Frequently Asked Questions and Answers Concerning DSHS Rider 19

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The Q & As are arranged to coincide with the sections of the DSHS Child Abuse Screening, Documenting and Reporting Policy for Contractors/Providers.  The date after each question indicates when the Q and A was placed on the DSHS website and when it was subsequently revised.

I. Procedures

1.  Question: Although it would be best if minors under age 17 abstained from sexual activity, as a professional I believe I have the discretion to determine if abuse has occurred. Why is DSHS requiring me to do something that is beyond the law? (1-01; updated 9-01 to reflect revisions to Chapter 261, Family Code, and rider number; updated 9-07 to delete the rider number; updated 12-08 to add definition of “professional.”)
Answer: The DSHS policy to implement the Rider imposes no additional requirement to report child abuse than what is required by Section 261.101(b), Family Code, which states that a professional must make a report of abuse when the professional has cause to believe that a child has been abused or neglected or when the child is a victim of an offense under Section 21.11, Penal Code, Indecency With a Child, and the professional has reason to believe the child has been abused as defined in Section 261.001(1).
Section 261.101(b) defines “professional” as an individual who is licensed or certified by the state, or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties (or duties for which a license or certification is required), has direct contact with children.  “Professionals” include teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.  Although other persons who are not professionals have different reporting responsibilities (they must report suspected child abuse immediately rather than the 48-hour timeframe allowed for professionals), DSHS will not review or question a contractor’s/provider’s good-faith designation of staff as a professional or a non-professional.  Contractors/providers are responsible for making those determinations.
Section 261.001(1)(E) defines child abuse as sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code. The victim of a crime, by definition, suffers mental, emotional, or physical harm.

 2.  Question: Many stakeholders expressed a concern about a potential breach of confidentiality of information relating to a minor, especially in the case of a sexually transmitted disease and HIV.  (8-00; revised 1-01; revised 4-03 to address concerns about breach of confidentiality in general terms applicable to all professionals; added citations in Health and Safety Code relating to confidentiality related to HIV and STD; clarified that federal grantors expect states to comply with state laws on child abuse reporting; revised 12-08 to ensure consistency with statutory language, policy and reporting form). 
Answer:  Nothing in the policy imposes any obligation to report child abuse on the part of the provider that does not already exist. Licensing laws and rules generally provide that there is not breach of confidentiality in releasing information as required or authorized by law or they expressly require abuse to be reported by licensees.  For example, section 159.004, Occupations Code, allows a physician to release confidential medical records or information to a governmental agency if required or allowed by law. 
Section 261.101, Family Code, states that reporting requirements apply regardless of professional confidentiality.  It is not a breach of confidentiality to report child abuse.
There are very few restrictions on the type of information that may be reported.  For example, HIV status cannot be reported unless the child is under the age of 13 years and such test result or diagnosis is relevant to the report of abuse. Communicable disease information held by DSHS, a local health department, or local health authority cannot be released except in limited circumstances.  (See Section 81.046(d), Health & Safety Code, for STD information which may be released on a child under 13 years of age and Section 81.103, Health & Safety Code, for confidentiality protection related to HIV).  These restrictions do not prevent the reporting of abuse or the victim’s identity.
The DSHS Child Abuse Reporting Form is a record used by DSHS to ensure that its contractors/providers are making a good faith effort to comply with child abuse reporting requirements. The information on that form is subject to the same protection of confidentiality as other client records but is also just as releasable as any other information relating to the abuse as stated above.
For those programs also governed by federal laws, regulations, and policies, the federal grantors do not consider it a breach of confidentiality to follow state laws on the reporting of child abuse.  They expect states and the states’ contractors/providers to follow the laws on reporting child abuse.

3.  Question: One commenter noted that reporting abuse could result in notification of a parent in disregard of the child's right to confidentiality to obtain medical services for contraception and an STD under Section 32.003, Family Code. Another commenter believes there is a conflict between DSHS implementation policy and Chapter 32, Family Code, which allows a minor to self-consent to certain services.  (8-00)
 Answer: Section 32.003, Family Code, permits an unmarried, unemancipated minor to self-consent to treatment for specific communicable diseases and pregnancy but not contraceptive services. The section goes on to say that the provider may inform the parents of treatment given to the minor, so confidentiality is not guaranteed under this section. In addition, DSHS policy does not change any existing requirements to report abuse of a minor. Therefore, there is no conflict between DSHS policy and Chapter 32, Family Code.

