TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 707. CHILD PROTECTIVE INVESTIGATIONS

The Department of Family and Protective Services (DFPS), proposes new §707.716 and amendments to §§707.451, 707.457, 707.465, 707.467, 707.469, 707.471, 707.473, 707.489, 707.491, 707.571, 707.573, 707.575, 707.577, 707.579, 707.581, 707.583, 707.585, 707.605, 707.615, 707.617, 707.623, 707.703, 707.765, 707.767, 707.791, 707.801 in Chapter 707 concerning Child Protective Investigations.

BACKGROUND AND PURPOSE

The primary purpose of the revisions is to implement the legislative changes from the 87th Regular Session (2021) relating to the Investigations and Child Care Investigations (CCI) programs of the Child Protection Investigations (CPI) division of the Texas Department of Family and Protective Services (DFPS). Specifically, this involves implementing House Bill (HB) 567 and HB 2536 which amend the neglect definitions in Texas Family Code (TFC) §261.001(4); HB 375 and HB 1540 which make minor changes to the sexual abuse definitions in TFC 261.001(1); and HB 135 which adds new statutory requirements to TFC Chapter 261 regarding notifications of certain rights DFPS must provide to alleged perpetrators prior to an interview with the individual during the course of a child abuse and neglect investigation.

The revisions also consist of the following updates:

For purposes of a traditional investigation conducted by the Investigations program, updating the rules to merely reflect the current screening criteria for intakes and updating citations and terminology used in the rules related to release hearings;

For purposes of a school investigation, updating the rules to accurately reflect the current notification procedures to certain school personnel during the initiation of the investigation and providing additional clarification on who DFPS considers to be school personnel;

For purposes of an investigation of a child care operation subject to regulation under Human Resources Code Chapter 42, clarifying investigation actions CCI staff take during the course of the investigation and clarifying the entities DFPS can release confidential investigation information to.

Except for the revisions related to legislative changes, the updates primarily explain and amplify, but not alter, existing policies and practices.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §700.451 consist of defining "blatant disregard" and "immediate danger to child's physical health or safety" to implement the change to the statutory definitions of neglect in Texas Family Code §261.001(4) made by HB 567.

The proposed amendments to §700.457 consist of updating the rule to reflect the changes made to the sexual abuse definition in Texas Family Code §261.001(1) by HB 375 and HB 1540. Specifically, HB 375 expands the offense of continuous sexual abuse of a young child, which is included as a form of child sexual abuse in TFC 261.001(1), to add disabled individual and HB 1540 adds the offense of solicitation of prostitution to the definition of child sexual abuse. The proposed amendments also consist of further clarifying what is considered child pornography for purposes of a child sexual abuse investigation and also clarifying that the Investigations program will investigate conduct that constitutes continuous sexual abuse of a child as long as the child is under 18 years of age, regardless of any disabilities the child may have.

The proposed amendments to §707.465, the rule concerning abandonment, consist of updating the rule to reflect the changes made to the neglect definition in Texas Family Code §261.001(4) by HB 567. Specifically, HB 567 amends the neglect definition by replacing "substantial risk" with "immediate danger" and defining neglect as a person's blatant disregard for the person's actions or inactions that results in harm to the child or creates an immediate danger to the child's physical health or safety.

The proposed amendments to §707.467, the rule concerning neglectful supervision, consist of updating the rule to reflect the changes made to the neglect definition in Texas Family Code §261.001(4) by HB 567. Specifically, HB 567 amends the neglect definition by replacing "substantial risk" with "immediate danger" and defining neglect as a person's blatant disregard for the person's actions or inactions that results in harm to the child or creates an immediate danger to the child's physical health or safety. HB 567 also excludes from the definition of neglect, a parent's decision to allow a child to engage in age appropriate independent activities.

The proposed amendments to §707.469, the rule concerning medical neglect, consist of the following: (1) updating the rule to reflect the changes made to the neglect definition in Texas Family Code §261.001(4) by HB 567 which includes replacing "substantial risk" with "immediate danger" and defining neglect as a person's blatant disregard for the person's actions or inactions that results in harm to the child or creates an immediate danger to the child's physical health or safety; and (2) updating the rule to reflect the exclusions to medical neglect as specified in HB 2536 which provides that a decision by the parent to obtain an opinion from more than one medical provider relating to the child's medical care, transfer the child's medical care to a new provider, or transfer the child to another health care facility is not considered neglect.

The proposed amendments to §707.471, the rule concerning physical neglect, consist of updating the rule to reflect the changes made to the neglect definition in Texas Family Code §261.001(4) by HB 567. Specifically, HB 567 amends the neglect definition by replacing "substantial risk" with "immediate danger" and defining neglect as a person's blatant disregard for the person's actions or inactions that results in harm to the child or creates an immediate danger to the child's physical health or safety.

The proposed amendments to §707.473, the rule concerning refusal to accept parental responsibility (RAPR), consists of updating the rule to reflect the changes made to the neglect definition in Texas Family Code §261.001(4) by HB 567. Specifically, HB 567 amends the neglect definition by replacing "substantial risk" with "immediate danger" and defining neglect as a person's blatant disregard for the person's actions or inactions that results in harm to the child or creates an immediate danger to the child's physical health or safety.

The proposed amendments to §707.489 consist of updating the rule to merely reflect the current screening criteria in agency policy for intakes concerning the Investigations program.

The proposed amendments to §707.491 consist of updating the rule to reflect the mandates of HB 135 that require notifying an alleged perpetrator of the individual's right to an administrative review and the right to record the interview.

The proposed amendments to §707.571 consist of updating the rule to define the terminology used in Division 3, Subchapter A, Chapter 707, concerning release hearings for the Investigations program, and other non-substantive edits such as updating citations.

The proposed amendments to §707.573 consist of adding a reference to TFC §261.308(d) concerning the release of investigation information to certain entities and other non-substantive edits.

The proposed amendments to §707.575 consist of non-substantive edits.

The proposed amendments to §707.577 consist of non-substantive edits.

The proposed amendments to §707.579 consist of non-substantive edits.

The proposed amendments to §707.581 consist of non-substantive edits.

The proposed amendments to §707.583 consist of non-substantive edits.

The proposed amendments to §707.585 consist of non-substantive edits.

The proposed amendments to §707.605 provide further clarity on who is considered school personnel for purposes of a school investigation.

The proposed amendments to §707.615 consist of updating the rule to provide that if the superintendent, charter school director, or private school chief executive officer is the alleged perpetrator in the investigation, DFPS will instead provide notice of the investigation to the president of the school board or local governing body.

The proposed amendment to §707.617 consists of updating the rule to require that when conducting a school investigation, the investigator must not make a finding of Reason to Believe against the alleged perpetrator without completing all required investigative tasks.

The proposed amendments to §707.623 clarify that if the superintendent of the school district was the alleged perpetrator in the investigation, at the completion of the investigation DFPS will not provide the investigation report to the superintendent, in the capacity of a school official, pursuant to TFC § 261.406.

The proposed amendment to §707.703 consists of defining who Child Care Investigations considers to be a "principal" and a "collateral" in an investigation.

New §707.716 implements HB 135, 87th R.S. which requires an investigator to notify an alleged perpetrator prior to conducing the interview of the right to record an interview and seek an administrative review. The new rule also provides the requirements of the federal Child Abuse Prevention and Treatment Act (CAPTA) concerning the actions an investigator must take upon first contact with a principal in an investigation.

The proposed amendments to §707.765 consist of deleting language limiting a single-source continuum contractor's (SSCC) authority to obtain investigation information concerning a residential child care operation the SSCC subcontracts with to situations where the operation was cited for a deficiency and the SSCC has a release of information from the operation. This provision predates the codification of community-based care requirements in the Texas Family Code. Hence this rule provision is no longer necessary.

The proposed amendments to §707.767 consist of clarifying when a child day care and residential child care operation can receive information concerning a child victim in an investigation. The proposed amendments also consist of deleting language limiting a single-source continuum contractor's (SSCC) authority to obtain investigation information concerning a residential child care operation the SSCC subcontracts with to situations where the operation was cited for a deficiency and the SSCC has a release of information from the operation. This provision predates the codification of community-based care requirements in the Texas Family Code. Hence this rule provision is no longer necessary.

The proposed amendments to §707.791 consist of updating the rule to reflect the changes made to the sexual abuse definition in Texas Family Code 261.001(1) by HB 375 and HB 1540. Specifically, HB 375 expands the offense of continuous sexual abuse of a young child, which is included as a form of child sexual abuse in TFC 261.001(1), to add disabled individual and HB 1540 adds the offense of solicitation of prostitution to the definition of child sexual abuse. The proposed amendments also include adding the Penal Code citation for pornography and further clarify that CCI will investigate conduct that constitutes continuous sexual abuse of a child as long as the child is under 18 years of age, regardless of any disabilities the child may have.

The proposed amendments to §707.801 consist of updating the rule to implement the change to the statutory definitions of neglect in Texas Family Code §261.001(4) made by HB 567, including defining "blatant disregard" and "immediate danger to child's physical health or safety".

