Part 19.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 700.
CHILD PROTECTIVE SERVICES
Subchapter J. RELATIVE AND OTHER DESIGNATED CAREGIVER PROGRAM
40 TAC §§700.1001, 700.1003, 700.1005, 700.1007, 700.1009, 700.1011, 700.1013, 700.1015, 700.1017
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), new §§700.1001,
700.1003, 700.1005, 700.1007, 700.1009, 700.1011, 700.1013, 700.1015, and
700.1017, in its Child Protective Services chapter. New §§700.1005,
700.1009, and 700.1011 are adopted with changes to the proposed text published
in the August 19, 2005, issue of the
Texas Register
(30 TexReg 4796). New §§700.1001, 700.1003, 700.1007, 700.1013,
700.1015, and 700.1017 are adopted without changes to the proposed text and
will not be republished. Senate Bill 6 of the 79th Legislature required implementation
of a Relative and Other Designated Caregiver Program by March 1, 2006, to
provide initial transitional payments, annual reimbursements for expenses,
and support services to certain non-licensed individuals who provide care
to children in their extended family. Traditionally, relatives who provide
placement services for children in DFPS custody have not received specific
financial compensation from the State, although some families and children
have qualified for assistance under other criteria in other agencies. These
rules outline the eligibility for these services, maximize the benefit to
those most in need, and ensure that the provision of such services does not
exceed the available dollars appropriated for the biennium.
The new sections will function by ensuring that relatives and other designated
caregivers will receive some reimbursement for their care of children in DFPS
conservatorship.
No public comments were received regarding adoption of the new sections.
However, DFPS is revising the following sections as a result of internal comment.
In §700.1005(a)(2), DFPS is deleting the requirement that receipts are
needed to receive the annual reimbursement. In §700.1009, DFPS is deleting
paragraph (4) because §700.1011 addresses the annual reimbursement criteria.
In §700.1011, DFPS is changing all dates from March 1, 2006, to September
1, 2005, and adding the phrase "provided the child is still residing with
the relative who incurred the expense" in paragraph (b)(2) to allow more people
to be eligible for the reimbursement.
The new sections are adopted under Government Code §531.0055,
which provides 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 (DFPS); Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The new sections implement the Family Code, Chapter 264, as amended by §1.62
of Senate Bill 6, 79th Legislature.
§700.1005.What types of cash assistance are available?
(a)
Subject to the availability of funds, eligible caregivers
may receive two types of cash assistance:
(1)
an initial, one-time cash payment of not more than $1,000
per sibling group to defray costs incurred for essential child care items
at the time of placement; and
(2)
an annual reimbursement of not more than $500 per child
for DFPS approved child- related expenses.
(b)
DFPS may further clarify in policy specific conditions
or criteria caregivers must meet to receive this cash assistance or any other
services or benefits in connection with this program, including what costs
incurred for essential child care items may be defrayed, what expenditures
are appropriate for reimbursement, and situations where the full initial,
one-time payment may not be awarded.
§700.1009.Who is eligible for the annual reimbursement?
Caregivers meeting the eligibility requirements specified in §700.1003
of this title (relating to What are the eligibility requirements for caregiver
assistance?) are eligible, including:
(1)
caregivers that are entitled to the initial, one-time cash
payment;
(2)
subsequent caregivers that didn't qualify for the initial,
one-time cash payment because a different caregiver was previously paid under
this provision on behalf of the same children; and
(3)
caregivers that didn't qualify for the initial, one-time
cash payment because the caregiver was eligible for supplemental financial
assistance under the Grandparents Program.
§700.1011.Are there additional eligibility restrictions for the annual reimbursement?
(a)
Yes:
(1)
the household income of the caregiver must not exceed 300%
of poverty, as determined by federal poverty guidelines;
(2)
the caregiver must continue to comply with the signed caregiver
assistance agreement; and
(3)
the children:
(A)
must continue to be in the conservatorship of DFPS or the
caregiver must be awarded permanent managing conservatorship after September
1, 2005, for children that were previously in the conservatorship of DFPS;
(B)
must be in the caregiver's care at the time the expense
is incurred; and
(C)
must continue to be placed with the caregiver.
(b)
The following limitations also apply to the reimbursements:
(1)
If the annual reimbursement is paid to a previous caregiver
on behalf of the same children, a subsequent caregiver is not eligible for
reimbursement for the remainder of the year.
(2)
If the placement occurred before September 1, 2005, the
reimbursement is limited to expenses incurred after September 1, 2005, provided
the child is still residing with the relative who incurred the expense.
