Adopted Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

Part 3. TEXAS YOUTH COMMISSION

Chapter 93. YOUTH RIGHTS AND REMEDIES

The Texas Youth Commission simultaneously adopts the repeal of §93.31, concerning Complaint Resolution System and new §93.31, concerning Youth Grievance System. The repeal is adopted without changes to the proposal as published in the August 24, 2007, issue of the Texas Register (32 TexReg 5328). The new rule is adopted with changes to the proposed text as published in the August 24, 2007, issue of the Texas Register (32 TexReg 5328). Changes to the proposed text are indicated in the summary of comments and responses below.

The justification for the repeal and new rule is the safety and positive adjustment of youth in the commission's custody through enhancement of measures for reporting and addressing grievances.

The new rule will provide additional methods for filing grievances directly with off-site staff, as well as provide for staff conference requests whereby youth may informally discuss issues with a staff member of the youth's choosing. The new rule will also provide enhanced control measures to limit the potential for interference with the youth grievance system.

TYC received comments recommending modifications to the proposed rule from Texas Appleseed, Texas Legal Services Center, Advocacy Incorporated, and the Texas Criminal Justice Coalition. The comments are summarized below, along with the commission's responses.

Comment: There is too much local level control in developing a complaint filing procedure, which may cause youth to question the confidentiality of complaints.

Response: TYC believes there are sufficient controls established by rule concerning the procedure for filing complaints. The methods for filing, managing, and resolving grievances are standardized for all facilities and programs. Certain allowances for local decisions concerning the time, place, and manner of grievance submission are necessary due to the differing physical plant configurations and the local master schedule. No changes were made as a result of the comment.

Comment: There is too little detail on how the Incident Reporting Center plans to investigate youth complaints.

Response: The Incident Reporting Center is not responsible for investigating youth grievances, but is simply one vehicle for a person to submit a grievance directly to central office staff. TYC will implement operating procedures concerning the coordination between the Incident Reporting Center and the staff responsible for investigating youth grievances. No changes were made as a result of the comment.

Comment: Since a staff member "not directly involved in the grievance" has authority to implement a corrective measure, but may be located at the same facility, youth will still be vulnerable to retaliation.

Response: In some cases, a local staff member is in the best position to provide a timely and responsive resolution. In other cases, the nature of the grievance will require that an off-site staff member be assigned to resolve the grievance. The rule cannot address the unique circumstances of every complaint that may be filed and therefore does not specify the location of the staff member assigned. Staff responsible for assigning grievances will be trained in how to identify those cases requiring off-site resolution and will have discretion to appropriately assign grievances. However, in all cases, including those initially assigned to a local staff member for resolution, a grievant retains the ability to appeal the resolution to off-site staff. No changes were made as a result of the comment.

Comment: Provision of consequences for retaliation is unchanged from the former policy. A more hard line stance should be taken against this abusive practice.

Response: The former policy did not address consequences for retaliation; it simply stated that retaliation is prohibited. The proposed rule establishes that employees found to have retaliated against a grievant or a person involved in the investigation of a grievance are subject to termination of employment. No changes were made to the proposed rule as a result of the comment. However, the proposed rule strengthens the language found in the former rule.

Comment: The rule does not address access to the grievance process for youth assigned to the security unit.

Response: The rule establishes that all youth, regardless of placement within a facility, must have access to the grievance process. TYC will implement management procedures establishing adequate access to the grievance process for youth housed in the security unit. No changes were made as a result of the comment.

Comment: TYC should develop a policy giving youth access to independent legal counsel when grievances are related to violations of constitutional or federal statutory rights and outline the parameters of the investigation process when youth are represented by counsel. Youth should have their attorney present before questioning.

Response: Current rules prohibit any restriction on youth access to or communications with independent legal counsel. Youth also have access to the Office of Independent Ombudsman for assistance in addressing grievances. Additionally, the procedures for investigation of allegations of abuse, neglect, exploitation, or other criminal activity are addressed separately within TYC's rules and policies and will not be included in this rule. No changes were made as a result of the comment.

Comment: TYC should consider stronger use of youth advocates or caseworkers to assist youth in the grievance process. These advocates could also be youth advocates and should be able to "represent" youth who have filed grievances.

Response: TYC will implement management procedures governing the responsibilities of staff members who will assist youth with the grievance process. No changes were made as a result of the comment.

Comment: TYC should provide checkbox options on the grievance forms for the grievant to select whether or not to make the information available to the TYC Board and to the public.

