TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 700. CHILD PROTECTIVE SERVICES

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts amendment §700.108 and new §§700.110, 700.1335, 700.1337, 700.2365, and 700.2367, in Title 40, Texas Administrative Code (TAC), Chapter 700, relating to Child Protective Services, in Subchapters A relating to Administration, M relating to Substitute Care Services, and W, relating to Service Level System. New §700.2365 is adopted with changes to the proposed text in the June 23, 2017, issue of the Texas Register (42 TexReg 3256) and will be republished. The amendments to §700.108 and new §§700.110, 700.1335, 700.1337, and 700.2367 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted amendment and new sections are necessary to comply with the 2018-19 General Appropriations Act (Article II, Department of Family and Protective Services, Senate Bill 1, 85th Legislature, Regular Session, 2017).

HHSC Rate Setting will be setting new rates and DFPS needs to develop corresponding rules in order to describe the underlying pilots, services, and rate.

COMMENTS

The 30-day comment period ended July 23, 2017. During this period, DFPS received comments regarding the adoption of these sections from the Texas Alliance of Child and Family Services and a Residential Treatment Center. The commenters had numerous questions and comments about the proposed rules.

Comments concerning §700.110(a)(1) relating to the Integrated Care Coordination (ICC) pilot: The commenters expressed support for the ICC program and requested clarification of the phrase "responsibility for all child welfare related tasks and activities under federal and state law" in §700.110(a)(1), specifically inquiring as to whether the term included all court-related work and permanency recommendations.

Response: DFPS adopts this rule without changes. The department appreciates the interest of the provider community in the ICC program, and intends for the term in question to include all court-related and permanency-related functions, with DFPS retaining some authority to potentially review or object to a permanency goal. A dispute resolution process will be put in place for when the ICC provider and DFPS do not agree.

Comments concerning §700.1335(b) relating to the Treatment Foster Family Care Program and the requirement that caregivers who participate in the program have "specialized training" in providing services to certain children: The commenters questioned whether DFPS would issue more guidance regarding how the training will be developed and whether there would be specified requirements for the training.

Response: DFPS adopts this rule without changes. DFPS intends to further develop specific requirements as part of the procurement and contracting process.

Comments concerning §700.1335(b)(1) and the requirement that caregivers who participate in the Treatment Foster Family Care Program have specialized training in providing services to certain children, including 24-hour supervision to ensure the child's safety. The commenters requested clarification of whether 24-hour supervision included awake night caregivers.

Response: DFPS adopts this rule without changes. DFPS agrees that the program would be utilized only in foster family homes, which under current law do not specifically require awake night supervision.

Comments concerning §700.1335(b)(3) and the requirement that caregivers who participate in the program be able to provide time-limited services which include wrap-around services designed to transition children to a permanent and stable placement, inquiring as to whether this refers to a specific clinical methodology or the general concept of wrap-around services.

Response: DFPS adopts this rule without changes. The department will further develop specific requirements as part of the procurement and contracting process.

Comments concerning §700.1335(c) relating to the Treatment Foster Family Care Program and the total number of children that can be allowed in the home, including biological and adopted children: The commenters were concerned that limitations in those areas would significantly impact foster parent recruitment options.

Response: DFPS adopts this rule without changes. Other than the stipulations that relate to the foster family home definition which limits foster family homes to no more than 6 total children, the only additional stipulation specific to the program is the two-foster-child maximum set forth in the rule in §700.1335(c)(2). DFPS has concluded that the two-foster-child limit is appropriate given the focus of the program and the need for additional supervision and care.

Comments concerning §700.1335(d)(3) relating to the Treatment Foster Family Care Program and the requirement that child placing agencies providing Treatment Foster Family Care Services have a standardized case load to support this population of children, requesting information regarding what the standardized requirement will be.

Response: DFPS adopts this rule without changes. The department will further develop any specific case load requirements as part of the procurement and contracting process.

General comment inquiring as to "what is the required pass-thru amount for foster parents?"

Response: DFPS will not address this matter in the rule. The department will further develop specific requirements as part of the procurement and contracting process.

Comments concerning §700.2365(2) relating to the Intense Plus Service Level and the requirement that providers deliver therapies "including but not limited to" certain specified therapies: The commenters are concerned that the listed therapies are extremely costly and very limited statewide, with minimal access to Medicaid providers who deliver these services, and requested clarification regarding whether Medicaid billing is eligible for various therapy requirements.

Response: DFPS agrees the rule as proposed was unclear and will be making changes to this paragraph. The intent was to specify that if Medicaid funds a research supported program, the provider should utilize it but not to require each provider to provide all of the listed services. The language has been modified accordingly.

Comments concerning §700.2365(3) relating to the service level and the requirement that providers continue to care for a child following psychiatric or medical hospitalization: The commenters request clarification regarding whether the bed would remain open when the child is in the hospital and whether the provider would be reimbursed to keep the bed open in order to provide continued care and coordinated transition back from the hospital.

Response: DFPS adopts this rule without changes to this paragraph. It is the agency's intent that the bed would generally remain open as long as it is in the child's best interest to return to the placement in order to facilitate the continued care and coordinated transition as suggested by the commenters.