(3)
Caregivers subsequently appointed as permanent managing
conservator are only eligible for three additional annual reimbursement payments,
assuming all other eligibility requirements and restrictions are met.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504887
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
2.
EDUCATION AND TRAINING VOUCHER PROGRAM
40 TAC §§700.1611, 700.1613, 700.1615, 700.1617, 700.1619, 700.1621, 700.1623, 700.1625
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), new §§700.1611,
700.1613, 700.1615, 700.1617, 700.1619, 700.1621, 700.1623, and 700.1625,
without changes to the proposed text published in the June 17, 2005, issue
of the
Texas Register
(30 TexReg 3561).
Under the federal law,
Promoting Safe and Stable
Families Amendments of 2001
, a new program was created to provide postsecondary
educational and training vouchers (ETV) for certain eligible foster care youth,
including those who have aged out of foster care and those adopted out of
foster care at a certain age. This law amended the Chaffee Foster Care Independence
Act, making this new program subject to federal audit. The ETV Program allows
DFPS to expand and supplement the current assistance provided to eligible
former and current foster care youth and specifically, helps them to begin,
continue and/or complete their educational and vocational goals toward achieving
gainful employment and independence.
The new sections will function by ensuring that youth eligible for ETV
program benefits will be able to take full advantage of the program. The anticipated
results will be better outcomes for youth in adult living.
No comments were received regarding adoption of the new sections.
The new sections are adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes FPS to propose and adopt rules to
facilitate implementation of Department programs.
The new sections implement recent changes to Title IV-E, §477 of the
Social Security Act (42 U.S.C. 677), known as the Chafee Foster Care Independence
Act.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504885
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: June 17, 2005
For further information, please call: (512) 438-3437
Subchapter E. MEMORANDUM OF UNDERSTANDING WITH OTHER STATE AGENCIES
40 TAC §702.413
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), the repeal of §702.413,
without changes to the proposal as published in the August 12, 2005, issue
of the
Texas Register
(30 TexReg 4622). The
Communities In Schools (CIS) program was transferred from DFPS to the Texas
Education Agency (TEA) by the 78th Legislature. TEA has adopted new Communities
In Schools rules. The justification for the repeal is to delete this Memorandum
of Understanding (MOU), which was between DFPS and TEA and is now obsolete.
The repeal will function by deleting the obsolete rule.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Government Code §531.0055, which
provides 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;
Human Resources Code (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; and HRC, §40.029,
which authorizes DFPS to propose and adopt rules to facilitate implementation
of Department programs.
The repeal implements the Education Code, Subchapter E, Chapter 33.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504883
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 12, 2005
For further information, please call: (512) 438-3437
Subchapter E. COMMUNITIES IN SCHOOLS
40 TAC §§704.401, 704.403, 704.405, 704.407, 704.409, 704.411
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), the repeal of §§704.401,
704.403, 704.405, 704.407, 704.409, and 704.411, without changes to the proposal
as published in the August 12, 2005, issue of the
Texas Register
(30 TexReg 4622). The Communities In Schools (CIS) program
was transferred from DFPS to the Texas Education Agency (TEA) by the 78th
Legislature. TEA has adopted new Communities In Schools rules. The justification
for the repeal is to delete the CIS rules from the DFPS agency rules.
The repeals will function by ensuring that the CIS rules will be found
at the agency where the program resides, TEA.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The repeals implement the Education Code, Subchapter E, Chapter 33.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504884
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 12, 2005
For further information, please call: (512) 438-3437
The Health and Human Services Commission adopts, on behalf of the
Department of Family and Protective Services (DFPS), amendments to §§720.66,
720.233, 720.335, 720.406, and 720.905, without changes to the proposed text
published in the August 19, 2005, issue of the
Texas
Register
(30 TexReg 4798). The rules are the result of requirements
in Senate Bill (SB) 6, 79th Legislature. The bill directs the Executive Commissioner
to adopt rules to implement drug-testing requirements for residential child-care
facilities. The amendments change the former Department's name to reflect
the Licensing Division, and require residential child-care facilities to inform
Licensing after learning of an allegation that a person who directly cares
for or has access to a child in care has abused drugs within the past seven
days.
The amendments will function by enhancing the protection of children and
improving the quality of care of children.