4.  Question:
One commenter noted that the proposed DSHS policy would hinder the HIV partner notification program.  (8-00)
 Answer: The proposed DSHS policy does not impose any reporting obligation on employees of the Partner Notification Program that does not already exist. The identity of the partner is confidential under section 81.051, Health & Safety Code.

5.  Question:
Several commenters stated that the proposed DSHS policy would interfere with the professional relationship between patient and health care provider in that these providers "should be empowered to determine the best method of determining sexual abuse and how to encourage the victim to voluntarily talk to law enforcement authorities." (8-00)
 Answer:  See Answer to Question No. 1 in this Section.

6.  Question:
Several commenters noted that since DSHS requires its contractors/providers to implement and enforce a written policy and train its staff on reporting requirements, DSHS needs to provide more detailed instructions on how contractors/providers should meet these requirements. (8-00; revised 12-08 to add language regarding technical assistance).
 Answer: DSHS has established a basic policy and a DSHS Child Abuse Reporting Form for use by its contractors/providers. DSHS recognizes that contractors/providers may need updated technical assistance as a result of the new reporting form and the modifications to the DSHS Policy.  DSHS staff will provide this assistance as requested.  Contractors/Providers have always been expected to ensure their staff is adequately trained to comply with laws and rules that affect clients served by both the provider and their staff. The details of training staff to comply with child abuse reporting will vary according to the contractor/provider, and the contractor/provider is in the best position to determine how training should be carried out.  

7.  Question:
One commenter stated that by using only pregnancy or confirmed STD (as mechanisms for monitoring providers), DSHS would not be able to identify other cases of abuse not related to sexual activity. (8-00; revised 12-08 to add reference to reporting form).
 Answer: The DSHS policy, on which monitoring is focused on minors under age 14 who are pregnant or who have a confirmed STD, in no way diminishes or negates the provider's obligation to report all abuse as required by the law. This expectation is clearly stated in the policy and is noted on the DSHS Child Abuse Reporting Form.

8. Question: 
What will DSHS consider an acceptable basis for determining a report of abuse is not required? (4-03; revised 12-08 to update statutory references; revised 9/10/09 to update statutory references).
Answer:   This is addressed in several other answers to the FAQs; however, the answer will be repeated here.  For DSHS monitoring purposes, documentation that an affirmative defense exists will be an acceptable basis for determining a report of abuse is not required for any client under the age of 17 who was determined to have been abused as defined by the Family Code §261.001, including but not limited to, victims of an offense under the Penal Code §21.11, or §22.011.   An acceptable affirmative defense for abuse as defined in the Penal Code §21.11 (indecency with a child) may be: 1) the actor was not more than three years older than the victim and of the opposite sex and 2) the actor did not use duress, force, or a threat against the victim at the time of the offense; or (3) the actor was the spouse of the child at the time of the offense.  An acceptable affirmative defense for abuse as defined in the Penal Code §22.011 (sexual assault) may be: 1) the actor was not more than three years older than the victim at the time of the offense; 2) that the victim was 14 years or older and 3) the victim was not a person whom the actor was prohibited from marrying, purporting to marry or living with under the appearance of being married under Penal Code 25.01 concerning bigamy; or the actor was the spouse of the child at the time of the offense. In both cases, if the perpetrator is the spouse of the minor at the time of the offense, no report is required under DSHS policy.  There is no acceptable affirmative defense applicable for abuse of children under the age of 14 because a child under 14 cannot consent to sexual activity under Texas law.
 
9.  Question:
One commenter asked why DSHS did not plan to monitor for minors under age 14 receiving family planning services. (8-00; revised 12-08 to remove outdated reference).
 Answer: DSHS has focused its monitoring efforts on the most clearly evident and easily confirmed manifestations of sexual activity, i.e., pregnancy or confirmed STD. In addition to reviewing the records of minors under age 14 who are pregnant or have a confirmed diagnosis of STD, DSHS will continue to randomly review records of clients aged 14 and older for compliance with Chapter 261, Family Code.  DSHS monitoring practices in no way diminish or negate reporting required by Chapter 261. DSHS will also monitor to ensure the contractor/provider has a written policy in place and trains staff for reporting all abuse.

II. Reporting Generally

1.      Question: Is there a way to contact DFPS other than a phone call? (1-01; revised 11/01 to change DPRS to DFPS; revised 12-08 to reference the online reporting system).
 Answer: Yes, reports can be faxed toll free to DFPS in Austin at (800) 647-7410 or submitted via the DFPS online reporting system found on the DFPS web site at: https://www.txabusehotline.org/Default.aspx
The law does not require you to report online.  However, DFPS prefers this method of reporting, so DSHS encourages contractors/providers to do so whenever feasible.

