By: Nelson S.B. No. 67
(In the Senate - Filed November 10, 2008; February 10, 2009,
read first time and referred to Committee on Health and Human
Services; March 30, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
March 30, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 67 By: Nelson
A BILL TO BE ENTITLED
AN ACT
relating to the imposition of background and criminal history check
requirements for operators and employees of certain facilities and
agencies serving children, the elderly, or persons who are
disabled; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 42.056, Human Resources Code, is amended
by amending Subsections (a), (a-1), (a-2), (b), (b-1), (c), (f),
(g), (h), (i), and (j) and adding Subsection (a-3) to read as
follows:
(a) In accordance with rules adopted by the executive
commissioner [department], the director, owner, or operator of a
child-care facility, child-placing agency, or family home shall[,
when applying to operate a child-care facility or when listing or
registering a family home and at least once during each 24 months
after receiving a license, listing, registration, or certification
of approval,] submit to the department for use in conducting
background and criminal history checks:
(1) when applying to operate a child-care facility or
child-placing agency or when listing or registering a family home
and at least once during each 24 months after receiving a license,
listing, registration, or certification of approval, the name of:
(A) the director, owner, and operator of the
facility, agency, or home;
(B) [, and the name of] each person employed at
the facility, agency, or home; and
(C) [(2) the name of] each person 14 years of age
or older, other than a client in care, who:
(i) is counted in child-to-caregiver ratios
in accordance with the minimum standards of the department;
(ii) has unsupervised access to children in
care at the facility or family home;
(iii) resides in the facility or family
home; or
(iv) will regularly or frequently be
staying or working at a [the] facility, family [or] home, or
prospective adoptive home, while children are being provided care;
and
(2) at the time specified by the rules adopted by the
executive commissioner, the name of:
(A) each prospective employee of the child-care
facility, child-placing agency, or family home;
(B) each prospective foster parent who will
provide care through a child-placing agency;
(C) each prospective adoptive parent seeking to
adopt through a child-placing agency; and
(D) each person 14 years of age or older, other
than a client in care, who will reside in a prospective adoptive
home if the adoption is through a child-placing agency.
(a-1) [In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a residential
child-care facility shall submit to the department for use in
conducting background and criminal history checks the name of each
prospective employee who will provide direct care or have direct
access to a child in the residential child-care facility.
[(a-2)] In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a child-care
facility, other than a family home, or a child-placing agency
[day-care center] shall submit a complete set of fingerprints of
each person whose name is required to be submitted [by the director,
owner, or operator] under Subsection (a) if the person will provide
direct care or have direct access to a child in the child-care
facility or child-placing agency, unless the person is:
(1) a child who resides in the facility or prospective
adoptive home;
(2) only required to have the person's name submitted
based on the criteria specified in Subsection (a)(1)(C)(iv);
(3) an employee of the facility or agency for whom
fingerprints have previously been submitted on behalf of the
facility or agency under this section; or
(4) precluded from being present at the facility or
agency based on the information resulting from the state criminal
history check and the background check completed under Subsection
(b).
(a-2) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a family home
shall submit a complete set of fingerprints of each person whose
name is required to be submitted under Subsection (a) if:
(1) the person:
(A) will provide direct care or have direct
access to a child in the family home;
(B) is not precluded from being present at the
family home based on the information resulting from the state
criminal history check and the background check completed under
Subsection (b);
(C) has not had the person's fingerprints
previously submitted on behalf of the family home under this
section; and
(D) resided in another state during the five
years preceding the date the person's name was required to be
submitted under Subsection (a); or
(2) the director, owner, or operator has reason to
suspect that the person has a criminal history in another state.
(a-3) The rules regarding the submission of fingerprints
adopted by the executive commissioner under Subsections (a-1) and
(a-2):
(1) must require that the fingerprints be submitted in
a form and of a quality acceptable to the Department of Public
Safety and the Federal Bureau of Investigation for conducting a
criminal history check; and
(2) may require that the fingerprints be submitted
electronically through an applicant fingerprinting service center.
