TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 700. CHILD PROTECTIVE SERVICES

The Texas Health and Human Service Commission (HHSC) adopts on behalf of the Department of Family and Protective Services (DFPS), amendments to §§700.332, 700.802, 700.804, 700.821, 700.825, 700.850, 700.851, 700.863, 700.880, 700.881, 700.1013, 700.1025, 700.1027, 700.1029, 700.1031, 700.1037, 700.1039, 700.1041, 700.1043, 700.1045, 700.1047, 700.1049, 700.1051, 700.1053, 700.1726, 700.1728, 700.1731, and 700.1733; new §§700.334, 700.883, 700.1059, 700.1061, and 700.1727 in Chapter 700, concerning Child Protective Services. New §700.883 is adopted with changes to the proposed text published in the August 12, 2016, issue of the Texas Register (41 TexReg 5972). Amendments to §§700.332, 700.802, 700.804, 700.821, 700.825, 700.850, 700.851, 700.863, 700.880, 700.881, 700.1013, 700.1025, 700.1027, 700.1029, 700.1031, 700.1037, 700.1039, 700.1041, 700.1043, 700.1045, 700.1047, 700.1049, 700.1051, 700.1053, 700.1726, 700.1728, 700.1731, and 700.1733; and new §§700.334, 700.1059, 700.1061, and 700.1727 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The justification of the amendments and new sections are proposed in Subchapter C relating to Eligibility for Child Protective Services; Subchapter H relating to the Adoption Assistance Program; Division 1 of Subchapter J relating to the Relative And Other Designated Caregiver Program; Division 2 of Subchapter J relating to the Permanency Care Assistance Program; and Division 2 of Subchapter Q relating to Post-Permanency Services is to ensure that the rules regarding eligibility for financial assistance and services for foster families, kinship families, and families that assume legal responsibility of children in the conservatorship of DFPS are consistent with federal mandates as well as DFPS's current policies and practices. In addition, the changes are intended to aid in public understanding of DFPS's eligibility criteria for the financial assistance and services. The practice and policy shifts that are being adopted in the rules are as follows:

(1) New rule §700.883 which states that in limited circumstances, an adoptive parent who took conservatorship of the child prior to the finalization of the adoption, may qualify for adoption assistance benefits through the fair hearing process at DFPS's discretion and in limited circumstances if specific criteria have been met. While this new rule is somewhat of a shift in current practice, DFPS has previously interpreted the existing rules pertaining to adoption assistance to permit adoptive parents to file for a fair hearing in such situations when the parent otherwise meets the criteria for adoption assistance benefits. This rule clarifies and makes explicit that interpretation.

(2) New rule §700.1059 which provides that a relative or fictive kin who was granted permanent managing conservatorship of a child prior to signing a permanency care assistance agreement, may still receive benefits on behalf of the child through the fair hearing process if the child meets all eligibility requirements and the caregiver shows that there is good reason to excuse the failure to sign the agreement prior to the grant of conservatorship. Federal law and guidance require DFPS to offer a fair hearing as a procedural protection in cases in which benefits are denied, including denial of permanency care assistance benefits. Further, the adoption assistance rules explicitly permit reversal of a denial of adoption assistance if there is good reason to excuse failure to have signed an adoption assistance agreement; however, the existing permanency care assistance rules do not have a similar provision, although legally DFPS has interpreted federal requirements to supersede the state rules on this point. As such, this new rule clarifies DFPS's current practice and implements federal law and guidance.

(3) New rule §700.1061 which states that if the child's permanent managing conservator dies or becomes incapacitated, permanency care assistance benefits may continue to an individual that is subsequently granted permanent managing conservatorship of the child if that person was named as the successor in the original permanency care assistance agreement or in an amendment to that agreement. This adopted addition is made pursuant to the mandates of federal legislation, Preventing Sex Trafficking and Strengthening Families Act (HR 4980) from the 113th United States Congress, which became public law on September 29, 2014.

(4) Amendments to existing rules §§700.1726, 700.1728, and 700.1731 and new rule §700.1727 which clarify that children in permanent managing conservatorships, with non-parent relatives and fictive kin, are eligible to receive various post permanency services similar to post-adopt services, if specific criteria have been met. The purpose of these adopted rules is to ensure that children that exit into conservatorship receive the same services as children that exit into an adoptive placement in order to help the children and families adjust to the permanency, cope with any history of abuse in the child's background, cope with mental health issues the child may have, and avoid permanent or long-term removal of the children from their family.

The other rule changes primarily consist of updating and clarifying the agency's existing rules.

