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Texas lawmakers move to close foster care hiring loopholes and expand rights of parents facing investigations

By Sneha Dey, The Texas Tribune

Texas lawmakers move to close foster care hiring loopholes and expand rights of parents facing investigations” 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 trying to close hiring loopholes and give parents under investigation more rights in an effort 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 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. Lawmakers are debating how much funding to allocate to increase what the state pays foster care providers who house and support kids.

House Bill 730, which passed both chambers and now heads to the governor, requires CPS to inform parents facing abuse or neglect investigations about their right to an attorney. Senate Bill 63 bans anonymous reports of abuse or neglect altogether.

After a caretaker was accused of soliciting nude photos of children at one foster care facility in 2022, the state Legislature approved Senate Bill 182, which would require DFPS employees to report criminal offenses committed by fellow employees. This bill is on the brink of becoming law as it was passed in both chambers and heads to the governor’s desk.

All of these bills will become state law unless Gov. Greg Abbott vetoes them.

Meanwhile, bills that would pay more money to relatives who take in kids have missed deadlines necessary to become law.

Parental rights in child abuse investigations

Parents facing investigation for child abuse make decisions that could determine whether they keep or lose their children. But they often go through investigations without legal support and with little understanding of their rights.

This legislative session, lawmakers are increasing due process protections for parents involved in Child Protective Services cases.

House Bill 730 would require caseworkers to notify parents of their rights at the start of an investigation. Parents have the right to not speak with CPS investigators and to deny them interviews with their children. Parents also have a right to speak with an attorney. If parents refuse to be interviewed or let caseworkers in their homes, a caseworker can ask a judge for a court order. HB 730 would also require DFPS to show probable cause, which requires more evidence than the current standard, to get that 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.”

HB 730 heads to Gov. Greg Abbott for his consideration. A spokesperson for the governor did not immediately respond to an inquiry about whether he supports the bill.

The state Legislature has also approved Senate Bill 614, authored by Sen. Charles Perry, R-Lubbock, would require DFPS to notify parents about their right to speak with an attorney if caseworkers are looking to temporarily place a child outside their home. It is unclear if the governor supports the bill.

Another bill, House Bill 1990, would require DFPS to notify a child’s parent, and the attorney for the child’s parent, when DFPS makes changes to the written report about the child abuse investigation. But time is running out for HB 1990 to become law. After the Texas House approved the bil on May 11, it has been pending in a Senate committee.

Lawmakers have an eye on how CPS investigations are initiated. Nearly 80% of reports of child abuse or neglect are unfounded and many of those reports start with anonymous calls.

House Bill 63, authored by Rep. Valoree Swanson, R-Spring, would end anonymous reporting. The bill would require DFPS to obtain the caller’s identity, though all reports would be confidential. The bill headed to Abbott on May 18 — but not without pushback.

Sen. José Menéndez, D-San Antonio, raised concerns that an end to anonymous reporting would keep people from calling in reports of abuse.

“None of us in this room want any child to suffer abuse or neglect. And I would hate for us to vote for a policy where the tradeoff is … (having) a child possibly die from abuse or neglect,” Menéndez said on the Senate floor.

House Bill 1667 also tries to end false accusations, but unlike HB 63, callers could still make anonymous reports. Under HB 1667, an anonymous report would trigger a preliminary investigation instead of a full investigation. Teachers, health care professionals and day care employees — who are mandatory reporters — could redirect families determined to have a “low risk of abuse” to community-based services, rather than calling CPS. The House approved HB 1667 on May 11 and it was voted out of a Senate committee on May 21.

Closing loopholes after The Refuge scandal

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 the caretaker for having inappropriate relationships with children in her care.

Senate Bill 1849 would create an interagency reportable conduct search engine that DFPS could use to conduct background checks. The bill got approval from the Senate on May 19 and is now headed to Abbott.

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 passed the House on May 4 and remains pending in a Senate committee.

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.

Senate Bill 182 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. The state approved SB 182 on May 22 and the bill is now headed to the governor.

Increasing payments to relatives who take in kids in state care

After children have been removed from their homes, evidence shows they experience less trauma when 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.

Lawmakers filed bills to increase pay for relative caregivers this session – but those bills died because the clock ran out. The Texas House was required to advance bills through the committee phase by May 21 at midnight. But key bills for relative caregivers did not meet the lower chamber’s procedural deadline.

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.

Rep. Terry Meza, D-Irving, 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.

Rep. Barbara Gervin-Hawkins, D-San Antonio, filed House Bill 4159, which would no longer require a relative caregiver to get “verified” to access the same payments as foster parents. House 4159 would allow a relative caregiver to get paid if they still were providing for the child after 12 months.

Senate Bill 908, authored by Sen. Royce West, D-Dallas, would also allow relative caregivers to the same payments as foster parents without having to get “verified.” Rep. Lacey Hull, R-Houston, has authored the identical House Bill 2613.

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. But the bills did not get enough traction to move out of their respective House committees.

Procedural deadlines often mark the end of the road for many legislative proposals — and can help block legislation that leadership does not want to move forward. While deadlines mean those bills are now off the table, the provisions outlined in those expired proposals could be included as amendments in surviving legislation.

The Senate has less procedural deadlines than the House, but with a week left till the end of session, it’s unlikely a bill still pending in a Senate committee will become law.

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.”

Implementing caseload limits

Perhaps the most direct response to the long-running federal lawsuit against the state is a bill addressing caseload limits and long wait times on the abuse hotline. But that bill saw little movement this session, and met its demise when it missed a procedural deadline on May 20.

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 would have required the agency to swiftly respond to calls made to the hotline. Under HB 2359, the average hold time for calls to the hotline could not exceed five minutes, and the call abandonment rate for each state fiscal year cannot exceed 25%.

The Houston Democrat’s bill would have also instituted 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 sat pending for months in the House Human Services Committee after members heard testimony on March 21. It had to advance past the committee phase by May 20.

Expanding community-based care

The House and Senate have set aside at least $91.9 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 that the rates 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 have earmarked $100 million over two years to increase rates. A large part of the $100 million is slated for providers working with higher-needs kids; the Legislature approved to increase rates for those providers 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, while the Senate did not approve the request. Members from the two chambers have been meeting 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 through a long-awaited new system or to continue with rate enhancements for providers working with higher-needs kids to minimize the number of children without placements.

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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