2.  Question:
One commenter asked who would determine the definition of "any other pertinent information" to be reported to the agency receiving a child abuse report. (8-00; revised 12-08 to reference new form). 
 Answer: The DSHS policy does not change the requirements or interpretation of Section 261.104, Family Code. What is "pertinent" is based on the contractor/provider's judgment and/or request for information from the agency receiving the report.  Examples of what DFPS considers to be pertinent information are listed on the DSHS Child Abuse Reporting Form.  

3.  Question:
One commenter stated that DSHS should communicate with law enforcement agencies regarding implementation.  (8-00, revised 1-01)
 Answer: All agencies identified in Section 261.105, Family Code, are charged with accepting reports of suspected abuse.  The four associations for law enforcement agencies were provided with information on the Rider and its implementation in November 2000.

4.  Question:
One commenter noted that a non-professional should be given 72 hours to report suspected abuse. (8-00)
 Answer:  The obligation of a non-professional to report suspected child abuse immediately is set forth in Section 261.101, Family Code. DSHS requires its providers to train all staff--both professional and non-professional--on how the law defines abuse and on the obligations of the person reporting.

5.  Question:
One commenter noted that use of the words "suspect" and "cause to believe" in DSHS Policy under "Reporting Generally" was confusing since each word implies a different standard of reporting. (8-00)
 Answer:  These terms are derived directly from Chapter 261, Family Code.

6. Question: 
Is it acceptable to report all suspected abuse to DFPS? (4-03; revised 9-07 to reflect changes to the Family Code that eliminated the language limiting reports to DFPS to those where the person responsible for the care, custody or welfare of the child is involved; revised 11-07 to change DPRS to DFPS and to match changes in the Family Code; revised 12-08 to clarify reporting guidelines).
Answer:  The Family Code requires that “…a report shall be made to:

(1)  any local or state law enforcement agency;
(2)  the department [DFPS];
(3)  the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred;  or
(4)  the agency designated by the court to be responsible for the protection of children.”
However, the laws further states that a report must [emphasis added] be made to the department [DFPS] if the alleged or suspected abuse or neglect involves a person responsible for the care, custody, or welfare of the child. Although the law allows any report to be submitted to DFPS, that agency recommends that reports of abuse involving an alleged abuser who is not the parent or caregiver should be reported to the appropriate law enforcement agency whenever possible.

III. Reporting Suspected Sexual Abuse

1.  Question: Does the contractor/provider have to keep the DSHS Child Abuse Reporting Form in the client's record, or can all the forms be kept in a separate file? (1-01)
Answer: DSHS Child Abuse Reporting Forms may be kept in either the client's record or a separate file.

2.  Question: Define "sexually transmitted disease." Are only reportable sexually transmitted diseases to be used as evidence of sexual activity? (1-01)

Answer: Any disease that is transmitted as a result of any sexual activity as described in Sections 21.01, 21.11, and 22.011 of the Penal Code, whether reportable or not, should be considered a "sexually transmitted disease" if not acquired through perinatal transmission or transfusion.

3.  Question:
One commenter noted the DSHS policy was not clear as to what level of certainty a provider must attain to "confirm" a diagnosis of STD. (8-00)
 Answer:  For the purposes of this policy, DSHS considers "confirmation" of a diagnosis as that point at which the provider recommends treatment. Confirmation of a diagnosis of STD in a minor under 14 years of age will trigger the requirement for use of the DSHS Child Abuse Reporting Form; however, a contractor/provider must report all abuse if required by Chapter 261, Family Code, without regard to confirmation of the diagnosis of any disease.

4.  Question:
One commenter asked if the DSHS Child Abuse Reporting Form is legal since it requires persons wishing to report anonymously to identify themselves on the form. (8-00; revised 12-08 to clarify reporting guidelines).   
 Answer: Use of the DSHS Child Abuse Reporting Form does not prohibit a person from reporting child abuse anonymously. The purpose of the DSHS Child Abuse Reporting Form is to facilitate monitoring by DSHS to ensure compliance by its contractors/providers and to facilitate reporting to law enforcement and DFPS. The DSHS Child Abuse Reporting Form, which is submitted to law enforcement or DFPS, makes optional the name of the person or agency reporting abuse. 

5.  Question:
In regard to the issue of reporting sexual activity involving a minor under age 14, one commenter asked if a Texas minor could be married at age 13 or below.  (08-00; Revised 04-08 to incorporate change legal age for marriage and the legal age for minors to marry with parental consent)
Answer: A minor in Texas must have a parent's consent to be married if the minor is age 16 or 17. A minor aged 15 or younger can only be married pursuant to judicial order or could have been married in another state or country.
 