During the comment period, DFPS received comments from Advocacy, Incorporated
and Homes4Good Adoption and Foster Care. A summary of the comments and responses
follows:
Comment concerning §§720.66(a), 720.406(b), 720.905(c): One commenter
recommended that the department adopt language in 25 TAC 417, Subchapter K,
relating to Abuse, Neglect and Exploitation in TDMHMR Facilities, to require
reporting of serious incidents to Licensing and the child's parent or managing
conservator immediately, if possible, but no more than one hour after suspicion
or after learning of the incident.
Response: The change in language from "workday" to "within 24 hours" was
for clarity to current rule, not to change the timeframe for reporting serious
incidents. DFPS is adopting these sections without change.
Comment concerning §720.233: One commenter stated that it is unclear
if reporting requirements apply to agency homes.
Response: This reporting requirement for alleged drug abuse to the Licensing
Division applies to independent homes and is not required of agency foster
homes. (For an agency home, the child-placing agency is responsible for this
reporting requirement.) DFPS is adopting this section without change.
Subchapter A. STANDARDS FOR CHILD-PLACING AGENCIES
40 TAC §720.66
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504888
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
40 TAC §720.233
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 28, 2005.
TRD-200504889
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
40 TAC §720.335
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 28, 2005.
TRD-200504890
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
40 TAC §720.406
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 28, 2005.
TRD-200504891
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
40 TAC §720.905
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 28, 2005.
TRD-200504892
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
Subchapter A. STRUCTURE OF A MATERNITY HOME
40 TAC §727.111
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), an amendment to §727.111,
without changes to the proposed text published in the August 19, 2005, issue
of the
Texas Register
(30 TexReg 4802). The
change will conform this chapter to the requirements imposed on residential
child-care facilities as a result of Senate Bill (SB) 6, 79th Legislature.
The bill directs the Executive Commissioner to adopt rules to implement drug-testing
requirements for residential child-care facilities. The amendment changes
the former Department's name to reflect the Licensing Division, and requires
the maternity homes to inform Licensing after learning of an allegation that
a person who directly cares for or has access to a child in care has abused
drugs within the past seven days.
The amendment will function by enhancing the protection of children and
improving the quality of care of children.
During the comment period, DFPS received comments from Advocacy, Incorporated.
The commenter recommended that the department adopt language in 25 TAC 417,
Subchapter K, relating to Abuse, Neglect and Exploitation in TDMHMR Facilities,
to require reporting of serious incidents to Licensing and the child's parent
or managing conservator immediately, if possible, but no more than one hour
after suspicion or after learning of the incident. The change in language
from "workday" to "within 24 hours" was for clarity to current rule, not to
change the timeframe for reporting serious incidents. DFPS is adopting this
section without change.
The amendment is adopted under Government Code §531.0055,
which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The amendment implements the HRC §42.063, as amended by §1.106
of Senate Bill 6, 79th Legislature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the
Office of the Secretary of State on October 28, 2005.
TRD-200504893
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 19, 2005
For further information, please call: (512) 438-3437
Subchapter F. BACKGROUND CHECKS
2.
REQUESTING BACKGROUND CHECKS
40 TAC §§745.615, 745.623, 745.625, 745.626, 745.631, 745.637
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), amendments to §§745.615,
745.623, 745.625, and 745.631; and new §745.626 and §745.637, concerning
background checks, in its Licensing chapter. The amendments to §745.623
and §745.625 and new §745.626 are adopted with changes to the proposed
text published in the August 12, 2005, issue of the
Texas Register
(30 TexReg 4623). The amendments to §745.615, and §745.631,
and new §745.637 are adopted without changes to the proposed text and
will not be republished.
The changes are the result of requirements concerning background checks
in Senate Bill (SB) 6, 79th Legislature and to provide clarification to current
rules. New §745.615 clarifies that a child-care operation must request
a background check on all employees, including all employees intended to be
hired, who will provide direct care or have direct access to a child in care.
The amendment to §745.623 adds requirements that all residential child-care
operations must request background checks on-line through the DFPS website
and that child day care operations can request background checks on-line or
by submitting a paper request. The amendment to §745.623 also adds a
requirement that all child-care operations must include a person's driver's
license number with the required identifying information submitted to conduct
a background check. The amendment to §745.625 adds the requirement that
a residential child-care operation must submit a background check request
on a person before he or she provides direct care or has direct access to
a child in the operation. New §745.626 states that if a residential operation
does not receive the results of a background check on a person who provides
direct care or has direct assess to a child in care, the operation may obtain
its own criminal history check through the Department of Public Safety (DPS)
and if the DPS check verifies no criminal history, it can allow the person
unsupervised client access until it receives the results of the DFPS background
check. The amendment to §745.631 adds licensed child-care homes to the
list of operations that cannot be issued a permit until DFPS receives the
results of the applicant's background check. New §745.637 states that
DFPS will provide the operation requesting the background check with information
in our records regarding the person's previous history in residential child
care, as long as the information is not confidential.
