Texas 2009 - 81st Regular

Texas Senate Bill SB67 Compare Versions

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1	1	By: Nelson S.B. No. 67
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the imposition of background and criminal history check
7	7	requirements for operators and employees of certain facilities and
8	8	agencies serving children, the elderly, or persons who are
9	9	disabled; providing criminal penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 42.056, Human Resources Code, is amended
12	12	by amending Subsections (a), (a-1), (a-2), (b), (b-1), (c), (f),
13	13	(g), (h), (i), and (j) and adding Subsection (a-3) to read as
14	14	follows:
15	15	(a) In accordance with rules adopted by the executive
16	16	commissioner [department], the director, owner, or operator of a
17	17	child-care facility, child-placing agency, or family home shall[,
18	18	when applying to operate a child-care facility or when listing or
19	19	registering a family home and at least once during each 24 months
20	20	after receiving a license, listing, registration, or certification
21	21	of approval,] submit to the department for use in conducting
22	22	background and criminal history checks:
23	23	(1) when applying to operate a child-care facility or
24	24	child-placing agency or when listing or registering a family home
25	25	and at least once during each 24 months after receiving a license,
26	26	listing, registration, or certification of approval, the name of:
27	27	(A) the director, owner, and operator of the
28	28	facility, agency, or home;
29	29	(B) [, and the name of] each person employed at
30	30	the facility, agency, or home; and
31	31	(C) [(2) the name of] each person 14 years of age
32	32	or older, other than a client in care, who:
33	33	(i) is counted in child-to-caregiver ratios
34	34	in accordance with the minimum standards of the department;
35	35	(ii) has unsupervised access to children in
36	36	care at the facility or family home;
37	37	(iii) resides in the facility or family
38	38	home; or
39	39	(iv) will regularly or frequently be
40	40	staying or working at a [the] facility, family [or] home, or
41	41	prospective adoptive home, while children are being provided care;
42	42	and
43	43	(2) at the time specified by the rules adopted by the
44	44	executive commissioner, the name of:
45	45	(A) each prospective employee of the child-care
46	46	facility, child-placing agency, or family home;
47	47	(B) each prospective foster parent who will
48	48	provide care through a child-placing agency;
49	49	(C) each prospective adoptive parent seeking to
50	50	adopt through a child-placing agency; and
51	51	(D) each person 14 years of age or older, other
52	52	than a client in care, who will reside in a prospective adoptive
53	53	home if the adoption is through a child-placing agency.
54	54	(a-1) [In accordance with rules adopted by the executive
55	55	commissioner, the director, owner, or operator of a residential
56	56	child-care facility shall submit to the department for use in
57	57	conducting background and criminal history checks the name of each
58	58	prospective employee who will provide direct care or have direct
59	59	access to a child in the residential child-care facility.
60	60	[(a-2)] In accordance with rules adopted by the executive
61	61	commissioner, the director, owner, or operator of a child-care
62	62	facility, other than a family home, or a child-placing agency
63	63	[day-care center] shall submit a complete set of fingerprints of
64	64	each person whose name is required to be submitted [by the director,
65	65	owner, or operator] under Subsection (a) if the person will provide
66	66	direct care or have direct access to a child in the child-care
67	67	facility or child-placing agency, unless the person is:
68	68	(1) a child who resides in the facility or prospective
69	69	adoptive home;
70	70	(2) only required to have the person's name submitted
71	71	based on the criteria specified in Subsection (a)(1)(C)(iv);
72	72	(3) an employee of the facility or agency for whom
73	73	fingerprints have previously been submitted on behalf of the
74	74	facility or agency under this section; or
75	75	(4) precluded from being present at the facility or
76	76	agency based on the information resulting from the state criminal
77	77	history check and the background check completed under Subsection
78	78	(b).
