Texas 2011 - 82nd Regular

Texas Senate Bill SB1178 Compare Versions

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1	1	82R28668 E
2	2	By: Nelson S.B. No. 1178
3	3	(Raymond)
4	4	Substitute the following for S.B. No. 1178: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the regulation of certain shelter day-care facilities,
10	10	child-care facilities, and individuals providing child-care
11	11	services, and access to certain criminal history record
12	12	information; providing an administrative penalty.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Subdivision (18), Section 42.002, Human
15	15	Resources Code, is amended to read as follows:
16	16	(18) "Controlling person" means a person who, either
17	17	alone or in connection with others, has the ability to directly or
18	18	indirectly influence or direct the management, expenditures, or
19	19	policies of a [residential child-care] facility or family home.
20	20	SECTION 2. Section 42.041, Human Resources Code, is amended
21	21	by adding Subsection (f) to read as follows:
22	22	(f) Notwithstanding the requirements of Subsection (b)(14),
23	23	a municipality that operates an elementary-age (ages 5-13)
24	24	recreation program may, in lieu of an annual public hearing, accept
25	25	public comment through the municipality's Internet website for at
26	26	least 30 days before the municipality adopts standards of care by
27	27	ordinance if the municipality:
28	28	(1) has a population of 300,000 or more; and
29	29	(2) has held at least two annual public hearings on the
30	30	standards of care and adopted standards of care by ordinance after
31	31	those public hearings.
32	32	SECTION 3. Section 42.044, Human Resources Code, is amended
33	33	by amending Subsection (b) and adding Subsections (c-1) and (c-2)
34	34	to read as follows:
35	35	(b) The department shall inspect all licensed or certified
36	36	facilities at least once a year and may inspect other facilities or
37	37	registered family homes as necessary. [The department shall
38	38	investigate a listed family home when the department receives a
39	39	complaint of abuse or neglect of a child, as defined by Section
40	40	261.401, Family Code.] At least one of the annual visits must be
41	41	unannounced and all may be unannounced.
42	42	(c-1) The department:
43	43	(1) shall investigate a listed family home if the
44	44	department receives a complaint that:
45	45	(A) a child in the home has been abused or
46	46	neglected, as defined by Section 261.401, Family Code; or
47	47	(B) otherwise alleges an immediate risk of danger
48	48	to the health or safety of a child being cared for in the home; and
49	49	(2) may investigate a listed family home to ensure
50	50	that the home is providing care for compensation to not more than
51	51	three children, excluding children who are related to the
52	52	caretaker.
53	53	(c-2) The department must notify the operator of a listed
54	54	family home when a complaint is being investigated under this
55	55	section and report in writing the results of the investigation to
56	56	the family home's operator.
57	57	SECTION 4. Section 42.052, Human Resources Code, is amended
58	58	by amending Subsection (j) and adding Subsection (j-1) to read as
59	59	follows:
60	60	(j) The operator of a listed family home shall undergo
61	61	initial and subsequent background and criminal history checks
62	62	required under Section 42.056. If the operator of a listed family
63	63	home fails to submit the information required by Section 42.056 for
64	64	a subsequent background and criminal history check, the department
65	65	shall automatically:
66	66	(1) suspend the home's listing until the required
67	67	information is submitted; and
68	68	(2) revoke the home's listing if the required
69	69	information is not submitted within six months after the date the
70	70	automatic suspension begins.
71	71	(j-1) A suspension or revocation under Subsection (j) is not
72	72	a suspension or revocation under Section 42.072.
73	73	SECTION 5. Subsection (f), Section 42.054, Human Resources
74	74	Code, is amended to read as follows:
75	75	(f) If a facility, agency, or home fails to pay the annual
76	76	fee when due, the license, listing, or registration, as
77	77	appropriate, is automatically suspended until the fee is paid. The
78	78	license, listing, or registration shall be revoked if the fee is not
79	79	paid within six months after the date the automatic suspension
80	80	begins. A suspension or revocation under this subsection is not a
81	81	suspension or revocation under Section 42.072.
82	82	SECTION 6. Section 42.056, Human Resources Code, is amended
83	83	by amending Subsection (a-2) and adding Subsection (l) to read as
84	84	follows:
85	85	(a-2) In accordance with rules adopted by the executive
86	86	commissioner, the director, owner, or operator of a day-care
87	87	center, before-school or after-school program, or school-age
88	88	program shall submit a complete set of fingerprints of each person
89	89	whose name is required to be submitted by the director, owner, or
90	90	operator under Subsection (a), unless the person is only required
91	91	to have the person's name submitted based on criteria specified by
92	92	Subsection (a)(7). This subsection does not apply to a program that
93	93	is exempt from the licensing requirements of Section 42.041.
