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COMMUNITY OF INTEREST PRIVILEGED COMMUNICATIONS
COURT'S EXHIBIT_ (p
Heightened Mon itoring Com pl iance Con siderations,
Stage Progre ssion, and Extension Framew ork
In the class-action foster care lawsuit, M.D. et al v. Abbott, a federal court has ordered the Health
and Human Services Commission (HHSC) and the Texas Department of Family and Protective
Services (DFPS) in Remedial Order 20 1 to "identify, track, and address concerns at facilities that
show a pattern of contract or standard violations." On March 18, 2020, the Court signed an order
adopting definitions applicable to the Heightened Monitoring requirements of Remedial Order
20.
HHSC and DFPS are committed to ensuring child safety and share an ongoing commitment to
compliance with all court orders, including Remedial Order 20. Below are details of the
framework HHSC and DFPS have developed to implement and comply with the court's order on
Heightened Monitoring. The explanations include frequently asked questions and answers
explaining how the agencies are administering HM in accordance with the applicable court-
ordered requirements.
Heightened M onitoring Stages
1. What is a heightened monitoring (HM) episode?
A heightened monitoring (HM) episode consists of three stages and begins the day an
operation is placed on HM. The episode ends the day the operation is removed from
HM .
As illustrated in the CLASS system 2, the HM episode consists of three distinct stages,
regardless of the duration of each stage:
• Pre-plan Development Stage - begins the date the operation is placed on HM and
ends the date the operation receives its approved HM plan. An operation's HM
plan is based on the trends and patterns identified following a five-year
retrospective analysis of an operation's CCR licensing and RCC contract violations.
The identification of trends and patterns, HM plan development, and the review of
the HM plan with the provider are completed within 30 days of HM notification.
1 As referenced in the Court's Final Order entered on January 19, 2018, (D .E. 559), and the Court's Order entered
on November 20, 2018, (D.E. 606).
2 The heightened monitoring plan, unannounced visits associated with the plan, and progress toward meeting the
plan must all be documented in CLASS.
DFPS/HHSC 1 Compliance Definitions
Extensions Framework
Revised 04 .03.2023
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• Plan in Effect Stage - begins the date the operation receives its HM plan and
remains in effect until the operation is authorized to move to Post-plan Monitoring
based on the operation meeting the following criteria:
✓ the HM plan was in place for at least one year;
✓ the operation has satisfied the conditions of its HM plan;
✓ the operation is in compliance with the standards and contract requirements
that led to HM (as demonstrated by at least six months' successive
unannounced visits); and
✓ the operation is not out of compliance with any medium-high or high (MH/H)
weighted licensing standards.
• Post-plan Monitoring (PPM) Stage - begins the date the operation is released from
the HM plan and ends the date the operation is removed from HM . During the PPM
stage, HHSC and DFPS will coordinate to make at least three unannounced visits in
the three months following the release from the plan, and intake data for the
operation will be tracked for at least six months to ensure the operation does not
lose progress made.
Court Order Requirement #1: "the operation satisfies the conditions of the p/ann
1. What is required of an operation to "satisfy the conditions of the plan"?
The operation has satisfied the conditions of the HM plan when the operation has
successfully implemented the requirements of all tasks, as assessed by DFPS and HHSC.
The evaluation of the tasks (known as "testing") shows the operation is substantially
meeting those requirements. Task testing is completed by CCR and RCC during HM
unannounced visits. Each task requirement and method for testing is individualized, as
necessary, to address an operation's identified trends and patterns. For example, if a
task addressed compliance with foster home screening requirements, home screenings
would be reviewed.
An evaluation is completed to assess whether an operation has satisfied the conditions
and achieved substantial compliance with the tasks set forth in the HM plan once the
operation has met six successive months of compliance with the standards and
contracts requirements that led to HM (see Court Order Requirement #2, below) and
the operation has been on HM for at least one year. Consideration of the following
questions is part of that review:
Has the operation implemented the requirements in the HM plan?
DFPS/HHSC 2 Compliance Definitions
Extensions Framework
Revised 04.03.2023
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COMMUNITY Of INTEREST PRIVILEGED COMMUNICATIONS
If the operation experienced delays with implementation, did the operation
complete the HM tasks in a reasonable timeframe?