6. Question:
  A pregnant 13 year old girl requesting services states she is married.  Is the contractor/provider required to request documentation from the girl to verify marital status? (6-01; revised 12-08 to include additional guidance).
 Answer:  The contractor/provider may, but is not required, to request documentation.  However, if the client discloses information that causes the provider to suspect abuse has occurred, further questioning may be warranted.

7.      Question:
  Does DSHS expect contractors/providers to report child abuse if the minor involved has been emancipated?  (7-01)
 Answer: Emancipation of a minor by a court does not in and of itself exempt the contractor/provider from child abuse reporting requirements.  DSHS would expect its contractors/providers to treat the emancipated minor just like any other minor and report child abuse, if required, unless the contractor/provider has reason to believe the emancipation order exempts the minor from Chapter 261 reporting requirements.  “Reason to believe” could be based on the contractor’s/provider’s actual review of the court order or a statement by the minor that they are specifically exempt from child abuse reporting requirements under the court order--much the same as a contract/provider or may rely on statements by a minor that he or she is married.

8.  Question:
One commenter suggested that interchangeable use of "sexual activity" and "minors who are pregnant or have a confirmed STD" was confusing and should be clarified. (8-00)
 Answer:  These two phrases have two separate meanings as used in the DSHS policy, DSHS Child Abuse Reporting Form, and Quality Management Policy/Procedures materials. "Sexual activity" includes any activity that indicates a person is sexually active. For monitoring purposes, DSHS will focus on records of minors under age 14 who are pregnant or have a confirmed STD. The wording will be clarified where appropriate.

9.  Question:
  If a female client is 17 years old but was 16 when pregnant with a 23 year old male, they are living together as husband and wife, and together for a year, is the contractor/provider required to report?  (2-01)
 Answer:  “Living together as husband and wife” does not necessarily create a legally recognized marriage, especially if it involves someone under age 18.  However, under the circumstances stated above, neither the contractor/provider nor DSHS is required to determine whether or not the couple is legally married.   DSHS would look at the age and circumstances of the minor when he or she presented to the contractor/provider and whether or not presentation was on or after your program’s implementation date.  If the minor was age 17 at the time presenting to the contractor/provider and it was on or after your program’s implementation date, DSHS would not expect the contractor/provider to report suspected abuse based on sexual activity alone because neither Indecency with a Child, §21.11, Penal Code, nor Sexual Assault (as statutory rape) under §22.011, Penal Code, applies to a 17 year old.  If the minor was age 16 at the time presenting to the contractor/provider and it was on or after your program’s implementation date, a report of suspected abuse should be made.  The agency receiving the report of suspected abuse (e.g., DFPS or a local law enforcement agency) would determine whether the couple was legally married if that agency chose to investigate.

10.  Question:
  A 15 year old client says she is pregnant by a 17 year old but the contractor/provider knew he had moved by the time of conception and suspects the father is an older man aged 26.  Should the contractor/provider report this as abuse?  (2-01)
 Answer:  DSHS does not believe sexual activity alone between a 15-year-old and a 17-year-old is Indecency with a Child, Sexual Assault, or child abuse under Chapter 261.  DSHS does believe that sexual activity alone between an unmarried 15-year-old and a 26-year-old is abuse and should be reported.  The contractor/provider should report the situation as abuse based on the level of certainty of their suspicion that the minor was involved sexually with a 26-year-old adult.  The law does not require perfect certainty to report abuse.  It does require information sufficient to lead the contractor/provider to have “cause to believe” that abuse is occurring.  In other words, if abuse is suspected based on known information, the contractor/provider should report. 

11.  Question:
 A 15-year-old client is pregnant by an 18-year-old male (contractor/provider does not have proof of his age) and they do not live together.  Should the contractor/provider report this as abuse?  (2-01; revised 9-08 to provide further reporting guidance).
 Answer:  Contractor/Provider may use affirmative defense as appropriate and if allowed by the contractor’s/provider’s policy.  Otherwise, a report should be made.

12. Question:
Can the DSHS Child Abuse Reporting Form be modified by a contractor/provider? (6-02; revised 12-08 for consistency with new reporting form and policy).
Answer: DSHS Policy does not allow modification of an official DSHS form by anyone other than the DSHS owner of the form. In addition, the purpose of the DSHS Child Abuse Reporting Form is to facilitate monitoring by DSHS to ensure compliance by its contractors/providers as well as facilitate reporting. DSHS monitoring would become more confusing and time consuming if there were multiple versions of the form even if all DSHS required information were still included.  However, contractors/providers may add to the form below the information DSHS requires. This is not considered modifying the form.

