Texas 2009 - 81st Regular

Texas Senate Bill SB68 Compare Versions

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1	1	S.B. No. 68
2	2
3	3
4	4	AN ACT
5	5	relating to licensing and inspection requirements of the Department
6	6	of Family and Protective Services for certain facilities and homes
7	7	providing child care; providing penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 40.006, Human Resources Code, is amended
10	10	to read as follows:
11	11	Sec. 40.006. APPLICATION OF OTHER LAWS. (a) The
12	12	department is subject to Chapters 551, 2001, and 2002, Government
13	13	Code.
14	14	(b) The department is not required to comply with Chapter
15	15	53, Occupations Code, in issuing a license or conducting a
16	16	background check under Chapter 42 or 43.
17	17	SECTION 2. Section 42.002, Human Resources Code, is amended
18	18	by amending Subdivisions (4), (7), (8), (17), and (19) and adding
19	19	Subdivisions (20) and (21) to read as follows:
20	20	(4) "General residential operation [Child-care
21	21	institution]" means a child-care facility that provides care for
22	22	more than 12 children for 24 hours a day, including facilities known
23	23	as children's homes, halfway houses, residential treatment
24	24	centers, emergency shelters, and therapeutic camps.
25	25	(7) "Day-care center" means a child-care facility that
26	26	provides care at a location other than the residence of the
27	27	director, owner, or operator of the child-care facility for seven
28	28	or more [than 12] children under 14 years of age for less than 24
29	29	hours a day, but at least two hours a day, three or more days a week.
30	30	(8) "Group day-care home" means a child-care facility
31	31	that provides care at the residence of the director, owner, or
32	32	operator of the child-care facility for seven or more [7 to 12]
33	33	children under 14 years of age for less than 24 hours a day, but at
34	34	least two hours a day, three or more days a week.
35	35	(17) "Regular care" means care that is provided at
36	36	least:
37	37	(A) four hours a day, three or more days a week,
38	38	for three or more [than nine] consecutive weeks; or
39	39	(B) four hours a day for 40 or more days in a
40	40	period of 12 months.
41	41	(19) "Residential child-care facility" means a
42	42	facility licensed or certified by the department that operates [to
43	43	provide assessment, care, training, education, custody, treatment,
44	44	or supervision for a child who is not related by blood, marriage, or
45	45	adoption to the owner or operator of the facility,] for all of the
46	46	24-hour day[, whether or not the facility is operated for profit or
47	47	charges for the services it offers]. The term includes general
48	48	residential operations [child-care institutions], child-placing
49	49	agencies, foster group homes, foster homes, agency foster group
50	50	homes, and agency foster homes.
51	51	(20) "Before-school or after-school program" means a
52	52	child-care facility that provides care before or after, or before
53	53	and after, the customary school day and during school holidays, for
54	54	at least two hours a day, three days a week, to children who attend
55	55	prekindergarten through grade six.
56	56	(21) "School-age program" means a child-care facility
57	57	that provides supervision, along with recreation or skills
58	58	instruction or training, and may provide transportation, before or
59	59	after the customary school day, for at least two hours a day, three
60	60	days a week, to children attending prekindergarten through grade
61	61	six. A school-age program may also operate during school holidays,
62	62	the summer period, or any other time when school is not in session.
63	63	SECTION 3. Subchapter A, Chapter 42, Human Resources Code,
64	64	is amended by adding Section 42.003 to read as follows:
65	65	Sec. 42.003. REFERENCE TO CHILD-CARE INSTITUTION. A
66	66	reference in law to a "child-care institution" means a general
67	67	residential operation.
68	68	SECTION 4. The heading to Section 42.041, Human Resources
69	69	Code, is amended to read as follows:
70	70	Sec. 42.041. REQUIRED LICENSE [OR ACCREDITATION].