FISCAL NOTE

Tamela Griffin, Acting Chief Financial Officer of DFPS, determined that for each year of the first five years that the sections will be in effect, there will be a one-time cost to state government of $130,357 as a result of enforcing and administering the sections as proposed. This cost will be absorbed by the agency through the use of existing resources.

GOVERNMENT GROWTH IMPACT STATEMENT

DFPS has determined that during the first five years that the proposed rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation will not affect the number of employee positions;

(3) implementation will not require an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rules will not affect fees paid to the agency;

(5) the proposed rules will create a new regulation only to the extent that DFPS is adding new rule §707.716 to explain the actions that a CCI investigator takes during the course of an investigation;

(6) the proposed rules will not expand, limit, or repeal an existing regulation;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy as the rules will be implemented with existing resources.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Tamela Griffin also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not apply to small or micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with these sections as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Pursuant to subsection (c)(7) of Texas Government Code §2001.0045, the statute does not apply to a rule that is adopted by the Department of Family and Protective Services.

PUBLIC BENEFIT

Vicki Kozikoujekian, General Counsel of DFPS, has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections is that the public will gain a better understanding of how DFPS's Investigations and Child Care Investigations (CCI) programs are implementing the changes to the child abuse neglect definitions and exclusions to neglect that were made by the legislature during the 87th Regular Session pursuant to House Bills 375, 567, 1540, and 2536. In addition, the public will be aware of the current procedures for child abuse investigations by both programs as well the updated process for releases and release hearings related to findings made by the Investigations program.

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

DFPS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments and questions on this proposal must be submitted within 30 days of publication of the proposal in the Texas Register. Electronic comments and questions may be submitted to RULES@dfps.state.tx.us. Hard copy comments may be submitted to the DFPS Rules Coordinator, Legal Services 21R16, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030.

SUBCHAPTER A. INVESTIGATIONS

DIVISION 1. INTAKE, INVESTIGATION AND ASSESSMENT

40 TAC §§707.451, 707.457, 707.465, 707.467, 707.469, 707.471, 707.473, 707.489, 707.491

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.451.What terms and definitions are used in reports, investigations, and assessments of abuse and neglect?

(a) The following terms have the following meanings when used in this subchapter:

(1) - (2) (No change.)

(3) Blatant disregard--the real and significant harm or threat of harm to the child as a result of the person's act(s) or omission(s):

(A) Would have been obvious to a reasonable person in the same situation; and

(B) The reasonable person would have known to take precautionary measures to protect the child from the impending harm.

(4) [(3)] Child--person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

(5) [(4)] Child safety--the absence of danger or the presence of protective actions demonstrated over time by a parent or caregiver that mitigates dangers to the child.

(6) [(5)] Danger--behaviors or conditions that place a child in imminent danger of serious harm.

(7) [(6)] Day--calendar day unless otherwise specified.

(8) [(7)] Guardian--anyone named as "guardian of the person of a child" by a probate court order.

(9) [(8)] Household--

(A) A unit composed of persons living together in the same dwelling, whether or not they are related to each other, when the dwelling consists of:

(i) The child's family's household, including the households of both parents when the parents reside separately;

(ii) A household in which the parent has arranged for or authorized placement of the child; or

(iii) A household in which the child is legally placed by a parent or a court.

(B) During the receipt and investigation of reports of child abuse and neglect, we treat an unrelated person who resides elsewhere or whose place of residence cannot be determined as a member of the household if the person is at least 10 years old and either:

(i) Has regular free access to the household; or

(ii) When in the household dwelling takes care of or assumes responsibility for children in the household.

(10) Immediate danger to child's physical health or safety--the person's act(s) or omission(s) placed the child in a situation that has resulted in or would have resulted in physical or mental harm to the child.

(11) [(9)] Investigations--a program of the Child Protective Investigations division of the Texas Department of Family and Protective Services that investigates allegations of child abuse and neglect by a person responsible for the child's care, custody, or welfare as defined in Texas Family Code §261.001(5)(A) - (C).

(12) [(10)] Managing or possessory conservator--a person legally responsible for a child as the result of a court order.

(13) [(11)] Parent--the mother, a man presumed to be the biological father or who has been adjudicated to be the biological father by a court of competent jurisdiction, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated.

(14) [(12)] Preponderance of evidence--evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.

(15) [(13)] Protective actions--specific actions that have been taken by an individual or family to directly address the danger of abuse and neglect and are demonstrated over time.

(16) [(14)] Reasonable effort to prevent--actions that a person responsible for a child's care, custody, or welfare would have taken to protect a child from abuse the person knew or reasonably should have known was occurring. It is not required for that person to have directly perpetrated the abuse.

(17) [(15)] Reporter--an individual who makes a report to the Texas Department of Family and Protective Services or a duly constituted law enforcement agency alleging the abuse or neglect of a child. If more than one individual makes a report alleging abuse or neglect of the same child, all such individuals shall have the designation of a reporter.

(18) [(16)] Risk factors--elements of individual and family functioning that may place a child at risk of abuse or neglect.

(19) [(17)] Risk of child abuse or neglect--a reasonable likelihood that in the foreseeable future there will be an occurrence of child abuse or neglect as defined in Texas Family Code (TFC) §261.001. The presence of risk does not constitute abuse or neglect as defined in TFC §261.001 but qualifies children and families to receive protective services as specified in §700.311(a)(1), subchapter C, chapter 700, of this title (relating to Eligible Individuals).

(20) [(18)] Strengths--resources and conditions of an individual or the family that increase the likelihood or ability to protect a child from abuse or neglect but do not fully address the danger to the child.

(21) [(19)] Substantial harm--real and significant physical injury or damage to a child.

(22) [(20)] Substantial risk--a real and significant possibility or likelihood.

(b) (No change).

§707.457.What is sexual abuse?

(a) Sexual abuse is a subset of the statutory definitions of abuse that appear in Texas Family Code §261.001(1) and includes the following acts or omissions by a person:

(1) Sexual conduct harmful to a child's mental, emotional, or physical welfare, including:

(A) Conduct that constitutes the offense of continuous sexual abuse of young child or disabled individual [children ] under §21.02, Penal Code;

(B) - (D) (No change.)

(2) (No change.)

(3) Compelling or encouraging the child to engage in sexual conduct as defined by §43.01, Penal Code, including compelling or encouraging the child in a manner that constitutes an offense of:

(A) (No change.)

(B) Solicitation of prostitution [Prostitution ] under §43.021 [§43.02(b)], Penal Code; or

(C) (No change.)

(4) - (5) (No change.)

(b) In this section, the following terms have the following meanings:

(1) - (2) (No change.)

(3) "Pornographic" or "pornography" means material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct in accordance with Texas Penal Code §43.26.

(4) [(3)] "Sexual conduct harmful to a child's mental, emotional or physical welfare" includes but is not limited to rape; incest; sodomy; inappropriate touching of the child's anus, breast, or genitals, including touching under or on top of the child's clothing; deliberately exposing one's anus, breast, or any part of the genitals to a child; touching the child in a sexual manner or directing sexual behavior towards the child; showing pornography to a child; encouraging a child to watch or hear sexual acts; compelling, encouraging, or permitting a child to engage in prostitution; watching a child undress, shower, or use the bathroom with the intent to arouse or gratify one's sexual desire; voyeurism; sexually oriented acts, which may or may not include sexual contact or touching with intent to arouse or gratify the sexual desire of any person; and any sexually oriented act or practice that would cause a reasonable child under the same circumstance to feel uncomfortable or intimidated or that results in harm or substantial risk of harm to a child's growth, development, or psychological functioning.

(c) For purposes of subparagraph (A) of paragraph (1) of subsection (a), we will investigate conduct that constitutes continuous sexual abuse of a child as long the child is under 18 years of age and regardless of any disabilities the child may have. [For purposes of paragraph (4) of subsection (a), pornographic has the same meaning as specified in Texas Penal Code §43.26.]

§707.465.What is abandonment?

Neglect is defined in Texas Family Code (TFC) §261.001(4) as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. Abandonment is a subset of the statutory definition [definitions] of neglect [that appear in Texas Family Code §261.001(4)] and involves [includes] leaving a child in a situation where the child would be exposed to an immediate danger [a substantial risk] of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child.

§707.467.What is neglectful supervision?

(a) Neglect is defined in Texas Family Code (TFC) §261.001(4) as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person 's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. Neglectful supervision is a subset of the statutory definition [definitions] of neglect [that appear in Texas Family Code §261.001(4)] and involves [includes] the following acts or omissions by a person:

(1) Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or an immediate danger [a substantial risk] of [immediate] harm to the child;

(2) Placing a child in or failing to remove the child from a situation in which the child would be exposed to an immediate danger a substantial risk of sexual conduct harmful to the child; or

(3) (No change.)

(b) Neglectful supervision as defined in paragraph (1) of subsection (a) excludes the following:

(1) An [an] accident.

