers as required by Subsection (b) and distribute the   summary to appropriate family-based safety services caseworkers   and child protective services region management once each calendar   quarter.          (d)  The commissioner shall compile a summary of all reports   prepared and submitted to the department by post-adoption support   services providers as required by Subsection (b) and distribute the   summary to appropriate conservatorship and adoption caseworkers   and child protective services region management.          (e)  The department shall make the summaries prepared under   Subsections (c) and (d) available to families that are receiving   family-based safety services and to adoptive families.          (f)  This section does not apply to a provider that has   entered into a contract with the commission to provide family-based   safety services under Section 264.165, Family Code.          (b)  The quality metrics required by Section 40.0581, Human   Resources Code, as added by this section, must be developed not   later than September 1, 2018, and included in any contract,   including a renewal contract, entered into by the Health and Human   Services Commission with a family-based safety services provider or   a post-adoption support services provider on or after January 1,   2019, except as provided by Section 40.0581(f), Human Resources   Code, as added by this section.          SECTION 12.  Section 42.002(23), Human Resources Code, is   amended to read as follows:                (23)  "Other maltreatment" means:                      (A)  abuse, as defined by Section 261.001 [or   261.401], Family Code; or                      (B)  neglect, as defined by Section 261.001 [or   261.401], Family Code.          SECTION 13.  Section 42.044(c-1), Human Resources Code, is   amended to read as follows:          (c-1)  The department:                (1)  shall investigate a listed family home if the   department receives a complaint that:                      (A)  a child in the home has been abused or   neglected, as defined by Section 261.001 [261.401], Family Code; or                      (B)  otherwise alleges an immediate risk of danger   to the health or safety of a child being cared for in the home; and                (2)  may investigate a listed family home to ensure   that the home is providing care for compensation to not more than   three children, excluding children who are related to the   caretaker.          SECTION 14.  Section 261.401(a), Family Code, is repealed.          SECTION 15.  (a) The changes in law made by this Act apply   only to a report of suspected abuse, neglect, or exploitation of a   child that is made on or after the effective date of this Act. A   report of suspected abuse, neglect, or exploitation that is made   before that date is governed by the law in effect on the date the   report was made, and that law is continued in effect for that   purpose.          (b)  Notwithstanding any provision of Subchapter A-1,   Chapter 531, Government Code, or any other law, the responsibility   for conducting investigations of reports of abuse, neglect, or   exploitation occurring at a child-care facility, as that term is   defined in Section 40.042, Human Resources Code, as added by this   Act, may not be transferred to the Health and Human Services   Commission and remains the responsibility of the Department of   Family and Protective Services.          (c)  As soon as possible after the effective date of this   Act, the commissioner of the Department of Family and Protective   Services shall transfer the responsibility for conducting   investigations of reports of abuse, neglect, or exploitation   occurring at a child-care facility, as that term is defined in   Section 40.042, Human Resources Code, as added by this Act, to the   child protective services division of the department.  The   commissioner shall transfer appropriate investigators and staff as   necessary to implement this subsection.          (d)  The Department of Family and Protective Services shall   implement the standardized definitions and policies required under   Sections 40.042(b) and (c), Human Resources Code, as added by this   Act, not later than December 1, 2017.          SECTION 16.  This Act takes effect September 1, 2017.     * * * * *