94	94	(l) In accordance with rules adopted by the executive
95	95	commissioner, a person that contracts to provide one or more
96	96	substitute employees to a facility or family home must submit to the
97	97	department for use in conducting background and criminal history
98	98	checks the name of each substitute employee. Before a substitute
99	99	employee may be present at a facility or family home, the employee
100	100	must meet the same requirements under this section as an employee
101	101	present at the facility or family home who performs similar duties.
102	102	The director, owner, or operator of a facility or family home must
103	103	verify with the department that a substitute employee is eligible
104	104	to be present at the facility or family home before allowing the
105	105	employee to begin work.
106	106	SECTION 7. Section 42.062, Human Resources Code, is amended
107	107	to read as follows:
108	108	Sec. 42.062. CERTAIN EMPLOYMENT AND SERVICE PROHIBITED. A
109	109	person may not be employed as a controlling person or serve in that
110	110	capacity in a [residential child-care] facility or family home if
111	111	the person [may not employ in any capacity a person who] is not
112	112	eligible to receive a license or certification for the operation of
113	113	a [residential child-care] facility or family home under Section
114	114	42.072(g) or [who] has been denied a license under Section 42.046
115	115	for a substantive reason.
116	116	SECTION 8. Section 42.072, Human Resources Code, is amended
117	117	by adding Subsection (c-1) and amending Subsections (e) and (g) to
118	118	read as follows:
119	119	(c-1) A person described by Subsection (c) may not be a
120	120	controlling person in any facility or family home during the
121	121	five-year period in which the person is ineligible to receive a
122	122	license, listing, registration, or certification.
123	123	(e) A person may continue to operate a facility or family
124	124	home during an appeal of a license, listing, or registration
125	125	[denial or] revocation unless the operation of the facility or
126	126	family home poses a risk to the health or safety of children. The
127	127	executive commissioner shall by rule establish the criteria for
128	128	determining whether the operation of a facility or family home
129	129	poses a risk to the health or safety of children. The department
130	130	shall notify the facility or family home of the criteria the
131	131	department used to determine that the operation of the facility or
132	132	family home poses a risk to health or safety and that the facility
133	133	or family home may not operate. A person who has been notified by
134	134	the department that the facility or home may not operate under this
135	135	section may seek injunctive relief from a district court in Travis
136	136	County or in the county in which the facility or home is located to
137	137	allow operation during the pendency of an appeal. The court may
138	138	grant injunctive relief against the agency's action only if the
139	139	court finds that the child-care operation does not pose a health or
140	140	safety risk to children. A court granting injunctive relief under
141	141	this subsection shall have no other jurisdiction over an appeal of
142	142	final agency action unless conferred by Chapter 2001, Government
143	143	Code.
144	144	(g) Notwithstanding Subsection (c), the department may
145	145	refuse to issue a license, listing, registration, or certification
146	146	to:
147	147	(1) a person whose license, listing, registration, or
148	148	certification for a [residential child-care] facility or family
149	149	home was revoked by the department or by court order;
150	150	(2) a person who was a controlling person of a
151	151	[residential child-care] facility or family home at the time
152	152	conduct occurred that resulted in the revocation of the license,
153	153	listing, registration, or certification of the facility or family
154	154	home;
155	155	(3) a person who voluntarily closed a [residential
156	156	child-care] facility or family home or relinquished the person's
157	157	license, listing, registration, or certification after:
158	158	(A) the department took an action under
159	159	Subsection (a) in relation to the facility, family home, or person;
160	160	or
161	161	(B) the person received notice that the
162	162	department intended to take an action under Subsection (a) in
163	163	relation to the facility, family home, or person; or
164	164	(4) a person who was a controlling person of a
165	165	[residential child-care] facility or family home at the time
166	166	conduct occurred that resulted in the closure of the facility or
167	167	family home or relinquishment of the license, listing,
168	168	registration, or certification in the manner described by
169	169	Subdivision (3).
170	170	SECTION 9. Subsection (a), Section 42.078, Human Resources
171	171	Code, is amended to read as follows:
172	172	(a) The department may impose an administrative penalty
173	173	against a facility or family home licensed, [or] registered, or
174	174	listed under this chapter that violates this chapter or a rule or
175	175	order adopted under this chapter. In addition, the department may
176	176	impose an administrative penalty against a residential child-care
177	177	facility or a controlling person of a residential child-care
178	178	facility if the facility or controlling person:
179	179	(1) violates a term of a license or registration
180	180	issued under this chapter;
181	181	(2) makes a statement about a material fact that the
182	182	facility or person knows or should know is false:
183	183	(A) on an application for the issuance of a
184	184	license or registration or an attachment to the application; or
185	185	(B) in response to a matter under investigation;
186	186	(3) refuses to allow a representative of the
187	187	department to inspect:
188	188	(A) a book, record, or file required to be
189	189	maintained by the facility; or
190	190	(B) any part of the premises of the facility;
191	191	(4) purposefully interferes with the work of a
192	192	representative of the department or the enforcement of this
193	193	chapter; or
194	194	(5) fails to pay a penalty assessed under this chapter
195	195	on or before the date the penalty is due, as determined under this
196	196	section.
