TITLE social-services-and-assistance

Part 19. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

Chapter 725. GENERAL LICENSING PROCEDURES

Subchapter NNN. ABUSE/NEGLECT INVESTIGATIONS IN CHILD CARE FACILITIES

40 TAC §725.7008

The Texas Department of Protective and Regulatory Services (TDPRS) adopts on an emergency basis new §725.7008, concerning confidentiality of abuse and neglect records, in its General Licensing Procedures chapter. The new section states that all records used and developed in an abuse or neglect investigation that takes place in a facility regulated under Chapter 42 of the Human Resources Code are confidential, and specifies the persons who may, consistent with state and federal law, have access to these confidential records. The new section is simultaneously being proposed for permanent adoption, along with the repeal of a related rule.

TDPRS must adopt this rule on an emergency basis in order to comply with federal law at 42 U.S.C. 5106a, which requires that the state have in place a statute or rule with the force and effect of law that provides for the confidentiality of all child abuse and neglect records. Prior to September 1, 1999, all abuse and neglect records were made confidential pursuant to Texas Family Code §261.201. Effective September 1, 1999, however, this section was amended to no longer apply to the records of an abuse or neglect investigation in a home or facility regulated under Chapter 42 of the Human Resources Code. In the absence of the protection formerly provided by §261.201 of the Texas Family Code, TDPRS must adopt an emergency rule that satisfies the confidentiality requirements of federal law for child abuse and neglect records used, developed, or maintained in an investigation of a home or facility regulated under Chapter 42 of the Human Resources Code. This emergency rule is adopted pursuant to TDPRS's authority under Human Resources Code §40.005 and in accordance with §2001.034 of the Texas Government Code.

The new section is adopted on an emergency basis under the Human Resources Code §40.005, and in accordance with §2001.034 of the Texas Government Code, which authorize the department to adopt rules regarding the use, protection, and disclosure of its records, and to adopt a rule on an emergency basis under certain circumstances.

The new section implements the Human Resources Code §40.005.

§725.7008.Confidentiality of Abuse and Neglect Records.

(a)

The following information relating to a report or investigation of child abuse or neglect in a home or facility regulated under Chapter 42 of the Human Resources Code is confidential, is not subject to public release under Chapter 552 of the Government Code, and may be disclosed only as provided under this chapter and applicable federal or state law:

(1)

a report of alleged or suspected child abuse or neglect and the identity of the person making the report; and

(2)

except as otherwise provided in this chapter, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation.

(b)

In order to protect their confidentiality, all records of an abuse or neglect investigation will be maintained by the Texas Department of Protective and Regulatory Services (TDPRS) in a separate abuse and neglect investigation file, with the exception of the following records, which will be placed in the facility's monitoring file:

(1)

a statement regarding the nature of the abuse or neglect allegation that was investigated;

(2)

a copy of any written notices sent to the facility under §725.7003 of this title (relating to Required Notifications - Facility);

(3)

a copy of the written notice to the facility relating the findings of the investigation;

(4)

a copy of any recommendation for disposition resulting from the investigation and any subsequent correspondence relating to that disposition;

(5)

documentation of any minimum standards inspections which may have taken place during the course of the investigation into alleged child abuse or neglect; and

(6)

documentation of the receipt by the facility of any of the above- referenced notices or documents.

(c)

TDPRS may release to the general public only those portions of the abuse or neglect investigation record that are required to be filed in the facility's monitoring file under subsection (b) of this section, provided that these records are redacted to remove the identity of any alleged victims or their families, any other children involved in the investigation, the reporter, and the alleged perpetrator.

(d)

Upon request, a parent or managing conservator of a child who was the subject of an abuse or neglect investigation is entitled to a copy of confidential investigation records after the investigation is completed and all appeal rights have been exhausted. Records released under this subsection will be redacted to protect the identity of the reporter, other children, and any other individual whose life or safety might be endangered by the release.

(e)

Upon request and after completion of the investigation, an alleged perpetrator of abuse or neglect is entitled to those portions of the investigation records that pertain to the allegations against the perpetrator. Records released under this subsection will be redacted to protect the identity of the reporter, and any other individual whose life or safety might be endangered by the release.

(f)

Persons authorized to receive confidential records under this section may review, but will not be provided a copy of, the audiotaped or videotaped interview of a child, as well as any photographs taken of a child.

(g)

Notwithstanding any other provision in this chapter, TDPRS may not release any information which would interfere with an ongoing law enforcement investigation or prosecution.

(h)

In an administrative proceeding to which TDPRS is a party, the administrative law judge may disclose confidential abuse or neglect records, provided that the administrative law judge:

(1)

provides advance notice to TDPRS and any other interested party; and

(2)

determines after an in camera review of the information that the disclosure is essential to the administration of justice and will not endanger the life or safety of any individual.

(i)

When necessary for the administration of justice, a court may order the disclosure of confidential abuse or neglect records, subject to such safeguards as the court deems appropriate to protect the interests of the subjects of the investigation.

Filed with the Office of the Secretary of State, on October 22, 1999.

TRD-9907155

C. Ed Davis

Deputy Director, Legal Services

Texas Department of Protective and Regulatory Services

Effective date: October 22, 1999

Expiration date: February 19, 2000

For further information, please call: (512) 438-3765