Response: TYC does not currently operate under the leadership of a Board and believes allowing the public release of youth complaints, with or without personally identifiable information, could potentially violate laws concerning the confidentiality of youth records. TYC's rules regarding access to youth information are found at 37 TAC §§81.41, 99.1, and 99.9. No changes were made as a result of the comment.

Comment: Proposed 37 TAC §93.31(d)(1)(C)(ii) as written should be stricken and replaced with: "Staff shall assure that each youth has a supply of grievance forms."

Response: TYC believes that such a practice would jeopardize the ability to identify potential interference in the filing of grievances. Distribution of pre-numbered grievance forms by a peer on an as-needed basis, as described in subsection (d)(1)(C)(ii), allows for reconciling the number of forms issued to youth and those received by designated staff. Such audits of grievance form numbers will be an effective tool in identifying any grievances submitted by youth but not received by the designated staff. No changes were made as a result of the comment.

Comment: Add a further clause to state: "All grievances shall be copied to the ombudsman who shall maintain them in confidence unless the grievant permits the ombudsman to share the grievance with others as agreed between the grievant and the ombudsman, to the extent the law does not otherwise require the ombudsman to divulge the grievance or information in it."

Response: The Independent Office of the Ombudsman currently has access to the database containing all youth grievances, and operates independently from TYC under its own policies and procedures. No changes were made as a result of the comment.

Comment: Add a clause to state: "Grievants shall be allowed assistance in presenting their grievance in person and by phone, including the assistance of family members and such legal counsel as may be available to the grievant."

Response: The rule as proposed allows for grievances to be filed on behalf of youth by third parties. Access to and communication with legal counsel is separately addressed within TYC's rules. No changes were made as a result of the comment.

Comment: Add a clause to state: "Grievances shall not be heard by an employee who is the subject of a grievance from the grievant nor by a supervisor of such an employee. Grievances may be heard by videoconference."

Response: The rule as proposed prohibits an employee who is directly involved in the grievance from being assigned to resolve the grievance. TYC does not believe supervisors should be categorically excluded from the resolution process, as this may inhibit the timeliness and responsiveness of the grievance resolution process. Granting the right to submit grievances by video may hold potential as a future application; however, there are barriers such as resource requirements, confidentiality issues, and other concerns relating to equal access that must be considered. No changes were made as a result of the comment.

Comment: The policy should contain assurances for youth on the issues of confidentiality, objectivity, accountability and access - in an additional policy statement.

Response: TYC believes these issues are adequately addressed in the rule, and will further emphasize the importance of these issues during training. TYC will implement management procedures that establish accountability systems for the grievance system. No changes were made as a result of the comment.

Comment: It is not clear whether or not this policy is meant to operate separate and apart from the Office of Inspector General, or the Office of the Ombudsman. If this grievance process is meant to address only specific areas or issues, the rule should contain explicit language concerning what types of complaints would be best directed to the other respective offices. Also, language concerning the linkage and coordination, if any, between other complaint processes and this complaint process would help reduce the confusion for youth and families between the different complaint resolution systems and give alternatives to them with respect to their concerns.

Response: The Office of Inspector General investigates allegations of criminal behavior whether reported through the grievance system or otherwise. The Ombudsman operates independently of TYC and under its own rules and procedures. A clarifying statement was added to subsection (a)(1) relating to referral to law enforcement agencies when grievances allege violations of law.

Comment: There is no structure built into the informal methods of dispute resolution (conferences). Add language: "Youth will have access to a "clearly" designated, independent, objective person" outside of the direct care staff who "shall" be responsible for resolving disputes whether through informal discussions or otherwise and who "shall" make him/herself "affirmatively" available on the dormitories/floor/units on a frequent and consistent basis to receive complaints." TYC needs to ensure the availability of non-direct care staff, i.e., impartial mediators, to engage in these informal discussions or conferences. If these staff are in the ombudsman's office, then the linkages need to specify that linkage or coordination.

Response: TYC believes that a youth should be able to meet with any staff member of the youth's choosing, regardless of whether or not the staff member has direct care duties. There is no requirement that a youth select the staff member with whom the youth may have a dispute. Should a youth have a dispute with a staff member, the youth is free to select an impartial third party for an informal conference. Limiting the staff who are responsible and available for hearing informal grievances could potentially lengthen the resolution process. TYC will implement management procedures that address staff responsibilities with respect to assisting youth with the grievance process, including facilitation of informal conference requests. No changes were made as a result of the comment.