If the operation faced challenges with consistent implementation of HM plan tasks,
did the operation make overall progress and demonstrate that children are safe,
risks are reduced, and that there is appropriate internal oversight of the operation?
Court Order Requirement #2: "at least six months' successive unannounced
visits indicate the operation is in compliance with the standards and
contract requirements that Jed to heightened monitoring;''
1. How does the HM Team identify the "standards and contract requirements that led to
HM"?
An operation's eligibility for HM is initially determined by evaluating the number of
violations (including minimum standards citations, violations of contract requirements,
and confirmed findings of abuse and neglect) 3 in the operation's five-year retrospective
analysis. These violations are then analyzed and organized into categories which are
used to identify the patterns and trends representing the specific areas of concern that
"led to heightened monitoring".
2. How and when is a determination made of whether an operation is "in compliance" for
the purposes of this court order requirement?
When an operation has been on HM for at least one year, an evaluation is conducted to
determine whether the operation has substantially complied with the HM plan. This
includes a review of whether the operation has achieved six successive months of
compliance with minimum standards and contract requirements in the pattern/trend
areas that led to HM.
Each violation the operation receives while on HM is evaluated to determine whether it
falls under the pattern/trend areas. To demonstrate compliance for the purposes of this
court order requirement, an operation must not be found to have any violations in
pattern/trend areas for the duration of a period of six successive months.
3. Are violations identified during HM visits the only violations considered when
determining an operation's compliance for the purposes of this court order requirement?
No -Any and all violations identified by Child Care Regulation (CCR), Residential Child
Care Contracts (RCC), and Single Source Continuum Contractors (SSCC) are considered.
3
Confirmed findings of abuse and neglect are counted per disposition per allegation.
DFPS/HHSC 3 Compliance Definitions
Extensions Framework
Revised 04.03.2023
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4. Is the activity start date 4 or the activity closure date used to determine whether and
when a violation is counted as evidence of non-compliance for the purposes of this court
ordered requirement? (For example, if an investigation intake was received prior to the
start of the HM episode, but the investjgation dosed with violations issued during the HM
episode, is this counted as an instance of non-compliance?)
Violations the operation receives while on HM are reviewed to determine whether the
activity start date associated with the violation occurred prior to the operation being
identified for HM. All violations associated with activity start dates that fall within the
HM episode are considered in the HM compliance evaluation.
If a minimum standard citation or contract violation in a pattern/trend area is received
during the HM episode but is associated with an activity that began before the initiation
of a HM episode, the violation is not considered in the HM compliance evaluation. This
is because the violation is considered to be attributable to the concerning patterns and
trends that "led to heightened monitoring" rather than evidence of the operation's non-
compliance during the HM episode.
If an operation receives a disposition of Reason to Believe (RTB) during the HM episode,
regardless of the activity start date, assessment of the operation's response and ability
to mitigate future risk will be completed before determining whether the operation is
e ligible to move to post-plan monitoring or be released from HM.
5. Can new tasks be added to the HM plan after the start of the HM Episode, and does a
new task impact the six months compliance period?
The HM plan can be amended to modify HM tasks or add new tasks. If it is determined
the original strategy is ineffective in reducing trend and pattern violations, a
determination will be made as to whether the modified or new task impacts the six-
month compliance period based on the date the plan is amended and the type of trend
in violations.
If the HM plan amendment is the result of a newly identified trend or pattern, the
operation's six-month compliance start date will start the day the new task is approved.
However, if a current task is amended or a new task added to address an original trend
or pattern, the operation's six-month compliance period would not be affected .
6. What is the timeframe for when the six months of compliance begins and ends?
4For this purpose, "activity start date" refers to an investigation intake date, inspection date, citation by
assessment date, and/or the date a contract violation was assigned.
DFPS/HHSC 4 Compliance Definitions
Extensions Framework
Revised 04.03.2023
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The six-month compliance period begins once all HM tasks have been submitted by the
operation and approved by DFPS and HHSC. The "end date" for the six months is
determined by DFPS and HHSC. As explained (in Q#2) above, when an operation has
been on HM for at least one year, the operation's history is reviewed to determine
whether, following the approval of all task submissions, there has been a period of six
successive months of compliance with minimum standards and contract requirements in
the pattern/trend areas that led to HM.