(b) The department shall initially conduct background and
criminal history checks using:
(1) the information provided under Subsection (a)
[Subsections (a) and (a-1)];
(2) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code; and
(3) the department's records of reported abuse and
neglect.
(b-1) In addition to and after the completion of any other
background or criminal history check conducted under Subsection
(b), for each person whose fingerprints are [name is] submitted [by
the director, owner, or operator of a day-care center] under
Subsection (a-1) or (a-2) [(a)], the department shall conduct a
state and Federal Bureau of Investigation criminal history check
by:
(1) submitting the person's fingerprints [provided
under Subsection (a-2),] or causing the fingerprints to be
submitted electronically [as authorized by that subsection,] to the
Department of Public Safety for the purpose of conducting a state
and federal criminal history check; and
(2) using the resulting information made available by
that department under Section 411.114, Government Code, and by the
Federal Bureau of Investigation and any other criminal justice
agency under Section 411.087, Government Code.
(c) The department by rule shall require a child-care
facility, child-placing agency, or registered family home to pay to
the department a fee in an amount not to exceed the administrative
costs the department incurs in conducting a background and criminal
history check under this section.
(f) As part of a background check under this section, the
department shall provide any relevant information available in the
department's records regarding a person's previous employment in a
[residential child-care] facility or family home to the person
submitting the request.
(g) Except as otherwise provided by Subsection (e) and this
subsection, a person whose name is required to be submitted [by the
director, owner, or operator of a day-care center] under Subsection
(a) may not provide direct care or have direct access to a child in a
facility or family home [day-care center] before the person's
background and criminal history checks under Subsections (b) and,
as applicable, (b-1) are completed. A person may be employed at a
facility or family home or [day-care center and] may provide direct
care or have direct access to a child in the facility or family home
[day-care center] before the person's criminal history check under
Subsection (b-1) is completed if:
(1) the facility or family home is experiencing a
staffing shortage;
(2) the state criminal history check and the
background check using the department's records of reported abuse
and neglect have been completed under Subsection (b), and the
resulting information does not preclude the person from being
present at the facility or family home [day-care center]; and
(3) [(2)] the person's fingerprints are submitted as
soon as possible, but not later than the 30th day after the earliest
of the date the person:
(A) first provides direct care to a child in the
facility or family home;
(B) first has direct access to a child in the
facility or family home; or
(C) is hired [day-care center is experiencing a
staffing shortage that, if the day-care center were not allowed to
employ the person until completion of the federal criminal history
check, would result in a staff-to-child ratio that violates the
department's minimum standards].
(h) If the results of a criminal history check under
Subsection (b-1) for a person employed by a facility or family home
[day-care center] during a staffing shortage as authorized by
Subsection (g) preclude the person from being present at the
facility or family home [day-care center], the director, owner, or
operator of the facility or family home [day-care center] shall
immediately terminate the person's employment.
(i) A director, owner, or operator of a facility or family
home [day-care center] commits an offense if the director, owner,
or operator knowingly:
(1) fails to submit to the department information
about a person as required by this section or [and] department rules
for use in conducting background and criminal history checks with
respect to the person; and
(2) employs the person at the facility or family home
[day-care center] or otherwise allows the person to regularly or
frequently stay or work at the facility or family home [day-care
center] while children are being provided care.
(j) A director, owner, or operator of a facility or family
home [day-care center] commits an offense if, after the date the
director, owner, or operator receives notice from the department
that, based on the results of a person's background or criminal
history check, the person is precluded from being present at the
facility or family home [day-care center], the director, owner, or
operator knowingly:
(1) employs the person at the facility or family home
[day-care center]; or
(2) otherwise allows the person to regularly or
frequently stay or work at the facility or family home [day-care
center] while children are being provided care.