71	71	SECTION 5. Subsections (b) and (c), Section 42.041, Human
72	72	Resources Code, are amended to read as follows:
73	73	(b) This section does not apply to:
74	74	(1) a state-operated facility;
75	75	(2) an agency foster home or agency foster group home;
76	76	(3) a facility that is operated in connection with a
77	77	shopping center, business, religious organization, or
78	78	establishment where children are cared for during short periods
79	79	while parents or persons responsible for the children are attending
80	80	religious services, shopping, or engaging in other activities,
81	81	including retreats or classes for religious instruction, on or near
82	82	the premises, that does not advertise as a child-care facility or
83	83	day-care center, and that informs parents that it is not licensed by
84	84	the state[, including but not limited to retreats or classes for
85	85	religious instruction];
86	86	(4) a school or class for religious instruction that
87	87	does not last longer than two weeks and is conducted by a religious
88	88	organization during the summer months;
89	89	(5) a youth camp licensed by the Department of State
90	90	Health Services;
91	91	(6) a facility licensed, operated, certified, or
92	92	registered by another state agency;
93	93	(7) [subject to Subsection (b-1),] an educational
94	94	facility that is accredited by the Texas Education Agency, the
95	95	Southern Association of Colleges and Schools, or an accreditation
96	96	body that is a member of the Texas Private School Accreditation
97	97	Commission and that operates primarily for educational purposes
98	98	for prekindergarten [in grades kindergarten] and above, a
99	99	before-school or [an] after-school program operated directly by an
100	100	accredited educational facility, or a before-school or [an]
101	101	after-school program operated by another entity under contract with
102	102	the educational facility, if the Texas Education Agency, the
103	103	Southern Association of Colleges and Schools, or the other
104	104	accreditation body, as applicable, has approved the curriculum
105	105	content of the before-school or after-school program operated under
106	106	the contract;
107	107	(8) an educational facility that operates solely for
108	108	educational purposes for prekindergarten [in grades kindergarten]
109	109	through at least grade two, that does not provide custodial care for
110	110	more than one hour during the hours before or after the customary
111	111	school day, and that is a member of an organization that
112	112	promulgates, publishes, and requires compliance with health,
113	113	safety, fire, and sanitation standards equal to standards required
114	114	by state, municipal, and county codes;
115	115	(9) a kindergarten or preschool educational program
116	116	that is operated as part of a public school or a private school
117	117	accredited by the Texas Education Agency, that offers educational
118	118	programs through grade six, and that does not provide custodial
119	119	care during the hours before or after the customary school day;
120	120	(10) a family home, whether registered or listed;
121	121	(11) [subject to Subsection (b-1),] an educational
122	122	facility that is integral to and inseparable from its sponsoring
123	123	religious organization or an educational facility both of which do
124	124	not provide custodial care for more than two hours maximum per day,
125	125	and that offers an educational program [programs for children age
126	126	four and above] in one or more of the following: prekindergarten
127	127	[preschool, kindergarten] through at least grade three, elementary
128	128	grades, or secondary grades;
129	129	(12) an emergency shelter facility providing shelter
130	130	to minor mothers who are the sole support of their natural children
131	131	under Section 32.201, Family Code, unless the facility would
132	132	otherwise require a license as a child-care facility under this
133	133	section;
134	134	(13) a juvenile detention facility certified under
135	135	Section 51.12, Family Code, a juvenile correctional facility
136	136	certified under Section 51.125, Family Code, a juvenile facility
137	137	providing services solely for the Texas Youth Commission, or any
138	138	other correctional facility for children operated or regulated by
139	139	another state agency or by a political subdivision of the state;
140	140	(14) an elementary-age (ages 5-13) recreation program
141	141	operated by a municipality provided the governing body of the
142	142	municipality annually adopts standards of care by ordinance after a
143	143	public hearing for such programs, that such standards are provided
144	144	to the parents of each program participant, and that the ordinances
145	145	shall include, at a minimum, staffing ratios, minimum staff
146	146	qualifications, minimum facility, health, and safety standards,
147	147	and mechanisms for monitoring and enforcing the adopted local
148	148	standards; and further provided that parents be informed that the
149	149	program is not licensed by the state and the program may not be
150	150	advertised as a child-care facility;
151	151	(15) an annual youth camp held in a municipality with a
152	152	population of more than 1.5 million that operates for not more than
153	153	three months and that has been operated for at least 10 years by a
154	154	nonprofit organization that provides care for the homeless; [or]
155	155	(16) a food distribution program that:
156	156	(A) serves an evening meal to children two years
157	157	of age or older; and
158	158	(B) is operated by a nonprofit food bank in a
159	159	nonprofit, religious, or educational facility for not more than two
160	160	hours a day on regular business days;
161	161	(17) a child-care facility that operates for less than
162	162	three consecutive weeks and less than 40 days in a period of 12
163	163	months;
164	164	(18) a program:
165	165	(A) in which a child receives direct instruction
166	166	in a single skill, talent, ability, expertise, or proficiency;
167	167	(B) that does not provide services or offerings
168	168	that are not directly related to the single talent, ability,
169	169	expertise, or proficiency;
170	170	(C) that does not advertise or otherwise
171	171	represent that the program is a child-care facility, day-care
172	172	center, or licensed before-school or after-school program or that
173	173	the program offers child-care services;
174	174	(D) that informs the parent or guardian:
175	175	(i) that the program is not licensed by the
176	176	state; and
177	177	(ii) about the physical risks a child may