7. What happens if there is a period of "six successive months" without the operation
receiving any violations and then the operation receives a violation in a pattern/trend
area before moving to post-plan monitoring?
As stated above, all violations an operation receives while on HM are reviewed and the
activity start date associated with a violation to determine whether/when the violation
is counted as evidence of non-compliance is considered. This means that violations
resulting from an investigation are considered non-compliance on the date the
investigation is initiated rather than the date the violation was issued. In the scenario
described, an operation may still be eligible to move to the post-plan monitoring phase
as long as the investigation associated with the violation was initiated after the
necessary six-month compliance period. Beyond the six-month requirement, the scope,
severity and number of any violations received in pattern/trend areas are considered as
part of the determination of whether it is appropriate for an operation to advance to
PPM.
Court Order Requirement #3: "the operation is not out of compliance on any
medium-high or high weighted licensing standards. 11
1. What will the HM team consider when determining whether an operation is "not out
of compliance" for the purposes of this court ordered requirement?
An operation will be considered "not out of compliance" for the purposes of this court-
ordered requirement if the operation corrects, or comes into compliance with, any
licensing standard violations weighted MH/H received while on HM. This court order
requirement is construed by the agencies as applying to fill licensing standards weighted
medium-high or high regardless of whether the standard is in an identified
pattern/trend category for that operation.
2. Can an operation receive a medium-high or high weighted minimum standards
violation while on HM and still move to post-plan monitoring?
Yes, the operation may still be eligible to move to post-plan monitoring as long as the
operation first comes into compliance with any MH/H weighted minimum standard
DFPS/HHSC 5 Compliance Definit ions
Extensions Framework
Revised 04.03.2023
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COMMUNITY OF INTEREST PRIVILEGED COMMUNICATIONS
violations received while on HM and they have already demonstrated six successive
months of compliance as explained by Court Order Requirement #2.
3. If an administrative review (AR} has been requested for a minimum standards
violation and is pending, must the AR be complete before an operation is considered
compliant with the violation?
No, it is not required that an AR be completed before an operation is considered
compliant. In fact, the operation must come into compliance with all violations in
pattern/trend areas that led to HM and for all MH/H weighted deficiencies while AR is
pending.
Heightened Monitoring Plan Extensions and Moving to Post-Plan Monitoring
In order for an operation to move to the post-plan monitoring phase, the operation must:
• Be on the HM plan at least one year;
• Satisfy the conditions of the HM plan;
• Maintain compliance w ith the minimum standards and contract requ irements that led
to HM for a period of six successive months;
• Not be out of compliance with any MH/H weighted licensing standards.
Once an operation has been on the HM plan for one year, an evaluation must be conducted to
determine if all other criteria have been met for the operation to move to the post-plan
monitoring phase. If all criteria are not met, DFPS and/or HHSC will assess a penalty/penalties
and, as appropriate, ~end the HM plan.
Penalties
Suspension of Placements - Of PS Action
Imposition of Fines - HHSC Action
If determined an operation does not meet the criteria for graduation to PPM, the
CCR HM will issue a violation by Assessment for §749.635(2) or §748.535(2), as
applicable, which requires the operation's licensed administrator to ensure that the
operation complies with current HM p/an(s). An administrative penalty will be
assessed as a result of this violation, in accordance with the Texas Human Resources
Code Sec. 42.078.
Suspension or revocation of the Facility's or CPA's license - HHSC Action
DFPS/HHSC 6 Compliance Definitions
Extensions Framework
Revised 04.03.2023
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COMMUNITY OF INTEREST PRIVILEGED COMMUNICATIONS
In accordance with the Texas Administrative Code Rule 745.8607, the frequency and
severity of noncompliance, the degree or immediacy of danger or threat to the
health and safety of children, and/or any aggravating or mitigating factors will be
assessed to determine whether a suspension or revocation is most appropriate.
Termination of Contract- DFPS Action
Extension Reasons
In conjunction with required penalties, an operation's HM plan may be extended beyond one
year for the following reasons:
• The operation is not in compliance with the terms of its HM plan.
