81R1869 UM-F
By: Nelson S.B. No. 68
A BILL TO BE ENTITLED
AN ACT
relating to licensing and inspection requirements of the Department
of Family and Protective Services for certain facilities and homes
providing child care; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 42.002, Human Resources Code, is amended
by amending Subdivisions (7), (8), (17), and (19) and adding
Subdivision (20) to read as follows:
(7) "Day-care center" means a child-care facility that
provides care at a location other than the residence of the
director, owner, or operator of the child-care facility for seven
or more [than 12] children under 14 years of age for less than 24
hours a day, but at least two hours a day, three or more days a week.
(8) "Group day-care home" means a child-care facility
that provides care at the residence of the director, owner, or
operator of the child-care facility for 7 to 12 children under 14
years of age for less than 24 hours a day, but at least two hours a
day, three or more days a week.
(17) "Regular care" means care that is provided at
least:
(A) four hours a day, three or more days a week,
for three or more [than nine] consecutive weeks; or
(B) four hours a day for 40 or more days in a
period of 12 months.
(19) "Residential child-care facility" means a
facility licensed or certified by the department that operates [to
provide assessment, care, training, education, custody, treatment,
or supervision for a child who is not related by blood, marriage, or
adoption to the owner or operator of the facility,] for all of the
24-hour day[, whether or not the facility is operated for profit or
charges for the services it offers]. The term includes child-care
institutions, child-placing agencies, foster group homes, foster
homes, agency foster group homes, and agency foster homes.
(20) "Before-school and after-school program" means a
child-care facility that provides care before and after the
customary school day and during school holidays, for at least two
hours a day, three days a week, to children who attend
prekindergarten through grade six.
SECTION 2. The heading to Section 42.041, Human Resources
Code, is amended to read as follows:
Sec. 42.041. REQUIRED LICENSE [OR ACCREDITATION].
SECTION 3. Section 42.041(b), Human Resources Code, is
amended to read as follows:
(b) This section does not apply to:
(1) a state-operated facility;
(2) an agency foster home or agency foster group home;
(3) a facility that is operated in connection with a
shopping center, business, religious organization, or
establishment where children are cared for during short periods
while parents or persons responsible for the children are attending
religious services, shopping, or engaging in other activities,
including retreats or classes for religious instruction, on or near
the premises, that does not advertise as a child-care facility or
day-care center, and that informs parents that it is not licensed by
the state[, including but not limited to retreats or classes for
religious instruction];
(4) a school or class for religious instruction that
does not last longer than two weeks and is conducted by a religious
organization during the summer months;
(5) a youth camp licensed by the Department of State
Health Services;
(6) a facility licensed, operated, certified, or
registered by another state agency;
(7) [subject to Subsection (b-1),] an educational
facility that is accredited by the Texas Education Agency, the
Southern Association of Colleges and Schools, or an accreditation
body that is a member of the Texas Private School Accreditation
Commission and that operates primarily for educational purposes
for prekindergarten [in grades kindergarten] and above, a
before-school and [an] after-school program operated directly by an
accredited educational facility, or a before-school and [an]
after-school program operated by another entity under contract with
the educational facility, if the Texas Education Agency, the
Southern Association of Colleges and Schools, or the other
accreditation body, as applicable, has approved the curriculum
content of the before-school and after-school program operated
under the contract;
(8) an educational facility that operates solely for
educational purposes for prekindergarten [in grades kindergarten]
through at least grade two, that does not provide custodial care for
more than one hour during the hours before or after the customary
school day, and that is a member of an organization that
promulgates, publishes, and requires compliance with health,
safety, fire, and sanitation standards equal to standards required
by state, municipal, and county codes;
(9) a kindergarten or preschool educational program
that is operated as part of a public school or a private school
accredited by the Texas Education Agency, that offers educational
programs through grade six, and that does not provide custodial
care during the hours before or after the customary school day;
(10) a family home, whether registered or listed,
including a living arrangement in a caretaker's home involving one
or more children or a sibling group, excluding children who are