178	178	face while participating in the program; and
179	179	(E) that conducts background checks for all
180	180	program employees and volunteers who work with children in the
181	181	program using information that is obtained from the Department of
182	182	Public Safety;
183	183	(19) an elementary-age (ages 5-13) recreation program
184	184	that:
185	185	(A) adopts standards of care, including
186	186	standards relating to staff ratios, staff training, health, and
187	187	safety;
188	188	(B) provides a mechanism for monitoring and
189	189	enforcing the standards and receiving complaints from parents of
190	190	enrolled children;
191	191	(C) does not advertise as or otherwise represent
192	192	the program as a child-care facility, day-care center, or licensed
193	193	before-school or after-school program or that the program offers
194	194	child-care services;
195	195	(D) informs parents that the program is not
196	196	licensed by the state;
197	197	(E) is organized as a nonprofit organization or
198	198	is located on the premises of a participant's residence;
199	199	(F) does not accept any remuneration other than a
200	200	nominal annual membership fee;
201	201	(G) does not solicit donations as compensation or
202	202	payment for any good or service provided as part of the program; and
203	203	(H) conducts background checks for all program
204	204	employees and volunteers who work with children in the program
205	205	using information that is obtained from the Department of Public
206	206	Safety;
207	207	(20) a living arrangement in a caretaker's home
208	208	involving one or more children or a sibling group, excluding
209	209	children who are related to the caretaker, in which the caretaker:
210	210	(A) had a prior relationship with the child or
211	211	sibling group or other family members of the child or sibling group;
212	212	(B) does not care for more than one unrelated
213	213	child or sibling group;
214	214	(C) does not receive compensation or solicit
215	215	donations for the care of the child or sibling group; and
216	216	(D) has a written agreement with the parent to
217	217	care for the child or sibling group;
218	218	(21) a living arrangement in a caretaker's home
219	219	involving one or more children or a sibling group, excluding
220	220	children who are related to the caretaker, in which:
221	221	(A) the department is the managing conservator of
222	222	the child or sibling group;
223	223	(B) the department placed the child or sibling
224	224	group in the caretaker's home; and
225	225	(C) the caretaker had a long-standing and
226	226	significant relationship with the child or sibling group before the
227	227	child or sibling group was placed with the caretaker; or
228	228	(22) a living arrangement in a caretaker's home
229	229	involving one or more children or a sibling group, excluding
230	230	children who are related to the caretaker, in which the child is in
231	231	the United States on a time-limited visa under the sponsorship of
232	232	the caretaker or of a sponsoring organization.
233	233	(c) A single license that lists addresses and the
234	234	appropriate facilities may be issued to a general residential
235	235	operation [child-care institution] that operates noncontiguous
236	236	facilities that are across the street from, in the same city block
237	237	as, or on the same property as one another and that are demonstrably
238	238	a single operation as indicated by patterns of staffing, finance,
239	239	administrative supervision, and programs.
240	240	SECTION 6. Section 42.042, Human Resources Code, is amended
241	241	by amending Subsections (f), (g), and (i) and adding Subsections
242	242	(g-1) and (g-2) to read as follows:
243	243	(f) In promulgating minimum standards for the provision of
244	244	child-care services, the department shall recognize the various
245	245	categories of services, including services for specialized care,
246	246	the various categories of children and their particular needs, and
247	247	the differences in the organization and operation of child-care
248	248	facilities and general residential operations [institutions].
249	249	Standards for general residential operations [child-care
250	250	institutions] must require an intake study before a child is placed
251	251	in an operation [institution]. The intake study may be conducted at
252	252	a community mental health and mental retardation center.
253	253	(g) In promulgating minimum standards the department may
254	254	recognize and treat differently the types of services provided by
255	255	the following:
256	256	(1) registered family homes;
257	257	(2) child-care facilities, including general
258	258	residential operations [child-care institutions], foster group
259	259	homes, foster homes, group day-care homes, and day-care centers;
260	260	(3) child-placing agencies;
261	261	(4) agency foster homes; [and]
262	262	(5) agency foster group homes;
263	263	(6) before-school or after-school programs; and
264	264	(7) school-age programs.
265	265	(g-1) In determining and enforcing minimum standards for a
266	266	school-age program, the department shall consider commonly
267	267	accepted training methods for the development of a skill, talent,
268	268	ability, expertise, or proficiency that are implemented with the
269	269	consent of the parent or guardian of the participant and that are
270	270	fundamental to the core purpose of the program.
271	271	(g-2) The executive commissioner shall adopt specific rules
272	272	and minimum standards, including standards relating to background
273	273	check information, for a child-care facility that is located in a
274	274	temporary shelter, including a family violence shelter or homeless
275	275	shelter, in which an adult, accompanied by a child related to the
276	276	adult or a child for whom the adult is the managing conservator, may
277	277	temporarily reside and that provides care for less than 24 hours a
278	278	day for a child accompanying an adult temporarily residing in the
279	279	shelter while the adult is not present at the shelter. In adopting
280	280	the rules and minimum standards under this subsection, the
281	281	executive commissioner shall:
282	282	(1) consider the special circumstances and needs of
283	283	families that seek temporary shelter;
284	284	(2) consider the role of the shelter in assisting and
285	285	supporting families in crisis; and
286	286	(3) distinguish between a child-care facility that
287	287	provides care only for children temporarily residing in the shelter
288	288	and a child-care facility that also provides care for children who
289	289	are not temporarily residing in the shelter.