Comments concerning §700.2365(4) relating to the service level and the requirement that providers offer step down care, which includes long-term discharge and aftercare planning: The commenters request clarification regarding what will be required in the way of "after care services."

Response: DFPS adopts this rule without changes to this paragraph. The requirements around discharge and aftercare planning will be further developed and outlined in the residential contract.

SUBCHAPTER A. ADMINISTRATION

40 TAC §700.108, §700.110

STATUTORY AUTHORITY

The amendment and new section are adopted 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.

The amendment and new section implement the 2018-19 General Appropriations Act (Article II, Department of Family and Protective Services, Senate Bill 1, 85th Legislature, Regular Session, 2017) and Senate Bill 11, 85th Legislature, Regular Session.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2017.

TRD-201703082

Audrey Carmical

General Counsel

Department of Family and Protective Services

Effective date: September 1, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 438-5112


SUBCHAPTER M. SUBSTITUTE-CARE SERVICES

DIVISION 1. GENERAL

40 TAC §700.1335, §700.1337

The new sections are adopted 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.

The new sections implement the 2018-19 General Appropriations Act (Article II, Department of Family and Protective Services, Senate Bill 1, 85th Legislature, Regular Session, 2017) and Senate Bill 11, 85th Legislature, Regular Session.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2017.

TRD-201703084

Audrey Carmical

General Counsel

Department of Family and Protective Services

Effective date: September 1, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 438-5112


SUBCHAPTER W. SERVICE LEVEL SYSTEM

DIVISION 5. INTENSE PLUS SERVICE LEVEL

40 TAC §700.2365, §700.2367

The new sections are adopted 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.

The new sections implement the 2018-19 General Appropriations Act (Article II, Department of Family and Protective Services, Senate Bill 1, 85th Legislature, Regular Session, 2017) and Senate Bill 11, 85th Legislature, Regular Session.

§700.2365.What is the description of the Intense Plus Service Level?

The Intense Plus Service Level consists of the highest degree of structure, and meets all of the requirements in §700.2361 of this title (relating to What is the description of the Intense Service Level?), in addition to the requirements of this section. Services and treatment at the Intense Plus Level must be provided in a therapeutic residential setting by caregivers with specialized training as further outlined in contract for the provision of services to a child at the Intense Plus Service Level. In addition to any such contractual requirements, a provider serving a child at the Intense Plus Service Level must:

(1) offer single child and sibling group placement;

(2) deliver an appropriate number of medical and therapeutic services that are research-supported, reimbursable by Medicaid or other funding sources, and readily available in the community, including but not limited to daily therapy sessions, individual and group therapy, and specialized therapies such as Eye Movement Desensitization and Reprocessing Therapy, Applied Behavior Analysis (certified); and Treatment for Anorexia/Bulimia/Eating Disorders, and others as appropriate;

(3) provide continued care for a child following psychiatric or medical hospitalization; and

(4) offer "step down" from the Intense Plus Service Level, which includes long-term discharge and aftercare planning.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2017.

TRD-201703087

Audrey Carmical

General Counsel

Department of Family and Protective Services

Effective date: September 1, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 438-5112


SUBCHAPTER J. ASSISTANCE PROGRAMS FOR RELATIVES AND OTHER CAREGIVERS

DIVISION 1. RELATIVE AND OTHER DESIGNATED CAREGIVER PROGRAM

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts amendments to §§700.1003, 700.1005, 700.1007 and 700.1009, and the repeal of §700.1011, in Title 40, Texas Administrative Code (TAC), Chapter 700, Subchapter J, relating to Child Protective Services, Assistance Programs for Relatives and Other Caregivers. Amendment to §700.1007 is adopted with changes to the proposed text in the June 23, 2017, issue of the Texas Register (42 TexReg 3259) and will be republished. The amendments to §§700.1003, 700.1005 and 700.1009, and the repeal of §700.1011 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted amendments and repeal are necessary in order to implement legislation enacted and appropriations made by the 85th Regular Session of the Texas legislature that take effect September 1, 2017. Specifically, House Bill 4 (H.B. 4) enacted revisions to the assistance program for relatives and other designated caregivers (also known as kinship caregivers) who are providing care to a child or children in the managing conservatorship of DFPS. Senate Bill 1 (S.B. 1), the General Appropriations Act for Fiscal Years 2018-2019, provided funding to implement the revisions contemplated by H.B. 4 (see Sec. 18.01 of S.B. 1).

H.B. 4 replaced a one-time payment to integrate the child into the caregiver's home, as well as an annual reimbursement of up to $500 for child related expenses while the child is in the managing conservatorship of DFPS, with monthly payments in amounts up to 50 percent of the daily basic foster care reimbursement rate paid to a foster family home. The monthly payments are time-limited and may be paid for up to twelve months. If DFPS determines there is good cause for an exception, payments may be made for up to an additional six months. In addition, the legislation authorized annual reimbursements of up to $500 if the kinship caregiver assumes permanent legal responsibility for the child. The annual reimbursements may be made for up to three years or until the child's 18th birthday, whichever occurs sooner. Finally, the legislation made additional changes not addressed in rule, such as the creation of civil and criminal penalties for fraudulently receiving assistance from the program. DFPS may at a later date adopt rules concerning the determination of whether fraudulent activity has occurred.

