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Texas’ foster care system is plagued with problems. Here’s how lawmakers want to fix it.

By Sneha Dey, The Texas Tribune

Texas’ foster care system is plagued with problems. Here’s how lawmakers want to fix it.” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Texas lawmakers are considering a handful of bills aimed to improve the troubled Department of Family and Protective Services, which cares for the state’s most vulnerable children.

The state’s child welfare agency has struggled to care for the nearly 20,000 kids in its custody who have been removed from their parents’ homes. The agency can’t find placements with foster families, relative caregivers or residential facilities for all of the kids in its care. And in a long-running federal lawsuit against the state, court watchdogs found caseworkers were stretched thin, residential facilities housing kids were not in compliance with safety standards and the agency was not tracking child-on-child abuse.

The governor, the lieutenant governor and the speaker of the House all have significant influence over what legislation gets passed in any given legislative session. Yet as of early April, none have indicated that fixing the state’s foster care system will be a priority for the session, which ends May 29. That lack of support means proposed changes are competing against other pressing issues for lawmakers’ attention — and state dollars.

“Everyone says … ‘I’m very concerned about kids in foster care and all the bad things that happen, but don’t ask me what to do about it. And don’t ask me to take away my funding priorities to pay for that,’” said state Rep. Gene Wu, a Houston Democrat and an attorney who represents parents battling Child Protective Services cases. “They won’t ever say that publicly. But that’s what is going through [legislative] members’ minds.”

For the 2022 and 2023 state budget cycle, DFPS was allocated $4.58 billion. For the two-year budget that lawmakers are writing for 2024 and 2025, that number could rise to $4.89 billion. So far, both the House and Senate are proposing giving $300 million of a state budget surplus to DFPS. As of early April, a significant chunk of that additional money is proposed to increase pay for foster care providers that house and support many kids in facilities. Lawmakers are also looking to fund an expansion of what’s called community-based care, which outsources part of Child Protective Services’ duties to local third parties.

The Texas Senate has passed a bill requiring CPS to inform parents facing abuse or neglect accusations about their rights to an attorney and another bill that requires DFPS employees to report criminal offenses committed by fellow employees. Lawmakers in both chambers are also considering paying more money to relatives who take in kids.

Expanding community-based care

The House and Senate have set aside at least $128.1 million in their preliminary budgets to expand community-based care, a model adopted in 2017 that aims to keep foster children closer to their homes.

Under the model, DFPS outsources agency responsibilities by contracting third parties in more than 11 designated DFPS districts. These third parties would be responsible for placing kids in foster homes and for tapping local groups to run residential facilities or group homes.

The state announced in March the largest single expansion of community-based care since the model was first adopted in 2017. DFPS this year signed contracts with third parties in three DFPS districts, representing nearly 50 counties in the Piney Woods, Deep East Texas and North Texas. Before then, community-based care was operating in just four DFPS districts, representing Tarrant County and six nearby counties, 30 counties around Abilene, 41 counties in the Panhandle, and 27 counties surrounding San Antonio.

DFPS Commissioner Stephanie Muth told lawmakers at a February Senate Finance Committee hearing that the agency will likely require fewer in-house caseworkers. Instead, Muth said the agency will need to focus more on managing contracts and less on staffers managing cases.

Changing how foster care providers are paid

Lawmakers could increase the amount the state pays operators of facilities that house and provide services for foster care kids.

For each day of care, DFPS currently pays those providers a rate that is based on the child’s needs. There are five “levels of care:” basic, moderate, specialized, intense and intense plus. The majority of foster care children fall under the basic and moderate levels of care. But when a child has more complex needs — such as intensive mental health services for those at risk of hospitalization and support for older youth about to age out of care — the state pays the provider a higher rate.

A consulting group hired by the state found current foster care rates are based on data that is more than a decade old and do not “realistically reflect staff time and effort associated with providing care.” Without adequate funds, providers are limited in the resources they can offer to foster care kids.