related to the caretaker, in which:
(A) the caretaker:
(i) had a prior relationship with the child
or sibling group or with other family members of the child or
sibling group;
(ii) does not care for more than one
unrelated child or sibling group;
(iii) does not receive compensation or
solicit donations for the care of the child or sibling group; and
(iv) has a written agreement with the
parent to care for the child or sibling group;
(B) the department is the managing conservator of
the child or sibling group and has placed the child or sibling group
in the caretaker's home and the caretaker had a long-standing and
significant relationship with the child or sibling group before the
child or sibling group was placed with the caretaker; or
(C) the child is in the United States on a
time-limited visa and under the sponsorship of the caretaker or of a
sponsoring organization;
(11) [subject to Subsection (b-1),] an educational
facility that is integral to and inseparable from its sponsoring
religious organization or an educational facility both of which do
not provide custodial care for more than two hours maximum per day,
and that offers an educational program [programs for children age
four and above] in one or more of the following: prekindergarten
[preschool, kindergarten] through at least grade three, elementary
grades, or secondary grades;
(12) an emergency shelter facility providing shelter
to minor mothers who are the sole support of their natural children
under Section 32.201, Family Code, unless the facility would
otherwise require a license as a child-care facility under this
section;
(13) a juvenile detention facility certified under
Section 51.12, Family Code, a juvenile correctional facility
certified under Section 51.125, Family Code, a juvenile facility
providing services solely for the Texas Youth Commission, or any
other correctional facility for children operated or regulated by
another state agency or by a political subdivision of the state;
(14) an elementary-age (ages 5-13) recreation program
operated by a municipality provided the governing body of the
municipality annually adopts standards of care by ordinance after a
public hearing for such programs, that such standards are provided
to the parents of each program participant, and that the ordinances
shall include, at a minimum, staffing ratios, minimum staff
qualifications, minimum facility, health, and safety standards,
and mechanisms for monitoring and enforcing the adopted local
standards; and further provided that parents be informed that the
program is not licensed by the state and the program may not be
advertised as a child-care facility;
(15) an annual youth camp held in a municipality with a
population of more than 1.5 million that operates for not more than
three months and that has been operated for at least 10 years by a
nonprofit organization that provides care for the homeless; [or]
(16) a food distribution program that:
(A) serves an evening meal to children two years
of age or older; and
(B) is operated by a nonprofit food bank in a
nonprofit, religious, or educational facility for not more than two
hours a day on regular business days;
(17) a child-care facility that operates for less than
three consecutive weeks and less than 40 days in a period of 12
months;
(18) a program in which a child receives instruction
in a single talent, ability, expertise, or proficiency, for less
than two hours a day, that is not operated as part of an educational
facility, day-care center, or before-school and after-school
program; or
(19) an elementary-age (ages 5-13) recreation program
that:
(A) adopts standards of care, including
standards relating to staff ratios, staff training, health, and
safety;
(B) provides a mechanism for monitoring and
enforcing the standards and receiving complaints from parents of
enrolled children;
(C) does not advertise as a child-care facility
or day-care center and informs parents that it is not licensed by
the state;
(D) does not collect compensation for its
services;
(E) allows a participating child to come and go
at will;
(F) requires the parents of a participating child
to sign a statement allowing the child to come and go from the
program at will;
(G) if the program provides transportation to the
program from a school, allows a participating child to choose
whether to use the transportation or to leave the program and walk
home without adult supervision; and
(H) conducts background checks for all program
employees and volunteers who work with children using information
from the Department of Public Safety.
SECTION 4. Section 42.042(i), Human Resources Code, is
amended to read as follows:
(i) Before adopting minimum standards, the department shall
[present the proposed standards to the State Advisory Committee on
Child-Care Facilities for review and comment, and shall] send a
copy of the proposed standards to each licensee covered by the
proposed standards at least 60 days before the standards take
effect to provide the licensee an opportunity to review and to send
written suggestions to [the committee and] the department.