(2) Pursuant to TFC §261.001(4)(B), allowing the child to engage in independent activities that are appropriate and typical for the child's level of maturity, physical condition, developmental abilities or culture.

(c) For purposes of evaluating an allegation of "neglectful supervision", we will consider the following factors when assessing immediate danger [substantial risk]:

(1) - (7) (No change.)

(d) In the case of prenatal use of alcohol or a controlled substance that was not lawfully prescribed by a medical practitioner, was lawfully prescribed as a result of the mother seeking out multiple health care providers as a means of exceeding ordinary dosages, or was not being used in accordance with a lawfully issued prescription, the mother is responsible for neglectful supervision under paragraph (1) of subsection (a) if:

(1) (No change.)

(2) It appears that the mother's use endangered the physical and emotional well-being of the infant. It is not necessary that the infant actually suffers from an injury.

(A) (No change.)

(B) "Endangered" includes but is not limited to a consideration of the following factors: evidence the mother extensively used alcohol or regularly or extensively used a controlled substance over the course of the pregnancy or in close proximity to the child's expected birth date, evidence that the mother has an alcohol or drug addiction, or evidence that the infant was [at a substantial risk of] in immediate danger of harm from the mother's use of alcohol or a controlled substance.

§707.469.What is medical neglect?

(a) Neglect is defined in Texas Family Code (TFC) §261.001(4) as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person 's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. Medical neglect is a subset of the statutory definition [definitions] of neglect [that appear in Texas Family Code §261.001(4)] and involves [includes] the following acts or omissions by a person: failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting an immediate danger [a substantial risk] of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child.

(b) In this section, the following terms have the following meanings:

(1) - (2) (No change.)

(3) Medical neglect does not include the following:

(A) Pursuant to TFC §261.111, the mere refusal to administer or consent to the administration of psychotropic medication or consent to any other psychiatric or psychological treatment if the failure does not result in substantial risk of death, disfigurement, or bodily injury or an observable and material impairment to the child's growth, development, or functioning; [or]

(B) Pursuant to TFC §261.001(4)(B), a decision to obtain an opinion from more than one medical provider relating to the child's medical care, transfer the child's medical care to a new provider, or transfer the child to another health care facility; or

(C) [(B)] A parent or guardian's refusal to provide a child with specific medical treatment because of a legitimately held religious belief. However, we may still request a court order to provide medical services if the child's health requires it and will investigate allegations of lack of medical care because of religious beliefs if the child's condition appears to involve medical neglect.

§707.471.What is physical neglect?

(a) Neglect is defined in Texas Family Code (TFC) §261.001(4) as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person 's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. Physical neglect is a subset of the statutory definition [definitions] of neglect [that appear in Texas Family Code §261.001(4)] and involves [includes] the following acts or omissions by a person: the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused.

(b) In this section, the following terms have the following meanings:

(1) "...necessary to sustain the life or health of the child ...." is a condition of the statutory definition of physical neglect and is met if the failure to provide food, clothing, or shelter results in an observable and material impairment to the child's growth, development, or functioning, or in an immediate danger [a substantial risk] of an observable and material impairment. For purposes of this paragraph, "observable and material impairment" means discernible and substantial damage or deterioration to the child's health or physical condition. It may include but is not limited to malnourishment; sudden or extreme weight loss; serious skin conditions or skin breakdown; serious illness or other serious medical conditions; or any other serious physical harm to the child as a direct result of the physical neglect.

(2) (No change.)

(c) (No change.)

§707.473.What is refusal to assume parental responsibility (RAPR)?

(a) Neglect is defined in Texas Family Code (TFC) §261.001(4) as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person 's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. RAPR is a subset of the statutory definition [definitions] of neglect [that appear in Texas Family Code §261.001(4)] and involves [includes ] the following acts or omissions by a person: the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away.

(b) - (e) (No change.)

§707.489.How do we respond to reports of child abuse or neglect?

(a) When the Statewide Intake (SWI) division of the Texas Department of Family and Protective Services (DFPS) receives a report of alleged abuse or neglect of a child, we may respond with any of the following protective interventions, as further described in this section:

(1) - (5) (No change.)

(b) Intake closed without assignment for investigation.

(1) SWI screeners may screen out less serious reports of abuse and neglect if they determine after contacting a professional or other credible source that the child's safety can be assured without conducting an investigation or alternative response and the report meets the following criteria:

(A) the report is assigned a priority other than Priority I;

(B) there are no alleged victims younger than six; and

(C) the family does not have an open investigation or alternative response case, and is not receiving services through DFPS.

(2) Both, SWI screeners and Investigations supervisory staff, may close a report without assigning for investigation if they determine, after contacting collateral sources, that the report is not appropriate for an investigation by us for reasons including:

(A) the reported information has already been investigated in a case closed before the date of the new intake;

(B) the investigation is the responsibility of an entity other than the Investigations program;

(C) the report does not give enough information to locate the child or the child's family, after the staff makes reasonable efforts to find additional locating information based on details in the report; or

(D) the incident does not meet the statutory definitions of abuse or neglect or the situation does not appear to involve a reasonable likelihood that a child will be abused or neglected in the foreseeable future.

(3) If the report of abuse and neglect concerns a child in the conservatorship of DFPS, SWI screeners and Investigations supervisory staff may not screen out the report. However, in the following limited circumstances, SWI screeners may screen out such a report if:

(A) DFPS has previously investigated all current allegations; or

(B) DFPS lacks jurisdiction to investigate.

(4) Before making a decision to close a report without assignment for investigation or alternative response, SWI screeners and Investigations supervisory staff must consider the following:

(A) the behavior of the family, including a review of all relevant prior history the family has with DFPS and any concerning involvement the family has with other agencies, such as law enforcement or service providers;

(B) the nature of the allegations and other relevant information such as the ages of each child in the home, alleged conditions in the home, and the types and seriousness of any alleged injuries;

(C) whether an alleged victim made an outcry of abuse or neglect; and

(D) any additional information obtained from the reporter or collateral sources.

(c) [(b)] Administrative closure.

(1) - (3) (No changes.)

(d) [(c)] Abbreviated investigation with a disposition of "ruled out".

(1) - (2) (No changes.)

(e) [(d)] Thorough investigation.

(1) - (2) (No changes.).

(f) [(e)] Alternative response. An alternative response is a protective intervention governed by division 2 of this subchapter and Texas Family Code, §261.3015, that involves an assessment of the family, including a safety assessment, and provision of necessary services and supports. Alternative response does not result in a formal finding of abuse or neglect or the designation of a perpetrator.

(g) [(f)]) Exceptions to required interviews. We are not required to conduct an interview to close an abbreviated or thorough investigation as described in subsections (c) and (d) of this section if we exhaust all reasonable efforts to conduct the interview but are unable to do so because:

(1) - (4) (No changes.)

§707.491.What procedures apply when the investigator makes contact with and conducts interviews of parent(s) and alleged perpetrator(s) during an investigation?

(a) - (b) (No changes.)

(c) Any visit to interview the parent(s) or alleged perpetrator(s) may be announced or unannounced. The investigator decides whether to announce the visit based on the nature of the allegations and the need to protect the child. Prior to the interview of the parent(s) or alleged perpetrator(s), the investigator must inform the individual:

(1) orally and in writing of his or her right to audio or video record the interview and receive a copy of the Investigation program's current recording policy, and that the recording may be subject to subpoena under a court order; and

(2) in writing of his or her right to an administrative review of investigation findings if the Investigations program makes a finding of reason-to-believe against the individual.

(d) (No changes.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202257

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


DIVISION 3. RELEASE HEARINGS

40 TAC §§707.571, 707.573, 707.575, 707.577, 707.579, 707.581, 707.583, 707.585

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.571.What do the following pronouns, words, and terms mean when used in this division [subchapter]?

(a) The following pronouns have the following meanings when used in this division:

(1) I, my, you, and your--A person who has been designated as a perpetrator or victim/perpetrator of child abuse or neglect by the Investigations program unless otherwise stated or the context clearly indicates otherwise.

(2) We, us, and our--The Investigations program of the Child Protective Investigations division of the Texas Department of Family and Protective Services unless otherwise stated or the context clearly indicates otherwise.

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

(1) Designated Perpetrator--An individual whom the Department of Family and Protective Services (DFPS) has designated as a perpetrator or victim/perpetrator of child abuse or neglect as specified in §707.497(b)(2) - (3) [§700.512(b)(2) - (3)] of this subchapter [title] (relating to What roles can we assign to persons involved in a case after the investigation is complete? [Conclusions About Roles]).

(2) Release--The disclosure of information about a designated perpetrator to any party outside DFPS, including employers, licensing boards, and other entities who have control over an individual's access to children and/or vulnerable adults, without the consent of the designated perpetrator. For purposes of this division [subchapter], however, the term "release" does not apply to disclosures required by law, including those made pursuant to authority as set forth in §700.203 of this title (relating to Access to Confidential Information Maintained by the Texas Department of Family and Protective Services (DFPS)) and/or Texas Family Code §261.201.

