PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
CHAPTER 700. CHILD PROTECTIVE SERVICES
SUBCHAPTER H. ADOPTION ASSISTANCE PROGRAM
The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §700.801 and §700.880; and new §700.806 and §700.807, concerning enhanced adoption assistance, in its Child Protective Services chapter. The purpose of the amendments and new sections is to implement enhanced adoption assistance, as required by Senate Bill 758, Section 4, 80th Legislative Session, which added subsection (g) to §162.304 of the Texas Family Code. The statute requires the executive commissioner of the Health and Human Services Commission to provide, by rule, that the maximum adoption subsidy that may be paid to an adoptive parent of a child under an adoption assistance agreement is an amount that is equal to the amount that would have been paid to the foster parent of the child, based on the child's foster care service level on the date DFPS and the adoptive parent enter into the adoption assistance agreement.
The amendment to §700.801 defines adoptive placement agreement.
New §700.806 defines enhanced adoption assistance.
New §700.807 lists the eligibility criteria for enhanced adoption assistance.
The amendment to §700.880 establishes criteria for the right to appeal a denial by DFPS for enhanced adoption assistance. A person who has been identified as an appropriate prospective adoptive parent of the child may request a fair hearing to appeal the denial of adoption assistance if all of the objective criteria in §700.807(1) - (3) are met.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the proposal will be in effect is an estimated reduction in total cost of $2,925 for fiscal year (FY) 2009; $12,024 for FY 2010; $19,825 for FY 2011; $27,624 for FY 2012; and $35,425 for FY 2013. The effect on state funds is an increased cost of $38,200 for FY 2009; $157,044 for FY 2010; $258,911 for FY 2011; $360,778 for FY 2012; and $462,644 for FY 2013. There will be no fiscal implications for local government as a result of enforcing or administering the sections.
Ms. Brown 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 an increase in the number of children adopted from foster care who have specialized or intense service level needs, and a decrease in the number of children who age out of foster care, thereby effecting improved outcomes. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does 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 new sections and amendment 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 Audrey Jackson at (512) 438-4136 in DFPS's Child Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-385, 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.
DIVISION 1. PROGRAM DESCRIPTION AND DEFINITIONS
40 TAC §§700.801, 700.806, 700.807
The amendment and new sections 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; and 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 amendment and new sections implement Senate Bill 758, Section 4, 80th Legislative Session.
§700.801.What do certain pronouns, words, and terms in this subchapter mean?
(a) (No change.)
(b) The words and terms used in this subchapter have the following meanings, unless otherwise specified or the context clearly indicates otherwise:
(1) - (2) (No change.)
(3) Adoptive Placement Agreement--A written agreement between DFPS or a LCPA and the prospective adoptive parent(s) that documents when a child in DFPS conservatorship is placed for the purpose of adoption and defines the duties of the parties from that date until the adoption is consummated.
(4) [(3)] AFDC eligible--A child
qualified for aid under the Texas State IV-A Plan (as in effect on
July 16, 1996), with the exception that the child's family maximum
resource limit is $10,000. Requirements include that the child must
live with a parent or specified relative and be deprived of parental
support. Parental deprivation exists if one of the child's parents
is dead, absent from the home, or has a mental or physical incapacity
that prevents the parent from supporting or caring for the child,
or principal wage earner parent is unemployed.
(5) [(4)] Agreement or Adoption
Assistance Agreement--The written contract for adoption assistance
that is legally binding because both parties have signed it agreeing
to all terms and conditions.
(6) [(5)] Authorized entity--Any
entity, such as another public agency or Tribe, with whom DFPS has
a Title IV-E agreement, which permits the authorized entity to receive
federal funding participation under Title IV-E of the federal Social
Security Act.
(7) [(6)] Complete application--All
the forms and documents that must be filled out and received by DFPS
to process a request for adoption assistance and to determine a child's
eligibility.
(8) [(7)] Deferred agreement--The
legally binding, written contract to provide adoption assistance in
the future if the need develops. A deferred agreement is used when
the child is eligible for adoption assistance and you are able to
meet the child's current needs, but you may be unable to meet the
child's needs in the future if circumstances change.
(9) [(8)] Licensed child-placing
agency (LCPA)--An entity that is licensed or certified by the State
of Texas or another state to place children for adoption.
(10) [(9)] Nonrecurring expenses--A
type of adoption assistance benefits that are one-time expenses directly
related to the completion of the adoption process. Also see §700.850
of this title (relating to How do I get reimbursement of nonrecurring
expenses?).