The amendments and new sections will function by ensuring that background
checks are conducted prior to people being able to provide direct care or
have direct access to a child in residential child-care facilities, which
will provide greater protection for children in care.
During the comment period, DFPS received comments from Homes4Good, STARRY,
Inc., Panhandle Assessment Center, Merchants of Hope Children's Home, Boys
Haven, The Child Placement Center, Juliette Fowler Homes, Inc., and Presbyterian
Children's Homes and Services. A summary of the comments and responses follows:
Comments concerning §745.623:
(1) One commenter asked that DFPS recognize that on-line data is not always
accurate and error free, and that the information DFPS receives from DPS may
not always be accurate.
Response: DFPS works closely with DPS to ensure that we are getting accurate
data on background checks. DFPS monitors the information that it receives
and quickly addresses any problems that occur. DFPS is not making changes
as a result of this comment.
(2) Concerning subsection (a)(6), one commenter asked if a Texas identification
number could be used in place of a driver's license number for people who
don't drive.
Response: An identification number is issued by DPS, so it can be used
in place of a driver's license number for people that do not drive. To make
this point more clearly, DFPS is adding a state issued identification card
number in this subsection.
(3) Concerning subsection (c), one commenter suggested that a paper copy
of the background check request form be submitted after the on-line request
is made so that DFPS does not compromise the safety of children that DFPS
intends to protect.
Response: Online background checks will better protect the safety of children
by giving the results to the child-care operation in a timelier manner. All
background check records are kept electronically in a secure system, which
is backed up nightly. DFPS is not making changes as a result of this comment.
Comments concerning §745.626:
(1) One commenter asked that the following be clarified:
(A) How the DPS website works.
Response: Anyone can go into the DPS website and set up an account to run
background checks. They can then purchase credits, which will allow them to
run checks with these credits.
(B) An operation only has to use the DPS website if the operation does
not receive the DFPS results back within two working days.
Response: A residential child-care operation has the option of conducting
a DPS background check if it does not receive the results from the department
within two working days.
(C) An operation cannot hire a person until it gets the results from DFPS
or the one from DPS.
Response: A residential child-care operation must not hire a person who
will provide direct care or have direct access to a child in care until it
receives the results of the background check from DFPS or the check that it
ran through DPS. The operation can hire a person who does not provide direct
care or have direct access to a child in care prior to receiving the results
back.
DFPS is not making changes as a result of these comments.
(2) Two commenters asked for clarification on whether this rule applies
to child placing agencies, as the current question only applies to residential
child-care facilities.
Response: Senate Bill 6 amended the definition of "residential child-care
facility" to include child placing agencies. The change was effective September
1, 2005. However, for clarification purposes, DFPS is revising the title of
the section to say, "How soon after I request a background check on a person
can that person provide direct care or have direct access to a child in a
residential child-care operation?" The term "residential child-care operation"
has previously been defined in DFPS rules to include child placing agencies.
DFPS is also revising §745.623(c) to reflect a residential child-care
operation.
(3) One commenter stated that federal law prohibits them from keeping background
checks in its personnel files.
Response: DFPS is adopting this section with a change to subsection (a)
to state "The results of the criminal history check obtained from DPS must
be kept in a sealed envelope in the person's personnel record or in another
location, accessible to us. In accordance with Texas Government Code, §411.085,
these results should not be released or disseminated for any other purpose."
(4) Concerning subsection (a), one commenter asked if a public background
check company could be used instead of DPS to run background checks while
waiting for the DFPS check.
Response: Public background check companies can be used because the companies
get information from DPS. DFPS is not making changes as a result of this comment.
Comments concerning §745.637:
(1) One commenter asked if the previous employment information will be
sent automatically with the cleared notices or will the operation have to
ask for it.
Response: The clearance, match letters, and emails have been revised so
that the operation will automatically receive this information whenever they
request a background check. DFPS is not making changes as a result of this
comment.
(2) One commenter supported this rule and stated that it will help prevent
persons from moving around from one operation to another. The same commenter
suggested that a clarification memo be provided with these rules that describes
what information will be provided.
