Texas Department of Family and Protective Services
Advisory Council Meeting
October 5, 2007, 9:00 a.m.
The Texas Department of Family and Protective Services (DFPS) Advisory Council met in Public Hearing Room 125-E of the John H. Winters Building, 701 West 51st Street, Austin, Texas. Council Members present were Chair Ommy Strauch, Gigi Edwards Bryant, Debbie Epperson, Paul Furukawa, Richard Hoffman, Faith Johnson, Linda Bell Robinson, Mamie Salazar-Harper. Not present was Vice Chair Imogen Papadopoulos.
Also present were Commissioner Carey Cockerell and Department staff.
Agenda Item 1 – Call to Order
Call to order at 9:07 a.m. by Chair Ommy Strauch.
Agenda Item 2 – Reading, Correction and Approval of Minutes of July 20, 2007 regular meeting*
Judge Johnson moved for approval of the minutes as presented, and Ms. Bryant seconded the motion. There was no further discussion, and the minutes were approved.
Agenda Item 3 – Public Testimony
Dawn Choate, Governmental Affairs Specialist with the ARC of Texas, thanked DFPS for its efforts in further developing rules and providing continuing education for childcare centers so as to enable access to services for children with disabilities. She noted that although these changes are a step in the right direction, the ARC of Texas is in opposition to the current proposed rules and believes they inadequately address the difficulties families face when attempting to gain access to these services. Ms. Choate noted that while enforcement of Title 3 of the Americans with Disabilities Act (ADA) is the responsibility of the US Department of Justice, children with disabilities and their families deserve further exploration of other options to ensure compliance. She urged the Council to continue the process through a stakeholder group comprised of advocacy groups, families, child-care centers and other related agencies.
Dr. Furukawa asked Ms. Choate to indicate some areas in which ARC would support extension of and further pursuit by the Department. Ms. Choate responded that some of the rules could go into further detail. She cited as an example an amendment to one of the rules, which calls for DFPS to provide training for day-care directors, and suggested that this type of training would be helpful to all day-care staff, not just directors. Ms. Choate suggested that all complaints, rather than only substantiated ones, be reported to DOJ, because some complaints can take as long as two years to investigate, if at all. She further suggested creating a rights book for parents, similar to the one provided through the special education programs in schools, and facilitating access to the ADA complaints process for parents whose children with disabilities have been denied child-care services.
Amy Young, Public Policy Specialist with the Texas Council for Developmental Disabilities (TCDD) expressed thanks to DFPS for its efforts in making child-care services accessible to children with disabilities. She noted, however, that TCDD believes the current proposed rules are inadequate and would have little meaningful impact in the lives of those attempting to access to such services. Ms. Young urged the Council to create a work group of providers, advocates and family members in order to achieve a meaningful compromise which would work for providers and families and the Department. She acknowledged the understanding that this could have financial impact and might also be a jurisdictional concern for DFPS regarding the finding or substantiation of claims, but she believes this would not be an undue burden for DFPS.
Aaryce Hayes, Program Specialist with Advocacy, Inc., spoke to the Council about the proposed rules in 40 TAC, Chapter 711, regarding investigations, specifically in the Department on Aging and Disability Services (DADS). She cited one dilemma faced by DFPS when investigating an allegation regarding an owner of a smaller, “mom-and-pop” care facility, which is to whom the allegation is reported, and at the same time ensuring the safekeeping of the alleged victim(s), witnesses and evidence. Ms. Hayes noted that her organization has been working with DADS on a resolution of this dilemma. Ms. Hayes remarked further that the current language in the proposed rule changes does not clarify the process, namely that the accused owner of the facility would identify someone as his or her designee in the event of such an investigation, and that could be problematic in the investigation. She suggested that an impartial third party, such as an ombudsman, be involved in running such a facility during an investigation, in order to ensure the collection of evidence is not compromised and that the individuals in the facility are protected. Ms. Hayes noted that an alternative and more proactive solution might be that the facility owner’s designee be named and on record with DADS during the licensing process, rather than after an allegation is made.