290	290	(i) Before adopting minimum standards, the department
291	291	shall:
292	292	(1) convene a temporary work group to advise the
293	293	department regarding the proposed standards, composed of at least
294	294	six members who represent the diverse geographic regions of this
295	295	state, including:
296	296	(A) a department official designated by the
297	297	commissioner to facilitate the work group's activities;
298	298	(B) a person with demonstrated expertise or
299	299	knowledge regarding the different types and classifications of
300	300	child-care facilities, homes, agencies, or programs that will be
301	301	covered by the proposed standards;
302	302	(C) a parent with experience related to one of
303	303	the different types or classifications of child-care facilities,
304	304	homes, agencies, or programs that will be covered by the proposed
305	305	standards; and
306	306	(D) a representative of a nonprofit entity
307	307	licensed under this chapter; and
308	308	(2) [present the proposed standards to the State
309	309	Advisory Committee on Child-Care Facilities for review and comment,
310	310	and shall] send a copy of the proposed standards to each licensee
311	311	covered by the proposed standards at least 60 days before the
312	312	standards take effect to provide the licensee an opportunity to
313	313	review and to send written suggestions to [the committee and] the
314	314	department.
315	315	SECTION 7. Section 42.0422, Human Resources Code, is
316	316	amended to read as follows:
317	317	Sec. 42.0422. RESTRAINT AND SECLUSION. A person providing
318	318	services to a resident of a general residential operation
319	319	[child-care institution], including a state-operated facility that
320	320	is a residential treatment center or a general residential
321	321	operation [child-care institution] serving children with mental
322	322	retardation, shall comply with Chapter 322, Health and Safety Code,
323	323	and the rules adopted under that chapter.
324	324	SECTION 8. Subsection (b), Section 42.044, Human Resources
325	325	Code, is amended to read as follows:
326	326	(b) The department shall inspect all licensed or certified
327	327	facilities at least once a year and may inspect other facilities or
328	328	registered family homes as necessary. The department shall
329	329	investigate a listed family home when the department receives a
330	330	complaint of abuse or neglect of a child, as defined by Section
331	331	261.401 [261.001], Family Code. At least one of the annual visits
332	332	must be unannounced and all may be unannounced.
333	333	SECTION 9. Subchapter C, Chapter 42, Human Resources Code,
334	334	is amended by adding Section 42.04412 to read as follows:
335	335	Sec. 42.04412. INTERFERENCE WITH INSPECTION; COURT ORDER.
336	336	(a) A person may not interfere with an investigation or inspection
337	337	of a facility or family home conducted by the department under this
338	338	chapter.
339	339	(b) During an investigation or inspection of a facility or
340	340	family home under this chapter, the facility or family home shall
341	341	cooperate with the department and allow the department to:
342	342	(1) access the records of the facility or family home;
343	343	(2) access any part of the premises of the facility or
344	344	family home; and
345	345	(3) interview any child, employee, or other person who
346	346	is present at the facility or family home and who may have
347	347	information relevant to the investigation or inspection.
348	348	(c) If access to the records or premises of the facility or
349	349	family home cannot be obtained, a district court in Travis County or
350	350	in the county in which the facility or family home is located, for
351	351	good cause shown and without prior notice or a hearing, shall issue
352	352	an order granting the department access to the records or premises
353	353	in order to conduct the inspection, investigation, or interview.
354	354	(d) To assist the department in investigating whether a
355	355	person is operating a facility or family home without a required
356	356	license, certification, registration, or listing, a district court
357	357	in Travis County or in the county in which the suspected facility or
358	358	family home is located may, for good cause shown and without prior
359	359	notice or a hearing, issue an order allowing the department to enter
360	360	the suspected facility or family home at a time when the
361	361	department's evidence shows that the suspected facility or family
362	362	home may be providing child care subject to regulation under this
363	363	chapter.
364	364	SECTION 10. Subsection (a), Section 42.0461, Human
365	365	Resources Code, is amended to read as follows:
366	366	(a) Before the department may issue a license or certificate
367	367	[to operate under Subchapter E] for the operation or the expansion
368	368	of the capacity of a foster group home or foster family home that is
369	369	located in a county with a population of less than 300,000 and that
370	370	provides child care for 24 hours a day at a location other than the
371	371	actual residence of a child's primary caretaker or of a general
372	372	residential operation [child care institution], the applicant for
373	373	the license, certificate, or expansion shall, at the applicant's
374	374	expense:
375	375	(1) conduct a public hearing on the application in
376	376	accordance with department rules after notifying the department of
377	377	the date, time, and location of the hearing; and
378	378	(2) publish notice of the application in a newspaper
379	379	of general circulation in the community in which the child-care
380	380	services are proposed to be provided.
