TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 377. CHILDREN'S ADVOCACY PROGRAMS

ADOPTION PREAMBLE

The Texas Health and Human Service Commission (HHSC) adopts new Chapter 377, concerning Children's Advocacy Programs. HHSC adopts new Subchapter A, concerning General Provisions, comprising new §377.1, concerning Definitions. Section 377.1 is adopted with changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10043) and will be republished.

HHSC adopts new Subchapter B, concerning Standards of Operation for Local Court-Appointed Volunteer Advocate Programs. Within Subchapter B, HHSC adopts new §§377.101, 377.105, and 377.111 without changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10043). HHSC adopts new §§377.103, 377.107, 377.109, 377.113, 377.115, and 377.1117 with changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10043). Sections 377.103, 377.107, 377.109, 377.113, 377.115, and 377.117 will be republished.

HHSC adopts new Subchapter C, concerning Standards of Operation for Local Children's Advocacy Centers. Within Subchapter C, HHSC adopts new §377.203 and §377.205 without changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10043). HHSC adopts new §§377.201, 377.207, 377.209, and 377.211 with changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10043). Sections 377. 201, 377.207, 377.209, and 377.211 will be republished.

BACKGROUND AND JUSTIFICATION

Senate Bill 354, 84th Legislature, Regular Session, 2015, amends Texas Family Code Chapter 264, Subchapters E and G, transferring the authority to contract with statewide support organizations for child advocacy centers and volunteer advocate programs from the Office of the Attorney General to HHSC. The transfer became effective September 1, 2015.

The proposed rules provide standards and procedures regarding the function and administration of local programs and provide procedures and guidance in the application for, awarding of, and performance standards required for, contracts between the statewide organization and the local programs. HHSC intends these rules to replace the rules currently codified in Texas Administrative Code Title 1, Part 3, Chapter 64 (relating to Standards of Operation for Local Court-Appointed Volunteer Advocate Programs) and Chapter 65 (relating to Standards of Operation for Local Children's Advocacy Centers), which provide that the Office of Attorney General administer the local court-appointed volunteer advocate programs and local children's advocacy center standards.

COMMENTS

The 30-day comment period ended on January 23, 2017. During this period, HHSC received comments regarding the proposed new rules from Texas Court Appointed Special Advocates (CASA). A summary of comments relating to the rules and HHSC's responses to those comments follows.

Comment: The commenter suggests changing §377.1(5)(B), which defines the term "participating agency or entity/public agency partner," to say "local children's advocacy program" instead of "local children's advocacy center."

Response: HHSC agrees and will revise the rule accordingly.

Comment: The commenter suggests changing §377.109(b)(2), which describes how the local judiciary may demonstrate support for a local volunteer advocate program, by inserting after "signed written agreement" the clause "that defines the working relationship." The commenter states that the phrase "signed written agreement," without more, could refer to any type of document.

Response: HHSC agrees and will revise the rule accordingly.

Comment: The commenter states that §377.109(b)(3) should reference paragraph (1)(D) instead of (1)(C).

Response: HHSC agrees and will revise the rule accordingly.

Comment: In §377.109(c)(3), the commenter suggests changing the word "families" to "families or kin" to allow a local volunteer advocate program to provide services that encourage permanent placement of children with extended family members as well as "fictive kin." The commenter also suggests deleting the phrase "through reunification" to broaden the local volunteer advocate program's objectives.

Response: HHSC partially agrees and will revise the rule to include families and "relatives" and to delete "through reunification." HHSC declines to add "fictive kin," as that term is not defined in these rules.

Comment: In §377.113(a)(9), the commenter suggests using the phrase "community members" instead of "clients." The commenter states that CASA programs do not have clients per se, but family members, stakeholders, and other "community members" may have a grievance.

Response: HHSC agrees and will revise the rule accordingly.

Comment: In §377.113(c)(3), the commenter suggests using the phrase "may sever its relationship with a volunteer" instead of "may not retain a volunteer."

Response: HHSC agrees and will revise the rule to state "may terminate a relationship with a volunteer."

Comment: In §377.113(c)(3), the commenter also suggests changing "the policies of the local volunteer advocate program" to "critical policies of the local volunteer organization." The commenter opines that a local program should have discretion to retain an individual who has deviated from a policy "in a minor way."

Response: HHSC disagrees and declines to revise the rule as suggested, because the phrase "critical policies" is not clear on its face, is not defined, and is not used elsewhere in the rules.