4. Agency Briefings
4.a. Final 180-Day Report – Stephen Este, CPC
Stephen Este, Director of the Center for Program Coordination, updated the Council regarding the 180-day report. The report is required by Senate Bill 6. DFPS outlines the Agency’s progress in completing the tasks required by Senate Bill 6. He noted that this is the fourth and final report and that it represents thousands of hours of hard work and innovation on the part of DFPS and HHSC staff and providers.
Highlights mentioned from the report: 24-hour child-care facilities are safer, thanks to more random inspections and new rules; APS has new staff specializing in such things as financial exploitation and self-neglect cases, and new risk-assessment tools are in place. Within CPS, the changes are profound and the focus is primarily on family. Mr. Este cited increased allocations of resources and staff and improved policy in order to draw families into service planning.
Mr. Este stated that investigations are commencing and closing more quickly and, by all indications, improving in quality. Although the number of CPS investigations has increased, the number of removals has declined, and staff has more time to employ innovative solutions.
Mr. Este reported that in excess of 2,500 new staff positions have been created, which leads to lower case loads and, hopefully better staff retention rates. He noted that in the area of CPS investigations alone, two years ago, staff members were handling 43 cases each; today each staff person handles around 25 or 26 cases, which is a substantial change and makes case loads more manageable.
Ms. Salazar-Harper asked Mr. Este what grade he would give DFPS if the 180-day report were a report card, and he responded that he would give a B-plus. He noted that of the few remaining challenges for DFPS, staff retention is probably the biggest. Deployment of new technology has also been a significant issue that has required a huge effort. He remarked that DFPS has effected much change in a short time period, but there is room for improvement. Mr. Este then stated that the completion of Senate Bill 6 is not viewed as an end, but as a foundation for the future improvement of the Agency.
4.b. Emergency Response Activities – Terri Ware, COO
Terri Ware, Chief Operating Officer, reported to the Council about improvements within DFPS regarding planning for disasters and how we connect with the larger state response. Ms. Ware discussed the aspects of disaster management, from local governments and agencies to the state operations center and, when necessary, federal emergency management efforts. She cited as an example Hurricane Dean, which hit Texas in August of this year, and gave a presentation on all phases of DFPS involvement in emergency preparations and responses, including information about how we protect clients, staff, and agency assets during evacuations and closures.
4.c. APS Investigations in MH & MR Settings – Karl Urban, APS
Karl Urban, Assistant Commissioner for APS, gave a presentation to the Council regarding the APS role in investigations of MHMR facilities. Mr. Urban mentioned recent newspaper reports of abuse, neglect and exploitation in state schools operated by DADS. He cited a report issued two years ago by the DOJ regarding the Lubbock State School, which was most recently scrutinized during the last legislative session and about which APS provided testimony to the House General Investigating Committee. He noted that beginning this past summer, APS has responded to nearly 50 different requests from the legislature for information on APS investigations in legacy MHMR facilities.
Mr. Urban emphasized that the role of APS in investigations of abuse, neglect and exploitation in MH & MR settings is not regulatory, but investigative. When APS receives an allegation, it conducts an investigation to determine a finding as to whether APS believes abuse, neglect or exploitation occurred, so the facility or provider can have objective evidence upon which to take whatever actions are deemed necessary. APS has no control over what happens with the results of findings of investigations and has no operational authority over the particular facility or provider.
Mr. Urban explained there are two types of investigations APS conducts: In-home investigations, which comprise the majority of investigations and require the vast majority of APS staff, and MH & MR investigations. Mr. Urban went on to explain the investigative process and that it is forensic by nature.
Mr. Urban reiterated that APS has no responsibility for what happens with any investigative findings and noted that although a facility cannot change any findings or referrals made by APS, the facility may appeal. While an alleged perpetrator does not have the right to appeal, the facility or provider, on behalf of an employee, may appeal the findings. The alleged victim may also appeal any findings by APS.