381	381	SECTION 11. Section 42.056, Human Resources Code, is
382	382	amended by amending Subsections (a), (a-2), (b), (b-1), (c), (f),
383	383	(g), (h), (i), and (j) and adding Subsections (a-3), (a-4), and
384	384	(a-5) to read as follows:
385	385	(a) In accordance with rules adopted by the executive
386	386	commissioner [department], the director, owner, or operator of a
387	387	child-care facility, child-placing agency, or family home shall,
388	388	when applying to operate a child-care facility or child-placing
389	389	agency or when listing or registering a family home and at least
390	390	once during each 24 months after receiving a license, listing,
391	391	registration, or certification of approval, submit to the
392	392	department for use in conducting background and criminal history
393	393	checks the name of:
394	394	(1) [the name of] the director, owner, and operator of
395	395	the facility, agency, or home;
396	396	(2) [, and the name of] each person employed at the
397	397	facility, agency, or home;
398	398	(3) each prospective employee of the facility, agency,
399	399	or home;
400	400	(4) each current or prospective foster parent
401	401	providing foster care through a child-placing agency;
402	402	(5) each prospective adoptive parent seeking to adopt
403	403	through a child-placing agency;
404	404	(6) each person at least 14 years of age, other than a
405	405	client in care, who:
406	406	(A) is counted in child-to-caregiver ratios in
407	407	accordance with the minimum standards of the department;
408	408	(B) will reside in a prospective adoptive home if
409	409	the adoption is through a child-placing agency;
410	410	(C) has unsupervised access to children in care
411	411	at the facility or family home; or
412	412	(D) resides in the facility or family home; or
413	413	[and]
414	414	(7) [(2) the name of] each person 14 years of age or
415	415	older, other than a client in care, who will regularly or frequently
416	416	be staying or working at a [the] facility, family [or] home, or
417	417	prospective adoptive home, while children are being provided care.
418	418	(a-2) In accordance with rules adopted by the executive
419	419	commissioner, the director, owner, or operator of a day-care center
420	420	shall submit a complete set of fingerprints of each person whose
421	421	name is required to be submitted by the director, owner, or operator
422	422	under Subsection (a), unless the person is only required to have the
423	423	person's name submitted based on criteria specified by Subsection
424	424	(a)(7).
425	425	(a-3) In accordance with rules adopted by the executive
426	426	commissioner, the director, owner, or operator of a child-placing
427	427	agency, foster home, or foster group home must, before a child for
428	428	whom the department is the managing conservator is placed with the
429	429	agency or in the home, submit a complete set of fingerprints of the
430	430	following persons:
431	431	(1) a person who applies to be a foster or adoptive
432	432	parent, including a person who has previously adopted a child
433	433	unless the person is also verified as a foster or adoptive home; and
434	434	(2) a person who is 18 years of age or older and who
435	435	lives in the home of a person who applies to be a foster or adoptive
436	436	parent.
437	437	(a-4) In accordance with rules adopted by the executive
438	438	commissioner, the director, owner, or operator of a child-care
439	439	facility or family home shall submit a complete set of fingerprints
440	440	of each person whose name is required to be submitted by the
441	441	director, owner, or operator under Subsection (a) if:
442	442	(1) the person resided in another state during the
443	443	five years preceding the date the person's name was required to be
444	444	submitted under Subsection (a); or
445	445	(2) the director, owner, or operator has reason to
446	446	suspect that the person has a criminal history in another state.
447	447	(a-5) The rules adopted by the executive commissioner under
448	448	Subsections (a-2), (a-3), and (a-4):
449	449	(1) must require that the fingerprints be submitted in
450	450	a form and of a quality acceptable to the Department of Public
451	451	Safety and the Federal Bureau of Investigation for conducting a
452	452	criminal history check; [and]
453	453	(2) may require that the fingerprints be submitted
454	454	electronically through an applicant fingerprinting service center;
455	455	and
456	456	(3) may allow the department to waive the submission
457	457	of fingerprints required by this section if:
458	458	(A) the person for whom the submission is
459	459	required has:
460	460	(i) a fingerprint-based criminal history
461	461	record check on file with the department; or
462	462	(ii) a fingerprint-based criminal history
463	463	clearinghouse record, as provided by Section 411.0845, Government
464	464	Code, that is accessible to the department through the Department
465	465	of Public Safety; and
466	466	(B) the date on which the current submission of
467	467	fingerprints is required occurs before the second anniversary of a
468	468	previous name-based criminal history check of the person.
469	469	(b) The department shall conduct background and criminal
470	470	history checks using:
471	471	(1) the information provided under Subsection
472	472	[Subsections] (a) [and (a-1)];
473	473	(2) the information made available by the Department
474	474	of Public Safety under Section 411.114, Government Code, or by the
475	475	Federal Bureau of Investigation or other criminal justice agency
476	476	under Section 411.087, Government Code; and
477	477	(3) the department's records of reported abuse and
478	478	neglect.