COMMENTS

The 30-day comment period ended September 11, 2016. During this period, no comments were received regarding the adoption of the amendments and new sections. However, DFPS is recommending a change to new §700.883. This rule allows an adoptive parent who intervened in the court proceeding and assumed legal responsibility of the child prior to finalization of the adoption to request adoption assistance benefits through the fair hearing process if specific criteria have been met. DFPS is deleting the requirement in subsection (6) that states that the "child was eligible for adoption" as it is essentially redundant of the content in subsection (7) which states that "the intended permanent plan for the child was adoption," and is therefore unnecessary. In addition, the deleted content inadvertently excludes individuals who are otherwise eligible for adoption assistance payments from requesting a fair hearing for adoption assistance.

SUBCHAPTER C. ELIGIBILITY FOR CHILD PROTECTIVE SERVICES

40 TAC §700.332, §700.334

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 to §700.332 and new §700.334 implement Texas Family Code §264.124.

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 December 30, 2016.

TRD-201606760

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER H. ADOPTION ASSISTANCE PROGRAM

DIVISION 1. PROGRAM DESCRIPTION AND DEFINITIONS

40 TAC §700.802, §700.804

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 to §700.802 and §700.804 implement Texas Family Code §162.301 and §162.304.

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 December 30, 2016.

TRD-201606764

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


DIVISION 2. TITLE IV-E ELIGIBILITY REQUIREMENTS

40 TAC §700.821, §700.825

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 to §700.821 and §700.825 implement Texas Family Code §162.301 and §162.304.

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 December 30, 2016.

TRD-201606767

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


DIVISION 3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §700.850, §700.851

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 amendment to §700.851 implements Texas Family Code §162.3041.

The amendment to §700.852 implements Texas Family Code §162.301 and §162.304.

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 December 30, 2016.

TRD-201606768

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


DIVISION 4. CHANGES IN CIRCUMSTANCES

40 TAC §700.863

The amendment 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 amendment to §700.863 implements Texas Family Code §162.301 and §162.304.

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 December 30, 2016.

TRD-201606769

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


DIVISION 5. APPEALS AND HEARINGS

40 TAC §§700.880, 700.881, 700.883

The amendments 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 amendments to §700.880 and §700.881, and new §700.883 implement Texas Family Code §162.301 and §162.304.

§700.883.Can I still get adoption assistance benefits if I assume legal responsibility of a child in DFPS conservatorship before the adoption is finalized?

Generally not. However, in limited circumstances you may qualify for adoption assistance benefits at DFPS's discretion, if you request a fair hearing and the hearing officer finds that the following criteria have been met:

(1) You were awarded permanent managing conservatorship of the child;

(2) The child was in the managing conservatorship of DFPS on the day immediately prior to the court awarding you permanent managing conservatorship of the child;

(3) You have an approved adoptive home study or approved adoption evaluation recommending adoption of the child by you;

(4) There is no information regarding your history, including information obtained from a state child abuse and neglect registry check or criminal background check that would make you ineligible to adopt a child who was in the conservatorship of DFPS;

(5) There are no other factors that would make you ineligible to adopt a child who was in DFPS conservatorship;

(6) The child otherwise would have met the criteria for special needs as described in §700.804 of this title (relating to Who is a child with special needs?) on the day that you assumed legal responsibility of the child from the conservatorship of DFPS; and

(7) The intended permanent plan for the child was adoption, and DFPS would have placed the child in your home for adoption if you had not assumed legal responsibility prior to consummation.

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 December 30, 2016.

TRD-201606770

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER J. ASSISTANCE PROGRAMS FOR RELATIVES AND OTHER CAREGIVERS

DIVISION 1. RELATIVE AND OTHER DESIGNATED CAREGIVER PROGRAM

40 TAC §700.1013

The amendment 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 amendment to §700.1013 implements Texas Family Code §264.755.

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 December 30, 2016.

TRD-201606771

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


DIVISION 2. PERMANENCY CARE ASSISTANCE PROGRAM

40 TAC §§700.1025, 700.1027, 700.1029, 700.1031, 700.1037, 700.1039, 700.1041, 700.1043, 700.1045, 700.1047, 700.1049, 700.1051, 700.1053, 700.1059, 700.1061

The amendments 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 amendments to §§700.1025, 700.1027, 700.1029, 700.1031, 700.1037, 700.1041, 700.1043, 700.1045, 700.1047, 700.1049, and 700.1051 and new sections §700.1059 and §700.1061 implement Texas Family Code §§264.760, 264.851, 264.852, 264.8521, and 264.853.

The amendment to §700.1039 implements Texas Family Code §264.854.

The amendment to §700.1053 implements Texas Family Code §264.855.

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 December 30, 2016.

TRD-201606772

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER Q. PURCHASED PROTECTIVE SERVICES

DIVISION 2. POST-PERMANENCY SERVICES

40 TAC §§700.1726 - 700.1728, 700.1731, 700.1733

The amendments 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 amendments to §§700.1726, 700.1728, 700.1731, and 700.1733 and new §700.1727 implement Texas Family Code §162.306.

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 December 30, 2016.

TRD-201606773

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: January 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 438-4358