SECTION 5. Section 42.044(b), Human Resources Code, is
amended to read as follows:
(b) The department shall inspect all licensed or certified
facilities at least once a year and may inspect other facilities or
registered family homes as necessary. The department shall
investigate a listed family home when the department receives a
complaint of abuse or neglect of a child, as defined by Section
261.401 [261.001], Family Code. At least one of the annual visits
must be unannounced and all may be unannounced.
SECTION 6. Subchapter C, Chapter 42, Human Resources Code,
is amended by adding Section 42.04412 to read as follows:
Sec. 42.04412. INTERFERENCE WITH INSPECTION; COURT ORDER.
(a) A person may not interfere with an investigation or inspection
of a facility or family home conducted by the department under this
chapter.
(b) During an investigation or inspection of a facility or
family home under this chapter, the facility or family home shall
cooperate with the department and allow the department to:
(1) access the records of the facility or family home;
(2) access any part of the premises of the facility or
family home; and
(3) interview any child, employee, or other person who
is present at the facility or family home and who may have
information relevant to the investigation or inspection.
(c) If access to the records or premises of the facility or
family home cannot be obtained, a district court in Travis County or
in the county in which the facility or family home is located, for
good cause shown and without prior notice or a hearing, shall issue
an order granting the department access to the records or premises
in order to conduct the inspection, investigation, or interview.
(d) To assist the department in investigating whether a
person is operating a facility or family home without a required
license, certification, registration, or listing, a district court
in Travis County or in the county in which the suspected facility or
family home is located may, for good cause shown and without prior
notice or a hearing, issue an order allowing the department to enter
the suspected facility or family home at a time when the
department's evidence shows that the suspected facility or family
home may be providing child care subject to regulation under this
chapter.
SECTION 7. Section 42.0461(a), Human Resources Code, is
amended to read as follows:
(a) Before the department may issue a license or certificate
[to operate under Subchapter E] for the operation or the expansion
of the capacity of a foster group home or foster family home that is
located in a county with a population of less than 300,000 and that
provides child care for 24 hours a day at a location other than the
actual residence of a child's primary caretaker or of a child care
institution, the applicant for the license, certificate, or
expansion shall, at the applicant's expense:
(1) conduct a public hearing on the application in
accordance with department rules after notifying the department of
the date, time, and location of the hearing; and
(2) publish notice of the application in a newspaper
of general circulation in the community in which the child-care
services are proposed to be provided.
SECTION 8. Section 42.056, Human Resources Code, is amended
by amending Subsections (a), (a-2), (b), (b-1), (c), (f), (g), (h),
(i), and (j) and adding Subsections (a-3) and (a-4) 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 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, submit to the
department for use in conducting background and criminal history
checks the name of:
(1) [the name of] the director, owner, and operator of
the facility, agency, or home;
(2)[, and the name of] each person employed at the
facility, agency, or home;
(3) each prospective employee of the facility, agency,
or home;
(4) each current or prospective foster parent
providing foster care through a child-placing agency;
(5) each prospective adoptive parent seeking to adopt
through a child-placing agency;
(6) each person at least 14 years of age, other than a
client in care, who:
(A) is counted in child-to-caregiver ratios in
accordance with the minimum standards of the department;
(B) will reside in a prospective adoptive home if
the adoption is through a child-placing agency;
(C) has unsupervised access to children in care
at the facility or family home; or
(D) resides in the facility or family home; or
[and]
(7) [(2) the name of] each person 14 years of age or
older, other than a client in care, who 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.
(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), unless the person:
(1) is a child who resides in the facility or
prospective adoptive home;
(2) is only required to have the person's name
submitted based on criteria specified by Subsection (a)(7); or
(3) already has a valid fingerprint-based criminal
history record on file with the department.