(3) Release hearing--Also commonly known as a Due Process Hearing, provides a designated perpetrator an opportunity to appeal a decision by DFPS to release information about him/her. It is a formal administrative legal proceeding before an administrative law judge of the State Office of Administrative Hearings to determine whether a [Child Protective Services] finding of abuse or neglect of a child against a designated perpetrator made by the Investigations program of the Child Protective Investigations division is appropriate.

(4) Sustained Perpetrator--A designated perpetrator becomes a sustained perpetrator when:

(A) a Release (Due Process) Hearing under this division [subchapter] (relating to Release Hearings) is held and an administrative law judge has determined that there is a preponderance of the evidence to sustain DFPS's conclusion that the designated perpetrator is responsible for abuse or neglect of a child; or

(B) (No change.)

(5) (No change.)

§707.573.When do we [may DFPS] release information about a designated perpetrator to outside parties?

(a) Subject to the limitations specified in subsections (b) and (c) of this section, we have [the Department of Family and Protective Services has] the authority to conduct a release via a Non-Emergency or an Emergency Release.

(b) (No change.)

(c) For a Nonemergency Release, before we [DFPS may] conduct a release, our [DFPS's] conclusion about your status as a [the] designated perpetrator must be sustained as specified in §707.571(4) [§700.601(4)] of this division [title] (relating to What do the following pronouns, words, and terms mean when used in this division [subchapter]?), and there must be evidence that the risk of harm to one or more children or vulnerable adults is substantial.

(d) For an Emergency Release, we [DFPS may] conduct a release when there is evidence that the risk of harm to one or more children or vulnerable adults is both substantial and immediate, in accordance with Texas Family Code 261.308(d). During an Emergency Release, we will act [DFPS acts] as quickly as possible and without regard for the timing of an appeal by you [the designated perpetrator]. In other words, we [DFPS] will release the information before the abuse or neglect conclusion is sustained. However, notice of the release in compliance with §707.575[§700.603 ] of this division [title] (relating to What are the notice requirements for a designated perpetrator when we release [DFPS releases] information to outside parties?) will be sent to you [the designated perpetrator] before the release is conducted. This notice will offer you [the designated perpetrator] a release hearing after the release has been conducted.

§707.575.What are the notice requirements for a designated perpetrator when we release [DFPS releases] information to outside parties?

(a) [Written notice.] When we decide [the Department of Family and Protective Services decides] to release information about your status as a designated perpetrator as specified in §707.573 [§700.602] of this division [title] (relating to When do we [may DFPS] release information about a designated perpetrator to outside parties?), we [DFPS] must give you [the designated perpetrator] written notice of our [DFPS's] decision to release the information [. DFPS must give the designated perpetrator written notice without regard] regardless of the fact that [to the designated perpetrator's previous] we previously provided you [receipt of] written notice of the investigation findings.

(b) [No additional notice.] If our [DFPS's] conclusion is about your status as a sustained perpetrator (meaning an Administrative Law Judge [the designated perpetrator] has already [been] sustained the abuse and/or neglect finding as specified in §707.571(4) [§700.601(4)] of this division [title ] (relating to What do the following pronouns, words, and terms mean when used in this division [subchapter ]?), we have [DFPS has] the authority to release the same information again without additional notice to you [the sustained perpetrator].

(c) [Prior approval by attorney.] Before we provide you the written notice [is provided to the designated perpetrator], it must be approved by the Managing Regional Attorney for the region that issued the abuse and/or neglect finding.

(d) [Certified mail. DFPS] We must send the notice via certified mail with a return receipt requested, unless we determine [staff determines] that a faster form of written notice is required.

(e) The [What the notice must include. DFPS's] notice must include:

(1) a specification of the investigation findings as defined in §707.495 (relating to How do we make dispositions after completing the investigation?) and §707.497 (relating to What roles can we assign to persons involved in a case after the investigation is complete?) of this subchapter [§700.511 and §700.512 of this title (relating to Disposition of the Allegations of Abuse or Neglect and Conclusions about Roles)];

(2) notice of our [DFPS's] decision to release information about your status as a [the] designated perpetrator to the specific outside parties, which may include employers, licensing boards, and other entities who have control over your [his] access to children or vulnerable adults;

(3) notice, when applicable, that the information will be released on an emergency basis before an appeal can be completed;

(4) notice that:

(A) you have [the designated perpetrator has] a right to appeal the decision to release information about you [him/her];

(B) to appeal the decision, you [the designated perpetrator] must submit two copies of a written request for an appeal;

(C) the two copies of your [the designated perpetrator's] written request for an appeal must be:

(i) postmarked within 15 days after you [the individual] receive the [receives DFPS's] written notice; and

(ii) sent to:

(I) Texas Health and Human Services Legal Services Division, Enforcement Department [the DFPS] Docket Clerk; and

(II) the Regional Director for the region that issued the abuse/neglect finding; and

(D) you are [the designated perpetrator is] responsible for providing the Docket Clerk and us with written notification of any change in address that occurs after having requested a release hearing;

(5) notice that failure to appeal the decision may result in our [DFPS's] release of the information now and in the future to other outside parties without your [the designated perpetrator's] consent and without additional notice to you [the designated perpetrator] at any time in the future;

(6) notice of your [the designated perpetrator's] right to:

(A) - (B) (No changes.)

(7) notice of our [DFPS's] obligation to delete the following information from all written documentation that we provide [DFPS provides] to you [designated perpetrator]:

(A) the name of the person who reported the abuse or neglect that we [DFPS] investigated; and

(B) (No changes.)

(8) notice that your [the designated perpetrator] request for a copy of the written documentation included in the investigation record may be denied if:

(A) - (B) (No changes.)

§707.577.When must we [DFPS] arrange a release hearing for a designated perpetrator?

We arrange [The Department of Family and Protective Services arranges] for a release hearing to be conducted when the following two actions have taken place:

(1) We have [DFPS has] notified you [the designated perpetrator] of our [DFPS's] decision to release information as specified in §707.575 [§700.603] of this division [title ] (relating to What are the notice requirements for a designated perpetrator when we release [DFPS releases] information to outside parties?); and

(2) you have [the designated perpetrator has] filed a written appeal of the decision to release within 15 days after receiving notice of that decision to release.

§707.579.What happens after a designated perpetrator requests a release hearing?

(a) After you request [a designated perpetrator requests] a release hearing, the Texas Health and Human Services (HHSC) Legal Services Division, Enforcement Department [DFPS] will ask the State Office of Administrative Hearings (SOAH) to appoint an administrative law judge to conduct proceedings necessary to make a final decision in the case.

(b) After SOAH assigns a docket number to your case:

(1) The HHSC Legal Services Division, Enforcement Department [DFPS] will mail [send] notice of the hearing, by [regular and certified mail] to your [the designated perpetrator's] last known address as shown by our records; or

(2) If the HHSC Legal Services Division, Enforcement Department Docket Clerk has received written notice of representation from an attorney who will be representing you [the designated perpetrator] at the hearing, HHSC [DFPS] will send the notice of the hearing to the attorney in a manner allowed under the rules referenced in §707.581 [§700.606 ] of this division [title] (relating to How is a release hearing conducted?).

(c) You are [The designated perpetrator] responsible for providing the HHSC Docket Clerk and DFPS with written notification of any change in address that occurs after having requested a release hearing.

§707.581.How is a release hearing conducted?

A release hearing is conducted according to the following procedural rules which are incorporated into this rule by reference:

(1) Rules of the State Office Administrative Hearings (SOAH) found at 1 TAC Chapters 155 (relating to Rules of Procedure), 157 (relating to Temporary Administrative Law Judge), and 161 (relating to [Rules of Procedure, Temporary Administrative Law Judge, and] Requests for Records);

(2) - (3) (No change.)

§707.583.What actions may an Administrative Law Judge (ALJ) take regarding a finding of abuse or neglect by the Investigations program of the Child Protective Investigations division [Child Protective Services (CPS)]?

The ALJ may uphold, reverse, or alter the [a CPS] finding of abuse or neglect.

(1) If the ALJ reverses the finding, then we [CPS] will notify any previously notified outside parties of the outcome of the hearing. We [CPS] will also change your [the] role in our records [of the person] from designated perpetrator to "no role" and "Reason to Believe" finding to "Ruled Out".

(2) If the ALJ upholds the finding, then we [CPS] will conduct a release if it has not already been done on an emergency basis. We [CPS] will also change your [the person's] role in our records from designated perpetrator to sustained perpetrator of child abuse and/or neglect.

(3) If the ALJ alters the [CPS] finding, then we [CPS] will follow the direction outlined in the Order.

§707.585.What happens if the designated perpetrator fails to appear at the release hearing?

If you fail [the designated perpetrator fails] to appear at the release hearing, the administrative law judge may enter a default decision that upholds the finding of abuse or neglect.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202258

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


SUBCHAPTER B. SCHOOL INVESTIGATIONS

40 TAC §§707.605, 707.615, 707.617, 707.623

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.605.What do the following terms mean when used in this subchapter?