479	479	(b-1) In addition to any other background or criminal
480	480	history check conducted under Subsection (b), for each person whose
481	481	fingerprints are [name is] submitted [by the director, owner, or
482	482	operator of a day-care center] under Subsection (a-2), (a-3), or
483	483	(a-4) [Subsection (a)], the department shall conduct a state and
484	484	Federal Bureau of Investigation criminal history check by:
485	485	(1) submitting the person's fingerprints [provided
486	486	under Subsection (a-2)], or causing the fingerprints to be
487	487	submitted electronically [as authorized by that subsection], to the
488	488	Department of Public Safety for the purpose of conducting a state
489	489	and federal criminal history check; and
490	490	(2) using the resulting information made available by
491	491	that department under Section 411.114, Government Code, and by the
492	492	Federal Bureau of Investigation and any other criminal justice
493	493	agency under Section 411.087, Government Code.
494	494	(c) The department by rule shall require a child-care
495	495	facility, child-placing agency, or registered family home to pay to
496	496	the department a fee in an amount not to exceed the administrative
497	497	costs the department incurs in conducting a background and criminal
498	498	history check under this section.
499	499	(f) As part of a background check under this section, the
500	500	department shall provide any relevant information available in the
501	501	department's records regarding a person's previous employment in a
502	502	[residential child-care] facility or family home to the person
503	503	submitting the request.
504	504	(g) Except as otherwise provided by this subsection, a
505	505	person whose name is submitted [by the director, owner, or operator
506	506	of a day-care center] under Subsection (a) may not provide direct
507	507	care or have direct access to a child in a facility or family home
508	508	[day-care center] before the person's background and criminal
509	509	history checks under Subsections (b) and (b-1) are completed. A
510	510	person may be employed at a facility or family home [day-care
511	511	center] and may provide direct care or have direct access to a child
512	512	in the facility or family home [day-care center] before the
513	513	person's criminal history check under Subsection (b-1) is completed
514	514	if:
515	515	(1) the facility or family home is experiencing a
516	516	staff shortage;
517	517	(2) the state criminal history check and the
518	518	background check using the department's records of reported abuse
519	519	and neglect have been completed under Subsection (b), and the
520	520	resulting information does not preclude the person from being
521	521	present at the facility or family home [day-care center]; and
522	522	(3) [(2)] the person's fingerprints are submitted as
523	523	soon as possible, but not later than the 30th day after the earliest
524	524	of the date on which the person first:
525	525	(A) provides direct care to a child;
526	526	(B) has direct access to a child; or
527	527	(C) is hired [day-care center is experiencing a
528	528	staffing shortage that, if the day-care center were not allowed to
529	529	employ the person until completion of the federal criminal history
530	530	check, would result in a staff-to-child ratio that violates the
531	531	department's minimum standards].
532	532	(h) If the results of a criminal history check under
533	533	Subsection (b-1) for a person employed by a facility or family home
534	534	[day-care center] during a staffing shortage as authorized by
535	535	Subsection (g) preclude the person from being present at the
536	536	facility or family home [day-care center], the director, owner, or
537	537	operator of the facility or family home [day-care center] shall
538	538	immediately terminate the person's employment.
539	539	(i) A director, owner, or operator of a facility or family
540	540	home [day-care center] commits an offense if the director, owner,
541	541	or operator knowingly:
542	542	(1) fails to submit to the department information
543	543	about a person as required by this section and department rules for
544	544	use in conducting background and criminal history checks with
545	545	respect to the person; and
546	546	(2) employs the person at the facility or family home
547	547	[day-care center] or otherwise allows the person to regularly or
548	548	frequently stay or work at the facility or family home [day-care
549	549	center] while children are being provided care.
550	550	(j) A director, owner, or operator of a facility or family
551	551	home [day-care center] commits an offense if, after the date the
552	552	director, owner, or operator receives notice from the department
553	553	that, based on the results of a person's background or criminal
554	554	history check, the person is precluded from being present at the
555	555	facility or family home [day-care center], the director, owner, or
556	556	operator knowingly:
557	557	(1) employs the person at the facility or family home
558	558	[day-care center]; or
559	559	(2) otherwise allows the person to regularly or
560	560	frequently stay or work at the facility or family home [day-care
561	561	center] while children are being provided care.
562	562	SECTION 12. Subsection (d), Section 42.063, Human Resources
563	563	Code, is amended to read as follows:
564	564	(d) An employee or volunteer of a general residential
565	565	operation [child-care institution], child-placing agency, foster
566	566	home, or foster group home shall report any serious incident
567	567	directly to the department if the incident involves a child under
568	568	the care of the operation [institution], agency, or home.
569	569	SECTION 13. Subsections (c) and (e), Section 42.072, Human
570	570	Resources Code, are amended to read as follows:
571	571	(c) The department may not issue a license, listing,
572	572	registration, or certification to a person whose license, listing,
573	573	registration, or certification is revoked or whose application for
574	574	a license, listing, registration, or certification is denied for a
575	575	substantive reason under this chapter before[:
576	576	[(1)] the fifth anniversary of the date on which the
577	577	revocation takes effect by department or court order or the
578	578	decision to deny the application is final[, if the facility is a
579	579	residential child-care facility; or
580	580	[(2) the second anniversary of the date on which the
581	581	revocation takes effect by department or court order or the
582	582	decision to deny the application is final, if the facility is not a
583	583	residential child-care facility].