COMMENT

The 30-day comment period ended July 23, 2017. During this period, DFPS received one comment from the Texas Alliance of Child and Family Services (TACFS) regarding the adoption of these sections.

Comment: The commenter expressed support for the kinship caregiver assistance program and the additional resources that will be provided to caregivers through the program. The commenter offered that relatives caring for children requiring more support, including children with higher levels of need, who choose to go through the verification process shall have the added support and oversight of a child placing agency (CPA), as a CPA could help such kinship caregivers meet the child's needs.

Response: The comment does not relate to any particular language in the proposed rulemaking. Accordingly, the amendments and repeal are adopted without changes relevant to this comment. However, DFPS appreciates the commenter's support and agrees that verification can offer additional stability and services outside of the traditional kinship assistance program. Among other eligibility requirements, kinship caregivers in the kinship assistance program must not be a licensed or verified foster home or group foster home (see §700.1003(b)(4) of this title (relating to What are the eligibility requirements for caregiver assistance)). If a caregiver chooses to go through the verification process, then that caregiver will no longer be eligible for the kinship assistance program. However, the caregiver receives monthly foster care reimbursement as a verified home and may become eligible for the Permanency Care Assistance (PCA) Program. The PCA Program provides cash assistance and other supports for eligible caregivers who become a verified foster parent through CPS or a private Child Placing Agency (see §700.1031 of this title (relating How does a person become eligible for receipt of foster care reimbursement on behalf of a child for at least six consecutive months)).

DFPS is making a nonsubstantive change to §700.1007 as proposed, not in response to any comment, but to clarify how DFPS would implement H.B. 4. Specifically, as proposed, subsection (a)(3) implied that caregivers with whom DFPS placed children prior to September 1, 2017, and who are receiving cash assistance under the current kinship assistance program, would be ineligible under the program as amended by H.B. 4 as of September 1, which is not accurate. The wording could potentially have created confusion regarding legislative intent and agency implementation. The subsection was updated accordingly.

40 TAC §§700.1003, 700.1005, 700.1007, 700.1009

STATUTORY AUTHORITY

The amendments are adopted 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.

The amendments implement Texas Family Code §264.755 and S.B. 1 (85th R.S.).

§700.1007.How do caregivers receive the monthly cash payment?

(a) Caregivers meeting the eligibility requirements specified in §700.1003 of this title (relating to What are the eligibility requirements for caregiver assistance?) are eligible only if:

(1) the household income of the caregiver does not exceed 300% of poverty, as determined by federal poverty guidelines;

(2) the caregiver continues to comply with the signed caregiver assistance agreement; and

(3) the children were placed in the caregiver's home by DFPS.

(b) The monthly cash payment must be distributed to a caregiver on behalf of a child in the managing conservatorship of DFPS in the same manner as to a foster parent receiving foster care reimbursement.

(c) The monthly cash payment may not exceed 50% of the DFPS daily Basic Foster Care Rate paid to a foster home in accordance with §355.7103 of Title 1 (relating to Rate-Setting Methodology for 24-Hour Residential Child-Care Reimbursements). The amount of the monthly cash payment will be published on the DFPS website, and is paid per child in the managing conservatorship of DFPS who is placed in the home of the eligible caregiver.

(d) The monthly cash payment is provided to the caregiver for 12 months, except that DFPS may extend the monthly cash payment for an additional 6 months if DFPS determines good cause exists for the extension. "Good cause" refers to circumstances in which it is in the child's best interest to remain in the home of a caregiver who is receiving monthly cash payments and is generally comprised of actions and steps necessary in order to achieve positive permanency for the child. Good cause may include:

(1) the identification, release, or location of a previously absent parent of the child;

(2) awaiting the expiration of the timeline for an appeal of an order in a suit affecting the parent-child relationship;

(3) the provision of additional time for the caregiver to complete the approval process for adoption of the child;

(4) awaiting the approval of a child's placement from another state pursuant the Interstate Compact on the Placement of Children, as provided in Subchapter B, Chapter 162, Texas Family Code;

(5) a delayed determination of the child's Indian Child status, or awaiting the approval of the Indian Child's Tribe, pursuant the Indian Child Welfare Act, 25 U.S.C. §1901, et seq.; and

(6) any other circumstance surrounding the child or the caregiver that DFPS deems to necessitate the extension.

(e) Any one-time integration payment received by a caregiver who qualified for the payment between June 1, 2017, and September 1, 2017, under rules in existence at that time, must be offset against monthly cash payments for which the caregiver qualifies on or after September 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2017.

TRD-201703090

Audrey Carmical

General Counsel

Department of Family and Protective Services

Effective date: September 1, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 438-4760


40 TAC §700.1011

The repeal is adopted 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.

The repeal implements Texas Family Code §264.755 and S.B. 1 (85th R.S.).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2017.

TRD-201703092

Audrey Carmical

General Counsel

Department of Family and Protective Services

Effective date: September 1, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 438-4760