The House and Senate are proposing to increase the rates and have each earmarked $100 million over two years to fund that increase. A large part of the $100 million is slated to support existing rate enhancements for providers working with higher-needs kids, which the Legislature approved in 2021 to alleviate the placement crisis.

Child welfare experts, along with the agency, have recommended moving away from tying rates to children and their “levels of care.”

“The needs of children fluctuate, which means payments can fluctuate,” Jamie McCormick, vice president of public affairs at the Texas Alliance of Child and Family Services, wrote in a statement. “This fluctuation creates fiscal instability. Worse, the leveling system can disrupt treatment for the child or limit their ability to sustain progress.”

They’re instead proposing a new system that would identify different services a child needs, and rates would be tied to those services.

To implement the new system, DFPS has asked for additional funding. The House has approved that request in their budget, which was approved last week. The Senate did not approve the request. After the Senate passes their version of the budget later this month, the two chambers will meet to negotiate a single budget bill.

If the final budget does not approve the agency’s request for additional funding, the agency will have to make a difficult choice on how to use the $100 million: to increase rates across the board or to continue with rate enhancements for providers working with higher-needs kids.

Increasing payments to relatives who take in kids in state care

After children have been removed from their homes, they often experience less trauma if they are placed in the care of relatives, also known as kinship care. But relative caregivers get roughly half of the compensation of strangers who take in children.

Relatives can receive $12.67 per day, per child for up to 12 months if their total household income is below 300% of the federal poverty limit. Foster parents, meanwhile, receive at least $27.07 per day but can get paid more if a child has more complex needs.

Foster parents are required to go through training and get licensed before they take in a child, unlike relative caregivers. Relatives can go through the training and get “verified” to get paid the same as foster parents, but grandparents say the verification process comes with a lot of red tape.

Some lawmakers want to remove the red tape around getting state assistance so relatives struggling to make ends meet can step up to care for kids entering the foster care system.

Senate Bill 908, authored by Sen. Royce West, D-Dallas, would allow relative caregivers to get paid the same as foster parents without going through the same hurdles to get verified. Rep. Lacey Hull, R-Houston, has authored the identical House Bill 2613.

In the House, Rep. Terry Meza, D-Irving, has authored House Bill 1431, which would remove the income limits that disqualify relative caregivers making 300% above the federal poverty limit from getting state assistance. The bill was left pending in the House Human Services Committee after members heard testimony on April 4.

House Bill 4159, authored by Rep. Barbara Gervin-Hawkins, D-San Antonio, would also mean relative caregivers do not have to get verified before they access the same payments as foster parents. The bill goes a step further, too, removing the cap on how long a caregiver can get paid.

Those proposals have the backing of key child welfare groups, such as TexProtects, the Texas Alliance of Child and Family Services, and Texans Care for Children.

The Legislature last increased payments for relatives in 2017, but relatives say the increase wasn’t enough.

“More grandparents would stand up and take their grandchildren if there wasn’t so much red tape, and we got more financial support than what they’re giving us,” said Shirley Harris, who has been raising her granddaughter. “Even though we’re not trained like the licensed foster parents are, we have relationships with our grandchildren.”

Parental rights in child abuse investigations

Parents under investigation for child abuse are required to make decisions that can determine whether they keep or lose their children. But these parents rarely get legal help and often are unaware of their rights.

Key lawmakers are trying to change that by increasing due process protections for parents involved in Child Protective Services cases.

The Texas Senate unanimously approved Senate Bill 614, requiring the state agency to notify parents being investigated about their right to speak with an attorney. The bill, authored by Sen. Charles Perry, R-Lubbock, will now make its way to the Texas House.

In the lower chamber, House Bill 730 would require caseworkers to notify parents of their rights. For example, they can decline to share medical records or submit to drug tests, and they have the right to speak with an attorney. If parents refuse to be interviewed or let caseworkers in their homes, the bill would also require DFPS to show probable cause, which requires more evidence than the current standard, to get a court order.