79	79	(a-2) In accordance with rules adopted by the executive
80	80	commissioner, the director, owner, or operator of a family home
81	81	shall submit a complete set of fingerprints of each person whose
82	82	name is required to be submitted under Subsection (a) if:
83	83	(1) the person:
84	84	(A) will provide direct care or have direct
85	85	access to a child in the family home;
86	86	(B) is not precluded from being present at the
87	87	family home based on the information resulting from the state
88	88	criminal history check and the background check completed under
89	89	Subsection (b);
90	90	(C) has not had the person's fingerprints
91	91	previously submitted on behalf of the family home under this
92	92	section; and
93	93	(D) resided in another state during the five
94	94	years preceding the date the person's name was required to be
95	95	submitted under Subsection (a); or
96	96	(2) the director, owner, or operator has reason to
97	97	suspect that the person has a criminal history in another state.
98	98	(a-3) The rules regarding the submission of fingerprints
99	99	adopted by the executive commissioner under Subsections (a-1) and
100	100	(a-2):
101	101	(1) must require that the fingerprints be submitted in
102	102	a form and of a quality acceptable to the Department of Public
103	103	Safety and the Federal Bureau of Investigation for conducting a
104	104	criminal history check; and
105	105	(2) may require that the fingerprints be submitted
106	106	electronically through an applicant fingerprinting service center.
107	107	(b) The department shall initially conduct background and
108	108	criminal history checks using:
109	109	(1) the information provided under Subsection (a)
110	110	[Subsections (a) and (a-1)];
111	111	(2) the information made available by the Department
112	112	of Public Safety under Section 411.114, Government Code, or by the
113	113	Federal Bureau of Investigation or other criminal justice agency
114	114	under Section 411.087, Government Code; and
115	115	(3) the department's records of reported abuse and
116	116	neglect.
117	117	(b-1) In addition to and after the completion of any other
118	118	background or criminal history check conducted under Subsection
119	119	(b), for each person whose fingerprints are [name is] submitted [by
120	120	the director, owner, or operator of a day-care center] under
121	121	Subsection (a-1) or (a-2) [(a)], the department shall conduct a
122	122	state and Federal Bureau of Investigation criminal history check
123	123	by:
124	124	(1) submitting the person's fingerprints [provided
125	125	under Subsection (a-2),] or causing the fingerprints to be
126	126	submitted electronically [as authorized by that subsection,] to the
127	127	Department of Public Safety for the purpose of conducting a state
128	128	and federal criminal history check; and
129	129	(2) using the resulting information made available by
130	130	that department under Section 411.114, Government Code, and by the
131	131	Federal Bureau of Investigation and any other criminal justice
132	132	agency under Section 411.087, Government Code.
133	133	(c) The department by rule shall require a child-care
134	134	facility, child-placing agency, or registered family home to pay to
135	135	the department a fee in an amount not to exceed the administrative
136	136	costs the department incurs in conducting a background and criminal
137	137	history check under this section.
138	138	(f) As part of a background check under this section, the
139	139	department shall provide any relevant information available in the
140	140	department's records regarding a person's previous employment in a
141	141	[residential child-care] facility or family home to the person
142	142	submitting the request.
143	143	(g) Except as otherwise provided by Subsection (e) and this
144	144	subsection, a person whose name is required to be submitted [by the
145	145	director, owner, or operator of a day-care center] under Subsection
146	146	(a) may not provide direct care or have direct access to a child in a
147	147	facility or family home [day-care center] before the person's
148	148	background and criminal history checks under Subsections (b) and,
149	149	as applicable, (b-1) are completed. A person may be employed at a
150	150	facility or family home or [day-care center and] may provide direct
151	151	care or have direct access to a child in the facility or family home
152	152	[day-care center] before the person's criminal history check under
153	153	Subsection (b-1) is completed if:
154	154	(1) the facility or family home is experiencing a
155	155	staffing shortage;
156	156	(2) the state criminal history check and the
157	157	background check using the department's records of reported abuse
158	158	and neglect have been completed under Subsection (b), and the
159	159	resulting information does not preclude the person from being
160	160	present at the facility or family home [day-care center]; and
161	161	(3) [(2)] the person's fingerprints are submitted as
162	162	soon as possible, but not later than the 30th day after the earliest
163	163	of the date the person:
164	164	(A) first provides direct care to a child in the
165	165	facility or family home;
166	166	(B) first has direct access to a child in the
167	167	facility or family home; or
168	168	(C) is hired [day-care center is experiencing a
169	169	staffing shortage that, if the day-care center were not allowed to
170	170	employ the person until completion of the federal criminal history
171	171	check, would result in a staff-to-child ratio that violates the
172	172	department's minimum standards].