Comment: In §377.115(a)(2), the commenter suggests using the phrase "new employees" instead of "prospective employees." The commenter indicates that it would not have prospective employees complete an employee handbook acknowledgment form.

Response: HHSC agrees and will revise the rule accordingly.

Comment: In §377.115(b)(2)(C), the commenter suggests adding to the list of the individuals a volunteer may interview "service providers, and persons with knowledge of the case."

Response: HHSC agrees in general, but has added the phrase "service providers and persons with knowledge of the case" as examples of "appropriate parties" rather than listing them as separate from "appropriate parties."

Comment: In §377.115(b)(3)(A), the commenter suggests extending the ban on a volunteer taking a child "home" to include any home other than where the child lives or for an approved visit. In the commenter's view, the rule as written is too narrow.

Response: HHSC disagrees with the specific language the commenter suggested but did broaden this subparagraph by revising the phrase "[a] volunteer may not take a child home" to "[a] volunteer may not take a child to any location not pre-approved by the advocate program."

Comment: In §377.115(e)(3), the commenter suggests modifying the phrase "training program" with the phrase "volunteer advocate."

Response: HHSC agrees and will revise the rule accordingly. HHSC also revised paragraph (4) to be consistent with the other paragraphs in this subsection.

Comment: In §377.117(a)(1)(A), the commenter suggests deleting the requirement that a volunteer, employee, and director's background check be conducted "every two years" after the initial background check. The commenter indicates that, as background checks are currently done, they include continuous updates. A program is notified of any abuse allegation or criminal activity within 48 hours. Consequently, programs do not need to re-run the background check.

Response: HHSC agrees and will revise the rule accordingly.

Comment: The commenter suggests combining §377.117(a)(1)(A) and (B) because the fingerprint search conducted by the Texas Department of Public Safety includes a search conducted by the Federal Bureau of Investigations.

Response: HHSC agrees in part and will revise the rule to provide that a background check must be performed on each volunteer, employee, or director no longer than every two years after the initial check. This will allow for background checks to be continuous but will also allow a local volunteer advocate program that does not have access to continuous updates to continue using its current background check schedule.

Comment: In §377.117(a)(3), the commenter suggests using the phrase "For an individual authorized to transport children, the local children's advocacy program must" in place of "Positions involving driving require."

Response: HHSC agrees and will revise the rule using the phrase "For an individual authorized to drive children."

After completion of the comment period, HHSC further revised the rules in order to provide additional clarity, with the goal of reducing any confusion or ambiguity regarding the intent of the rule text. While these changes were not in response to public comment, HHSC limited the changes to word and verbiage modifications that HHSC generally considers nonsubstantive in nature. The following list specifies the provisions where HHSC made substantive word-choice modifications after the close of the public comment period:

In §377.115(b)(3)(F) and §377.117(c)(1)(Q), HHSC modified the language "sex related offense" to read "sexual offense as described under Chapter 21 of the Texas Penal Code." The original language was very vague, and the intent of this subsection is the capture the offenses within Chapter 21 of the Penal Code.

In §377.115(d)(4), HHSC added the word "applicable" to provide more specificity to the vague language of "annual training."

In §377.117(a)(1)(A), HHSC provided the specific types of background check (National Crime Information Center and Texas Crime Information Center), rather than the vague reference to "a fingerprint based search conducted by the Federal Bureau of Investigations."

In §377.117(e), HHSC modified the language "a finding of not guilty or other determination of innocence" to read "if the individual is otherwise absolved of guilt." HHSC intends the modified wording to be more precise, because there are types of criminal pleas and adjudications where a defendant is not deemed "innocent," but neither has the individual been found "guilty."

HHSC made additional minor revisions to the rules to further clarify the text. HHSC does not intend these revisions to alter the substance of the rules.

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §377.1

STATUTORY AUTHORITY

The new rules are adopted under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410(c), which requires HHSC to adopt standards for eligible local children's advocacy centers; Texas Family Code §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and Texas Family Code §264.609, which authorizes HHSC's Executive Commissioner to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

§377.1.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.

(1) Child--An abused or neglected individual who is under the control or supervision of the Texas Department of Family and Protective Services and who is the subject of a suit affecting the parent-child relationship filed by a governmental entity.

(2) Court--The district court, juvenile court having the same jurisdiction as a district court, or other court expressly given jurisdiction of a suit affecting the parent-child relationship.

(3) DFPS--The Texas Department of Family and Protective Services or its designee.