• The operation has not maintained six months of successive compliance w ith the
minimum standards and contract requirements that led to heightened monitoring. The
operation cannot be the subject of any investigations during the six-month compliance
period that result in an RTB or violations related to the pattern/trend categories on the
HM plan.
• The operation is not in compliance with MH/H weighted minimum standards. MH/H
weighted deficiencies must be in " compliance met" status in CLASS.
• If an operation receives an RTB find ing, the operation must be responsive and act
quickly to address the incident resulting in the RTB and demonstrate the abi lity to
m itigate future risk. The operation's HM plan may be extended to allow time to
evaluate whether the operation has implemented processes to mitigate any identified
risk.
Extension Timeframes
An extension during the Plan in Effect stage will typically be granted for a twelve-month period
as long as the operation continues to engage in the HM process, is actively working to resolve
the patterns and trends that led to HM, and there is no immediate threat to child safety. The
extension t imeframe assigned will be designed to allow for:
• an operation to satisfy the conditions of the HM plan,
• an operation to achieve six successive months of compliance with the licensing
standards and contract provisions relevant to the violations that led to HM, and/or
• an operation to come into compliance with any MH/H weighted licensing standards and
contract provisions.
If the operation receives an RTB finding for abuse/neglect during the Plan in Effect stage the
operation' s response and ability to mitigate future risk will be assessed before deciding to move
the operation to PPM . Authorization for an operation to move to PPM can occur when the
operation meets the eligibility criteria. Th is may occur at any point during the extension period.
DFPS/HHSC 7 Compliance Definit ions
Extensions Framework
Revised 04.03.2023
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If an RTB for abuse/neglect occurs during the PPM stage, the PPM stage may be continued for a
three-month period. An assessment of the operation' s response and ability to mitigate future
risk will be completed before allowing the operation to exit HM . This may occur at any point
during the three-month extension period .
Operations that have Open Investigations at the time they would otherwise
meet the Criteria for Advancement to PPM or Release from HM
Previously, HHSC and DFPS have not permitted an operation to move to Post Plan Monitoring
(PPM) or be released from the HM episode when the operation has an open investigation. This
was to ensure an operation was not prematurely released from HM or moved to PPM with an
open investigation that could result in violation(s) related to a pattern/trend category or MH/H
weighted min imum standard(s}, including an RTB. An assessment procedure has been
developed to review all open investigations involving operations on HM that otherwise meet
the specific criteria to move to PPM or be released from HM . The assessment is intended as a
child-safety measure to ensure DFPS and HHSC do not reduce HM oversight at a t ime when
available information about an open investigation suggests oversight reduction is not
appropriate due to serious chi ld safety concerns.
The assessment includes a review and consideration of the following to evaluate risk a.ssociated
with any open investigations:
• ls the documented evidence sufficient to conclude there is no serious risk?
• Is the documented evidence likely to support a violation under minimum standard or
other regulatory law or a contract violation? If so, what is the scope and severity of
each possible violation?
Once the investigation assessments are complete, the findings are discussed, and a
determination is made as to whether it is appropriate for the operation to move to the next
stage of HM. If the determination is made that sufficient information is available about the
open investigation(s) to find that there does not appear to be an unreasonable risk of serious
harm associated with the placement of children at the operation, the operation may be
authorized to move forward to the next phase of HM (either PPM or release from HM episode) .
The determination must be agreed upon unanimously in order for an operation to move
forward while investigations remain open. If there is no unanimous agreement that sufficient
information is ava ilable to make the determination, the decision may be revisited when
additional information about the investigation becomes available, regardless of whether the
investigation(s) rema in open.
The investigation assessment and the resu lt of the assessment w ill be documented in an HM
FITS note in CLASS.
DFPS/HHSC 8 Compliance Definitions
Extensions Framework
Revised 04.03.2023
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COURT'S EXHIBIT :/-
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Figure Bo: Information Included in Heightened Monitoring Placement Request for Approved
Placements of PMC Children at Heightened Monitoring Operations, Calendar Year 2022
Source: PMC placement data, Placement authorization requests
n = 1,402
1,3B4
1,600 (99%)
1,200
701
Boo (50%)
272
-
400 (19%)
0
Approver's Approver reviewed Best interest
justification for operation's five- statement
placement year history