(11) [(10)] Special needs child--A
child who meets the definition described in §700.804 of this
title (relating to Who is a special needs child?).
(12) [(11)] State-paid adoption
assistance--The state program for adoption assistance established
under Texas Family Code, §162.302.
(13) [(12)] Title IV-E--The
federal program for adoption assistance established under Title IV-E
of the Social Security Act, 42 U.S.C. §673.
§700.806.What is enhanced adoption assistance?
(a) Enhanced adoption assistance is a monthly adoption assistance payment amount that may exceed the maximum monthly payment ceiling specified in §700.844(d) of this title (relating to How are monthly payment amounts determined?) that is available only with respect to a child who meets the criteria specified in §700.807 of this title (relating to Who is eligible to receive enhanced adoption assistance?).
(b) The maximum monthly payment amount that can be paid under an adoption assistance agreement on behalf of a child who qualifies for enhanced adoption assistance is based on the foster care rate in effect on the date the adoption assistance agreement is signed and is:
(1) the minimum amount required to be paid to a foster parent for a child assigned the same service level as the child who is the subject of the adoption assistance agreement (whether an authorized current service level or one in effect prior to placement as described in §700.807(2) of this title); and
(2) does not include any amount that a child-placing agency is entitled to retain under the foster care rates.
§700.807.Who is eligible to receive enhanced adoption assistance?
Enhanced adoption assistance is available to an adoptive or prospective adoptive parent who enters into an initial adoption assistance agreement on or after January 1, 2009, for a child with special needs as described in §700.804 of this title (relating to Who is a special needs child?), who is in an approved adoptive placement, provided the child also meets each of the following criteria immediately prior to the signing of the adoptive placement agreement:
(1) The child is in the managing conservatorship of DFPS and all parental rights to the child have been terminated for at least 24 months;
(2) The child has an authorized service level of "specialized" or "intense" as defined in Subchapter W of this chapter (relating to Level-of-Care Service System), or, the child had such an authorized service level immediately prior to being placed in a facility or home operated or regulated by another state agency, such as an intermediate care facility for persons with mental retardation and/or related conditions (ICF/MR); a nursing facility, or a community-based waiver services (HCS) residential program;
(3) The child is living in:
(A) a foster care home or other residential child-care operation that is regulated by the DFPS Child Care Licensing Division and is approved under Licensing minimum standards to provide treatment services as defined in §749.61 of this title (relating to What types of services does Licensing regulate?); or
(B) a facility or home operated or regulated by another state agency in this state or in another state that provides comparable treatment services; and
(4) One of the following conditions exists:
(A) the child has not been adopted despite our having made extensive and ongoing local and national adoption recruitment efforts; or
(B) a DFPS program director or his or her designee reviews agency records, and determines that, without benefit of enhanced adoption assistance, the child will likely remain in paid foster care until at least the age of 18 years, based on factors including, but not limited to:
(i) the existence of a significant mental, emotional, physical or medical disability;
(ii) the child's age, especially adolescents; or
(iii) the number of prior foster care or adoptive placement disruptions the child has experienced.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803971
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437
The amendment is 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; and 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 amendment implements Senate Bill 758, Section 4, 80th Legislative Session.
§700.880.What are my rights to appeal a DFPS decision regarding adoption assistance benefits?
(a) - (c) (No change.)
(d) You have the right to appeal a denial of enhanced adoption assistance only if the child qualifies as a special needs child, the child meets all eligibility criteria in §700.807(1) - (3) of this title (relating to Who is eligible to receive enhanced adoption assistance?), and DFPS has confirmed in writing that you are the appropriate prospective adoptive placement for the child.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803972
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437
The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §711.3 and §711.605, concerning how are the terms in this chapter defined and who receives the investigative report, in its Investigations in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs chapter. The purpose of the amendments is to allow DFPS to release completed reports of investigations conducted in the Texas Department of Aging and Disability Services (DADS) mental retardation and the Texas Department of State Health Services (DSHS) mental health facilities and related programs to the DADS Director of State Schools and the DSHS Assistant Commissioner for Mental Health Substance Abuse Services upon request. The proposed change also states that the request for review of findings procedures remains the same and no additional right to request a review of the findings is granted to DADS and DSHS.
The amendment to §711.3 clarifies the definition of an administrator. Under the proposal, an administrator does not include the DADS Director of State Schools or the DSHS Assistant Commissioner for Mental Health Substance Abuse Services. This is necessary to make clear that forwarding a copy of the investigation as provided in §711.605(a)(6) of this title (relating to Who receives the investigative report?) does not grant the right to request a review of investigation findings from DFPS.