173	173	(h) If the results of a criminal history check under
174	174	Subsection (b-1) for a person employed by a facility or family home
175	175	[day-care center] during a staffing shortage as authorized by
176	176	Subsection (g) preclude the person from being present at the
177	177	facility or family home [day-care center], the director, owner, or
178	178	operator of the facility or family home [day-care center] shall
179	179	immediately terminate the person's employment.
180	180	(i) A director, owner, or operator of a facility or family
181	181	home [day-care center] commits an offense if the director, owner,
182	182	or operator knowingly:
183	183	(1) fails to submit to the department information
184	184	about a person as required by this section or [and] department rules
185	185	for use in conducting background and criminal history checks with
186	186	respect to the person; and
187	187	(2) employs the person at the facility or family home
188	188	[day-care center] or otherwise allows the person to regularly or
189	189	frequently stay or work at the facility or family home [day-care
190	190	center] while children are being provided care.
191	191	(j) A director, owner, or operator of a facility or family
192	192	home [day-care center] commits an offense if, after the date the
193	193	director, owner, or operator receives notice from the department
194	194	that, based on the results of a person's background or criminal
195	195	history check, the person is precluded from being present at the
196	196	facility or family home [day-care center], the director, owner, or
197	197	operator knowingly:
198	198	(1) employs the person at the facility or family home
199	199	[day-care center]; or
200	200	(2) otherwise allows the person to regularly or
201	201	frequently stay or work at the facility or family home [day-care
202	202	center] while children are being provided care.
203	203	SECTION 2. Section 43.004, Human Resources Code, is amended
204	204	to read as follows:
205	205	Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be
206	206	eligible for a child-care administrator's license a person must:
207	207	(1) provide information and fingerprints for the
208	208	department's use in conducting a criminal history and background
209	209	check under Subsection (c);
210	210	(2) pass an examination developed and administered by
211	211	the department that demonstrates competence in the field of
212	212	child-care administration;
213	213	(3) have one year of full-time experience in
214	214	management or supervision of child-care personnel and programs; and
215	215	(4) have one of the following educational and
216	216	experience qualifications:
217	217	(A) a master's or doctoral degree in social work
218	218	or other area of study; or
219	219	(B) a bachelor's degree and two years' full-time
220	220	experience in child care or a closely related field.
221	221	(b) To be eligible for a child-placing agency
222	222	administrator's license a person must:
223	223	(1) provide information and fingerprints for the
224	224	department's use in conducting a criminal history and background
225	225	check under Subsection (c);
226	226	(2) pass an examination developed and administered by
227	227	the department that demonstrates competence in the field of placing
228	228	children in residential settings or adoptive homes;
229	229	(3) have one year of full-time experience in
230	230	management or supervision of child-placing personnel and programs;
231	231	and
232	232	(4) have one of the following educational and
233	233	experience qualifications:
234	234	(A) a master's or doctoral degree in social work
235	235	or other area of study; or
236	236	(B) a bachelor's degree and two years' full-time
237	237	experience in the field of placing children in residential settings
238	238	or adoptive homes or a closely related field.
239	239	(c) Before the department issues a license under this
240	240	chapter, the department must conduct a criminal history and
241	241	background check of the applicant using the information:
242	242	(1) provided by an individual under this section;
243	243	(2) [the information] made available by the Department
244	244	of Public Safety under Section 411.114, Government Code, and [or]
245	245	by the Federal Bureau of Investigation or other criminal justice
246	246	agency under Section 411.087, Government Code, after conducting a
247	247	state and federal criminal history check using the fingerprints
248	248	provided by the applicant under this section; and
249	249	(3) [(2) the information] in the central registry of
250	250	reported cases of child abuse or neglect established under Section
251	251	261.002, Family Code.