(4) HHSC--The Texas Health and Human Services Commission or its designee.

(5) Participating agency or entity/public agency partner--A governmental entity that:

(A) is involved in child abuse investigations or prosecutions and offers services to child abuse victims; and

(B) participates in establishing and operating a local children's advocacy program as provided in Texas Family Code §264.403.

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 June 21, 2017.

TRD-201702419

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: July 11, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 206-4647


SUBCHAPTER B. STANDARDS OF OPERATION FOR LOCAL COURT-APPOINTED VOLUNTEER ADVOCATE PROGRAMS

1 TAC §§377.101, 377.103, 377.105, 377.107, 377.109, 377.111, 377.113, 377.115, 377.117

STATUTORY AUTHORITY

The new rules are adopted under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410(c), which requires HHSC to adopt standards for eligible local children's advocacy centers; Texas Family Code §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and Texas Family Code §264.609, which authorizes HHSC's Executive Commissioner to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

§377.103.Legal Authorization.

The provisions of this subchapter are promulgated under Texas Family Code §264.602(c), §264.602(d), and §264.609, which authorize HHSC to adopt standards for local volunteer advocate programs, develop a scale of financial support for the local volunteer advocate programs, and adopt rules necessary to carry out the provisions of the Texas Family Code.

§377.107.Contract with Statewide Volunteer Advocate Organization.

(a) HHSC contracts with a single statewide volunteer advocate organization that satisfies subsection (b) of this section, to perform the following functions for local volunteer advocate programs:

(1) training;

(2) technical assistance; and

(3) evaluation services for the benefit of the local volunteer advocate programs.

(b) HHSC may contract only with a statewide volunteer advocate organization that:

(1) is exempt from federal income taxation under Internal Revenue Code of 1986 §501(a) and §501(c)(3);

(2) is designated as a supporting organization under Internal Revenue Code of 1986 §509(a)(3); and

(3) is composed of individuals or groups of individuals who have expertise in the dynamics of child abuse and neglect, and with experience in operating local volunteer advocate programs.

(c) The contract must:

(1) include measurable goals and objectives relating to the number of:

(A) volunteer advocates in the program; and

(B) children receiving services from the program; and

(2) follow practices to ensure compliance with standards referenced in the contract.

§377.109.Contracts with Local Volunteer Advocate Programs.

(a) The statewide volunteer advocate organization with which HHSC contracts under §377.107 of this subchapter (relating to Contract with Statewide Local Volunteer Advocate Organization) must contract with local volunteer advocate programs.

(b) Eligibility Requirements for a Local Volunteer Advocate Program.

(1) To be eligible for a contract with the statewide volunteer advocate organization under Texas Family Code §264.602, a local volunteer advocate program must:

(A) operate under the auspices of state or county government, or be incorporated as part of a nonprofit organization;

(B) use individuals appointed as volunteer advocates or guardians ad litem by the court, to provide for the needs of abused or neglected children;

(C) demonstrate that the program has provided court-appointed advocacy services for at least six months;

(D) provide court-appointed advocacy services for at least ten children each month; and

(E) demonstrate that the program has local judicial support.

(2) Local judicial support may be demonstrated by a signed written agreement that defines the working relationship between the local volunteer advocate program and the court with appropriate jurisdiction.

(3) The statewide volunteer advocate organization may not contract with a person that is not eligible under this section. However, the statewide volunteer advocate organization may waive the requirement in paragraph (1)(D) of this subsection for an established program in a rural area or under other special circumstances.

(c) The statewide volunteer advocate organization must consider the following in awarding a contract to a local volunteer advocate program:

(1) the local volunteer advocate program's eligibility for, and use of, funds from local, state, or federal governmental sources, philanthropic organizations, and other sources;

(2) community support for the local volunteer advocate program, as indicated by financial contributions from civic organizations, individuals, and other community resources;

(3) whether the local volunteer advocate program provides services that encourage the permanent placement of children with their families, relatives, or through timely placement with adoptive families; and

(4) whether the local court system endorses and cooperates with the local volunteer advocate program.

(d) Contract Requirements.