The amendment to §711.605 states that DFPS may release completed reports of investigations conducted in facilities regulated by each agency to the DADS Director of State Schools and the DSHS Assistant Commissioner for Mental Health Substance Abuse Services upon request.
Cindy Brown, 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. Brown 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 investigations in DADS facilities can be used by state office staff to systemically assess and improve operations of the facilities. There will be no effect on large, small or micro-businesses because the proposed change does not impose new requirements on any business and does 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 amendments 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 Leti Guevara at (512) 438-5763 in DFPS's Adult Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-386, 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.
SUBCHAPTER A. INTRODUCTION
The amendment is 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; and 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 amendment implements HRC §48.254 and §48.255(b).
§711.3.How are the terms in this chapter defined?
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
(1) Administrator--The person in charge of a facility, local authority, community center, or home and community-based services waiver program, or designee. The term does not apply to the DADS Director of State Schools or the DSHS Assistant Commissioner for Mental Health Substance Abuse Services.
(2) - (39) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803973
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437
The amendment is 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; and 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 amendment implements HRC §48.254 and §48.255(b).
§711.605.Who receives the investigative report?
(a) The investigator sends a copy of the investigative report to:
(1) - (4) (No change.)
(5) the state office of Adult Protective Services if
a confirmed finding is made against a physician, dentist, pharmacist,
registered nurse, licensed vocational nurse, or other licensed professional.
The state office forwards a copy of the report to the appropriate
licensing authority; and [.]
(6) if requested, the DADS Director of State Schools or the DSHS Assistant Commissioner for Mental Health Substance Abuse Services for investigations in state schools, state centers, or state hospitals, as applicable.
(b) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803974
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437
The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective services (DFPS), amendments to §§745.371, 745.8447, and 745.8449, concerning can Licensing issue more than one registration for a single child-care home; what will the notification include; and what must I do if Licensing notifies me of a deficiency, in its Licensing chapter. The purpose of the amendments is to clarify rule language, ensure consistency with regulation, and delete language related to due notice. The purpose of due notice was to alert providers that their deficiencies were progressing toward corrective or adverse action. This function will be replaced by the new notifications triggered under the Weighted Enforcement System.
Section 745.371 adds language to clarify that only one listing certificate is issued for a single child-care home and the name on the certificate must be the name of the caregiver. This will eliminate the possibility of multiple listing permits being issued to the same address. This rule creates consistency in how DFPS issues listing and registration permits.
The amendment to §745.8447 deletes language related to due notice. The section explains what information is provided to a child-care provider after an inspection or investigation.
The amendment to §745.8449 also deletes language related to due notice. The section explains what action a provider must take when the agency informs the provider of a deficiency after an inspection or investigation has been conducted.
Cindy Brown, 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. Brown 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 child-care facilities will have a clearer understanding of the rules related to notification of the results of an inspection. There will be no effect on large, small or micro-businesses because the proposed change does not impose new requirements on any business and does 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 amendments 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 Berna Miranda at (512) 438-2806 in DFPS's Licensing Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-387, 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.
Subchapter D. APPLICATION PROCESS
DIVISION 8. DUAL AND MULTIPLE PERMITS
The amendment is 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; and 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 amendment implements HRC §42.042.
§745.371.Can Licensing issue more than one registration or listing for a single child-care home?
No. We can issue only one registration or listing per [
for a] single living unit. For a registered family home,
if [If
] more than one person cares for children in
a single living unit or child-care home, the name on the permit must
be the name of the primary caregiver. For a listed family home,
the name on the permit must be the name of the caregiver.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803975
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437
The 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; and 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 amendments implement HRC §42.0441 and §42.042.
§745.8447.What will the notification include?
The notification of the results of the inspection and/or investigation will include:
(1) - (2) (No change.)
(3) Date by which you must comply; and
[(4) Due notice if applicable.
See §745.8449 of this title (relating to What must I do if Licensing
notifies me of a deficiency?); and]
(4) [(5)] Your right to an administrative
review to dispute the findings.
§745.8449.What must I do if Licensing notifies me of a deficiency?
You must correct all deficiencies and meet all minimum standards
within the specified timeframe. [Due notice is given when the
next step is corrective or adverse action because of a failure to
correct the deficiency and comply within the specified timeframe.]
To dispute a finding, [the findings] you may
request an administrative review.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2008.
TRD-200803976
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 14, 2008
For further information, please call: (512) 438-3437