252	252	SECTION 3. Subchapter D, Chapter 161, Human Resources Code,
253	253	is amended by adding Section 161.076 to read as follows:
254	254	Sec. 161.076. REQUIRED BACKGROUND AND CRIMINAL HISTORY
255	255	CHECKS; CRIMINAL PENALTIES. (a) In accordance with rules adopted
256	256	by the executive commissioner, the director, owner, or operator of
257	257	a facility or agency licensed by the department shall submit to the
258	258	Department of Public Safety for use in conducting background and
259	259	criminal history checks:
260	260	(1) when applying for a license from the department,
261	261	the name of each person who will provide direct care or who has
262	262	direct access to residents or clients of the facility or agency and
263	263	who is:
264	264	(A) a director, owner, or operator of the
265	265	facility or agency;
266	266	(B) a person employed at the facility or by the
267	267	agency; or
268	268	(C) a person 14 years of age or older, other than
269	269	a resident or client in care, who will regularly or frequently be
270	270	staying or working at the facility or agency while residents or
271	271	clients are being provided care; and
272	272	(2) at the time specified by the rules adopted by the
273	273	executive commissioner, the name of each person who will provide
274	274	direct care or who will have direct access to residents or clients
275	275	of the facility or agency and who is a prospective:
276	276	(A) employee of the facility or agency; or
277	277	(B) volunteer at the facility or with the agency.
278	278	(b) In accordance with rules adopted by the executive
279	279	commissioner, the director, owner, or operator of a facility or
280	280	agency licensed by the department shall submit a complete set of
281	281	fingerprints of each employee or prospective employee whose name is
282	282	required to be submitted under Subsection (a) and who will provide
283	283	direct care or have direct access to a resident or client in the
284	284	facility or of the agency, unless the person:
285	285	(1) is a person for whom fingerprints have previously
286	286	been submitted on behalf of the facility or agency under this
287	287	section; or
288	288	(2) is precluded from providing direct care or having
289	289	direct access to a resident or client in the facility or of the
290	290	agency based on the information resulting from a completed state
291	291	criminal history check.
292	292	(c) The director, owner, or operator of a facility or agency
293	293	licensed by the department shall ensure that the facility or agency
294	294	complies with this section and that the facility or agency
295	295	immediately terminates the employment of a person who, as a result
296	296	of a background check completed under this section, is precluded
297	297	from providing direct care or having direct access to a resident or
298	298	client in the facility or of the agency.
299	299	(d) The rules adopted under Subsections (a) and (b):
300	300	(1) must require that the fingerprints be submitted in
301	301	a form and of a quality acceptable to the Department of Public
302	302	Safety and the Federal Bureau of Investigation for conducting a
303	303	criminal history check;
304	304	(2) may require that the fingerprints be submitted
305	305	electronically through an applicant fingerprinting service center;
306	306	and
307	307	(3) shall require a facility or agency licensed by the
308	308	department to pay to the department a fee in an amount not to exceed
309	309	the administrative costs the department incurs in processing
310	310	background and criminal history checks conducted under this
311	311	section.
312	312	(e) A director, owner, or operator of a facility or agency
313	313	licensed by the department commits an offense if the director,
314	314	owner, or operator knowingly:
315	315	(1) fails to submit information about a person as
316	316	required by this section or rules adopted by the executive
317	317	commissioner to conduct background and criminal history checks with
318	318	respect to the person; and
319	319	(2) employs the person at the facility or agency or
320	320	otherwise allows the person to regularly or frequently stay or work
321	321	at the facility or agency while residents or clients are being
322	322	provided care.
323	323	(f) A director, owner, or operator of a facility or agency
324	324	licensed by the department commits an offense if, after the date the
325	325	director, owner, or operator discovers that, based on the results
326	326	of a person's background or criminal history check, the person is
327	327	precluded from providing direct care or having direct access to a
328	328	resident or client in the facility or of the agency, the director,
329	329	owner, or operator knowingly:
330	330	(1) employs the person at the facility or agency; or
331	331	(2) otherwise allows the person to regularly or
332	332	frequently stay or work at the facility or agency while residents or
333	333	clients are being provided care.
334	334	(g) An offense under Subsection (e) or (f) is a Class B
335	335	misdemeanor.
