Texas Department of Family and Protective Services
Advisory Council Meeting

April 5, 2007,  1:05p.m.

The Texas Department of Family and Protective Services (DFPS) Advisory Council met at the John H. Winters Building, Room 125-E, 701 West 51st Street, Austin, Texas. Council Members present were Chair Ommy Salinas Strauch, Vice Chair Imogen Sherman Papadopoulos, Faith Johnson, Gigi Edwards Bryant, Mamie Salazar-Harper, Linda Bell Robinson, and Paul Furukawa. Also present were Commissioner Carey Cockerell and Department staff.

Agenda Item 1 – Call to Order

Call to order by Chair Ommy Strauch.

Agenda Item 2 – Reading, Correction and Approval of Minutes of January 5, 2007*

Linda Robinson moved approval of the minutes as presented, and Judge Johnson seconded.  There was no discussion, and the motion carried unanimously.

Agenda Item 3 – Public Testimony 

Niki Henson addressed the Council regarding her belief that her son has been discriminated against by more than one childcare provider because of his disability; she cited Primrose and the YMCA as examples and provided the Council with documentation supporting her allegation.  She expressed her frustration at being unable to access childcare and stated many other parents face the same frustration.   She proposed that a new rule be added to the minimum standards for licensing that require compliance with the Americans with Disabilities Act.  Ms. Henson also provided the Council with information about how other states have handled this issue, citing Florida’s situation in particular.  Ms. Henson then introduced her son, Dustyn, and asked him to speak to the Council.

Dustyn briefly addressed the Council and voiced his desire that all children be allowed to attend daycare.  Ms. Strauch thanked Dustyn for being so brave and bringing his mother to speak with the Council.  Judge Johnson cited the enormous challenges of raising healthy children and noted that Ms. Henson has been working with DFPS staff in order to research options, and she commended Ms. Henson for trying to find a solution to her problem.

Andrew Rivera spoke to the Council about Robin Brown Walton, a Bexar County Parent Coordinator.  Mr. Rivera cited a statement attributed to San Antonio attorney William B. Chenault, and another statement attributed to Chairwoman Judy Powell of the Texas State Board of Examiners of Professional Counselors, allegedly made in a disciplinary hearing, both of which he feels reflect negatively on Ms. Walton. He asked that each case that Ms. Brown Walton has been involved in be re-opened and reviewed.  Mr. Rivera concluded his remarks by quoting from a newspaper article about a mother in Orange County, California, who was awarded $4.9 million in a lawsuit against the California CPS, and he noted that jurors in this case wanted to send a message to social workers by awarding such a large amount of money to the mother.

Norman Ladd of the law firm Tribble, Ross & Wagner addressed the Council regarding incident reporting under the Minimum Standards.  He noted that his firm represents several residential treatment centers across the state and therefore sees common problems and questions.  Mr. Ladd referred to the new requirements regarding report content – that the circumstances be stated, along with names of individuals involved, whether any interventions were made, etc. – a general summary of what happened.   He says, however, that, Child Care Licensing has stated that the center’s collection of this information for the report is impeding the CCL investigations, and they are not allowed to take these statements or conduct any interviews about the alleged incident.  Mr. Ladd said there is a clear conflict in this regard; he expressed his desire that the state be able to perform investigations, but his concern that the center may be cited for incomplete reporting.    Chair Strauch asked Diana Spiser, Assistant Commissioner for Child Care Licensing, to meet with Mr. Ladd to clarify the requirements.

Agenda Item 4 - Agency Briefings

4.a. Sunset Review and Readiness Project – Stephen Este

Stephen Este, Director, Center for Program Coordination, advised the Council that DFPS is scheduled for Sunset Review this summer, which means the state Legislature will be assessing the need for the Agency’s continued existence, and that this process occurs for every agency every 12 years.  Mr. Este provided history on the Sunset process, noting that the Legislature must pass legislation in 2009 in order for the agency to continue to operate.  The last sunset review for DFPS was 1996.

Mr. Este opined that although there is little doubt DFPS will continue to exist and its services are needed, there is the opportunity to show the gains made in the past few years in the reform of the Department and in serving clients, and being good stewards of the public trust.  He noted the legislature will review the enabling legislation surrounding DFPS, as well as potential changes in the laws to assist in the Agency’s efficacy.

Mr. Este explained the process, noting the Sunset Advisory Commission is comprised of twelve members‑‑ten legislators and two citizens‑‑who are appointed by the Lieutenant Governor and Speaker of the House and serve two-year terms.  Mr. Este provided a flow chart which breaks down the review process into three phases:  1) a self-evaluation report provided by DFPS; 2) actual on-site reviews of staff, the Council, stakeholders and clients by Sunset staff, and 3) an initial report with recommendations by the Sunset staff, along with public comment, as to possible changes in Department policies, procedures, et cetera.