Mr. Urban discussed quality assurance, case standards and the required qualifications for investigators. He reported that 7,930 MHMR investigations were conducted last year and that
800 cases were confirmed. Of those, state school investigations last year totaled nearly 3,000, with 283 confirmed cases. The number of investigations of in-home providers last year was approximately 75,000, and 51,200 cases were confirmed. Mr. Urban explained the types of allegations and noted that there may be more than one allegation in a case; there may be multiple alleged perpetrators and multiple types of allegations against them. He said neglect is the highest category of allegation, with exploitation being the lowest.
4.d. Commissioner’s Report – Carey D. Cockerell
DFPS Commissioner Carey Cockerell began his report by updating the Council on child placement efforts the past eight or nine months. The Commissioner noted that there were in excess of 170 children who had spent at least one night in a CPS office in May and that as of the end of September, that number decreased to 28. He attributed this substantial progress to the work of the provider community and staff in developing some innovative approaches and noted that this is a continuing effort.
Commissioner Cockerell reported that a stakeholder meeting was held last week in order to discuss the Family Team Model (FTM) in CPS and noted that this is part of Senate Bill 758 and CPS reform. He said the family group decision making process will be expanded into the pre-removal time frame of the investigative stage. In the past, the family group decision making process has been during the post-removal phase. By moving this initiative to the investigative stage prior to removal, we may avoid removing children from their homes and still protect them. The Commissioner remarked that the Strengthening Families program will assist in enabling this initiative, and he looks forward to seeing the program develop and assessing its impact on removal rates. He noted that while we’ve seen a drop in the number of removals in 2007 as compared to 2006, we’re also seeing a decrease in the number of children in foster care.
Commissioner Cockerell informed the Council that Joyce James made a presentation to the
Texas Supreme Court on September 25 during a public hearing held to consider public comment concerning creation of a permanent judicial commission to help child protection courts better serve children and families in the foster care system. The Commissioner noted that CPS has been working on this initiative for nearly two years, and that strong support was demonstrated during the hearing. He anticipates that the Texas Supreme Court will issue an order establishing a permanent commission on children and youth in the near future and that DFPS will be a member of that commission.
The Commissioner reported that implementation of the FBI background fingerprint check requirement for childcare staff has been delayed until January. He noted the fingerprint check was a legislative initiative begun during the last session and that DFPS was tasked with its implementation. We have worked with the legislative leadership and the DPS to do a phased rollout of those services. The fingerprint background checks began for existing directors in childcare facilities, as well as new directors, on September 1; in January, we will begin the checks on new childcare staff, as well as those renewing certification. Commissioner Cockerell stated that CCL outreach has been impressive and we have received very good provider responses.
The Commissioner informed the Council that he spoke at the Texas Council of Child Welfare awards ceremony. He noted that as chief probation officer in Tarrant County, he has been involved with the child welfare board and has been impressed with their work with the local communities, and he believes it is important that this agency continue to support and partner with them. The Commissioner stated that the executive director of the Council of Child Welfare has been invited by CPS to share their new strategic plan at the January 2008 DFPS Council meeting.
Commissioner Cockerell stated that in August, APS Community Board members from each region of the state met in Austin and formed Texas Partners for Adult Protective Service, which is an organization that provides support and guidance to the APS Community Boards throughout the state. He noted that this is the first of its kind in the country and will be very proactive in the adult protection mission and that DFPS Council member Immy Papadopoulos has been working on this effort since its inception.
The Commissioner reminded the Council that the APS Conference will be held November 6-9 in San Antonio. He remarked that this is an internationally recognized and respected conference, and he is pleased to report that we are anticipating high numbers of registration this year. In excess of 21 states and several countries were represented at the conference last year.
Commissioner Cockerell updated the Council on his regional visits. He stated he has recently completed two and hopes to have the others finished by mid-December. He noted that DFPS
Council member Mamie Salazar-Harper attended the regional visit in El Paso and there was a great deal of positive feedback received regarding that visit.