336	336	SECTION 4. Subchapter F, Chapter 411, Government Code, is
337	337	amended by adding Section 411.1146 to read as follows:
338	338	Sec. 411.1146. ACCESS TO CRIMINAL HISTORY RECORD
339	339	INFORMATION: DEPARTMENT OF AGING AND DISABILITY SERVICES
340	340	LICENSEES. (a) The Department of Aging and Disability Services is
341	341	entitled to obtain from the department criminal history record
342	342	information maintained by the department that relates to a person
343	343	who is:
344	344	(1) an applicant for a license issued by the
345	345	Department of Aging and Disability Services;
346	346	(2) an employee or an applicant for employment at a
347	347	facility or agency licensed by the Department of Aging and
348	348	Disability Services;
349	349	(3) a volunteer or applicant to be a volunteer at a
350	350	facility or agency licensed by the Department of Aging and
351	351	Disability Services; or
352	352	(4) at least 14 years of age, other than a person who
353	353	is a resident or client of a licensed facility or licensed agency,
354	354	who will regularly or frequently be staying or working at a licensed
355	355	facility or working with residents or clients of a licensed agency,
356	356	other than a person who is a resident or client of a licensed
357	357	facility or licensed agency.
358	358	(b) Criminal history record information obtained by the
359	359	Department of Aging and Disability Services under Subsection (a)
360	360	may not be released or disclosed to any person except:
361	361	(1) on court order;
362	362	(2) with the consent of the person who is the subject
363	363	of the criminal history record information;
364	364	(3) for purposes of an administrative hearing held by
365	365	the Department of Aging and Disability Services concerning the
366	366	person who is the subject of the criminal history record
367	367	information; or
368	368	(4) as provided by Subsection (c).
369	369	(c) The Department of Aging and Disability Services is not
370	370	prohibited from releasing criminal history record information
371	371	obtained under this section to:
372	372	(1) the person who is the subject of the criminal
373	373	history record information; or
374	374	(2) a facility or agency:
375	375	(A) that employs or is considering employing the
376	376	person who is the subject of the criminal history record
377	377	information; or
378	378	(B) at which the person regularly stays or works.
379	379	(d) Subject to Section 411.087, the Department of Aging and
380	380	Disability Services is entitled to:
381	381	(1) obtain through the Federal Bureau of Investigation
382	382	criminal history record information maintained or indexed by that
383	383	bureau that pertains to a person described by Subsection (a); and
384	384	(2) obtain from any other criminal justice agency in
385	385	this state criminal history record information maintained by that
386	386	criminal justice agency that relates to a person described by
387	387	Subsection (a).
388	388	(e) The Department of Aging and Disability Services shall
389	389	collect and destroy criminal history record information that
390	390	relates to a person immediately after providing the information to
391	391	a facility or agency making an employment decision or taking a
392	392	personnel action relating to the person who is the subject of the
393	393	criminal history record information.
394	394	SECTION 5. Subsection (d), Section 42.056, Human Resources
395	395	Code, is repealed.
396	396	SECTION 6. (a) The changes in law made by this Act relating
397	397	to background and criminal history checks apply only to background
398	398	and criminal history checks performed on or after September 1,
399	399	2011.
400	400	(b) Not later than September 1, 2010, the executive
401	401	commissioner of the Health and Human Services Commission shall
402	402	adopt rules as required by Section 42.056, Human Resources Code, as
403	403	amended by this Act, and Section 161.076, Human Resources Code, as
404	404	added by this Act.
405	405	SECTION 7. (a) Subsections (i) and (j), Section 42.056,
406	406	Human Resources Code, as amended by this Act, take effect September
407	407	1, 2011.
408	408	(b) Subsections (e), (f), and (g), Section 161.076, Human
409	409	Resources Code, as added by this Act, take effect September 1, 2011.
410	410	SECTION 8. This Act does not make an appropriation. A
411	411	provision in this Act that creates a new governmental program,
412	412	creates a new entitlement, or imposes a new duty on a governmental
413	413	entity is not mandatory during a fiscal period for which the
414	414	legislature has not made a specific appropriation to implement the
415	415	provision.
416	416	SECTION 9. Except as otherwise provided by this Act, this
417	417	Act takes effect September 1, 2009.