(a) The following terms have the following meanings when used in this subchapter:

(1) - (5) (No change.)

(6) School personnel and volunteers--Persons who have access to children in a school setting and are providing services to or caring for the children. School personnel include but are not limited to school employees, contractors, school volunteers, school bus drivers, school cafeteria staff, school resource officers and contracted police officers, and school custodians.

(7) (No change.)

(b) (No change.)

§707.615.Which school personnel must we notify prior to initiating a school investigation?

(a) (No change.)

(b) We must also orally notify the superintendent of the school district about the investigation. If the alleged perpetrator is an employee of a charter school, we must orally notify the director of the charter school of the investigation. If the alleged perpetrator is an employee of a private school, we must orally notify the chief executive officer of the private school of the investigation. If the superintendent, director, or chief executive officer is the alleged perpetrator, we must instead orally notify the president of the school board or other local governing body.

(c) (No change.)

§707.617.How are school investigations conducted?

(a) An investigation conducted under this subchapter shall include the following investigative steps unless the allegations of child abuse and neglect can be clearly [confirmed or] ruled-out without taking one or more of these steps:

(1) - (8) (No change.)

(b) - (c) (No change.)

§707.623.Will we notify school officials once the investigation is completed?

(a) (No change.)

(b) On request, we must also provide a redacted copy of the report to the following:

(1) - (2) (No change.)

(3) The superintendent of the school district unless the superintendent is the alleged perpetrator; and

(4) (No change.)

(c) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202259

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


SUBCHAPTER C. CHILD CARE INVESTIGATIONS

DIVISION 1. DEFINITIONS

40 TAC §707.703

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.703.What do the following terms mean when used in this subchapter?

[(a)] The following terms have the following meanings when used in this subchapter:

(1) - (7) (No change.)

(8) Collateral witness--any person not directly involved in the incident but who may be able to provide information regarding the incident being investigated, the children and adults involved in the incident, and the type of care and supervision provided at the operation.

(9) [(8)] Designated perpetrator--A person on the DFPS central registry found by us to have abused, neglected, or exploited a child in a child care operation, but who has not exhausted the right to a due process hearing. See division 7 of this subchapter (relating to Due Process Hearings).

(10) [(9)] Finding of abuse, neglect, or exploitation--A determination that we made at the completion of an investigation based on the evidence gathered that a preponderance of the evidence supports the allegation(s) of child abuse, neglect, or exploitation in a child care operation.

(11) [(10)] Intake Report--An allegation of child abuse, neglect, or exploitation in a child care operation.

(12) [(11)] Parent--A child's biological mother or father, adoptive mother or father, or person that has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian. The term does not include a parent whose parental rights have been terminated.

(13) [(12)] Preponderance of evidence--Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.

(14) Principal--all alleged victims, all alleged perpetrator, and all household members of a foster or group home in the current investigation.

(15) [(13)] Single-source continuum contractor (SSCC) --the entity that DFPS contracts with to provide the full continuum of foster care and case management services to children and families on behalf of Child Protective Services within a designated geographic area for purposes of implementing community-based care as defined in Texas Family Code §264.152(4).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202260

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


DIVISION 2. OVERVIEW OF INVESTIGATION IN CHILD CARE OPERATIONS

40 TAC §707.716

STATUTORY AUTHORITY

The proposed new section implements Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.716What requirements does the investigator follow prior to interviewing the alleged perpetrator?

(a) At the first contact with a principal as defined in §707.703(14) in division 1 (relating to What do the following terms mean when used in this subchapter?), the investigator will:

(1) Identify himself or herself;

(2) Have his or her Texas Department of Family and Protective Services (DFPS) identification available for inspection;

(3) Explain DFPS's role and legal responsibilities in the investigation;

(4) If the principal is an alleged perpetrator, advise the individual of the complaints or allegations in the report while protecting the identity of the reporter.

(b) Prior to interviewing the alleged perpetrator, the investigator will inform the individual of the following:

(1) his or her right to audio or video record the interview and receive a copy of our current recording policy in accordance with Texas Family Code (TFC) §261.3027;

(2) that any recording the alleged perpetrator makes may be subject to subpoena under a court order in accordance with TFC §261.3027; and

(3) his or her right to an administrative review of investigation findings if we make a finding of reason-to-believe against the individual in accordance with TFC §261.3091.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202261

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


SUBCHAPTER C. CHILD CARE INVESTIGATIONS

DIVISION 4. CONFIDENTIALITY

40 TAC §707.765, §707.767

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.765.Who may obtain confidential abuse, neglect, and exploitation investigation information from the Child Care Investigation's file made confidential under the federal Child Abuse Prevention and Treatment Act and Texas Human Resources Code (HRC) §§40.005and42.004?

(a) The following may obtain confidential abuse, neglect, and exploitation information from us subject to the limitations described in §707.767 (relating to Are there any portions of the abuse, neglect, or exploitation investigation records that may not be released to anyone?) and §707.769 (relating to Who can review or have a copy of a photograph or an audio or visual recording, depiction, or documentation of a child that is in the abuse, neglect or exploitation investigation records maintained by us?) in this division:

(1) - (9) (No change.)

(10) A single-source continuum contractor (SSCC) for community-based care that [when:

[(A)] [The SSCC] subcontracts with the child care operation where the investigation occurred;

[(B) The operation has signed a release of information; and]

[(C) CCL cited the operation for a deficiency as a result of the investigation;]

(11) - (15) (No change.)

(b) - (c) (No change.)

§707.767.Are there any portions of the abuse, neglect, and exploitation investigation records that may not be released to anyone?

(a) Except as described in subsection (b) of this section, we may not release the following portions of the abuse, neglect, and exploitation investigation records to anyone:

(1) - (6) (No change.)

(7) The identity of any child or information identifying the child in an abuse, neglect, or exploitation investigation, unless the requestor is:

(A) The child's parent or prospective adoptive parent; [or]

(B) A child day care operation that was cited for a deficiency as a result of the investigation;

(C) A residential child care operation where the investigation occurred if the Department of Family and Protective Services (DFPS) determines it is necessary for the operation to ensure the welfare of children at the operation; or

(D) [(B)] A [The] single-source continuum contractor (SSCC) for community-based care that [when:

[(i) the SSCC subcontracts with the child care operation where the investigation occurred;]

[(ii) the operation has signed a release of information; and]

[(iii) CCL cited the operation for a deficiency as a result of the investigation;]

(8) - (9) (No change.)

(b) - (c) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202262

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


DIVISION 5. ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §707.791, §707.801

STATUTORY AUTHORITY

The proposed amendments implement Human Resources Code §40.0024; 40.005; 40.042 and Texas Family Code §§261.001; 261.105(d); 261.3016; 261.3027; 261.308(d); 261.3091; 261.406.

The modification is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of Family and Protective Services commissioner shall oversee the development of rules relating to the matters within the department's jurisdiction and notwithstanding any other law, shall adopt rules for the operation and provision of services by the department.

§707.791.What is sexual abuse?

(a) Sexual abuse is a subset of the statutory definitions of abuse that appear in Texas Family Code §261.001(1) and includes the following acts or omissions by a person:

(1) Sexual conduct harmful to a child's mental, emotional, or physical welfare, including:

(A) Conduct that constitutes the offense of continuous sexual abuse of young child or disabled individual [children ] under §21.02, Penal Code;

(B) - (D) (No change.)

(2) (No change.)

(3) Compelling or encouraging the child to engage in sexual conduct as defined by §43.01, Penal Code, including compelling or encouraging the child in a manner that constitutes an offense of:

(A) (No change.)

(B) Solicitation of prostitution [Prostitution ] under §43.021 [§43.02(b)], Penal Code; or

(C) (No change.)

(4) - (5) (No change.)

(b) In this section, the following terms have the following meanings:

(1) - (2) No change.)

(3) "Pornographic" or "pornography" means material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct in accordance with Texas Penal Code §43.26.

(4) (No change.)

(c) For purposes of subparagraph (A) of paragraph (1) of subsection (a), we will investigate conduct that constitutes continuous sexual abuse of a child as long the child is under 18 years of age and regardless of any disabilities the child may have.

§707.801.What is neglect?

(a) [For purposes of an investigation in a child care operation,] Neglect [neglect] is defined in Texas Family Code (TFC) §261.001 [§261.001(4)(A)(iv) ] as an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety. Neglect for purposes of an investigation in a child care operation is further defined in TFC §261.001(4)(A)(iv) as a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized services plan that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy.

(b) In this section, the following terms have the following meanings:

(1) "Negligent act or omission" means a breach of duty by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause substantial emotional harm or substantial physical injury to a child and includes the following:

(A) - (B) (No change.)

(C) Placing a child in or failing to remove him from a situation that a reasonable member of that profession, reasonable caregiver, or reasonable person would [should] realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities;

(D) - (F) (No change.)