Mr. Este discussed the key DFPS personnel who will be involved and noted that the HHSC is involved at an enterprise level. Mr. Este apprised the Council of the anticipated timelines, noting that when the legislative session ends in early June, DFPS will be provided official instructions regarding completion of the self-evaluation report.  The Department will submit that report around August. On-site visits could begin as early as September, or well into 2008.

Ms. Papadopoulos inquired as to when the final report would go to the legislature; Mr. Este  responded the report should be in submitted by mid-2008 at the latest.  Ms. Papadopoulos then asked who is responsible for the public comment; Mr. Este stated the Sunset Commission.

4.b. “Why not Me?” campaign debut – Joyce James 

Child Protective Services Assistant Commissioner Joyce James began her remarks by thanking Communications Manager Darrell Azar, who was instrumental in the development of the campaign and distribution of more than 50,000 brochures and thousands of fact sheets, book marks and other campaign information to the media and public.  She reported that in 2006, 67,737 children were confirmed victims of child abuse or neglect and over 12,000 children were removed from their homes. Some of these children remain in the CPS system and are now ready for adoption. 

Ms. James noted that of the 4,105 children awaiting adoption, 41 percent are Hispanic, 30 percent are African-American, 25 percent are Anglo, and 4 percent are Asian, Native American or multi-ethnic; about half of the children are over nine years of age, and the campaign focuses on these older children, who tend to linger in the foster care system.

Ms. James noted that the campaign, which began this month and will run for eight months, targets both foster and adoptive families.  Ms. James reported that Texas led all other states in adoptions in 2005 and consequently received a $4 million grant; she explained some of those funds are partially sponsoring the campaign, and she said the DFPS goal is an increase in adoptions for 2007.

Mr. Azar explained that of the $4 million grant, $300,000 went for advertising; through the Texas Association of Broadcasters’ (TAB) Non-commercial Sustaining Announcement Program.  TAB provided a three-to-one match of the $300,000, enabling DFPS to produce and distribute video and audio promos to be aired by many of TAB’s 1,200 members during day and evening viewing and listening times, rather than late at night.  This potentially translates into almost a million dollars’ worth of programming.  TAB will manage, distribute and track the program and provide information on where and how often the spots ran.  DFPS has also been able to buy billboard space for mid-summer with some of these funds. 

Mr. Azar presented sample TV and radio PSAs in both Spanish and English for the Council.  Chair Strauch congratulated Mr. Azar for his creativity and innovation in leveraging funds and noted that she was impressed with the quality of the spots.

Ms. Johnson inquired about disclaimers in the PSAs, and Mr. Azar explained that the disclaimers, which are required by federal law, are part of both the TV and radio spots.

4.c. Commissioner’s Report - Carey D. Cockerell

Commissioner Carey Cockerell began his report by noting DFPS’ pleasure with the “Why not Me?” campaign, and expressed the Department’s hopes of gaining new foster and adoptive families as well as an increase in the number of adoptions this year.  He remarked that the campaign kicked off in April because that is Child Abuse Prevention and Awareness Month.   He thanked all Council members for their support of and participation in community outreach in this regard.

The Commissioner congratulated Ms. Terri Ware, formerly in DFPS Management Support, for being appointed the new Chief Operating Officer.

The Commissioner reported that only 53 days of the legislative session remain; there is yet much work to do, but things are going well, and DFPS is receiving support in many areas.  He noted that as of March 9 (the deadline for bill filing), the legislature set a new record for bills filed of over 6,000.  Eight percent of those, or 464 bills, will have a possible impact on the agency.  Commissioner Cockerell remarked that one of the most important bills is the appropriations bill, which will determine funding for DFPS operations and initiatives.  He mentioned the apparent desire to fund the psychiatric step-down rate for CPS, which is a new initiative, and interest in providing prevention and early intervention funding.  Each chamber is approaching the issue differently.

The Commissioner stated that while Senate Bill 6, CPS Reform Improvements, focuses primarily on strengthening child abuse investigations in order to better protect children, the 2007 legislative session is focusing on improving services for children through the conservatorship stage. Senate Bill 758 and House Bill 2140 have been introduced to continue these reforms.

Commissioner Cockerell reported on the legislature’s focus on Childcare Licensing issues, including providing exemptions for specific entities from licensing regulations, although there appears to be a much stronger interest in an increase of the scope of regulation to entities that do fall under CCL’s oversight.

The Commissioner provided the Council with the final written investigative report on the review of placements at the former Mesa Family Services foster homes.

The Commissioner announced that May is Elder Abuse Prevention Month and that the campaigns discussed in the two prior Council meetings will be rolling out; many activities are planned statewide to promote public awareness of this cause.  He suggested contacting APS regional directors and staff for more information.