(1) A contract between the statewide volunteer advocate organization and a local volunteer advocate program must require the local volunteer advocate program to:

(A) submit quarterly and annual financial reports to the statewide volunteer advocate organization, as determined by HHSC;

(B) submit quarterly and annual reports of performance factors identified by HHSC, and submit such reports to the statewide volunteer advocate organization by the deadlines designated by the statewide volunteer advocate organization;

(C) obtain annual independent financial audits or audited financial statements as required by state or federal law, and provide copies of the auditor's reports and related documents in accordance with the deadlines designated by the statewide volunteer advocate organization;

(D) cooperate with inspections and audits that HHSC makes to ensure service standards and fiscal responsibility; and

(E) provide, at a minimum:

(i) independent and factual information regarding the child, in writing, to the court and to counsel for the parties involved;

(ii) advocacy through the courts for permanent home placement and services for the child;

(iii) monitoring of the child to ensure the child's safety and to prevent the unnecessary relocation of the child to multiple temporary placements;

(iv) reports in writing to the presiding judge and to counsel for the parties involved;

(v) community education relating to child abuse and neglect;

(vi) referrals to existing community services;

(vii) procedures to safeguard the confidentiality of records or information relating to the child;

(viii) a volunteer recruitment and training program, including adequate screening procedures for volunteers; and

(ix) compliance with the standards adopted under Texas Family Code §264.602.

(2) A contract between the statewide volunteer advocate organization and a local volunteer advocate program is enforced through the use of the remedies and in accordance with the procedures provided in the Uniform Grant Management Standards for Texas (UGMS).

(3) A local volunteer advocate program must comply with the requirements and provisions of the contract between the statewide volunteer advocate organization and HHSC.

§377.113.Local Volunteer Advocate Program Administration.

(a) Required Written Documents. A local volunteer advocate program must have in writing:

(1) a mission and purpose statement approved by the statewide volunteer advocate organization;

(2) the local volunteer advocate program's goals and objectives, with an action plan and timeline for meeting those goals and objectives;

(3) a method for evaluating the progress of accomplishing the local volunteer advocate program's goals and objectives;

(4) a funding plan based on the local volunteer advocate program's goals and objectives;

(5) personnel policies and procedures;

(6) job descriptions for employees, directors, and volunteers;

(7) procedures for volunteer recruiting, screening, training, and appointment to cases;

(8) policies for support and supervision of volunteers;

(9) a grievance procedure for employees, volunteers, and community members;

(10) a media/crisis communication plan;

(11) a fidelity bond;

(12) accounting procedures;

(13) a weapons prohibition policy approved by the statewide volunteer advocate organization; and

(14) a memorandum of understanding between DFPS and the local volunteer advocate program that defines the working relationship between the local volunteer advocate program and DFPS.

(b) Personnel.

(1) A local volunteer advocate program must have a maximum volunteer-to-supervisor ratio of 30:1 and a maximum case-to-supervisor ratio of 45:1.

(2) A local volunteer advocate program must endeavor to provide equal employment opportunity regardless of race, color, religion, national origin, age, sex (including pregnancy), disability, or other status protected by law and must comply with all applicable laws and regulations regarding employment.

(3) A local volunteer advocate program must endeavor to be an inclusive organization whose employees, volunteers, and directors reflect the diversity of the children and community that the program serves in terms of gender, ethnicity, and cultural and socio-economic backgrounds.

(c) Conduct.

(1) All volunteers, employees, and directors must conduct themselves in a professional manner.

(2) Volunteers, employees, and directors may not discriminate against any individual on the grounds of race, color, national origin, religion, sex (including pregnancy), age, disability, or other legally protected classes.

(3) A local volunteer advocate program may terminate a relationship with a volunteer, employee, or director who:

(A) does not act in accordance with the policies of the local volunteer advocate program; or

(B) has abused or neglected a position of trust.

(d) Confidentiality.

(1) Each local program must counsel volunteers, employees, and directors on what constitutes confidential information.

(2) A volunteer, employee, or director may not communicate any confidential information pertaining to an individual being served by a local volunteer advocate program to a person who is not authorized to possess the confidential information.

(e) Conflicts of Interest. Each local volunteer advocate program must have a written conflict-of-interest policy that:

(1) prohibits any personal, business, or financial interest that renders a volunteer, employee, or director unable or potentially unable to perform the duties and responsibilities assigned to that volunteer, employee, or director in an efficient and impartial manner; and

(2) prohibits a volunteer, employee, or director from using the position for private gain, or acting in a manner that creates the appearance of impropriety.

(f) Liability.

(1) A person is not liable for civil damages for a recommendation made or an opinion rendered in good faith, while acting in the official scope of the person's duties as a board member, staff member, or volunteer of a local volunteer advocate program.

