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
Subdivisions (20) and (21) 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 seven or more [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 or after-school program" means a
child-care facility that provides care before or after, or 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.
(21) "School-age program" means a child-care facility
that provides supervision, along with recreation or skills
instruction or training, and may provide transportation, before or
after the customary school day, for at least two hours a day, three
days a week, to children attending prekindergarten through grade
six. A school-age program may also operate during school holidays,
the summer period, or any other time when school is not in session.
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. Subsection (b), Section 42.041, 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 or [an] after-school program operated directly by an
accredited educational facility, or a before-school or [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 or 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;
(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:
(A) in which a child receives direct instruction
in a single skill, talent, ability, expertise, or proficiency;
(B) that does not provide services or offerings
that are not directly related to the single talent, ability,
expertise, or proficiency;
(C) that does not advertise or otherwise
represent that the program is a child-care facility, day-care
center, or licensed before-school or after-school program or that
the program offers child-care services;
(D) that informs the parent or guardian:
(i) that the program is not licensed by the
state; and
(ii) about the physical risks a child may
face while participating in the program; and
(E) that conducts background checks for all
program employees and volunteers who work with children in the
program using information that is obtained from the Department of
Public Safety;
(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 or otherwise represent
the program as a child-care facility, day-care center, or licensed
before-school or after-school program or that the program offers
child-care services;
(D) informs parents that the program is not
licensed by the state;
(E) is organized as a nonprofit organization or
is located on the premises of a participant's residence;
(F) does not accept any remuneration other than a
nominal annual membership fee;
(G) does not solicit donations as compensation or
payment for any good or service provided as part of the program; and
(H) conducts background checks for all program
employees and volunteers who work with children in the program
using information that is obtained from the Department of Public
Safety;
(20) 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 the caretaker:
(A) had a prior relationship with the child or
sibling group or other family members of the child or sibling group;
(B) does not care for more than one unrelated
child or sibling group;
(C) does not receive compensation or solicit
donations for the care of the child or sibling group; and
(D) has a written agreement with the parent to
care for the child or sibling group;
(21) 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 department is the managing conservator of
the child or sibling group;
(B) the department placed the child or sibling
group in the caretaker's home; and
(C) 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
(22) 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 the child is in
the United States on a time-limited visa under the sponsorship of
the caretaker or of a sponsoring organization.
SECTION 4. Section 42.042, Human Resources Code, is amended
by amending Subsections (g) and (i) and adding Subsection (g-1) to
read as follows:
(g) In promulgating minimum standards the department may
recognize and treat differently the types of services provided by
the following:
(1) registered family homes;
(2) child-care facilities, including child-care
institutions, foster group homes, foster homes, group day-care
homes, and day-care centers;
(3) child-placing agencies;
(4) agency foster homes; [and]
(5) agency foster group homes;
(6) before-school or after-school programs; and
(7) school-age programs.
(g-1) In determining and enforcing minimum standards for a
school-age program, the department shall consider commonly
accepted training methods for the development of a skill, talent,
ability, expertise, or proficiency that are implemented with the
consent of the parent or guardian of the participant and that are
fundamental to the core purpose of the program.
(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. Subsection (b), Section 42.044, 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. Subsection (a), Section 42.0461, 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. Subsections (c) and (e), Section 42.072, 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 executive commissioner
[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 9. Subsection (c), Section 42.073, 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 10. Subsection (a), Section 42.074, Human Resources
Code, is amended to read as follows:
(a) The department may file suit in a district court in
Travis County or in the county in which a facility or family home is
located for assessment and recovery of a civil penalty under
Section 42.075, for injunctive relief, including a temporary
restraining order, or for both a civil penalty and injunctive
relief when [When] it appears that a person:
(1) has violated, is violating, or is threatening to
violate the licensing, certification, listing, or registration
requirements of this chapter or the department's licensing,
certification, listing, or registration rules and standards; or
(2) knowingly fails to meet or maintain an exemption
authorized under Section 42.041 and engages in activities that
require a license or registration[, the department may file a suit
in a district court in Travis County or in the county where the
facility or family home is located for assessment and recovery of
civil penalties under Section 42.075, for injunctive relief,
including a temporary restraining order, or for both injunctive
relief and civil penalties].
SECTION 11. Subsection (a), Section 42.075, Human Resources
Code, is amended to read as follows:
(a) A person is subject to a civil penalty of not less than
$50 nor more than $100 for each day of violation and for each act of
violation if the person:
(1) threatens serious harm to a child in a facility or
family home by violating a provision of this chapter or a department
rule or standard;
(2) violates a provision of this chapter or a
department rule or standard three or more times within a 12-month
period; [or]
(3) places a public advertisement for an unlicensed
facility or an unlisted or unregistered family home;
(4) knowingly fails to meet or maintain any criterion
of an exemption authorized under Section 42.041 and engages in
activities that require a license or registration; or
(5) fails to inform the department of a change in
status and the person knows the change in status requires the person
to be licensed or registered under this chapter.
SECTION 12. 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 13. Subsection (b), Section 261.401, 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 14. The following provisions of the Human Resources
Code are repealed:
(1) Subsection (b-1), Section 42.041; and
(2) Subsection (c), Section 42.0431.
SECTION 15. (a) The change in law made by this Act to
Subsection (c), Section 42.072, 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.
(b) Sections 42.074 and 42.075, Human Resources Code, as
amended by this Act, apply only to conduct that occurs on or after
the effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 16. (a) The change in law made by this Act by which
a school-age program is required to be licensed under Chapter 42,
Human Resources Code, as amended by this Act, takes effect on the
later of:
(1) the date on which the Department of Family and
Protective Services adopts minimum standards for school-age
programs in accordance with Section 42.042, Human Resources Code,
as amended by this Act; or
(2) September 1, 2010.
(b) The change in law made by this Act by which a
before-school or after-school program is required to be licensed
under Chapter 42, Human Resources Code, as amended by this Act,
takes effect on the later of:
(1) the date on which the Department of Family and
Protective Services adopts minimum standards for before-school or
after-school programs in accordance with Section 42.042, Human
Resources Code, as amended by this Act; or
(2) September 1, 2010.
(c) The Department of Family and Protective Services shall
adopt minimum standards as provided by Section 42.042, Human
Resources Code, as amended by this Act, as soon as practicable after
the effective date of this Act, but not later than September 1,
2010.
SECTION 17. Except as otherwise provided by this Act, this
Act takes effect September 1, 2009.