(G) Placing a child in or failing to remove the child from a situation in which a reasonable member of that profession, reasonable caregiver, or reasonable person should know exposes the child to immediate danger [the risk] of sexual conduct;

(H) - (K) (No change.)

(L) Failure to comply with an individual treatment plan, plan of service, or individualized service plan that causes or may cause substantial emotional harm or physical injury to a child; and

(M) (No change.)

(2) Blatant disregard means that the real and significant harm or threat of harm to the child as a result of act(s) or omission(s) by the employee, volunteer, or other individual working under the auspices of a facility or program:

(A) Would have been obvious to a reasonable caregiver or a reasonable member of the individual's profession in the same situation; and

(B) The reasonable caregiver or reasonable member of the individual's profession would have known to take precautionary measures to protect the child from the impending harm.

(3) [(2)]"Employee, volunteer, or other individual working under the auspices of a facility or program" has the same definition as specified in §707.783(b) in this division (relating to Who is considered a person responsible for a child's care, custody, or welfare for purposes of a child abuse, neglect, or exploitation investigation in a child care operation?).

(4) Immediate danger to child's physical health or safety means the act(s) or omission(s) by the employee, volunteer, or other individual working under the auspices of a facility or program placed the child in a situation that resulted in or would have resulted in substantial emotional harm or substantial physical injury to the child.

(5) [(3)] Substantial emotional harm means an observable impairment in a child's psychological growth, development, or functioning that is significant enough to require treatment by a medical or mental health professional. Evidence that the emotional harm is substantial includes the nature of the act or omission, the age of the child, and/or the persistence of the symptoms. Substantial emotional harm is presumed when the act or omission is of a sexual nature, the child acts out sexually, or the child attempts suicide. A mental health professional does not have to determine that there is substantial emotional harm.

(6) [(4)] Substantial physical injury means bodily harm that warrants treatment by a medical professional, including dislocated, fractured, or broken bones; concussions; lacerations requiring stitches; second and third degree burns; and damage to internal organs. Evidence that physical injury is substantial includes the location and/or severity of the bodily harm and/or the age of the child.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2022.

TRD-202202264

Vicki Kozikoujekian

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 929-6824


PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 835. SELF-SUFFICIENCY FUND

The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 835, relating to the Self-Sufficiency Fund:

Subchapter A. General Provisions Regarding the Self-Sufficiency Fund, §§835.1 - 835.3

Subchapter B. Project Administration, §§835.11, 835.13, and 835.14

Subchapter C. Project Administration After Award of Contract, §835.31 and §835.33

PART 1. PURPOSE, BACKGROUND, AND AUTHORITY

TWC's Chapter 835 Self-Sufficiency Fund rules provide the structure and administrative procedures for the Self-Sufficiency Fund, administered by TWC. TWC's three-member Commission adopted the rules in 2003, in their present form, to establish and operate the Self-Sufficiency Fund. The 87th Texas Legislature, Regular Session (2021), passed Senate Bill (SB) 770 to amend Texas Labor Code, §309.002(a) to specify eligibility as "individuals who are identified by the commission as being low-income or at risk of becoming dependent on public assistance benefits."

Texas Government Code, §2001.039 requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency. TWC conducted a rule review of Chapter 835, Self-Sufficiency Fund, and proposes changes to align the rules with current program structure. Those changes are described in Part II of this preamble.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS REGARDING THE SELF-SUFFICIENCY FUND

TWC proposes the following amendments to Subchapter A:

§835.1. Purpose and Goal

Section 835.1(a) states the purpose of the Self-Sufficiency Fund is to "provide training for targeted employment opportunities primarily for adult Temporary Assistance for Needy Families (TANF) recipients as well as those individuals at risk of becoming dependent on public assistance." TWC amends the purpose to "provide training for targeted employment opportunities for individuals who are identified as low-income, youth up to the age of 24 who are part of a low-income family, or individuals at risk of becoming dependent on public assistance," to align the section with Texas Labor Code, §309.002(a).

Section 835.1(b) states the goal of the Self-Sufficiency Fund is to "help primarily adult TANF recipients as well as those individuals at risk of becoming dependent on public assistance." TWC amends the goal to "help individuals who have been identified as low-income, youth up to the age of 24 who are part of a low-income family, or individuals at risk of becoming dependent on public assistance" to align the section with Texas Labor Code, §309.002(a).

§835.2. Definitions

TWC removes the definitions for "Customized job training project," "Texas Engineering Extension Service (TEEX)," and "Private partner," because those definitions are no longer applicable to Chapter 835.

New §835.2(1) defines "Business partner" as "an individual, sole proprietorship, partnership, corporation, or association." The remaining paragraphs are renumbered accordingly.

Renumbered §835.2(5) is amended to align the definition with revisions in the chapter, and remove the set income limit of "annual wages are at or below $37,000" and replace with language on the process for the Commission to establish the income limit.

New §835.2(6) defines "Low-income" as an individual whose family:

--receives any one of the following benefits: Temporary Assistance for Needy Families (TANF); Supplemental Nutrition Assistance Program; Children's Health Insurance Program; or income-based subsidized child care through the Child Care and Development Fund;

--is eligible for or receives subsidized public housing assistance;

--participates in the United States Department of Agriculture Food and Nutrition Service's Special Supplemental Nutrition Program for Women, Infants and Children program; or free or reduced-cost school lunch based on income;

--is eligible for, or enrolled in, Workforce Innovation and Opportunity Act youth services; or

--income does not exceed the income limit established by the Commission.

New §835.2(7) defines "Participant" as an individual who meets the eligibility criteria to engage in the Self-Sufficiency Fund's training program by being either low-income, at risk of becoming dependent on public assistance, or a youth up to the age of 24 who is a part of a low-income family.

§835.3. Uses of the Fund

Section 835.3(a)(1) states a purpose of the Self-Sufficiency Fund is to develop "customized job training projects for adult TANF recipients or individuals who are at risk of becoming dependent on public assistance." TWC amends the purpose to develop training projects in which participants, as defined by new §835.2(7), are provided job training by:

--an entity that develops a job-training program under Texas Labor Code, §309.002;

--a small- or medium-sized business or trade union; or

--an informal partnership between an entity that develops a job-training program under §835.3 and a small- or medium-sized business network.

The training purpose defined in §835.3(a)(2) is removed, as it is no longer applicable to Chapter 835. The subsequent paragraph is renumbered accordingly.

Section 835.3(c) specifies that the Self-Sufficiency Fund may not be used for purchase of any equipment for the training project of "a single employer." TWC amends §835.3(c) to remove "a single employer" from the rule to better align with the updated program structure.

SUBCHAPTER B. PROJECT ADMINISTRATION

TWC proposes the following amendments to Subchapter B:

§835.11. Project Objectives

Section 835.11(1) states an objective of the Self-Sufficiency Fund is to "provide training for targeted employment to allow adult TANF recipients as well as those individuals at risk of becoming dependent on public assistance to achieve self-sufficiency." TWC amends the objective to provide training for targeted employment to allow "individuals identified as low-income, youth up to the age of 24 who are part of a low-income family, or individuals at risk of becoming dependent on public assistance benefits to achieve self-sufficiency," to align the rule with Texas Labor Code, §309.002.

New §835.11(3) states an objective of the Self-Sufficiency Fund is to develop projects that place individuals in positions of employment in career pathways or employment in local workforce development areas in which participants will earn wages sufficient to enable them to become independent of, or to avoid becoming dependent on, public assistance benefits to align Chapter 835 with the updated program structure.

Existing §835.11(3) and (4) are removed because the stated objectives are no longer applicable to Chapter 835. Subsequent paragraphs are renumbered accordingly.

Renumbered §835.11(5) states an objective of the Self-Sufficiency Fund is to develop projects that result in employment benefits for the participants in the "customized training project." TWC removes "customized" from "customized training project," as it is no longer applicable to Chapter 835.

Renumbered §835.11(6) states an objective of the Self-Sufficiency Fund is to develop projects that include contributions from other resources, including private partners, that are "committed to the customized job training project." TWC amends this objective to develop projects that include contributions from other resources, including the private partners, that "are supporting the training project," to better align Chapter 835 with the updated program structure.

Renumbered §835.11(7) states an objective of the Self-Sufficiency Fund is to develop projects that result in the greatest economic benefit to the public, in the form of "enhanced worker skills and positive economic impact within the local community for each dollar invested in worker training." TWC amends the economic benefit to the public to "enhanced occupational skills and positive economic impact within the local community," to better align Chapter 835 with the updated program structure.

§835.13. Limitations on Awards

Section 835.13(1) sets a monetary limit for the "training needs of a single employer." TWC amends the monetary limit to be for "training projects," to better align Chapter 835 with the updated program structure.

Section 835.13(2) sets a monetary limit of 10 percent of the grant award for "propriety or production equipment required for the training project for a consortium of employers." TWC amends the monetary limit to be set for "nonproprietary equipment required for the training project" and removes "proprietary or production" and "consortium of employers" to better align Chapter 835 with the updated program structure.