(2) Neither HHSC nor the statewide volunteer advocate organization will be liable for the actions of local volunteer advocate program volunteers, employees, or directors. Volunteers, employees, and directors of local volunteer advocate programs must abide by the conduct, confidentiality, and conflict-of-interest requirements outlined in this section, as well as all other laws and regulations governing the prescribed conduct and activity.

§377.115.Local Volunteer Advocate Program Personnel.

(a) Application Process.

(1) Prospective volunteers, employees, and directors must complete:

(A) a written application;

(B) personal interview(s); and

(C) consent and release forms for appropriate background investigations.

(2) New employees must also complete employee handbook acknowledgment forms.

(b) Volunteers.

(1) A volunteer must be at least 21 years of age.

(2) A volunteer may:

(A) review applicable records;

(B) facilitate prompt and thorough review of a case;

(C) interview appropriate parties, including service providers and persons with knowledge of the case, in order to make recommendations regarding the child's best interests;

(D) attend court hearings; and

(E) make written recommendations to the court concerning the outcome that would be in the child's best interest.

(3) A volunteer may not:

(A) take a child to any location not pre-approved by the advocate program;

(B) give legal advice or therapeutic counseling;

(C) make placement arrangements for a child;

(D) give or lend money or expensive gifts to a child or family;

(E) take a child on an overnight outing; or

(F) allow a child to come into contact with someone the volunteer knows or should know has a criminal history involving violence, child abuse, neglect, drugs, or a sexual offense as described under Chapter 21 of the Texas Penal Code.

(4) A volunteer may, on an individual basis, obtain written permission from the local volunteer advocate program, for an exception to an action listed under paragraph (3) of this subsection. If a request for an exception is made, a volunteer must disclose whether anyone who resides with the volunteer, or with whom the child may come in contact through the volunteer, does not meet the background requirements of §377.117 of this subchapter (relating to Local Volunteer Advocate Program Personnel Background Checks). The basis for electing whether to grant an exception must be documented in the child's case file.

(5) A volunteer must not be concurrently assigned to more than two cases, unless the assignment is approved by the local volunteer advocate program's executive director or caseworker supervisor.

(6) A volunteer must not provide foster care to a child in the managing conservatorship of DFPS unless the volunteer is related to the child. This prohibition does not apply to:

(A) a volunteer with whom DFPS placed a child prior to June 30, 1999; or

(B) a volunteer with whom a child has been placed by an agency or person other than DFPS and the child is not in the managing conservatorship of DFPS.

(7) A volunteer may not be assigned to any case in which the volunteer is related to any party.

(c) Employees.

(1) An employee must be at least 21 years of age.

(2) If an employee also serves on the board of directors, he or she may not be a voting director.

(d) Board of Directors.

(1) The board of directors must have at least nine members, with an executive committee composed of, at a minimum, the offices of president, vice president, secretary, and treasurer.

(2) The bylaws of the local volunteer advocate program must include a rotation of directors for the board, as well as term limits for directors and executive committee officers.

(3) A director must be at least 21 years of age.

(4) At least one director from the board must attend applicable annual training provided by the statewide volunteer advocate organization or a national association.

(e) Training.

(1) A local volunteer advocate program must plan and implement a training and development program for employees and volunteers, and must inform employees and volunteers about:

(A) the background and needs of children served by the local volunteer advocate program;

(B) the operation of the court and the child welfare system; and

(C) the nature and effects of child abuse and neglect.

(2) A local volunteer advocate program must provide annual orientation for new directors and continuing education for incumbent directors, which must include information on:

(A) the applicable goals, objectives, and methods of operation of the local volunteer advocate program;

(B) current local, statewide and national association services;

(C) the court and child welfare system; and

(D) program governance.

(3) A local volunteer advocate training program must consist of at least 30 hours of pre-service training and 12 hours of in-service training per year.

(4) A local volunteer advocate program must provide cultural diversity training for volunteers, employees, and directors on an annual basis.

(5) The statewide volunteer advocate organization may review all training and training materials for volunteers, employees, and directors.

§377.117.Local Volunteer Advocate Program Personnel Background Checks.

(a) Conducting a background check.