Commissioner Cockerell concluded his report by discussing the Heart Gallery exhibit and recognition event held at the Capitol April 3, remarking how moving the experience was for him and seemed to be for others.   The project, which displays portraits of children awaiting adoption, began in 2005.  The Commissioner expressed DFPS’ appreciation of the leaders of communities that have participated in this initiative.

Ms. Papadopoulos announced that on May 24 in Houston, in conjunction with Elder Abuse Prevention Month, a symposium titled “Preventing Exploitation and Elder Abuse:  Now and In the Future” will be held, and she provided the Council with symposium programs.

4.d. Chair’s Report - Ommy Strauch

Council Chair Ommy Strauch bade farewell, in absentia, to Council member John R. Castle, Jr., whose term has expired, but who will continue in his role as Chair of the Parental Advisory Council.  She displayed a plaque honoring Mr. Castle’s contributions to the Department and Council.  She then introduced Debbie Epperson, who will soon join the Council.  Although he was not present, the Council presented a standing ovation for Mr. Castle.  Chair Strauch remarked that the members’ individual activities were detailed in the binders.

Agenda Item 5 – New Business

5.a. Recommendation to propose rule changes in 40 TAC, Chapter 700, Subchapter H, Adoption Assistance Program* - Joyce James

Ms. James presented the proposed changes and explained that the impetus for these amendments is a provision in the Deficit Reduction Act of 2005 altering the requirements governing eligibility determinations for adoption assistance benefits funded by Title IV-E of the Social Security Act.  The amendments would change eligibility requirements for the Aid to Families with Dependent Children program (AFDC) so that funding will be allowed for only the month in which removal proceedings begin.  Ms. James also noted the additional proposed minor changes to Subchapter H in general, primarily revisions to clarify the language and to update terminology and the Agency’s name.  Ms. James requested the Council to consider these rule changes in order to comply with the Act and to recommend to DFPS Commissioner Cockerell and HHSC Executive Commissioner Hawkins that the proposed rules be published in the Texas Register for public comment.

Judge Johnson moved that the Council recommend for proposal by the HHSC the amended rules concerning the adoption assistance program as reflected in the Council’s April 5, 2007 Agenda Item 5.a., and Mr. Furakawa seconded.  There was no further discussion, and the motion carried.

5.b. Recommendation to propose rule changes in 40 TAC,  §700.1615, regarding the ETV program for youth who are exempt from compulsory school attendance* - Joyce James

Ms. James discussed the history of the Education and Training Voucher program (ETV) noting the program allows youth within the foster care system to obtain funding for tuition or living expenses, or both, while attending either college or a technical/vocational program.  She explained that the proposed change allows youth aged 16 and older who are exempt from compulsory high school attendance to receive financial assistance to pay the cost to attend a vocational/technical program; youth aged 15 and older are not required to attend high school if they are pursuing a GED.

Ms. James anticipates that the new rule will increase educational and vocational opportunities for youth in foster care who are at risk of aging out of the system without attaining high school diplomas and a subsequent transition to post-secondary educational training.  Currently, approximately 50 percent of the 1,000-plus youth who age out of the foster care system do so without a high school diploma.  The proposed rule change would require foster care youth in this age group to maintain active enrollment in their GED program, with the intention of providing incentives and resources to acquire skills that help them eventually secure gainful employment.  Ms. James asked the Council to consider these ETV rule changes to allow youth aged 16 and older pursuing their GEDs to be eligible for ETV funds for vocational and/or technical training, and she requested the Council’s recommendation to Commissioner Cockerell and Executive Commissioner Hawkins that the proposed amendments be published in the Texas Register for public comment.

Mr. Furakawa moved that the Council recommend for proposal by the HHSC the amendments to Chapter 700.1615 concerning the Education and Training Voucher Program as reflected in the Council’s April 5, 2007 Agenda Item 5.b., and Judge Johnson seconded.  No other discussion ensued, and the motion was passed.

5.c. Recommendation to propose rule changes in 40 TAC, Chapter 700, Subchapter C, Eligibility for Child Protective Services, regarding children returning to foster care to complete their educational goals* - Joyce James

Ms. James presented the rule changes and stated the primary purpose for the rule is to allow youth who have aged out of the foster care system to return to DFPS-paid foster care placements in order to complete their educational goals.   A secondary purpose is to clarify the foster care assistance rules to ensure they are consistent with applicable legal requirements, including provisions of the state plan for medical assistance and the Texas Family Code, and to update the Agency name and make minor editorial changes.