Response: DFPS will provide the operation with previous history in residential
child-care. DFPS is not making changes as a result of this comment.
General comments: One commenter asked that there be a mechanism for agencies
to resolve discrepancies between what comes back on its DPS checks and the
DFPS check.
Response: Private entities can only receive conviction records from DPS.
DFPS receives all criminal records including arrest information, pending charges,
dismissal, convictions, etc. Therefore there will be differences in what an
operation receives and what DFPS receives. DFPS will inform the operation
when there is relevant information and discuss how it must be handled. DFPS
is not making changes as a result of this comment.
DFPS is adopting §745.625 with a clarification that a background check
is a background check request.
The new sections and amendments are adopted under Government
Code §531.0055, which provides 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; Human Resources Code (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;
and HRC, §40.029, which authorizes DFPS to propose and adopt rules to
facilitate implementation of Department programs.
The new sections and amendments implement the HRC §42.056, as amended
by §1.103 of Senate Bill 6, 79th Legislature.
§745.623.How do I request a background check?
(a)
You must verify and send us the following identifying information
for every person required to be checked in §745.615 of this title (relating
to On whom must I request background checks?):
(1)
Name (last, first, middle), including any maiden or married
names or alias;
(2)
Date of birth;
(3)
Sex;
(4)
Social security number;
(5)
Current and previous address;
(6)
Driver's license or a state issued identification card
number; and
(7)
Race (this information does not have to be verified).
(b)
If you operate a child day-care operation, you can complete
a request for a background check on-line through the DFPS website or send
in a request via a signed form provided by your local Licensing office.
(c)
If you operate a residential child-care operation, you
must submit your requests on-line through the DFPS website.
§745.625.When must I submit a request for a background check?
(a)
You must submit a request for a background check:
(1)
When you submit your application for a permit to us;
(2)
When a non-client resident 14 years old or older lives
or moves into your home or operation, or a non-client resident becomes 14
years old;
(3)
When you apply to be a foster or adoptive parent; and
(4)
Every 24 months after each person's name was first submitted.
(b)
In addition, if you operate a residential child-care operation:
(1)
You must submit a background check request before you hire
a new person who will provide direct care or have direct access to a child
in care; and
(2)
For an employee who will not provide direct care or have
direct access to a child in care, you must submit a background check request
within two business days after the new person is hired or is present in your
operation.
(c)
In addition, if you operate a child day-care operation,
you must submit a background check request within two business days after
a new person is hired or is present in your operation.
§745.626.How soon after I request a background check on a person can that person provide direct care or have direct access to a child in a residential child-care operation?
(a)
If you do not receive the results of the background check
within two working days of submission, you may obtain a criminal history check
on the person through the Department of Public Safety (DPS) at http://records.txdps.state.tx.us/.
If your DPS check verifies that the person has no criminal history, you may
allow the person to have unsupervised client contact until you receive the
results of the background check performed by the DFPS. The results of the
criminal history check obtained from DPS must be kept in a sealed envelope
in the person's personnel record or in another location, accessible to us.
In accordance with Texas Government Code, §411.085, these results should
not be released or disseminated for any other purpose.
(b)
Otherwise, you may not allow the person to provide direct
care or have direct access to a child in care until you receive the results
of the person's background check.
(c)
For verifying foster homes, foster group homes, and adoptive
homes, please see §745.633 of this title (relating to Can a child-placing
agency (CPA) verify a foster home, foster group home, or adoptive home prior
to receiving the results of the background checks?).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 28, 2005.
TRD-200504886
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: December 1, 2005
Proposal publication date: August 12, 2005
For further information, please call: (512) 438-3437
6.
DRUG TESTING
Subchapter P. PREPARATION FOR ADULT LIVING
Chapter 702.
GENERAL ADMINISTRATION
Chapter 704.
PREVENTION AND EARLY INTERVENTION SERVICES
Chapter 720.
24-HOUR CARE LICENSING
Subchapter E. STANDARDS FOR FOSTER FAMILY HOMES
Subchapter F. STANDARDS FOR FOSTER GROUP HOMES
Subchapter H. CONSOLIDATED STANDARDS FOR 24-HOUR CARE FACILITIES
Subchapter M. STANDARDS FOR EMERGENCY SHELTERS
Chapter 727.
LICENSING OF MATERNITY FACILITIES
Chapter 745.
LICENSING
Subchapter H. RESIDENTIAL CHILD-CARE MINIMUM STANDARDS