(1) A volunteer, employee, or director must be subject to a background check prior to the commencement of volunteer, employee, or director duties and no longer than every two years thereafter. A background check must include a review of the individual's information from:

(A) a fingerprint-based search conducted by the Texas Department of Public Safety that utilizes the National Crime Information Center (NCIC) database that is maintained by the Federal Bureau of Investigation and the Texas Crime Information Center (TCIC);

(B) the Texas Public Sex Offender Registry maintained by the Texas Department of Public Safety;

(C) the National Sex Offender Public Website maintained by the United States Department of Justice; and

(D) the Child Abuse and Neglect Central Registry maintained by DFPS in accordance with federal law and Texas Family Code §261.002.

(2) If a volunteer, employee, or director has lived in a state other than Texas within the last seven years, the local volunteer advocate program must conduct a criminal background check in that state.

(3) For an individual authorized to drive children, the local program must:

(A) investigate the individual's driving record and insurability; and

(B) obtain documentation of a valid, state-issued driver's license and satisfactory personal liability insurance.

(b) Ten-year bar for certain felony offenses.

(1) An individual whose background check yields a felony conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication for which fewer than ten years have passed since the date of the offense, is barred from being a volunteer, employee, or director.

(2) An individual whose background check yields a felony conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication for which ten years or more have passed since the date of the offense, and if that felony offense is not described under subsection (c) of this section, the local volunteer advocate program may exercise the discretion to determine that individual's eligibility for a volunteer, employee, or director position.

(c) Bar for certain offenses.

(1) An individual whose background check yields a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication, or pending charge for any of these offenses is barred from being a volunteer, employee, or director:

(A) Texas Penal Code Chapter 19;

(B) Texas Penal Code Chapter 20;

(C) Texas Penal Code Chapter 20A;

(D) Texas Penal Code §§21.02, 21.07, 21.08, 21.11, or 21.12;

(E) Texas Penal Code §§22.011, 22.02, 22.021, 22.04, 22.041, 22.05, 22.07, or 22.11;

(F) Texas Penal Code Chapter 25;

(G) Texas Penal Code §28.02;

(H) Texas Penal Code Chapter 29;

(I) Texas Penal Code §30.02;

(J) Texas Penal Code §33.021;

(K) Texas Penal Code §42.072;

(L) Texas Penal Code Chapter 43;

(M) Texas Penal Code §§46.06, 46.09, or 46.10;

(N) Texas Penal Code §48.02;

(O) Texas Penal Code §§49.045, 49.05, 49.07, or 49.08;

(P) Texas Penal Code Chapter 71; or

(Q) any other offense involving violence, child abuse or neglect, assault with family violence, or a sexual offense as described under Chapter 21 of the Texas Penal Code.

(2) An individual whose background check produces any founded allegations of abuse with DFPS is barred from being a volunteer, employee, or director.

(d) An individual whose background check produces a conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication of an offense, including a misdemeanor drug-related offense, that is not an offense described under subsections (b) or (c) of this section may be considered by the local volunteer advocate program to determine eligibility for a volunteer, employee, or director position.

(e) If an individual who has applied to be a volunteer, employee, or director has a pending charge described under subsections (b) or (c) of this section that would otherwise bar the individual's hiring or appointment, a new review of the application may be conducted if the charge is subsequently dismissed or if the individual is otherwise absolved of guilt.

(f) An individual whose background check produces information that includes a group of offenses or information that, if considered separately, would not bar an applicant may result in the disqualification of an applicant volunteer, employee, or director if it is determined that the offenses constitute a problematic pattern.

(g) A volunteer, employee, or director must be immediately removed from his or her position and barred from future consideration as a volunteer, employee, or director, if the volunteer, employee, or director knowingly or intentionally places a child, through the actions of the volunteer, employee, or director, in contact with a person whose criminal history involves an offense described under subsections (b) or (c) of this section.

(h) The refusal to execute consent and release forms necessary to conduct a criminal background check disqualifies an individual from serving as a volunteer, employee, or director.

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 June 21, 2017.

TRD-201702420

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: July 11, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 206-4647


SUBCHAPTER C. STANDARDS OF OPERATION FOR LOCAL CHILDREN'S ADVOCACY CENTERS

1 TAC §§377.201, 377.203, 377.205, 377.207, 377.209, 377.211

STATUTORY AUTHORITY

The new rules are adopted under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410(c), which requires HHSC to adopt standards for eligible local children's advocacy centers; Texas Family Code §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and Texas Family Code §264.609, which authorizes HHSC's Executive Commissioner to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

§377.201.Purpose and Definitions.

(a) The purpose of this subchapter is to provide:

(1) requirements regarding the function and administration of a local children's advocacy center program; and

(2) requirements for contracts between the statewide children's advocacy center organization and the local children's advocacy centers.