SECTION 2. Section 43.004, Human Resources Code, is amended
to read as follows:
Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be
eligible for a child-care administrator's license a person must:
(1) provide information and fingerprints for the
department's use in conducting a criminal history and background
check under Subsection (c);
(2) pass an examination developed and administered by
the department that demonstrates competence in the field of
child-care administration;
(3) have one year of full-time experience in
management or supervision of child-care personnel and programs; and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctoral degree in social work
or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in child care or a closely related field.
(b) To be eligible for a child-placing agency
administrator's license a person must:
(1) provide information and fingerprints for the
department's use in conducting a criminal history and background
check under Subsection (c);
(2) pass an examination developed and administered by
the department that demonstrates competence in the field of placing
children in residential settings or adoptive homes;
(3) have one year of full-time experience in
management or supervision of child-placing personnel and programs;
and
(4) have one of the following educational and
experience qualifications:
(A) a master's or doctoral degree in social work
or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in the field of placing children in residential settings
or adoptive homes or a closely related field.
(c) Before the department issues a license under this
chapter, the department must conduct a criminal history and
background check of the applicant using the information:
(1) provided by an individual under this section;
(2) [the information] made available by the Department
of Public Safety under Section 411.114, Government Code, and [or]
by the Federal Bureau of Investigation or other criminal justice
agency under Section 411.087, Government Code, after conducting a
state and federal criminal history check using the fingerprints
provided by the applicant under this section; and
(3) [(2) the information] in the central registry of
reported cases of child abuse or neglect established under Section
261.002, Family Code.
SECTION 3. Subchapter D, Chapter 161, Human Resources Code,
is amended by adding Section 161.076 to read as follows:
Sec. 161.076. REQUIRED BACKGROUND AND CRIMINAL HISTORY
CHECKS; CRIMINAL PENALTIES. (a) In accordance with rules adopted
by the executive commissioner, the director, owner, or operator of
a facility or agency licensed by the department shall submit to the
Department of Public Safety for use in conducting background and
criminal history checks:
(1) when applying for a license from the department,
the name of each person who will provide direct care or who has
direct access to residents or clients of the facility or agency and
who is:
(A) a director, owner, or operator of the
facility or agency;
(B) a person employed at the facility or by the
agency; or
(C) a person 14 years of age or older, other than
a resident or client in care, who will regularly or frequently be
staying or working at the facility or agency while residents or
clients are being provided care; and
(2) at the time specified by the rules adopted by the
executive commissioner, the name of each person who will provide
direct care or who will have direct access to residents or clients
of the facility or agency and who is a prospective:
(A) employee of the facility or agency; or
(B) volunteer at the facility or with the agency.
(b) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a facility or
agency licensed by the department shall submit a complete set of
fingerprints of each employee or prospective employee whose name is
required to be submitted under Subsection (a) and who will provide
direct care or have direct access to a resident or client in the
facility or of the agency, unless the person:
(1) is a person for whom fingerprints have previously
been submitted on behalf of the facility or agency under this
section; or
(2) is precluded from providing direct care or having
direct access to a resident or client in the facility or of the
agency based on the information resulting from a completed state
criminal history check.
(c) The director, owner, or operator of a facility or agency
licensed by the department shall ensure that the facility or agency
complies with this section and that the facility or agency
immediately terminates the employment of a person who, as a result
of a background check completed under this section, is precluded
from providing direct care or having direct access to a resident or
client in the facility or of the agency.
(d) The rules adopted under Subsections (a) and (b):
(1) must require that the fingerprints be submitted in
a form and of a quality acceptable to the Department of Public
Safety and the Federal Bureau of Investigation for conducting a
criminal history check;
(2) may require that the fingerprints be submitted
electronically through an applicant fingerprinting service center;
and
(3) shall require a facility or agency licensed by the
department to pay to the department a fee in an amount not to exceed
the administrative costs the department incurs in processing
background and criminal history checks conducted under this
section.