“There is a real lack of due process in the CPS arena, I believe. And I think a lot of my colleagues agree,” said state Rep. James Frank, R-Wichita Falls, the author of HB 730. “A parent should understand what is at risk and that we’re doing an investigation and that they have rights.”

Wu, meanwhile, is looking at the system around DFPS written reports on child abuse and child neglect investigations. House Bill 1990 would require DFPS to notify a child’s parent, and the attorney for the child’s parent, when DFPS makes edits or corrections to the written report. The report was voted out of committee for the full House to consider.

Rep. Jacey Jetton, R-Richmond, also wants to see changes in how CPS investigations take off. DFPS finds evidence of abuse in only 22% of investigations, according to the agency. Many investigations start with anonymous reports of abuse or neglect. Jetton’s House Bill 1667 would end anonymous reporting.

As part of the bill, teachers, health care professionals and day care employees could redirect families determined to have a “low risk of abuse” to community-based services, rather than calling CPS.

“House Bill 1667 will allow families to receive access to these services without the added stress of interaction with CPS,” Jetton said in a statement. “It will also help improve the efficiency of investigations into reports of suspected child abuse and neglect by freeing CPS to prioritize children in danger of harm.”

The Refuge

More than a year after a Bastrop foster care facility hired a caretaker with a history of misconduct against children, lawmakers are closing employment loopholes to better identify bad actors.

When the caretaker was accused of selling and soliciting nude photos of two girls in her care at The Refuge, The Texas Tribune identified that a state juvenile facility had previously fired this caretaker for having inappropriate relationships with children in her care.

The Senate on April 11 unanimously passed Senate Bill 1849, which would create an interagency reportable conduct search engine that DFPS could use to conduct background checks.

Another related bill, authored by Rep. John Lujan, R-San Antonio, would establish a central registry of the names of individuals found by the Health and Human Services Commission or the Texas Juvenile Justice Department to have abused or neglected a child. House Bill 2572 was debated in the House Human Services Committee on March 21.

Staff also concealed evidence of the abuse, which allowed the abuse to persist, James Yocum, the deputy director of human resources at DFPS, told lawmakers. While mandatory reporting requirements exist for professionals licensed by the state, such as teachers and day care employees, they do not extend to staff at DFPS and TJJD facilities who are not licensed by the state, which was the case for the caretaker at The Refuge.

The Texas Senate unanimously passed Senate Bill 182, which would amend the state’s human resources code to require employees and contractors of DFPS and TJJD to report criminal offenses committed by fellow employees and contractors to the Texas Department of Public Safety.

Caseload limits

Perhaps the most direct response to the long-running federal lawsuit is a bill addressing caseload limits and long wait times on the abuse hotline.

Court monitors in January said response times for Statewide Intake, the hotline to report child abuse or neglect, increased by half a minute over the past year. Callers to the state hotline wait on hold an average of 5.2 minutes. And between July 2021 and June 2022, SWI hotline staff abandoned 22% of calls.

State Rep. Armando Walle’s House Bill 2359, requires the agency to swiftly respond to calls made to the hotline. If passed, the average hold time for calls to the hotline cannot exceed five minutes, and the call abandonment rate for each state fiscal year cannot exceed 25%.

The Houston Democrat’s bill would also institute caseload limits for DFPS staff. High caseloads have been central to the federal lawsuit since it was first filed in 2011. At the time of filing, one of the major complaints was that caseworkers were carrying more than double the standard for caseload limits.

Under HB 2359, caseworkers conducting CPS investigations would be limited to an average of 15 cases; CPS caseworkers working to keep a child safely in their home would be limited to 10 cases; other CPS caseworkers would be limited to 20 cases.

The limits go beyond caseworkers. Child care licensing inspectors would be limited to 64 nonresidential facilities or family homes; child care licensing investigators would be limited to 17 day cares; while Adult Protective Services specialists would be limited to 22 cases.

The bill was left pending in the House Human Services Committee after members heard testimony on March 21.

Disclosure: Texans Care for Children and TexProtects have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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