(b) The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:

(1) Local children's advocacy center --An entity that is established in accordance with a memorandum of understanding executed under Texas Family Code §264.403, that operates local children's advocacy center programs.

(2) Local children's advocacy center program--A local program that:

(A) assesses victims of child abuse or neglect to determine needed services and provides the needed services;

(B) provides a facility at which a multidisciplinary team can meet to facilitate the disposition of child abuse cases; and

(C) coordinates the activities of governmental entities in relation to child abuse investigations and the delivery of services.

(3) Multidisciplinary team--A team of individuals composed in accordance with Texas Family Code §264.406 that works within a local children's advocacy center to review child abuse cases with the intent of coordinating the activities of entities involved in child abuse investigation and prosecution and in the provision of victim services.

(4) Statewide children's advocacy center organization--The entity with which HHSC contracts under Texas Family Code §264.409 and §377.207 of this subchapter (relating to Contract with Statewide Children's Advocacy Center Organization).

§377.207.Contract with Statewide Children's Advocacy Center Organization.

(a) HHSC contracts with a single statewide children's advocacy center organization that satisfies subsection (b) of this section to perform the following functions for local children's advocacy center programs:

(1) training;

(2) technical assistance;

(3) evaluation services; and

(4) funds administration.

(b) HHSC may contract only with a statewide children's advocacy center organization that:

(1) is exempt from federal income taxation under Internal Revenue Code of 1986 §501(a) and §501(3);

(2) is designated as a supporting organization under Internal Revenue Code of 1986 §509(a)(3); and

(3) is composed of individuals or groups of individuals who have expertise in establishing and operating children's advocacy center programs.

(c) The contract must limit the statewide children's advocacy center organization's annual spending for the performance of obligations under Texas Family Code §264.409(a) to no more than 12 percent of the annual amount appropriated to HHSC for the purposes of the local children's advocacy center programs.

§377.209.Contracts with Local Children's Advocacy Centers.

(a) The statewide children's advocacy center organization with which HHSC contracts under §377.207 of this subchapter (relating to Contract with Statewide Children's Advocacy Center Organization) contracts with local children's advocacy centers.

(b) Eligibility of a Local Children's Advocacy Center to Contract with the Statewide Organization.

(1) To be eligible to contract with the statewide organization under Texas Family Code §264.410, a local children's advocacy center must:

(A) have a signed memorandum of understanding as provided by Texas Family Code §264.403;

(B) operate under the authority of a governing board as provided by Texas Family Code §264.404;

(C) have a multidisciplinary team of persons involved in the investigation or prosecution of child abuse cases, or the delivery of services as provided by Texas Family Code §264.406;

(D) hold regularly scheduled case reviews as provided by Texas Family Code §264.406;

(E) operate in a neutral and physically separate space from the day-to-day operations of any public agency partner;

(F) have developed a method of statistical information-gathering on children receiving services through the center, and share such statistical information with the statewide children's advocacy center organization, DFPS, and HHSC when requested;

(G) have an in-house volunteer program;

(H) employ an executive director who is answerable to the board of directors of the local children's advocacy center and who is not the exclusive salaried employee of any public agency partner; and

(I) operate under a working protocol that includes a statement of:

(i) the local children's advocacy center's mission;

(ii) each participating agency's role and commitment to the local children's advocacy center;

(iii) the type of cases to be handled by the local children's advocacy center;

(iv) the local children's advocacy center's procedure for conducting case reviews and forensic interviews, and for ensuring access to specialized medical and mental health services; and

(v) the local children's advocacy center's policies regarding confidentiality and conflict resolution.

(2) The statewide children's advocacy center organization may waive requirements specified in subsection (b)(1) of this section if it determines that the waiver will not adversely affect the local children's advocacy center's ability to carry out its duties under Texas Family Code §264.405.

(c) Requirements for Contracts Awarded to Local Children's Advocacy Centers by the Statewide Children's Advocacy Center Organization.

(1) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must not result in reducing the financial support the local children's advocacy center receives from another source.

(2) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must be enforced through the use of remedies and in accordance with the procedures provided in the Uniform Grant Management Standards for Texas (UGMS).

(3) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must require the local children's advocacy center to comply with the requirements and provisions applicable to local children's advocacy centers contained in the contract between the statewide children's advocacy center organization and HHSC under Texas Family Code §264.409.