13.  Question
:  Contractors/providers collect medical history information on whether the client has any infectious diseases.  If the client self-reports she has an STD, does the client need to be reported under the provisions of the DSHS policy? (4-03)
Answer:In the absence of a medically confirmed diagnosis (i.e., a record of test results from a physician or someone working under a physician’s orders), no reporting is required by DSHS policy because the contractor/provider has no knowledge that the client has a confirmed diagnosis of an STD.  However, if the contractor/provider receives subsequent information to indicate that a minor of any age has been abused, e.g., been the victim of sexual assault by engaging in voluntary or involuntary sexual intercourse with a person more than three years older or of any other type of abuse, then a report is required by law and under the DSHS policy.

14. Question
:  A contractor/provider reported that an irate parent visited the contractor/provider to complain that his child had been reported as a victim of suspected child abuse.  The agency staff felt threatened by the parent.  In addition, the contractor’s/provider’s staff was very concerned that confidentiality had been breached by the agency that received the report and provided it to local law enforcement.  Evidently, local law enforcement revealed the identity of the reporter in the course of their dealings with the parent.  Isn’t the agency receiving the report required to keep the identity of the person who reported confidential? (4-03)
 Answer:The Rider does not affect how reports of suspected child abuse are handled or investigated.  Family Code §261.201 provides that the report itself as well as the identity of the person making the report is confidential and may be disclosed only for purposes consistent with the Family Code and applicable state or federal law or regulations.  Law enforcement may also have the same discretion to disclose the identity of the person making the report when a report is referred by DFPS, but the law is not absolutely clear on this point.  Agencies may wish to consult with their own legal counsel and/or talk to local law enforcement about how this will be handled.  Local law enforcement often welcomes a dialogue with contractors/providers on how agencies are dealing with reporting suspected child abuse.
 Contractors/providers are allowed by law to report anonymously and may wish to do so in order to avoid these situations.  Further, Chapter 261 of the Family Code states that a person acting in good faith who reports or assists in an investigation of a report of alleged child abuse or neglect is immune from civil or criminal prosecution.  We point this out in case persons who are the subject of reports threaten to sue.

15. Question. 
A counselor at one of our clinics had a client age 14 who became sexually active at the age of 13, but reported she had not had a partner in the last three months.  Should we have asked for the age of her previous partner?  (04-03)
Answer.  The client was a victim of sexual abuse of a minor and must be reported.  There is no affirmative defense for the sexual partner of a minor under age 14 so the age of the partner is not legally relevant.

16.  Question. 
Do contractors/providers have to ask males who come to the clinic for condoms and treatment of an STD the age of their partner? (4-03)
Answer.  DSHS has no requirement that you ask the age of the partner(s) of a male in the circumstances described.  A minor of either sex requesting condoms does not alone trigger the need to report or determine the affirmative defense which, under DSHS policy, would allow the contractor/provider not to report. If, however, during your routine treatment of the minor, you discover that he or she is or has been sexually active, you should report the minor or determine whether an affirmative defense exists.  Also, if it comes to your attention that a male or female client has a sexual partner under age 17 and more than three years younger than the client, a report must be filed concerning abuse of the partner by the client; the partner would be under age 14 in this case and no affirmative defense applies.

17. Question. 
Do all teens 16 years of age and younger who are sexually active have to be reported?  Or, do they just have to be reported if their partner is more than three years older, if they are more than three years older than their partner, or if they refuse to give the age of the partner? (4-03; revised 12-08 to clarify policy related to marital status; revised 9/10/09 to reflect policy changes).
Answer.  For teens under age 17 who are not married, the contractor/provider must either 1) report them all if they are or have been sexually active or 2) determine if an affirmative defense to prosecution exists which, under DSHS policy, would allow the contractor/provider not to report. If the client is not willing to provide the age of the partner, a report must be made because you do not have sufficient information to document an affirmative defense. Clients under age 17 who are married may be victims of child abuse if the actor is not the client’s spouse.  Contractor/providers are expected to report such situations only if such information is presented to the contractor/provider (in other words, DSHS does not expect contractors/providers to ask any questions about sexual activity by a married minor).  Suspected sexual abuse of a client under the age of 17 by his or her spouse is not subject to DSHS monitoring or documenting.   
 