Comment: The language should be changed to indicate that specific times and places shall be designated for youth to file complaints and/or to get the assistance needed.

Response: TYC believes that the language as proposed is sufficient. The rule requires all TYC facilities to designate times and places for the submission of grievances. Additionally, the Incident Reporting Center is available 24 hours per day to receive grievances. No changes were made as a result of the comment.

Comment: Add that any youth or parent/guardian who needs a reasonable accommodation to file a grievance, as a result of a disability, may request it and describe the manner in which the individual may request the accommodation.

Response: In addition to establishing several methods by which grievances may be submitted, the rule provides that a staff member will be designated and available at each facility to assist any person with filing a grievance. Although not stated in the proposed rule text, these staff members will assist persons with disabilities who request accommodations in order to file a grievance. Subsection (b)(2) has been amended to reflect this responsibility.

Comment: Regarding retaliation, add language forbidding staff not involved in the grievance process to question, discuss, etc. any grievance a youth may wish to file or have filed. The rule does not go far enough to provide safeguards so staff do not abuse their discretion or use this process to harass, intimidate, or discipline youth. Youth and/or parents/guardians experiencing retaliation by staff should be directed to the OIG or other appropriate offices or law enforcement for action with respect to the retaliation complaint.

Response: As established in subsection (b)(4), TYC does not tolerate interference or retaliation regarding the filing of grievances. Employees found to have retaliated against a grievant or a person involved in the investigation of a grievance are subject to termination of employment. No changes were made as a result of the comment.

Comment: The existing complaint process does not provide enough privacy to youth in submitting written grievances as the lock boxes are in open, common areas where anyone can see a youth submit a grievance. There is also no privacy in youth having to ask for a grievance form. Greater emphasis should be placed on providing accessible but private locations for these activities. Telephone access to make grievances known should be confidential. Youth should not have to divulge the purpose or contact information of the person to be called. Vague terms ("subject to limitations on time, place and manner") do not encourage or build a more responsive grievance process for youth. Youth should have access to phones to call in grievances at all times.

Response: TYC strives to operate the grievance system in a manner that balances the need for both confidentiality and security. Drop boxes are generally located in areas which discourage tampering and are easily accessible to all youth. Additionally, grievance forms are simply one vehicle by which youth may file grievances. Youth may also file grievances by letter, which staff may not read or censor prior to depositing for delivery, or by telephone. Youth access to telephones is addressed separately in TYC's rules. No changes were made as a result of this comment.

Comment: Confirmation that a grievance has been received should be made in writing. If the youth, parent/guardian is represented by counsel, no communication in relation to the grievance or issues in the grievance should occur without consultation with the individual's legal representative.

Response: TYC will implement a process to confirm receipt which balances the goals of responsiveness, cost efficiency, and timeliness. TYC will address and accommodate any reasonable request from a grievant's legal representative so long as it does not interfere with the timely resolution of grievances. TYC currently has in place rules and procedures concerning private communication between a youth and his/her attorney. No changes were made as a result of this comment.

Comment: Add language explaining what to do if a youth wishes to withdraw a grievance, and this should be done in writing, in the presence of the grievance staff.

Response: A statement reflecting current practice has been added to subsection (d)(1)(C), requiring that any youth who wishes to withdraw a grievance form must do so in the presence of, at a minimum, the youth grievance representative.

Comment: The informal conference procedure should be documented in some fashion, with participants signing the documentation. Timelines should be built in to avoid unnecessary delays or inaction on the part of staff in addressing youth concerns and/or necessitating the youth taking more formal grievance steps.

Response: TYC will implement management procedures regarding documentation requirements and timelines for informal conferences. No changes were made to the rule as a result of the comment.

Comment: Another youth should not be used to distribute grievance forms because there is a potential for conflict between that youth and the one filing the grievance. This practice also exposes the designated youth grievance clerk to unnecessary harassment.

Response: TYC believes that there is a greater potential for intimidation if youth were required to obtain forms from staff. And as mentioned previously in this adoption notice, TYC believes providing each youth a supply of forms would not provide adequate protections against interference. If a youth feels intimidated by the youth grievance clerk or any other peer, he/she has other means available by which to file a grievance. No changes were made to the rule as a result of the comment.