584	584	(e) A person may continue to operate a facility or family
585	585	home during an appeal of a license, listing, or registration denial
586	586	or revocation unless the operation of the facility or family home
587	587	[revocation or denial is based on a violation which] poses a risk to
588	588	the health or safety of children. The executive commissioner
589	589	[department] shall by rule establish the criteria for determining
590	590	whether the operation of a facility or family home poses
591	591	[violations which pose] a risk to the health or safety of children.
592	592	The department shall notify the facility or family home of the
593	593	criteria the department used to determine that the operation of the
594	594	facility or family home [violation which] poses a risk to health or
595	595	safety and that the facility or family home may not operate. A
596	596	person who has been notified by the department that the facility or
597	597	home may not operate under this section may seek injunctive relief
598	598	from a district court in Travis County or in the county in which the
599	599	facility or home is located to allow operation during the pendency
600	600	of an appeal. The court may grant injunctive relief against the
601	601	agency's action only if the court finds that the child-care
602	602	operation does not pose a health or safety risk to children. A
603	603	court granting injunctive relief under this subsection shall have
604	604	no other jurisdiction over an appeal of final agency action unless
605	605	conferred by Chapter 2001, Government Code.
606	606	SECTION 14. Subsection (c), Section 42.073, Human Resources
607	607	Code, is amended to read as follows:
608	608	(c) An order is valid for 30 [10] days after the effective
609	609	date of the order[, except that an order relating to a residential
610	610	child-care facility is valid for 30 days after the effective date of
611	611	the order].
612	612	SECTION 15. Subsection (a), Section 42.074, Human Resources
613	613	Code, is amended to read as follows:
614	614	(a) The department may file suit in a district court in
615	615	Travis County or in the county in which a facility or family home is
616	616	located for assessment and recovery of a civil penalty under
617	617	Section 42.075, for injunctive relief, including a temporary
618	618	restraining order, or for both a civil penalty and injunctive
619	619	relief when [When] it appears that a person:
620	620	(1) has violated, is violating, or is threatening to
621	621	violate the licensing, certification, listing, or registration
622	622	requirements of this chapter or the department's licensing,
623	623	certification, listing, or registration rules and standards; or
624	624	(2) knowingly fails to meet or maintain an exemption
625	625	authorized under Section 42.041 and engages in activities that
626	626	require a license or registration[, the department may file a suit
627	627	in a district court in Travis County or in the county where the
628	628	facility or family home is located for assessment and recovery of
629	629	civil penalties under Section 42.075, for injunctive relief,
630	630	including a temporary restraining order, or for both injunctive
631	631	relief and civil penalties].
632	632	SECTION 16. Subsection (a), Section 42.075, Human Resources
633	633	Code, is amended to read as follows:
634	634	(a) A person is subject to a civil penalty of not less than
635	635	$50 nor more than $100 for each day of violation and for each act of
636	636	violation if the person:
637	637	(1) threatens serious harm to a child in a facility or
638	638	family home by violating a provision of this chapter or a department
639	639	rule or standard;
640	640	(2) violates a provision of this chapter or a
641	641	department rule or standard three or more times within a 12-month
642	642	period; [or]
643	643	(3) places a public advertisement for an unlicensed
644	644	facility or an unlisted or unregistered family home;
645	645	(4) knowingly fails to meet or maintain any criterion
646	646	of an exemption authorized under Section 42.041 and engages in
647	647	activities that require a license or registration; or
648	648	(5) fails to inform the department of a change in
649	649	status and the person knows the change in status requires the person
650	650	to be licensed or registered under this chapter.
651	651	SECTION 17. Section 42.077, Human Resources Code, is
652	652	amended by amending Subsection (a) and adding Subsection (a-1) to
653	653	read as follows:
654	654	(a) If the department revokes or suspends a facility's
655	655	license or a family home's listing or registration, the department
656	656	shall publish notice of this action:
657	657	(1) in a newspaper of general circulation in the
658	658	county in which the facility or family home is located; or
659	659	(2) on the department's Internet website along with
660	660	other information regarding child-care services.
661	661	(a-1) If notice is published in a newspaper under Subsection
662	662	(a), the [The] newspaper shall place the notice in the section in
663	663	which advertisements for day-care services are normally published.
664	664	SECTION 18. Subsection (b), Section 261.401, Family Code,
665	665	is amended to read as follows:
666	666	(b) A state agency that operates, licenses, certifies, [or]
667	667	registers, or lists a facility in which children are located or
668	668	provides oversight of a program that serves children shall make a
669	669	prompt, thorough investigation of a report that a child has been or
670	670	may be abused, neglected, or exploited in the facility or program.
671	671	The primary purpose of the investigation shall be the protection of
672	672	the child.
673	673	SECTION 19. The following provisions of the Human Resources
674	674	Code are repealed:
675	675	(1) Subsection (b-1), Section 42.041;
676	676	(2) Subsection (c), Section 42.0431; and
677	677	(3) Subsections (a-1), (d), and (e), Section 42.056.