(a-3) 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 by the director, owner, or operator
under Subsection (a) only if:
(1) the person 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-4) The rules adopted by the executive commissioner under
Subsections (a-2) and (a-3):
(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 conduct background and criminal
history checks using:
(1) the information provided under Subsection
[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 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-2) or (a-3)
[Subsection (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 this subsection, a
person whose name is 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 (b-1) are completed. A
person may be employed at a facility or family home [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
staff 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 on which the person first:
(A) provides direct care to a child;
(B) has direct access to a child; 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 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 9. Sections 42.072(c) and (e), Human Resources
Code, are amended to read as follows:
(c) The department may not issue a license, listing,
registration, or certification to a person whose license, listing,
registration, or certification is revoked or whose application for
a license, listing, registration, or certification is denied for a
substantive reason under this chapter before[:
[(1)] the fifth anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final [, if the facility is a
residential child-care facility; or
[(2) the second anniversary of the date on which the
revocation takes effect by department or court order or the
decision to deny the application is final, if the facility is not a
residential child-care facility].
(e) A person may continue to operate a facility or family
home during an appeal of a license, listing, or registration denial
or revocation unless the operation of the facility or family home
[revocation or denial is based on a violation which] poses a risk to
the health or safety of children. The department shall by rule
establish the criteria for determining whether the operation of a
facility or family home poses [violations which pose] a risk to the
health or safety of children. The department shall notify the
facility or family home of the criteria the department used to
determine that the operation of the facility or family home
[violation which] poses a risk to health or safety and that the
facility or family home may not operate. A person who has been
notified by the department that the facility or home may not operate
under this section may seek injunctive relief from a district court
in Travis County or in the county in which the facility or home is
located to allow operation during the pendency of an appeal. The
court may grant injunctive relief against the agency's action only
if the court finds that the child-care operation does not pose a
health or safety risk to children. A court granting injunctive
relief under this subsection shall have no other jurisdiction over
an appeal of final agency action unless conferred by Chapter 2001,
Government Code.
SECTION 10. Section 42.073(c), Human Resources Code, is
amended to read as follows:
(c) An order is valid for 30 [10] days after the effective
date of the order [, except that an order relating to a residential
child-care facility is valid for 30 days after the effective date of
the order].
SECTION 11. Section 42.077, Human Resources Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) If the department revokes or suspends a facility's
license or a family home's listing or registration, the department
shall publish notice of this action:
(1) in a newspaper of general circulation in the
county in which the facility or family home is located; or
(2) on the department's Internet website along with
other information regarding child-care services.
(a-1) If notice is published in a newspaper under Subsection
(a), the [The] newspaper shall place the notice in the section in
which advertisements for day-care services are normally published.
SECTION 12. Section 261.401(b), Family Code, is amended to
read as follows:
(b) A state agency that operates, licenses, certifies, [or]
registers, or lists a facility in which children are located or
provides oversight of a program that serves children shall make a
prompt, thorough investigation of a report that a child has been or
may be abused, neglected, or exploited in the facility or program.
The primary purpose of the investigation shall be the protection of
the child.
SECTION 13. The following provisions of the Human Resources
Code are repealed:
(1) Section 42.041(b-1);
(2) Section 42.0431(c); and
(3) Sections 42.056(a-1), (d), and (e).
SECTION 14. (a) The changes in law made by this Act to
Sections 42.056(i) and (j), Human Resources Code, apply only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is governed
by the law in effect when the offense was committed, and the former
law is continued in effect for that purpose. For the purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
(b) The change in law made by this Act to Section 42.072(c),
Human Resources Code, applies only to the issuance of a license,
listing, registration, or certification to a person whose license,
listing, registration, or certification is revoked or whose
application for a license, listing, registration, or certification
is denied for a substantive reason on or after the effective date of
this Act. The issuance of a license, listing, registration, or
certification to a person whose license, listing, registration, or
certification was revoked or whose application for a license,
listing, registration, or certification was denied for a
substantive reason before the effective date of this Act is
governed by the law in effect when the license, listing,
registration, or certification was revoked or the application was
denied for a substantive reason, and the former law is continued in
effect for that purpose.
SECTION 15. This Act takes effect September 1, 2009.