Comment: Change the language to "daily" collection, review and assignment of grievances. The words "promptness" and "substantial loss or harm" are not defined and should be, as this results in significant hardship on youth in the initial hours and days following grievance submission.

Response: Daily collection is currently the TYC standard. In certain limited cases, due to the type of program and staffing levels, daily collection may not always be possible on weekends. Management procedures will specify how collection is to be accomplished in such cases. However, as noted in the rule, the Incident Reporting Center is available 24 hours per day, seven days per week to accept grievances. Due to the uniqueness of each grievance and the relevant circumstances, TYC believes determinations as to expedited resolution are best made on a case-by-case basis in the discretion of staff members trained to identify such issues, and the proposed language is sufficient for this purpose. No changes were made as a result of the comment.

Comment: Priority should be given to grievances involving excessive use of force, inappropriate use of chemical agents, physical or sexual injury or abuse, inappropriate conduct by staff, imposition of severe and lengthy discipline or restrictions or to other medical emergencies.

Response: As noted in the rule, grievances will be screened to identify those requiring expedited resolution. Separate rules, policies, and procedures govern TYC's investigatory process regarding violations of law or policy, as well as medical emergencies. No changes were made as a result of the comment.

Comment: Concerning appeals, this policy fails to make reference to 37 TAC §93.53, which also sets guidelines for appeals. 37 TAC §93.31 and §93.53 are inconsistent regarding what can be directly appealed to the Executive Director, which may leave youth without recourse if the grievance does not receive a timely response.

Response: TYC agrees that the rule should reference 37 TAC §93.53 and has added a reference in subsection (d)(3)(B). Section 93.53 is not intended to limit a grievant's appeal rights as established in 37 TAC §93.31, including the right to file a direct appeal to the executive director concerning lack of timely response to a grievance.

Comment: The rule is not clear concerning the timeline for a written response to youth grievances, how many levels of appeal are required, and the timelines for appeal responses.

Response: Although implied by the right to appeal the lack of response within 15 work days directly to the executive director, the rule does not set a deadline for initial response. TYC agrees the rule should do so; therefore subsection (d)(2)(B) has been amended to include a 15-workday deadline for response to a grievance. The rule also failed to set a deadline for direct appeal to the executive director in the event of lack of response to an appeal; therefore subsection (d)(3)(C) has been amended to provide for such an appeal if no response to the appeal is received within 15 work days.

Comment: The policy has not been adequately strengthened or adequately standardized and lacks enforcement language.

Response: TYC believes that additional controls have been incorporated to both strengthen and standardize the process. The policy now requires secure drop boxes at all TYC facilities, provides grievants the ability to submit grievances by phone to the Incident Reporting Center 24 hours per day, and explicitly states that interference or retaliation is grounds for termination of employment. No changes were made as a result of the comment.

Comment: The lack of details in the rule pertaining to the implementation of the grievance system is troubling and excludes the public from sufficient participation in the development of agency policies. A system where only general information is subjected to public input allows TYC to operate behind closed doors with no requirement of notification to the Texas Register.

Response: TYC must operate and manage programs that are responsive to continuously and at times rapidly changing conditions, and therefore places certain operational and management processes in procedures that are not subject to the public rulemaking process. With respect to the youth grievance system, TYC is currently developing plans to disseminate additional information on the operation, staffing, and management of the system that, while not subject to public rulemaking, will be transparent and publicly available.

37 TAC §93.31

The repeal is adopted under the Human Resources Code, §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its functions.

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 February 25, 2008.

TRD-200801130

Richard Nedelkoff

Conservator

Texas Youth Commission

Effective date: April 1, 2008

Proposal publication date: August 24, 2007

For further information, please call: (512) 424-6475

37 TAC §93.31

The new rule is adopted under the Human Resources Code, §61.045, which assigns to the commission the responsibility for the welfare and rehabilitation of the children in its care, and §61.0422, which requires the commission to keep information about each written complaint filed with the commission by a child receiving services from the commission or the child's parent or guardian.

§93.31.Youth Grievance System.

(a) Policy.

(1) Youth, parents or guardians of youth, and youth advocates have a right to file grievances concerning the care, treatment, services, or conditions provided for youth under the jurisdiction of the Texas Youth Commission (TYC). TYC will resolve grievances in a prompt, fair, and thorough manner; however, grievances alleging criminal violations will be referred to law enforcement for investigation and disposition.

