By: Nelson S.B. No. 81
(In the Senate - Filed November 10, 2008; February 10, 2009,
read first time and referred to Committee on Health and Human
Services; March 9, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 8, Nays 0;
March 9, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 81 By: Shapleigh
A BILL TO BE ENTITLED
AN ACT
relating to certain providers of subsidized child care.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Labor Code, is amended by
adding Chapter 312 to read as follows:
CHAPTER 312. REQUIREMENTS FOR PROVIDERS OF UNREGULATED
SELF-ARRANGED CHILD CARE
Sec. 312.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of Family and
Protective Services.
(2) "Unregulated self-arranged child care" means
child care that is:
(A) funded wholly or partly from money received
under the Child Care and Development Block Grant Act of 1990 (42
U.S.C. Section 9858 et seq.); and
(B) provided by a provider who:
(i) is at least 18 years of age;
(ii) complies with any federal or state
requirements regarding subsidized child care that apply to the
provider;
(iii) provides child-care services for less
than 24 hours a day to a child who is, by marriage, blood
relationship, or court decree:
(a) the grandchild of the provider;
(b) the great-grandchild of the
provider;
(c) the sibling of the provider, and
the child resides in a separate residence from the provider; or
(d) the niece or nephew of the
provider; and
(iv) does not hold a license, listing, or
registration issued under Chapter 42, Human Resources Code, to
provide care for children for less than 24 hours a day.
Sec. 312.002. MEMORANDUM OF UNDERSTANDING. The commission
and the department shall adopt a memorandum of understanding
regarding the administration and payment of costs of background and
criminal history checks required under this chapter.
Sec. 312.003. REQUIREMENTS FOR UNREGULATED SELF-ARRANGED
CHILD CARE. The commission shall ensure that money appropriated to
the commission that is used by the commission or a local workforce
development board to pay for child-care services provided by an
unregulated self-arranged child-care provider is used only to pay
for care provided by a provider who, after completion of a
background and criminal history check required by this chapter, is
not precluded from providing that care.
Sec. 312.004. REQUIRED BACKGROUND AND CRIMINAL HISTORY
CHECK. (a) In accordance with department rules, an individual
seeking to provide unregulated self-arranged child care must,
before beginning to provide that care, submit for use in conducting
a background and criminal history check:
(1) the individual's name to the department; and
(2) to the Department of Public Safety in accordance
with that department's rules, a complete set of the individual's
fingerprints in a form and of a quality acceptable to that
department and the Federal Bureau of Investigation for conducting a
criminal history check.
(b) The department shall conduct background and criminal
history checks by:
(1) using the information provided by an individual
under this section;
(2) submitting the fingerprints provided by an
individual under this section or causing the fingerprints to be
submitted electronically as authorized by Subsection (f) to the
Department of Public Safety for the purpose of conducting a state
and federal criminal history check and using the resulting
information made available by the Department of Public Safety 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; and
(3) using the department's central registry of
reported cases of child abuse and neglect established under Section
261.002, Family Code.
(c) In determining whether to preclude an individual from
providing unregulated self-arranged child care, the department
shall use the standards that apply in conducting background and
criminal history checks under Section 42.056, Human Resources Code,
for listed or registered family home providers.
(d) A provider of unregulated self-arranged child care for
whom a background and criminal history check was conducted under
this section and who, following that check, has continuously
received payments for providing that care shall, not later than the
fifth anniversary of the date the previous check was completed,
submit the information described by Subsection (a) in the manner
provided by that subsection. The department shall use that
information to conduct a background and criminal history check in
the manner prescribed by Subsections (b) and (c). A provider of
unregulated self-arranged child care for whom a background and
criminal history check was conducted who ceased providing that care
and who seeks to resume providing that care must provide the
information described by Subsection (a) in the manner provided by
that subsection and undergo another background and criminal history
check unless the department determines that the check is
unnecessary based on the length of elapsed time since the previous
check was conducted.
(e) The commission must provide notice of the background and
criminal history check requirement to the parent or guardian of the
child who will receive care through an unregulated self-arranged
child-care provider before the parent or guardian selects the
provider.
(f) The executive commissioner of the Health and Human
Services Commission may adopt rules to implement this section,
including rules that require fingerprints to be submitted
electronically through an applicant fingerprinting service center.
Sec. 312.005. COSTS. (a) In accordance with the
memorandum of understanding adopted under Section 312.002, the
commission shall pay to the department the costs incurred by the
department in conducting background and criminal history checks
under this chapter using funds available for that purpose under the
Child Care and Development Block Grant Act of 1990 (42 U.S.C.
Section 9858 et seq.).
(b) The commission by rule shall require a local workforce
development board to reimburse the commission for costs paid by the
commission under Subsection (a) with respect to an individual who,
after a background and criminal history check is conducted, is not
precluded from providing unregulated self-arranged child care and
begins receiving payments for providing that care. To reimburse
the commission, the board shall withhold the amount of those costs
for that individual from the first child-care payment made to the
individual and shall remit that amount to the commission.