The change will result in an increased number of DFPS youth in a paid foster care placement that achieve their educational goals; Ms. James explained that although there will be a resultant cost to state government in implementing these changes for each of the first five years the rule will be in effect, there will be no fiscal implications to local government as a result of either administration or enforcement of this section.  She asked the Council to recommend to Commissioner Cockerell and Executive Commissioner Hawkins that these rules be proposed and published in the Texas Register for public comment.

Ms. Salazar-Harper moved that the Council recommend for proposal by the HHSC the amendments, repeals and new rule concerning the foster care program as reflected in the Council’s April 5, 2007 Agenda Item 5.c., and  Ms. Papadopoulos provided a second.  Ms. Bryant suggested that an assessment process be considered to ensure youth receive necessary assistance, in the forms of tutoring, mentoring and counseling, in order to stay on track in attaining their high school diplomas and/or GEDs.

General Counsel, Gerry Williams, noted that the current rules set out eligibility guidelines.  He suggested that Ms. Bryant’s recommendations would be better considered with either the rules for substitute care or preparation for adult living.  Both Ms. Bryant and Ms. James agreed and Ms. James noted that they would provide further information to Ms. Bryant following the meeting.  There was no other discussion, and the motion carried.

Agenda Item 6 – Old Business

6.a. Recommendation to adopt rule changes in 40 TAC, §§700.104-700.114 and 700.413, regarding deletion of rules duplicated in the DFPS records retention schedule* – Joyce James

Ms. James stated the primary purpose of the amendment is to delete the rules and provisions duplicative of the Agency record retention schedule.  Only a small portion of the records held by CPS is currently reflected in the rules, and the public can view a more accurate picture of records management procedures via the CPS official records retention schedule.  Additionally, use of a single records retention schedule will prevent the possibility of any inconsistency.

No public comments were received on this agenda item; Ms. James asked that the Council recommend to Commissioner Cockerell and Executive Commissioner Hawkins that these rules be adopted without changes, to be effective June 1, 2007.

Ms. Robinson moved that the Council recommend for adoption by the HHSC the amendments and repeals concerning deletion of records duplicated in the DFPS records retention schedule, as reflected in the Council’s April 5, 2007 Agenda Item 6.a.  Ms. Papadopoulos provided a second.  There was no further discussion, and the motion passed.

6.b. Recommendation to propose rule changes in 40 TAC §700.505, Priorities for Reports of Abuse and Neglect* - Joyce James

Ms. James discussed this rule, noting that the 79th Legislature reduced the required response time for Priority II reports of abuse and neglect from ten days to 72 hours, effective September 1, 2007.  Currently CPS must initiate an investigation within 24 hours of receipt of a Priority I report and within ten days of receipt of a Priority II report.  In January 2007, the Council approved this rule for publication, and it is now being revisited because there was concern whether the rule met the intention of Senate Bill 6 pertaining to the new 72-hour response time for Priority II cases.  Further legal review indicated screeners can be utilized to respond to a Priority II report of abuse/neglect; the statute does not specify whether the response must be face-to-face or via other methods, such as screeners.

Ms. James remarked that the new language allows DFPS to prescribe procedures for investigations based on the severity and immediacy of alleged harm to a child, allowing DFPS to utilize screeners to contact others who can ensure the safety of the child.  The rule now clarifies that DFPS will respond to a Priority II report by either initiating an investigation or forwarding the report to a specialized screening staff. DFPS will clarify by policy the requirements of the screening staff.

The revised rule was presented to the Council on April 5, 2007.  The Council indicated that they understand that currently there is a 10-day response time to reports of abuse and neglect for Priority 2 cases in the statute and that S.B. 6 reduced the response timeframe to 72-hours.  The Council also indicated that they have been assured by agency staff that the policy will instruct screening staff to refer a case to an investigator within 72-hours.  Joyce James, CPS Assistant Commissioner, indicated that she will provide the Council members with the policy currently used by the screening staff as well as the draft policy that will be used to implement this rule.  Ms. James indicated that the current policy and any future policy will instruct screening staff to send the case to investigator within 72-hours and assured the Council that there will be quality assurance measures in place to ensure staff are following the policy.
There is no fiscal impact to the Department; with the additional investigative positions received by CPS from the 79th Legislature, the Agency can meet the 72-hour required response time for Fiscal Year 2007.  Ms. James asked the Council to consider the changes to the rules in order to implement the laws passed during the 79th Legislature for Priority II investigations, and recommend them to Commissioner Cockerell and Executive Commissioner Hawkins.

Ms. Johnson moved that the Council recommend for proposal by the HHSC the amendments to Chapter 700.505, Priorities for Reports of Abuse and Neglect as reflected in the Council’s April 5, 2007 Agenda Item 6.b., and Ms. Papadopoulos seconded.  No other discussion ensued, and the motion was passed.

Agenda Item 7 – Adjourn*

*Denotes Action Item