18. Question. 
Is every child conceived under the age of 17 considered a separate event?  Example:  A client has a child at age 13 and she is reported.  She later comes back to the contractor’s/provider’s clinic at age 15 pregnant with her second child.  Is the initial DSHS Child Abuse Reporting Form enough for the whole file? (04-3; revised 12-08 to delete reference to marital status).
Answer.  Every event is considered separately.  In the example above, the contractor/provider must either 1) report a 15 year old who is pregnant or 2) determine if an affirmative defense to prosecution exists which would allow the contractor/provider not to report under DSHS policy.

19.  Question. 
Where is the “cut-off” for reporting?  Example:  An 18 year old mother walks in to apply for services and her child was conceived before age 17.  Do we need to report her? (4-03)
Answer.  There is no “cut-off” under the provisions of the law.  However, DSHS does not monitor for instances such as described in the example above.

20.  Question. 
The DSHS Child Abuse Reporting Form says “optional” where contact information for the staff person or reporting agency is to be listed.  What do we do if DFPS says it is not optional and will not take our report unless we give our name?  (4-03; revised 11-07 to change DPRS to DFPS; revised 12-08 to reflect new reporting form).
Answer.  You may report anonymously as stated in the DSHS policy.  The Family Code at §261.104 does not require your name to be given.  The contractor/provider might cite the law to the caseworker in explaining why he/she is not providing his/her name.  The DSHS requirement for a “good faith effort” would be satisfied if the reporter attempts to report to DFPS when appropriate, is asked for his/her identity (perhaps even before any other information can be offered), and then DFPS declines to accept or enter the report if the reporter declines to identify himself/herself.  The reporter may then either attempt to report to law enforcement, or may document their unsuccessful attempt to report to DFPS and end the matter as far as compliance with DSHS policy.  DSHS will call this a good faith effort.  As to whether that will suffice to avoid prosecution for knowingly failing to report under Family Code §261.109, the contractor/provider should seek advice from their agency counsel.

21.  Question.  If a case has been reported once and there is no new information about the case (pregnancy or STI), do we have to report it again if the client returns to the clinic?

Answer. DSHS will accept one report as evidence the contractor made a good faith effort for each case/incident of abuse for a client being seen repeatedly at a particular clinic. Unless the contractor has new information that a new incident has occurred with a different partner, once a report has been made and documented in the client record, DSHS does not require another report to meet our standard of a good faith effort.  The DSHS monitoring staff only looks for one report in the scenario you describe.  Please be advised that contractors should allow any staff member to make another report if the staff member wants to report.   Further, because the DSHS policy reflects only what DSHS requires for a good faith effort; the agency is advised to review the law for themselves with their own counsel and decide if the law requires them to make multiple reports. An agency, however, should always allow any staff person to report if the person feels obligated to do so.

22.  Question.  If a 13 year old previously received services at a clinic and was reported for potential sexual abuse, does the case need to be reported again each time he/she comes in for an exam or other services?  For example, if the 13 year old comes in for pills only, does it have to be reported?

Answer. Unless the contractor has new information that a new incident has occurred with a different partner, once a report has been made and documented in the client record, DSHS does not require another report to meet our standard of a good faith effort.  The DSHS monitoring staff only looks for one report in the scenario you describe.  Please be advised that contractors should allow any staff member to make another report if the staff member wants to report.   Further, because the DSHS policy reflects only what DSHS requires for a good faith effort; the agency is advised to review the law for themselves with their own counsel and decide if the law requires them to make multiple reports.

IV. Training

1.  Question: One commenter suggested that training be focused on non-professional staff--especially those who conduct screens during a face-to-face interview with clients--since professional staff is trained by way of their licensing process.  (8-00)
 Answer:  DSHS has the obligation to ensure its contractors make a good faith effort to comply with Chapter 261, Family Code, regardless of their professional or non-professional status. Contractors, regardless of their professional or non-professional status, will be responsible for ensuring a policy is in place, appropriate training of professional and non-professional staff is conducted, and the DSHS Child Abuse Reporting Form is used as required. Therefore, training of the persons responsible for the contracting entity is particularly necessary to ensure the contractor meets DSHS requirements. Contractors are responsible for determining the level and manner of training considering factors such as a staff person's level of contact with clients and the staff person's professional status.