Sec. 312.006. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING
ACCURACY OF INFORMATION. (a) If the department determines that a
provider or prospective provider of unregulated self-arranged
child care is precluded from providing that care because of the
individual's background and criminal history check under Section
312.004, the department shall notify the individual of that
determination.
(b) The department shall include in the notice provided
under Subsection (a) a description of the process by which an
individual may dispute the accuracy of the individual's criminal
history record and listing on the department's central registry of
reported abuse and neglect and a description of any process for
disputing the accuracy of the individual's criminal history record
with the Department of Public Safety.
Sec. 312.007. AFFIDAVITS. (a) An unregulated
self-arranged child-care provider and the parent or guardian of the
child who receives care through the provider shall each submit an
affidavit to the commission not later than the 15th day of the month
following the end of each calendar quarter during which the
provider provided the care. The affidavit must:
(1) specify the number of hours the provider cared for
the child during each month of the previous calendar quarter;
(2) include the sworn statement of the provider or the
parent or guardian, as applicable, that the record of the hours is
accurate; and
(3) be signed by the provider or the parent or
guardian, as applicable.
(b) The affidavit in Subsection (a) may be on a form
provided by the commission.
(c) The commission shall provide notice to each individual
required to submit an affidavit under this section that knowingly
making, presenting, or using a false governmental record is a
criminal offense under Section 37.10, Penal Code.
Sec. 312.008. AUDITS. The commission shall audit on a
regular basis a random sample of unregulated self-arranged
child-care providers to:
(1) determine whether affidavits submitted under
Section 312.007 are accurate; and
(2) ensure that the commission and local workforce
development boards are paying unregulated self-arranged child-care
providers only for care that is actually provided.
SECTION 2. Subdivision (2), Subsection (a), Section
411.114, Government Code, is amended to read as follows:
(2) The Department of Family and Protective Services
shall obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(A) an applicant for a license, registration,
certification, or listing under Chapter 42, Human Resources Code,
or Chapter 249, Health and Safety Code;
(B) an owner, operator, or employee of or an
applicant for employment by a child-care facility, child-placing
agency, family home, or maternity home licensed, registered,
certified, or listed under Chapter 42, Human Resources Code, or
Chapter 249, Health and Safety Code;
(C) a person 14 years of age or older who will be
regularly or frequently working or staying in a child-care
facility, family home, or maternity home while children are being
provided care, other than a child in the care of the home or
facility;
(D) an applicant selected for a position with the
Department of Family and Protective Services, the duties of which
include direct delivery of protective services to children, elderly
persons, or persons with a disability;
(E) an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a business
entity or person that contracts with the Department of Family and
Protective Services to provide direct delivery of protective
services to children, elderly persons, or persons with a
disability, if the person's duties or responsibilities include
direct contact with children, elderly persons, or persons with a
disability;
(F) a registered volunteer with the Department of
Family and Protective Services;
(G) a person providing or applying to provide
in-home, adoptive, or foster care for children in the care of the
Department of Family and Protective Services and other persons
living in the residence in which the child will reside;
(H) a Department of Family and Protective
Services employee who is engaged in the direct delivery of
protective services to children, elderly persons, or persons with a
disability;
(I) a person who is the subject of a report the
Department of Family and Protective Services receives alleging that
the person has abused, neglected, or exploited a child, an elderly
person, or a person with a disability, provided that:
(i) the report alleges the person has
engaged in conduct that meets the statutory definition of abuse,
neglect, or exploitation under Chapter 261, Family Code, or Chapter
48, Human Resources Code; and
(ii) the person who is the subject of the
report is not also the victim of the alleged conduct;
(J) a person providing child care for a child who
is in the care of the Department of Family and Protective Services
and who is or will be receiving adoptive, foster, or in-home care;
(K) through a contract with a nonprofit
management center, an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a nonprofit,
tax-exempt organization that provides any service that involves the
care of or access to children, elderly persons, or persons with a
disability; [or]
(L) an applicant for a child-care administrator
or child-placing agency administrator license under Chapter 43,
Human Resources Code; or
(M) a provider or prospective provider of
unregulated self-arranged child care, as defined by Section
312.001, Labor Code.
SECTION 3. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 4. The Texas Workforce Commission and the
Department of Family and Protective Services shall adopt the
memorandum of understanding required by Section 312.002, Labor
Code, as added by this Act, not later than October 1, 2009.
SECTION 5. Notwithstanding Chapter 312, Labor Code, as
added by this Act, the Texas Workforce Commission shall ensure that
payments made on or after November 1, 2009, to providers of
unregulated self-arranged child care, as defined by Section
312.001, Labor Code, as added by this Act, are made only to
providers with respect to whom a background and criminal history
check has been conducted as required by that chapter.
SECTION 6. This Act takes effect September 1, 2009.
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