New §835.13(3) is added to set an administrative cost monetary limit related to direct training needs, as defined in the grant contract, to better align Chapter 835 with the updated program structure.

The limits set in §835.13(3) and (4) are removed, because the limits are no longer applicable to the Self-Sufficiency Fund program.

§835.14. Procedure for Requesting Funding

Section 835.14(a) outlines the first steps for a private partner, together with a community or technical college, community-based organization, state extension service, or TEEX and any other training provider to present a proposal request for funding. TWC removes "prospective private partner" and "TEEX" from the list of entities available to request funding.

Section 835.14(c) outlines the requirements for the contents of the proposal. TWC amends language throughout the subsection to align Chapter 835 with the updated program structure.

SUBCHAPTER C. PROJECT ADMINISTRATION AFTER AWARD OF CONTRACT

TWC proposes the following amendments to Subchapter C:

§835.31. Grant Recipient's Responsibilities

Section 835.31(a) outlines the grant recipient's responsibilities, after the contract is awarded, to submit financial and performance reports, "in cooperation with the private partner and any separate training provider." TWC proposes that the grant recipient shall serve as the fiscal agent and submit financial and performance reports and removes the requirement to work in cooperation with partners or training providers, as it is no longer applicable to the Self-Sufficiency Fund program.

Section 835.31(b) states that the grant recipient shall maintain fiscal data needed for verification of expenditures of funds received for the "customized job training project." TWC removes "customized job" from "customized job training project," as it is no longer applicable to the Self-Sufficiency Fund program. TWC also amends the time to maintain the fiscal data needed for verification of expenditures of funds received from three years to seven years after termination of the contract.

§835.33. Contract Payment

Section 835.33 gives the executive director the ability to allow an "attrition rate of 15% based on the total number of trainees as outlined in the contract." The specific attrition rate percentage is removed to align Chapter 835 with the updated program structure.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code, §2001.024, TWC determined that the requirement to repeal or amend a rule, as required by Texas Government Code, §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or the Texas Constitution, Article I, §17 or §19, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. TWC completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to align the Self-Sufficiency Fund program rules with the recently passed legislation, which changed the eligibility requirements to participate in the program. This proposed rulemaking action also includes a four-year rule review of Chapter 835, as required by Texas Government Code, §2001.039, and amendments are proposed to align the chapter with the current program structure.

The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC determined that during the first five years the rules will be in effect, they:

--will not create or eliminate a government program;

--will not require the creation or elimination of employee positions;

--will not require an increase or decrease in future legislative appropriations to TWC;

--will not require an increase or decrease in fees paid to TWC;

--will not create a new regulation;

--will not expand, limit, or eliminate an existing regulation;

--will not change the number of individuals subject to the rules; and

--will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC determined that the rules will not have an adverse economic impact on small businesses or rural communities as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director, Labor Market and Career Information, determined that there is not a significant negative impact upon employment conditions in the state as a result of the rules.

Mary York, Director, Outreach and Employer Initiatives, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to expand eligibility for participation in the Self-Sufficiency Fund, increasing the number of individuals who are eligible to receive training under the program and reach self-sufficiency.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the policy concept regarding these rule amendments to the Boards for consideration and review on December 21, 2021. TWC also conducted a conference call with Board executive directors and Board staff on January 14, 2022, to discuss the policy concept. During the rulemaking process, TWC considered all information gathered to develop rules that provide clear and concise direction to all parties involved.

PART V. PUBLIC COMMENT

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov. Comments must be received no later than August 1, 2022.

SUBCHAPTER A. GENERAL PROVISIONS REGARDING THE SELF-SUFFICIENCY FUND

40 TAC §§835.1 - 835.3

STATUTORY AUTHORITY

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities; Texas Labor Code, §309.002, which provides TWC with the authority to adopt rules to identify individuals who are low-income or at risk of becoming dependent on public assistance benefits and are eligible to participate in the Self-Sufficiency Fund program; and in accordance with Texas Government Code, §2001.039, which requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency.

The proposed rules implement SB 770, which amended Texas Labor Code, §309.002(a).

§835.1.Purpose and Goal.

(a) The purpose of the Self-Sufficiency Fund is to provide training for targeted employment opportunities [primarily] for individuals who are identified as low-income, youth up to the age of 24 who are part of a low-income family, or [adult Temporary Assistance for Needy Families (TANF) recipients as well as those] individuals at risk of becoming dependent on public assistance.

(b) The goal of the fund is to help individuals who have been identified as low-income, youth up to the age of 24 who are part of a low-income family, or [primarily adult TANF recipients as well as those] individuals at risk of becoming dependent on public assistance to receive training leading to a job that [which] allows them to become and remain independent of financial assistance provided under Texas Human Resources Code, Chapter 31 [Chapters 31, 33 and 34].

(c) Priority shall also be given to proposals containing evidence of established referral procedures or agreements with Board contractors, Workforce Solutions Offices [one-stop centers], or other entities.

(d) The goal of the Self-Sufficiency Fund [fund] may also be accomplished by providing funds for support services as necessary for participants to prepare for and participate in training activities and to make the transition from training activities to employment.

§835.2.Definitions.

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

(1) Business Partner--An individual, sole proprietorship, partnership, corporation, or association.

(2) [(1)] Community-based organization (CBO)--A private nonprofit organization that is representative of a community or a significant segment of a community and that provides education, vocational education or rehabilitation, job training, or internship services or programs. The term includes a neighborhood group or corporation, union-related organization, employer-related organization, faith-based organization, tribal government, or organization serving Native Americans. The CBO must be certified as a 501(c)(3) nonprofit organization under the IRS Code of 1986, as amended. A CBO providing services, which are regulated by the state, must provide evidence of required certification, license, or registration.

[(2) Customized job training project--A project designed for a business, business consortium, or trade union in partnership with a public community or technical college, state extension service, TEEX or community-based organization for the purpose of providing specialized workforce training to prospective employees of the business or business consortium, or members of the trade union with the intent of expanding the workforce.]

(3) Executive director [Director]--The executive director [Director] of the Texas Workforce Commission.

[(4) Texas Engineering Extension Service (TEEX)--A higher education agency and service established by the Board of Regents of the Texas A&M University System.]

(4) [(5)] Grant recipient--A public community or technical college, CBO [community-based organization], or state extension service[, or TEEX] awarded a grant from the Self-Sufficiency Fund.

(5) [(6)] Individual at risk of becoming dependent on public assistance--An individual who is a member of a Supplemental Nutrition Assistance Program (SNAP) benefits [food stamp] household with dependent children, a youth up to the age of 24 who is a part of a low-income family, [a TANF applicant who has been referred to a Board contractor by the Texas Department of Human Services (DHS) to attend a Workforce Orientation for Applicants session in accordance with DHS rule 40 TAC §3.7301,] or a parent, including a noncustodial parent, whose income does not exceed the income limit established by the Commission. To establish the income limit, the Commission will consider the Temporary Assistance for Needy Families (TANF) and SNAP income limits, and other relevant data, including economic indicators such as the state unemployment rate and inflation. The Commission may periodically review the income limit established and may update the level as necessary to reflect changes in the economic conditions in the state and the factors used to establish the income limit [annual wages are at or below $37,000].

(6) Low-income--An individual whose family:

(A) receives any one of the following benefits:

(i) TANF;

(ii) SNAP;

(iii) Children's Health Insurance Program; or

(iv) income-based subsidized child care through the Child Care and Development Fund;

(B) is eligible for or receives subsidized public housing assistance;

(C) participates in:

(i) the United States Department of Agriculture Food and Nutrition Service's Special Supplemental Nutrition Program for Women, Infants and Children program; or

(ii) free or reduced-cost school lunch based on income;

(D) is eligible for, or enrolled in, Workforce Innovation and Opportunity Act youth services; or

(E) income does not exceed the income limit established by the Commission. To establish the income limit, the Commission will consider the TANF and SNAP income limits, and other relevant data, including economic indicators such as the state unemployment rate and inflation. The Commission may periodically review the income limit established and may update the level as necessary to reflect changes in the economic conditions in the state and the factors used to establish the income limit.

(7) Participant--An individual who meets the eligibility criteria to engage in the Self-Sufficiency Fund's training program by being either low-income, at risk of becoming dependent on public assistance, or a youth up to the age of 24 who is a part of a low-income family.

[(7) Private partner--A person, sole proprietorship, partnership, corporation, association, consortium, or private organization that enters into a partnership for a customized job training project with a public community or technical college, a community-based organization, state extension service, or TEEX.]

(8) Public community college--A state-funded [state funded] two-year educational institution primarily serving its local taxing district and service area in Texas and offering vocational, technical, and academic courses for certification or associatedegrees.

(9) Public technical college--A state-funded [state funded] coeducational institution of higher education offering courses of study in vocational and technical education, for certification or associate degrees.

(10) Self-Sufficiency--Employment with wages reasonably calculated to make the employee independent of financial assistance under Texas Human Resources Code, Chapter 31 [Chapters 31, 33 and 34].