V. Monitoring by DSHS

1.  Question: By what standard will DSHS monitor its contractors/providers for good faith efforts to comply with Chapter 261, Family Code?  (1-01; 4-03 to clarify sanctions occur after the second incident of noncompliance; revised 11-07 to change Quality Assurance Division to Quality Management Branch)

Answer: For contractors/providers currently monitored by the DSHS Quality Management Branch (QM), QM will review all records of unmarried minors under age 14 who are pregnant or who have a confirmed STD acquired other than by perinatal transmission to ensure the DSHS Child Abuse Reporting Form was used to report those cases as abuse. QM will continue its routine, random review of records for all other clients.  If, during that review, instances of abuse are identified, QM will review the record to ensure a report was made. This process will be incorporated into the QM Core Tool.
 Review of the contractor/provider's process for ensuring staff complies with Chapter 261 and for staff training will also be incorporated into the QM Core Tool.  To some extent, this will be primarily an educational process. Sanctions against a contractor/provider are not expected to be imposed until the contractor/provider has a second citation for failure to comply.

2.      Question:
If I report suspected abuse to DFPS or local law enforcement and they do not believe the information indicates reportable abuse, will I be cited by DSHS for failure to report? (1-01; revised 11-07 to change DPRS to DFPS)
Answer: Under these circumstances, DSHS believes the contractor/provider has demonstrated he/she has made a good faith effort to comply with Chapter 261 as long as the contractor/provider documents the contact with DFPS or local law enforcement.

3.  Question:
What records will be monitored besides those for minors under age 14 who are pregnant or have a confirmed STD? (1-01; 4-03 to clarify that the records chosen are a sample of records; revised 12-08 to delete reference to marital status).
Answer: A sample of all client records is routinely reviewed during QM monitoring visits. While under DSHS policy all client records of minors under age 14 who are pregnant or have a confirmed STD will be reviewed, a sample of all other records will also be reviewed. If during that review instances of failure to report abuse are noted, they will be included in the site visit report. (Revised 07/08).

4.
Question: There seems to be a conflict in the information provided by different DSHS programs whose contractors/providers are covered by the DSHS Rider Implementation Plan. Are there different expectations for different programs? (8-00; revised 12-08 for clarification purposes).
Answer: DSHS programs whose contractors/providers are subject to rider compliance use the Child Abuse Screening, Documentation and Reporting Policy, but some have their own rules and some have different operational criteria based on the services they deliver. Although some programs provide more or somewhat differently worded materials, expectations for reporting child abuse are the same across all DSHS programs.

5.  Issue:
One commenter recommended that the Texas Medical Board, not DSHS, be authorized to review cases of possible non-compliance with child abuse reporting requirements. (8-00; 4-03 add that holds on funds is a permissible sanction)
 Answer:  The sanctions permissible under DSHS contracts are holds on funds, loss of funds and/or cancellation of the contract. Only DSHS, not a licensing board, has the authority to impose sanctions under a DSHS contract. The sanctions permissible under contracts with DSHS do not include disciplinary action against a practitioner. Only state licensing boards have that authority.

6.  Question:
  How should a contractor chart in the charts to cover their liability?  What needs to be covered and how?  (2-01)
 Answer:  Charts should contain enough information to allow a DSHS determination during monitoring as to whether or not a report of abuse was required.  The requirements are contained in materials available to the contractor/provider.  DSHS can only address a possible liability under DSHS policy; other questions of liability should be addressed to the contractor’s/provider’s attorney.

7. Question: 
What does DSHS consider a good faith effort by contractors/providers in issuing their internal policy on child abuse reporting? (4-03; revised 12-08 to delete reference to marital status and to clarify issue related to professional and non-professional staff).
 Answer:  DSHS will consider that contractors/providers who follow these steps when creating their internal policy are making a good faith effort if the contractor/provider 1) clearly describes in their internal policy that they adopt the DSHS Policy; 2) clearly describes the process they will use to determine if a report of abuse is required for minor clients 3) clearly describes what “abuse” is to match the provisions of the laws on reporting child abuse; 4) clearly describes the timeframes for reporting (professionals must report within 48 hours and nonprofessionals must report immediately); 5) clearly describes that staff must include a statement in the client’s file or the centralized tracking system that either a report was not required and the basis for that determination or a report was required; and 6) the policy clearly describes what additional, if any, documentation the staff must include in the client file or the centralized tracking system.  If a report was required, DSHS reviewers will expect the record to reflect the documentation requirements the contractor/provider outlined in their internal policy.  DSHS will not review or correct a contractor’s/provider’s designation of staff as professional or non-professional.  Contractors/providers are responsible for making those determinations.