§377.211.Operation of Local Children's Advocacy Center and Program.

(a) A local children's advocacy center must:

(1) assess victims of child abuse and their families to determine their need for services relating to the investigation of child abuse;

(2) provide the services needed;

(3) provide a facility at which a multidisciplinary team appointed under Texas Family Code §264.406 can meet to facilitate the efficient and appropriate disposition of child abuse cases through the civil and criminal justice systems; and

(4) coordinate the activities of governmental entities that are involved with child abuse investigations and the delivery of services to child abuse victims and their families.

(b) Board of Directors of a Local Children's Advocacy Center.

(1) A local children's advocacy center must be governed by a board of directors. In addition to other persons appointed or elected to serve on the board of directors, the board of directors must include an executive officer of or an employee selected by an executive officer of each of the following:

(A) a law enforcement agency that investigates child abuse in the area served by the center;

(B) DFPS's Child Protective Services division; and

(C) the county or district attorney's office involved in the prosecution of child abuse cases in the area served by the center.

(2) Service on the board of a local children's advocacy center by a public officer or employee is an additional duty of the person's office or employment.

(c) Multidisciplinary Team of a Local Children's Advocacy Center.

(1) A local children's advocacy center's multidisciplinary team must include employees of the participating agencies, who are professionals involved in the investigation or prosecution of child abuse cases.

(2) A local children's advocacy center's multidisciplinary team may also include professionals involved in the delivery of services, including medical and mental health services, to child abuse victims and the victims' families.

(3) A multidisciplinary team must meet at regularly scheduled intervals to:

(A) review child abuse cases determined to be appropriate for review by the multidisciplinary team; and

(B) coordinate the actions of the entities involved in the investigation and prosecution of the cases and the delivery of services to the child abuse victims and the victims' families.

(4) A multidisciplinary team may review a child abuse case in which the alleged perpetrator does not have custodial control or supervision of the child or is not responsible for the child's welfare or care.

(5) When acting in the member's official capacity, a multidisciplinary team member is authorized to receive information made confidential by Texas Human Resources Code §40.005 or Texas Family Code §261.201 or §264.408.

(d) Liability.

(1) A person is not liable for civil damages based on a recommendation made or an opinion rendered in good faith, while acting in the official scope of the person's duties as a member of a multidisciplinary team or as a board member, staff member, or volunteer of a local children's advocacy center.

(2) This limitation on civil liability does not apply if a person's actions constitute gross negligence.

(e) Confidentiality Requirements Placed on a Local Children's Advocacy Center.

(1) In accordance with Texas Family Code §264.408, the files, reports, records, communications, and working papers used or developed in providing services under Texas Family Code Chapter 264 are confidential. This information is not subject to public release under Texas Government Code Chapter 552, and may be disclosed only for purposes consistent with Texas Family Code Chapter 264 without losing its confidential character. Disclosure may be to:

(A) DFPS, DFPS employees, law enforcement agencies, prosecuting attorneys, medical professionals, and other state or local agencies that provide services to children and families; and

(B) the attorney for the child who is the subject of the records, and a court-appointed volunteer advocate appointed for the child under Texas Family Code §107.031.

(2) Information related to the investigation of a report of abuse or neglect under Texas Family Code Chapter 261, and services provided as a result of the investigation, are confidential as provided by Texas Family Code §261.201.

(3) DFPS, a law enforcement agency, and a prosecuting attorney may share with a local children's advocacy center information that is confidential under Texas Family Code §261.201 as needed, to provide services under Texas Family Code Chapter 264. Confidential information shared with or provided to a local children's advocacy center remains the confidential property of the agency that shared or provided the information to the local children's advocacy center.

(4) A video recording of an interview of a child made by a local children's advocacy center is the property of the prosecuting attorney involved in the criminal prosecution of the case involving the child. If no criminal prosecution occurs, the video recording is the property of the attorney involved in representing DFPS in a civil action alleging child abuse or neglect. If the matter involving the child is not pursued either civilly or criminally, the video recording is the property of DFPS, if the matter is an investigation by DFPS of abuse or neglect. If DFPS is not investigating or has not investigated the matter, the video recording is the property of the agency that referred the matter to the local children's advocacy center.

(5) DFPS must be allowed access to a local children's advocacy center's video-recorded interviews of children.

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 June 21, 2017.

TRD-201702421

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: July 11, 2017

Proposal publication date: December 23, 2016

For further information, please call: (512) 206-4647