678	678	SECTION 20. The changes in law made by this Act to
679	679	Subsections (i) and (j), Section 42.056, Human Resources Code,
680	680	apply only to an offense committed on or after the effective date of
681	681	this Act. An offense committed before the effective date of this
682	682	Act is governed by the law in effect when the offense was committed,
683	683	and the former law is continued in effect for that purpose. For the
684	684	purposes of this section, an offense was committed before the
685	685	effective date of this Act if any element of the offense occurred
686	686	before that date.
687	687	SECTION 21. (a) The change in law made by this Act to
688	688	Subsection (c), Section 42.072, Human Resources Code, applies only
689	689	to the issuance of a license, listing, registration, or
690	690	certification to a person whose license, listing, registration, or
691	691	certification is revoked or whose application for a license,
692	692	listing, registration, or certification is denied for a substantive
693	693	reason on or after the effective date of this Act. The issuance of a
694	694	license, listing, registration, or certification to a person whose
695	695	license, listing, registration, or certification was revoked or
696	696	whose application for a license, listing, registration, or
697	697	certification was denied for a substantive reason before the
698	698	effective date of this Act is governed by the law in effect when the
699	699	license, listing, registration, or certification was revoked or the
700	700	application was denied for a substantive reason, and the former law
701	701	is continued in effect for that purpose.
702	702	(b) Sections 42.074 and 42.075, Human Resources Code, as
703	703	amended by this Act, apply only to conduct that occurs on or after
704	704	the effective date of this Act. Conduct that occurs before the
705	705	effective date of this Act is governed by the law in effect
706	706	immediately before that date, and that law is continued in effect
707	707	for that purpose.
708	708	SECTION 22. (a) The change in law made by this Act by which
709	709	a school-age program is required to be licensed under Chapter 42,
710	710	Human Resources Code, as amended by this Act, takes effect on the
711	711	later of:
712	712	(1) the date on which the Department of Family and
713	713	Protective Services adopts minimum standards for school-age
714	714	programs in accordance with Section 42.042, Human Resources Code,
715	715	as amended by this Act; or
716	716	(2) September 1, 2010.
717	717	(b) The change in law made by this Act by which a
718	718	before-school or after-school program is required to be licensed
719	719	under Chapter 42, Human Resources Code, as amended by this Act,
720	720	takes effect on the later of:
721	721	(1) the date on which the Department of Family and
722	722	Protective Services adopts minimum standards for before-school or
723	723	after-school programs in accordance with Section 42.042, Human
724	724	Resources Code, as amended by this Act; or
725	725	(2) September 1, 2010.
726	726	(c) The Department of Family and Protective Services shall
727	727	adopt minimum standards as provided by Section 42.042, Human
728	728	Resources Code, as amended by this Act, as soon as practicable after
729	729	the effective date of this Act, but not later than September 1,
730	730	2010.
731	731	(d) The change in law made by this Act by which a child-care
732	732	facility located in a temporary shelter that provides care only for
733	733	children temporarily residing in the shelter is required to be
734	734	licensed under Chapter 42, Human Resources Code, as amended by this
735	735	Act, takes effect on the later of:
736	736	(1) the date on which the executive commissioner of
737	737	the Health and Human Services Commission adopts minimum standards
738	738	for those child-care facilities under Subsection (g-2), Section
739	739	42.042, Human Resources Code, as added by this Act; or
740	740	(2) September 1, 2010.
741	741	(e) The change in law made by this Act by which a child-care
742	742	facility located in a temporary shelter that provides care for
743	743	children temporarily residing in the shelter and other children is
744	744	required to be licensed under Chapter 42, Human Resources Code, as
745	745	amended by this Act, takes effect on the effective date of this Act.
746	746	(f) The executive commissioner of the Health and Human
747	747	Services Commission shall adopt rules and minimum standards as
748	748	required by Subsection (g-2), Section 42.042, Human Resources Code,
749	749	as added by this Act, as soon as practicable after the effective
750	750	date of this Act, but not later than September 1, 2010.
751	751	SECTION 23. Except as otherwise provided by this Act, this
752	752	Act takes effect September 1, 2009.
753	753	______________________________ ______________________________
754	754	President of the Senate Speaker of the House
755	755	I hereby certify that S.B. No. 68 passed the Senate on
756	756	April 2, 2009, by the following vote: Yeas 31, Nays 0; and that
757	757	the Senate concurred in House amendments on May 28, 2009, by the
758	758	following vote: Yeas 31, Nays 0.
759	759	______________________________
760	760	Secretary of the Senate
761	761	I hereby certify that S.B. No. 68 passed the House, with
762	762	amendments, on May 19, 2009, by the following vote: Yeas 143,
763	763	Nays 0, one present not voting.
764	764	______________________________
765	765	Chief Clerk of the House
766	766	Approved:
767	767	______________________________
768	768	Date
769	769	______________________________
770	770	Governor