The Commissioner concluded his report by announcing that the selection of DFPS Medical
Director, a new senior staff position, has been made, pursuant to authority granted to DFPS by The 80th Legislature. Dr. James Rogers, a board-certified child and adolescent psychiatrist, will be the first Medical Director for the agency. He is recognized as a leader in the field of child psychiatry in Texas and will begin on December 3.
4.e. Chair’s Report – Ommy Strauch
Council Chair Ommy Strauch began her report by informing the Council that the strategic planning process will be resuming. She will acquire specific dates and a time line from DFPS Deputy Commissioner Susan Milam and will then contact all Council members to request two volunteers to serve in that project.
Chair Strauch thanked Penelope Doherty, DFPS Community Engagement Lead, for her work for the DFPS Council and wished her well in her new role as Special Projects Administrator for Program Support.
Chair Strauch announced that Council member Immy Papadopoulos and former Council member John Castle will be recognized in November by the Texas Network for Youth Services for their roles and efforts on behalf of youth.
Agenda Item 5 – New Business
5.a. Recommendation to propose rule changes in 40 TAC, Child Protective Services § 700, Subchapter H, Adoption Assistance Program, relating to the New Health Coverage Benefit Stipend Program* – Beth Engelking, CPS
Beth Engelking, CPS Support Manager, presented the proposed changes and noted that House Bill 2702 requires DFPS to develop a healthcare benefit program for families that adopt children through DFPS, and the program is for children who would not otherwise qualify for adoption assistance. Ms. Engelking explained that one requirement is the family be at 300 percent of the poverty level, and she directed the Council to other information in their Council packets. Ms. Engelking requested the Council consider these rules to implement the healthcare program and that the Council recommend to Commissioner Cockerell and 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 new sections concerning the health coverage benefit stipend, as reflected in the Council’s October 5, 2007 Agenda Item 5.a., and Ms. Salazar-Harper seconded. There was no discussion, and the motion carried.
5.b. Recommendation to propose rule changes in 40 TAC, Chapter 700, §§ 700.203, 700.1351, 700.1403, 700.1404, relating to Medical Consent for Children in Conservatorship* – Beth Engelking, CPS
Ms. Engelking discussed these rules, noting that they formalize statutory changes from Senate Bill 6 of the 79th Legislature. She explained that the intent of these rules is to ensure that a child in conservatorship has someone who has the ability to consent for medical care and is knowledgeable about the child’s medical needs. Ms. Engelking stated that the adopted policy became effective in September and these rules merely formalize the statutory changes.
Ms. Engelking asked the Council to consider the rules changes relating to medical consent for children in DFPS conservatorship and that the Council recommend to Commissioner Cockerell and Executive Commissioner Hawkins that these rules be published in the Texas Register for public comment.
Ms. Robinson moved that the Council recommend for proposal by the HHSC the amendments concerning medical consent for children in conservatorship, as reflected in the Council’s October 5, 2007, Agenda Item 5.b. Judge Johnson seconded. No further discussion ensued, and the motion carried.
5.c. Recommendation to propose rule changes in 40 TAC, Chapter 700, Strengthening Families Through Enhanced In-Home Support Program* – Beth Engelking, CPS
Ms. Engelking presented these rule changes to the Council and stated they result from the 80th Legislature, which requires DFPS to develop this program. She explained that the program is designed to serve families who have neglect and poverty as the reason for that neglect. Ms. Engelking explained the program is targeted toward either enabling children to remain in their homes and not enter the foster care system or to return to their homes from foster care sooner. This program is funded for the biennium as a statewide pilot and is intended to serve up to 1,500 families.
Ms. Engelking requested the Council consider the rules to implement the Strengthening Families program and asked that the Council recommend to Commissioner Cockerell and Executive Commissioner Hawkins that these rules be published in the Texas Register for public comment.
Ms. Bryant moved that the Council recommend the proposal by the HHSC of the new sections concerning Strengthening Families Through Enhanced In-Home Support Program, as reflected in the Council’s October 5, 2007 Agenda Item 5.c., and Judge Johnson seconded. There was no other discussion, and the motion carried.