8. Question: 
What will DSHS consider an acceptable basis for determining a report of abuse is not required? (4-03; revised 12-08 to update statutory references).
Answer:   This is addressed in several other answers to the FAQs; however, the answer will be repeated here.  For DSHS monitoring purposes, documentation that an affirmative defense exists will be an acceptable basis for determining a report of abuse is not required for any client under the age of 17 who was determined to have been abused as defined by the Family Code §261.001, including but not limited to, victims of an offense under the Penal Code §21.11, or §22.011.   An acceptable affirmative defense for abuse as defined in the Penal Code §21.11 (indecency with a child) may be: 1) the actor was not more than three years older than the victim and of the opposite sex; and 2) the actor did not use duress, force, or a threat against the victim at the time of the offense.  An acceptable affirmative defense for abuse as defined in the Penal Code §22.011 (sexual assault) may be: 1) the actor was not more than three years older than the victim at the time of the offense; 2) that the victim was 14 years or older and 3) the victim was not a person whom the actor was prohibited from marrying, purporting to marry or living with under the appearance of being married under Penal Code 25.01 concerning bigamy.   There is no acceptable affirmative defense applicable for abuse of children under the age of 14 because a child under 14 cannot consent to sexual activity under Texas law.

9. Question: 
What circumstances other than a minor under age 14 who is pregnant or has an STD acquired other than through perinatal transmission trigger the responsibility to determine if a report of abuse is required? (4-03)
 Answer:  DSHS cannot describe all the possible situations that might trigger the responsibility to determine if a report of abuse is required.  Certain circumstances by themselves do not necessarily trigger the responsibility to report. The sole fact that a minor has made a request for birth control does not mean the minor has been abused or neglected as defined in the Family Code §261 or the victim of the offenses of indecency with a child, sexual assault or aggravated sexual assault.  If that is all the contractor/provider knows, there is nothing to ask about. However, if the contractor in its routine handling of the request for birth control determines that acts have occurred which constitute abuse or sexual abuse, the responsibility to determine if a report is needed has been triggered. For a minor who is postpartum, who is pregnant, or who has a child, the responsibility to determine if a report of abuse is required has already been triggered by the minor’s situation.  In the case of a minor requesting a pregnancy test, DSHS believes the contractor/provider has enough information that the minor is sexually active and must determine whether or not a report is required.

10.  Question:  Does DSHS monitoring include reviewing whether or not a contractor/provider reported within the timeframes specified in the law?  Specifically, will noncompliance be found if the contractor/provider failed to report within 48 hours for professionals and immediately for nonprofessionals? (4-03)
 Answer:   Yes, the DSHS policy reiterates the requirements of the law on timeframes for reporting and DSHS expects contractors/providers to meet these timeframes and address them in their internal policy.

11. Question: 
Many contractors/providers have reported that staff at the Department of Family and Protective Services (DFPS) is asking for more information than the contractor/provider has collected regarding the suspected abuse.  For example, DFPS staff often asks for the names of all persons involved or how often the incidents have occurred to assist them in their investigation.  Are contractors/providers required to obtain this information before reporting to DFPS? (4-03; revised 11-07 to change DPRS to DFPS; revised 9-08 to clarify reporting guidelines).
 Answer:   The only information required by law, if known, is stated in the law as follows: the name and address of the child; the name and address of the person responsible for the care, custody or welfare of the child; and any other information concerning the alleged or suspected abuse or neglect.  If all the contractor/provider knows or suspects is that a crime has been committed, the previously mentioned information, if known, is all they have to report.  If a contractor/provider does not routinely collect the other kinds of information DFPS needs, the contractor/provider is not required by law to ask the client for that information.  However, if a contractor/provider wishes to ask for further information that is pertinent to the investigation of abuse, the contractor/provider may do so.  For cases in which a contractor/provider is seriously concerned about a potential abuse situation, additional details can assist DFPS or law enforcement in determining whether to pursue an investigation.

12. Question: 
When DSHS monitors a contractor/provider, what does DSHS expect in order for the contractor/provider to meet Procedures I and III of the DSHS Child Abuse Screening, Documenting and Reporting Policy for Contractors/Providers?  These procedures state, respectively, “Each contractor/provider shall adopt this policy as its own” and “Each contractor/provider shall develop on internal policy and procedures which describe how it will determine, document, and report instances of abuse, sexual or nonsexual, in accordance with the Texas Family Code, Chapter 261.” (4-03)

 Answer:   A statement to the effect of “Agency X adopts the DSHS Child Abuse Screening, Documenting and Reporting Policy for Contractors/Providers by reference in our agency internal policy and will comply with all provisions of the DSHS policy” would be sufficient to meet Procedure I.   However, adoption of the DSHS policy alone is not sufficient to meet the requirements of Procedure III.  The contractor/provider must have an internal policy and it must describe the internal agency process for determining, documenting and reporting.

Last updated September 30, 2011