(e) A director, owner, or operator of a facility or agency
licensed by the department commits an offense if the director,
owner, or operator knowingly:
(1) fails to submit information about a person as
required by this section or rules adopted by the executive
commissioner to conduct background and criminal history checks with
respect to the person; and
(2) employs the person at the facility or agency or
otherwise allows the person to regularly or frequently stay or work
at the facility or agency while residents or clients are being
provided care.
(f) A director, owner, or operator of a facility or agency
licensed by the department commits an offense if, after the date the
director, owner, or operator discovers that, based on the results
of a person's background or criminal history check, the person is
precluded from providing direct care or having direct access to a
resident or client in the facility or of the agency, the director,
owner, or operator knowingly:
(1) employs the person at the facility or agency; or
(2) otherwise allows the person to regularly or
frequently stay or work at the facility or agency while residents or
clients are being provided care.
(g) An offense under Subsection (e) or (f) is a Class B
misdemeanor.
SECTION 4. Subchapter F, Chapter 411, Government Code, is
amended by adding Section 411.1146 to read as follows:
Sec. 411.1146. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: DEPARTMENT OF AGING AND DISABILITY SERVICES
LICENSEES. (a) The Department of Aging and Disability Services is
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(1) an applicant for a license issued by the
Department of Aging and Disability Services;
(2) an employee or an applicant for employment at a
facility or agency licensed by the Department of Aging and
Disability Services;
(3) a volunteer or applicant to be a volunteer at a
facility or agency licensed by the Department of Aging and
Disability Services; or
(4) at least 14 years of age, other than a person who
is a resident or client of a licensed facility or licensed agency,
who will regularly or frequently be staying or working at a licensed
facility or working with residents or clients of a licensed agency,
other than a person who is a resident or client of a licensed
facility or licensed agency.
(b) Criminal history record information obtained by the
Department of Aging and Disability Services under Subsection (a)
may not be released or disclosed to any person except:
(1) on court order;
(2) with the consent of the person who is the subject
of the criminal history record information;
(3) for purposes of an administrative hearing held by
the Department of Aging and Disability Services concerning the
person who is the subject of the criminal history record
information; or
(4) as provided by Subsection (c).
(c) The Department of Aging and Disability Services is not
prohibited from releasing criminal history record information
obtained under this section to:
(1) the person who is the subject of the criminal
history record information; or
(2) a facility or agency:
(A) that employs or is considering employing the
person who is the subject of the criminal history record
information; or
(B) at which the person regularly stays or works.
(d) Subject to Section 411.087, the Department of Aging and
Disability Services is entitled to:
(1) obtain through the Federal Bureau of Investigation
criminal history record information maintained or indexed by that
bureau that pertains to a person described by Subsection (a); and
(2) obtain from any other criminal justice agency in
this state criminal history record information maintained by that
criminal justice agency that relates to a person described by
Subsection (a).
(e) The Department of Aging and Disability Services shall
collect and destroy criminal history record information that
relates to a person immediately after providing the information to
a facility or agency making an employment decision or taking a
personnel action relating to the person who is the subject of the
criminal history record information.
SECTION 5. Subsection (d), Section 42.056, Human Resources
Code, is repealed.
SECTION 6. (a) The changes in law made by this Act relating
to background and criminal history checks apply only to background
and criminal history checks performed on or after September 1,
2011.
(b) Not later than September 1, 2010, the executive
commissioner of the Health and Human Services Commission shall
adopt rules as required by Section 42.056, Human Resources Code, as
amended by this Act, and Section 161.076, Human Resources Code, as
added by this Act.
SECTION 7. (a) Subsections (i) and (j), Section 42.056,
Human Resources Code, as amended by this Act, take effect September
1, 2011.
(b) Subsection (e), (f), and (g), Section 161.076, Human
Resources Code, as added by this Act, take effect September 1, 2011.
SECTION 8. Except as otherwise provided by this Act, this
Act takes effect September 1, 2009.
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