Legislative Update: Changes Effecting Abused Children

By Charlie Childress, Family Law Specialist, Children’s Rights Clinic, University of Texas, Austin

The regular session of the 78th Texas Legislature saw the passage of several bills that will affect children who have been abused and come into the state’s care.

Health and Human Services Agency Consolidation

One of the most visible changes is the re-structuring of health and human services agencies by House Bill 2292, sponsored by Representative Arlene Wohlgemuth. Twelve agencies will be consolidated into five. The Texas Department of Protective and Regulatory Services (TDPRS), which currently houses Child Protective Services (CPS), will be eliminated and its duties will exist under the newly created Department of Family and Protective Services. A Health and Human Services Transition Legislative Oversight Committee that has already begun to hold hearings across the state will facilitate the consolidation effort. This committee must submit a final plan to the Governor and the Legislative Budget Board by December 1, 2003. For more detailed information on the reorganization, you can visit the Health and Human Services Commission web site at: http://www.hhsc.state.tx.us/news/78_post.html.

Budget

House Bill 1, the state budget, contained many areas of interest. A few of the sections are high-lighted below, but a complete copy of the bill can be found on the Legislative Budget Board’s web site at: http://www.lbb.state.tx.us/Bill_78/6_Conf/Bill-78_6.htm.

Rider 21, Foster Care Payments

The funds appropriated for foster care payments assume that there will be $22,231,477 in savings due to the redesign of the Foster Care Levels of Care (LOC) system to one based on services provided. It is the intent of the Legislature that TDPRS workwith the Health and Human Services Commission to create a LOC rate system that merges certain of the current LOCs used in fiscal year 2003 to attain greater efficiencies in classifying of foster care children and thus, reduce costs. TDPRS must have submitted a proposed plan for LOC restructuring to the Governor and the Legislative Budget Board to allow it to have the new rates in effect no later than October 1, 2003.

On August 27, 2003, TDPRS adopted daily “blended rates” under four categories.
(The “foster family” rate is the minimum amount that the Child Placing Agency (CPA) must pass through to the foster parent caring for the child. In other words, the CPA managing the case would receive $36 per day for a “basic services” child, and would be required to pass through at least $20 to the foster parent. Unless PRS can come up with additional money, the rates will be lower in the next fi scal year.)

BASIC SERVICES

LOC 1 & 2 children (Basic CPA $36.00; Basic Foster Family $20.00; Basic Facility $36.00)

MODERATE SERVICES

LOC 3 and lower tier of LOC 4 children (not requiring as high a level of supervision as “higher tier” LOC 4 children) (Moderate CPA $65.50; Moderate Foster Family $35.00; Moderate Facility $80.00)

SPECIALIZED SERVICES

Higher tier of LOC 4 & LOC 5 children (Specialized CPA $87.25; Specialized Foster Family $45.00; Specialized Facility $115.00)

INTENSE SERVICES

LOC 6 children (Intense Facility $202.00)

EMERGENCY SHELTERS

These are treated separately (Emergency Shelter $94.00)

This new 4-level scheme replaces a system of six categories. The following daily rates under the old system for reimbursement are illustrative only, and provided for comparison to the above.

LOC 1 (age 0-11) = $17.12;
LOC 1 (age 12+) = $17.50;
LOC 2 = $36.33;
LOC 3 = $67.10 (CPA), $30.57 (min. pass through);
LOC 4 = $88.42 (CPA), $40.66 (min. pass through);
LOC 5 = $121.55 (RTC);
LOC 6 = $206.60 (RTC).

The department still contracts with Youth for Tomorrow to perform document reviews and determine “level of care” for placement purposes.

Rider 26, Adoption Subsidy Payments

As a means to limit appropriations and agency expenditures, the Legislature required that TDPRS establish a tiered payment schedule that is based on the child’s service level needs at the time of placement into adoption. The tiered payment schedule applies only to children placed after September 1, 2003.

On August 27,2003, the TDPRS Board voted to set the new rates for children placed after September 1, 2003 at a maximum of $400 per month for children who are in a Basic Services level of care (formerly LOC 1 & 2) at the time of adoptive placement, and a maximum of $545 per month for all children in a higher level of care at placement. Prior to September 1, 2003, the adoption subsidy for all children was set at $521 per month (the LOC 1 rate for children under 12). Thus the new rate structure will be a reduction in the adoption subsidy for “Basic Services” children, but a slight increase for the much smaller pool of “Moderate Services” children successfully placed for adoption. The new rates apply only to children placed in an adoptive placement on or after September 1, 2003.

Tuition Waivers

Senate Bill 1652, by Senator Florence Shapiro, adds a provision to the Education Code regarding tuition waivers for adopted children. Section 54.2111 “EXEMPTIONS FOR ADOPTED STUDENTS FORMERLY IN FOSTER OR OTHER RESIDENTIAL CARE” was added. A student is exempt from the payment of tuition and fees authorized by this chapter if the student: (1) was adopted; and (2) was the subject of an adoption assistance agreement under Subchapter D, Chapter 162, Family Code. The tuition and fees authorized by the referenced chapter are all “institutions of higher education”, Education Code §54.002. “Institution of higher education” means any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in this section, Education Code §61.003.

Communities in Schools

Senate Bill 1038 by Senator Gonzalo Barrientos transferred the Communities in School program from the Texas Department of Protective and Regulatory Services to the Texas Education Agency.

Foster Parent Recruitment and Training

The Legislature directed TDPRS to recruit foster parents from faith-based organizations in Senate Bill 1489, by Senator Steve Ogden. Funding for this was appropriated in the state budget, House Bill 1, Rider 24: “Faith Based Foster Family Recruitment and Training. Up to $500,000 in fiscal year 2004 and up to $706,000 in fiscal year 2005 must be used to develop and implement a program to recruit and train foster families from faith-based communities.”

Family Code, Chapter 107: SPECIAL APPOINTMENTS AND SOCIAL STUDIES

In order to address concerns about guardians ad litem (GAL), particularly GALs appointed in private custody suits, Representative Toby Goodman appointed an ad-hoc committee to study and ultimately author substantial re-write of Chapter 107 of the Family Code in House Bill 1815. A new definition has been added to the chapter. The terms you are familiar with remain:

“Attorney ad litem” (AAL) is the lawyer who “provides legal services to a person, including a child”, Family Code §107.001(2).

“Guardian ad litem” (GAL) is a person (not functioning as a lawyer unless serving in the “dual role”) who is “appointed to represent the best interests of a child.” Family Code §107.001(5). An attorney may be appointed in the “dual role” of guardian and attorney ad litem only in a “suit filed by a governmental entity.” Family Code §107.001(4).

The new kid on this block is the “amicus attorney” who may be appointed only in a suit other than a “suit filed by a governmental entity,” and whose role is “to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child.” Family Code §107.001(4). In other words, in a private custody case—and only in a private custody case—the court may now officially have a “best interest” attorney who is not bound by the child’s expressed objectives of representation, Family Code §107.005. Since he/she does not represent the child, and is presumptively not involved in an “abuse or neglect” case, he/she is not even required to “become familiar” with the ABA or the NACC standards or practice for attorneys in such cases. Family Code §107.004.

Another major change is in the appointment of GALs in suits not filed by a governmental entity. The court cannot appoint “a volunteer advocate to serve as guardian ad litem for a child unless the training of the volunteer advocate is designed for participation in suits other than suits filed by a governmental entity”, Family Code §107.022. This means that CASA volunteers are not eligible to be appointed in non-governmental suits unless the volunteer has special training that addresses private custody suits.