Comments on Proposed New Rules in 40 TAC Chapter 707
and Repeal of 40 TAC Chapter 700 Sections To Be Replaced

Submitted Via email: RULES@dfps.state.tx.us

The Texas Council for Developmental Disabilities (TCDD) submits the following comments for consideration in the adoption of proposed new sections (40 TAC Chapter 707) and the proposed repeal of the sections the new rules would replace (40 TAC Chapter 700).

TCDD is established by state and federal law and is governed by 27 Governor-appointed board members, 60 percent of whom are individuals with developmental disabilities or family members of individuals with disabilities. The Council’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives.

TRACKING ALLEGATIONS

• It is reasonable to have all investigations involving abuse, neglect, and exploitation (ANE) in one agency. However, the relationship between ANE investigations at DFPS and regulatory/licensure standards investigations at HHSC is not clear.
• There does not appear to be a mechanism for definitively assigning and easily tracking allegations across agencies or even across divisions within an agency.
• Lack of clear lines of responsibility, accountability, and communication affects all parties seeking to report and correct conditions that have resulted in allegations of ANE.
• TCDD recommends the requirement of agreed-upon timelines, documentation standards, and a central database of all allegations and dispositions.

PUBLIC AND PRIVATE SCHOOL INVESTIGATIONS

With respect to the investigation of an allegation of abuse, neglect, or exploitation of a student by an employee or agent of a public or private school, TCDD recommends that the DFPS investigation, dispositions, and data collection and reporting to the public be consistent with the established role for other facilities and programs in its purview:

• DFPS rules should require the school to take action when an allegation of abuse, neglect, or exploitation (ANE) is confirmed.
• DFPS should delineate the responsibilities of the school when an allegation of abuse or neglect is received, including:
  • timely reporting to DFPS and in some cases, law enforcement; and
  • securing evidence until the DFPS investigator and/or law enforcement personnel is on site.
• DFPS and the public or private school should share responsibility for the successful closure of cases. Precedence for this shared responsibility was addressed as DFPS/APS was charged with performing investigations at state mental hospitals and at state supported living centers. The process is reflected in Human Resources Code, Section 48, and in the Texas Administrative Code, Title 25, Chapter 417, as follows:
  • 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER. (a) The executive commissioner shall adopt rules to: (2) establish procedures for resolving disagreements between the department and health and human services agencies concerning the department’s investigation findings; and (3) provide for an appeals process by the department for the alleged victim of abuse, neglect, or exploitation. (b) A confirmed investigation finding by the department may not be changed by the administrator of a facility, a community center, a local mental health authority, or a local intellectual developmental disability authority.
  • 417.512(c) The head of the facility is responsible for taking prompt and proper disciplinary action when an allegation involving an employee/agent is confirmed.
• DFPS should collect and publish data on the numbers of allegations, investigations, and confirmations in public and private schools in the same way that it provides this information for the other Texas programs in which it conducts investigations. The demographic description of the alleged victim should include whether the person is a person with a disability as defined in the Americans with Disabilities Act.

ALLEGATIONS OF ABUSE OF INDIVIDUALS AGED 18+ IN “CHILD” SETTINGS

TCDD suggests that clarification is needed concerning the entity that investigates ANE allegations of individuals who are 18+ and who are receiving services in public or private secondary schools or residential treatment centers for children and youth.

Thank you for the opportunity to submit comments. Please contact us if we can provide additional information or help to make these policy and process recommendations attainable.

Sincerely,

Linda Logan, MPAff
Public Policy Specialist