5.d. Recommendation to propose rule changes in 40 TAC, Chapter 746, Minimum Standards for Child-Care Centers, relating to the support and inclusive care of children with special needs* - Diana Spiser, CCL
Diana Spiser, Assistant Commissioner of Child Care Licensing, presented these rule changes and requested the Council recommend to Commissioner Cockerell and Executive Commissioner Hawkins that the rule changes be proposed and published in the Texas Register for formal public comment.
Dr. Furukawa moved that the Council recommend for proposal by the HHSC the amendments concerning the support and inclusive care of children with special needs, as reflected in the Council’s October 5, 2007 Agenda Item 5.d. Ms. Epperson seconded. No further discussion ensued, and the motion carried.
5.e. Recommendation to propose rule changes in 40 TAC, Chapter 745, Licensing; Chapter 746, Minimum Standards for Child-Care Centers; Chapter 748, General Residential Operations and Residential Treatment Centers, and; Chapter 749, Child-Placing Agencies* - Diana Spiser, CCL
Ms. Spiser discussed these rule changes with the Council and presented an updated version to Chapter 745.8407 from what was in the Council packet. Ms. Spiser noted these changes are proposed in order to implement legislation passed during the 80th Legislature. Ms. Spiser asked that the Council recommend to Commissioner Cockerell and Executive Commissioner Hawkins that these rules be proposed and published in the Texas Register for formal public comment.
Ms. Epperson moved that the Council recommend for proposal by the HHSC the amendments, new sections and repeals concerning licensing, minimum standards for child-care centers, general residential operations and residential treatment centers, and child-placing agencies, as reflected in the Council’s October 5, 2007 Agenda Item 5.e. Judge Johnson seconded. There was no further discussion, and the motion carried.
Agenda Item 6 – Old Business
6.a. Recommendation to adopt rule changes in 40 TAC, Chapter 732, Contracted Services* – Liz Garbutt, Contracts Oversight and Support
Liz Garbutt of Contracts Oversight and Support presented these rule changes and stated that in coordination with HHSC Rule Revision, these proposed revised contract services rules were published in the Texas Register to establish a clear separation of rules as they apply to 24-hour residential child-care unit rate contracts and to all other DFPS contracts. Ms. Garbutt noted there were no comments received during the public comment period, and she requested the Council recommend to the Commissioner and Executive Commissioner that these rules be adopted without changes, to be effective December 1, 2007.
Judge Johnson moved that the Council recommend for adoption by the HHSC the amendments and repeal concerning contracted services, as reflected in the Council’s October 5, 2007 Agenda Item 6.a. Ms. Bryant seconded. There was no other discussion, and the motion carried.
6.b. Recommendation to adopt rule changes in 40 TAC, Chapter 711, Investigations in TDMHMR Facilities and Related Programs* – Karl Urban, APS
Mr. Urban discussed these rule changes and reminded the Council of his presentation and the discussion of them at the October 4, 2007 Council work session. Mr. Urban reiterated the two options regarding these rules that were outlined at the work session, and he explained that a third option would be to wait until the January Council meeting in order to look at what DADS is able to work out regarding designees. Mr. Urban asked the Council for their preferred direction.
Judge Johnson recommended withholding a ruling for now in order to see what DADS is going to do. She echoed Ms. Hayes’ earlier comments of today, as well as other comments received by DFPS, and suggested that in order to ensure the integrity of the investigation process, we wait until January. Dr. Furukawa seconded.
Ms. Salazar-Harper indicated agreement and stated that although the public is looking to the Council to make decisive measures, because there are many implications, including some fiscal in nature, it is best to delay a decision on recommendation until January.
There was no other discussion, and the motion carried.
Ms. Salazar-Harper thanked Chair Strauch for her leadership, all of the Council members for their efforts and activities, and DFPS staff for working so hard to make a success of this agency. Judge Johnson echoed those thanks.
Chair Ommy Strauch thanked all Council members and staff and noted that this is the last Council meeting in 2007, and the next meeting will be January 17, 2008. Chair Strauch then adjourned the meeting at 10:50 a.m.
* Denotes Action Item