(11) State extension service--An education service that provides technical and vocational training and is sponsored by a higher education agency regulated by the Texas Higher Education Coordinating Board.

(12) TANF recipient--An individual [A person] who receives financial assistance under Texas Human Resources Code, Chapter 31 [Chapters 31, 33 and 34].

(13) Trade union--An organization, agency, or employee committee, in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, pay rates, employment hours, or work conditions [rates of pay, hours of employment or conditions of work].

(14) Training provider--Any public community or technical college, CBO [community-based organization], or state extension service[, or TEEX] that provides training; or any individual [person], sole proprietorship, partnership, corporation, association, consortium, governmental subdivision, or public or private organization with whom a public community or technical college, CBO [community-based organization], or state extension service[, or TEEX] has subcontracted to provide training.

§835.3.Uses of the Fund.

(a) The Self-Sufficiency Fund may be used by a public community or technical college, CBO [community-based organization], or state extension service[, or TEEX for the following job-training purposes]:

(1) to develop [customized job] training projects in which participants, as defined by §835.2(7) of this chapter, are provided job training by: [for adult TANF recipients or individuals who are at risk of becoming dependent on public assistance;]

(A) an entity that develops a job-training program under Texas Labor Code, §309.002;

(B) a small- or medium-sized business or trade union; or

(C) an informal partnership between an entity that develops a job-training program under this section and a small- or medium-sized business network; and

[(2) to develop customized job training projects for businesses, trade unions, and small and medium-sized business consortiums participating in projects with the intent to expand the workforce; and]

(2) [(3)] for support services, deemed reasonable and necessary by the Agency, for participants to prepare and participate in training activities and to make the transition from training activities to employment.

(b) Only those support services specifically described in a contract under this section [subsection] may be charged to a contract funded with Self-Sufficiency Fund monies.

(c) The Self-Sufficiency Fund may not be used for the purchase of any proprietary or production equipment for the training project [of a single employer].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202241

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER B. PROJECT ADMINISTRATION

40 TAC §§835.11, 835.13, 835.14

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities; Texas Labor Code, §309.002, which provides TWC with the authority to adopt rules to identify individuals who are low-income or at risk of becoming dependent on public assistance benefits and are eligible to participate in the Self-Sufficiency Fund program; and in accordance with Texas Government Code, §2001.039, which requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency.

The proposed rules implement SB 770, which amended Texas Labor Code, §309.002(a).

§835.11.Project Objectives.

The objectives of the Self-Sufficiency Fund are to:

(1) [to] provide training for targeted employment to allow individuals identified as low-income, youth up to the age of 24 who are part of a low-income family, or individuals at risk of becoming dependent on public assistance benefits to achieve self-sufficiency [adult TANF recipients as well as those individuals at risk of becoming dependent on public assistance to achieve self-sufficiency];

(2) [to] the extent practicable, to provide Self-Sufficiency Fund services in all areas of the state [and ensure expansion of the state's capacity to respond to workforce training needs];

(3) develop projects that place individuals in a position of employment that is on a career pathway or in employment in local workforce development areas in which participants will earn wages sufficient to enable them to become independent of, or to avoid becoming dependent on, public assistance benefits;

[(3) to assist the Board in its efforts to meet the Board's Choices performance measures and assist individuals receiving public assistance in entering the workforce;]

[(4) to develop projects that will create jobs in local workforce development areas through collaboration with the Boards;]

(4) [(5)] [to] collaborate with Board contractors, Workforce Solutions Offices [one-stop centers], or other entities to establish referrals of eligible trainees;

(5) [(6)] [to] develop projects that at the completion of training will result in employment benefits, including medical insurance, for [the participants in the customized] training project participants;

(6) [(7)] [to] develop projects that [which] include contributions from other resources, including the business [private] partners, that are supporting [being committed to] the [customized job] training project; and

(7) [(8)] [to] develop projects that at completion of the training will result in the greatest economic benefit to the public, in the form of enhanced occupational [worker] skills and positive economic impact within the local community [for each dollar invested in worker training].

§835.13.Limitations on Awards.

The Agency may impose any or all of the following limitations on the funds awarded under any specific grant:

(1) a limit of $500,000 for training projects [needs of a single employer];

(2) a limit of 10 percent [10%] of the grant award for the allowable purchase of any nonproprietary [proprietary or production] equipment required for the training project [for a consortium of employers]; and

(3) a limit of the grant award for administrative costs related to direct training needs, as defined in the grant contract.

[(3) a limit of 10% of the grant award for administrative costs related to the direct training needs of a single employer; and]

[(4) a limit of 15% of the grant award for administrative costs related to direct training needs of two or more employers.]

§835.14.Procedure for Requesting Funding.

(a) After obtaining the Board's review and comments [of the Board] in the applicable local workforce development areas, [area(s), a prospective private partner, together with] a public community or technical college, CBO [community-based organization], state extension service, or [TEEX and] any other training provider, shall present to the executive director [Director], or his or her designee, a joint proposal requesting funding for a project that [which] meets [the objectives of the] Self-Sufficiency Fund objectives.

(b) The proposal shall contain evidence of established referral procedures or agreements with Board contractors, Workforce Solutions Offices [one-stop centers], or other entities for referral of eligible trainees.

(c) Proposals shall be written and contain the following information:

(1) The [the] number of trainees to be trained and placed in related employment [employed];

(2) A summary [a brief outline] of the proposed [customized job] training project, including:

(A) a description of how the applicant determined industry training needs [methods of recruitment and assessment of eligible trainees];

(B) skills to be taught;

(C) strategies for successfully meeting the needs of eligible trainees; and

(D) a list of the measurable training objectives and outcomes, including the industry-based certifications that trainees will receive upon completion;

[(3) the occupation for which training will be provided, the wages to be paid during the first year of employment for a trainee who successfully completes the training project, the proposed timeline to achieve self-sufficiency, and the employment benefits provided by the private partner;]

[(4) a statement describing the prospective private partner's equal opportunity employment policy;]

(3) [(5)] A [a] budget summary identifying all sources of funding for the project and specifying the amount requested from the Self-Sufficiency Fund;

(4) [(6)] A completed checklist of information on the training provider's financial management system;

(5) [(7)] Names of the entities that will provide support services to project participants and a description of the services they will provide, including an explanation of why the support services are necessary for the trainees, and a description of how the services provided will prepare the trainees for employment [names of all of the entities which will be directly providing training and education services, a description of the training and educational services to be provided by each entity, as well as a description of the prior experience and demonstrated performance in directly providing training or education services to the targeted population];

(6) A description of how the proposed training will link participants to employers upon completion, including a career pathway with a timeline and wage data to show how the proposed training will enable participants to become independent or avoid becoming dependent on public assistance benefits; and

[(8) a signed agreement between the prospective private partner and the public community or technical college, community-based organization, state extension service, or TEEX outlining each entity's role and responsibilities if a grant is awarded; and]

(7) [(9)] Any [any] other factors unique to the circumstances of the project that [which] should be considered.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202242

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER C. PROJECT ADMINISTRATION AFTER AWARD OF CONTRACT

40 TAC §835.31, §835.33

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities; Texas Labor Code, §309.002, which provides TWC with the authority to adopt rules to identify individuals who are low-income or at risk of becoming dependent on public assistance benefits and are eligible to participate in the Self-Sufficiency Fund program; and in accordance with Texas Government Code, §2001.039, which requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency.

The proposed rules implement SB 770, which amended Texas Labor Code, §309.002(a).

§835.31.Grant Recipient's Responsibilities.

(a) The grant recipient shall serve as fiscal agent, shall administer the contract, and [in cooperation with the private partner and any separate training provider,] submit financial and performance reports to the Agency as specified in the contract [on a quarterly contract basis].

(b) The grant recipient shall maintain fiscal data needed for independent verification of expenditures of funds received for the [customized job] training project for seven [three] years after the termination of the contract.

(c) All requests for contract amendments must be made in writing by the grant recipient. Contract amendments must be written and must be executed by the executive director [Director], or his or her designee, before the implementation of a change to the contract.

(d) The grant recipient shall cooperate with and comply with the Agency monitoring activities as required by Chapter 802, Subchapter D [Chapter 800, Subchapter H] of this title.

(e) The grant recipient shall submit all required reports in electronic format required by the Agency unless otherwise approved by the Agency.

§835.33.Contract Payment.

(a) Payment under a contract will be contingent upon the executive director's [Director's], or his or her designee's, determination that the project has met the training objectives, outcomes, and requirements specified in the contract.

(b) The final payment of the grant amount will be withheld for 60 days after the completion of training and after receipt by the Agency of verification that the trainees are employed in jobs leading to self-sufficiency.

(c) The executive irector, or his or her designee, [Director] may allow an attrition rate, as specified in the contract, [of 15%] based on the total number of trainees [as outlined in the contract].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202243

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2022

For further information, please call: (512) 689-9855