(2) TYC recognizes that informal discussions between staff and youth are a key element in resolving issues or concerns at the earliest stage and contribute to a positive facility culture. TYC will make staff available to meet with youth whenever possible, limited only by consideration for facility order and the safety of youth and staff.

(b) General Rules.

(1) There is no limitation on the number or subject matter of grievances a person is permitted to file.

(2) Each residential facility and parole office will provide a time, place, and manner in which youth, parents/guardians, or youth advocates may file grievances and a staff member who is available to provide assistance in writing and filing grievances. The staff member will assist individuals with disabilities who request accommodations in order to access the youth grievance system.

(3) In residential facilities, reasonable restrictions may be imposed on the time, place, and manner of submission of grievances filed by youth to preserve order and maintain attention during instructional or treatment activities.

(4) Retaliation or interference by staff concerning the filing or resolution of grievances will not be tolerated and is grounds for disciplinary action up to and including termination of employment.

(5) To the extent possible, grievances will remain confidential. The identity of a person filing a grievance will not be shared with staff members other than those necessary to resolve the grievance. Youth files will not contain any reference to the filing of grievances.

(6) Youth will be informed of the system for filing and resolving grievances upon arrival at each placement. Notices containing information on the grievance system will be posted in English and Spanish in conspicuous areas throughout residential facilities and parole offices. Parents/guardians will be provided information on the grievance resolution system and local contact information upon a child's admission to TYC and each subsequent placement.

(7) Persons with limited English proficiency may file grievances in languages other than English.

(8) TYC will provide confirmation of receipt, including a tracking number, to grievants having the legal right to access confidential youth information.

(9) Upon written request, a parent/guardian of a youth under 18 years of age will be provided with a summary of grievances filed by his/her child. A youth 18 years of age or older must provide consent in order to release a grievance summary to his/her parent/guardian.

(1) Youth assigned to residential facilities may submit a written request for a conference with any staff member assigned to his/her facility as an informal means of addressing issues or concerns. Conferences with youth will be scheduled at the earliest opportunity that does not jeopardize youth or staff safety, facility order, or an ongoing investigation. Youth will be notified in cases where the request cannot be honored promptly.

(2) A youth may elect to file a grievance if he/she is dissatisfied with the result of the staff conference or the issue(s) raised in connection with the conference request cannot be resolved by his/her selected staff member. However, in no case will a youth be required to submit a request for conference as a preliminary step prior to submitting a grievance.

(d) Grievances.

(1) Methods for Filing a Grievance.

(A) Incident Reporting Center. Any person may submit a grievance to the TYC Incident Reporting Center (IRC) by telephone, email, fax, or postal service. See TYC's website for contact information. Subject to limitations on time, place, and manner, a youth in a residential placement will be allowed confidential telephone access in order to contact the IRC.

(B) In-Person to TYC Staff. Any person who is unable or unwilling to submit a grievance in writing may verbally communicate a grievance to TYC staff.

(i) All youth under TYC jurisdiction must have access to pre-numbered grievance forms.

(ii) In residential facilities, a youth will be selected in each living unit or area to distribute grievance forms.

(iii) In residential facilities, secure drop boxes will be provided in easily accessible locations for youth to submit completed grievance forms. Access to the drop boxes is restricted to staff members designated by the executive director or designee.

(iv) A youth will be provided with a copy of each grievance he/she submits.

(v) A youth who wishes to withdraw a grievance form must do so in writing in the presence of, at a minimum, the youth responsible for distributing grievance forms.

(2) Resolution of a Grievance.

(A) Grievances will be promptly collected, reviewed and assigned for response. Grievances will be screened to identify issues which require expedited resolution in order to avoid substantial loss or harm if delayed.

(B) Each grievance will be assigned to a staff member who is not directly involved in the grievance and has the authority to implement an appropriate corrective measure or has knowledge or access to provide clarifying information. The assigned staff member will provide a written response to the grievant within 15 workdays of submission of the grievance.

(3) Appeal of a Grievance Resolution.

(A) A grievant may file an appeal if dissatisfied with the response. TYC will designate a staff member to provide a written response to the appeal.

(B) Pursuant to §93.53 of this title, a grievant may submit an appeal to the executive director or designee if dissatisfied with the appeal response.

(C) A grievant may submit a direct appeal to the executive director or designee if no written response is received within 15 workdays after submitting a grievance or an appeal of a grievance response.

(D) An appeal to the executive director or designee exhausts all administrative remedies on the issue(s) raised in the grievance.