197	197	SECTION 10. Chapter 42, Human Resources Code, is amended by
198	198	adding Subchapter G to read as follows:
199	199	SUBCHAPTER G. REGULATION OF TEMPORARY SHELTER DAY-CARE FACILITIES
200	200	Sec. 42.201. DEFINITIONS. In this subchapter:
201	201	(1) "Shelter" means a supervised publicly or privately
202	202	operated shelter or other facility that is designed to provide
203	203	temporary living accommodations to individuals and families,
204	204	including a family violence shelter, a homeless shelter, and an
205	205	emergency shelter. The term does not include a temporary facility
206	206	established in response to a natural or other disaster.
207	207	(2) "Shelter care" means child care that is provided:
208	208	(A) to seven or more children under 14 years of
209	209	age who temporarily reside at a shelter each with an adult who is
210	210	related to the child by blood or who is the child's managing
211	211	conservator;
212	212	(B) by a person who is not a temporary resident of
213	213	a shelter; and
214	214	(C) while the adult described by Paragraph (A) is
215	215	away from the shelter.
216	216	(3) "Shelter day-care facility" means a shelter that
217	217	provides shelter care for not more than 24 hours a day, but at least
218	218	four hours a day, three or more days a week.
219	219	Sec. 42.202. PERMIT REQUIRED. (a) Except as provided by
220	220	Subsections (b) and (e), a shelter may not provide shelter care
221	221	unless the shelter holds a permit issued by the department under
222	222	this subchapter.
223	223	(b) A shelter is not required to obtain a permit to provide
224	224	shelter care under this subchapter if the shelter holds a license to
225	225	operate a child-care facility that is issued by the department
226	226	under Subchapter C. A shelter that holds that license must comply
227	227	with the applicable provisions of Subchapter C, the applicable
228	228	rules of the department, and any specific terms of the license.
229	229	(c) Notwithstanding any other law, including Section
230	230	42.041, a shelter that holds a permit issued under this subchapter
231	231	is not required to hold a license under Subchapter C to operate a
232	232	shelter day-care facility.
233	233	(d) The department may not issue a permit under this
234	234	subchapter to a shelter that provides child care to a child who is
235	235	not a resident of the shelter. A shelter that provides child care
236	236	described by this subsection must hold a license to operate a
237	237	child-care facility issued under Subchapter C.
238	238	(e) A shelter is not required to obtain a permit under this
239	239	subchapter or a license under Subchapter C if the shelter provides
240	240	shelter care for:
241	241	(1) less than four hours a day or for less than three
242	242	days a week; or
243	243	(2) six or fewer children.
244	244	Sec. 42.203. APPLICATION; INITIAL INSPECTION AND
245	245	BACKGROUND AND CRIMINAL HISTORY CHECKS. (a) The department shall
246	246	develop and implement a streamlined procedure by which a shelter
247	247	may apply for and be issued a permit to operate a shelter day-care
248	248	facility. The shelter must submit an application for the permit to
249	249	the department on a form prescribed by the department.
250	250	(b) Except as provided by Section 42.204, on receipt of a
251	251	shelter's application for a permit, the department shall:
252	252	(1) conduct an initial inspection of the shelter
253	253	day-care facility to ensure that the shelter is able to comply with
254	254	the provisions of this subchapter and that the facility complies
255	255	with the fire safety and sanitation standards of the political
256	256	subdivision in which the facility is located; and
257	257	(2) conduct a background and criminal history check on
258	258	each prospective caregiver whose name is submitted as required by
259	259	Section 42.206(a).
260	260	(c) The department may charge an applicant an
261	261	administrative fee in a reasonable amount that is sufficient to
262	262	cover the costs of the department in processing the application.
263	263	(d) The department shall process an application not later
264	264	than the 30th day after the date the department receives all of the
265	265	required information.
266	266	Sec. 42.204. CONVERSION OF LICENSE. (a) The department
267	267	shall develop and implement a procedure by which a shelter that
268	268	holds a license to operate a child-care facility that is issued
269	269	under Subchapter C before September 1, 2012, may convert the
270	270	license to a permit under this subchapter. The procedure must
271	271	include an abbreviated application form for use by the shelter in
272	272	applying for the permit.
273	273	(b) The department may waive the requirements under Section
274	274	42.203(b) for an initial inspection or background and criminal
275	275	history checks with respect to a licensed child-care facility
276	276	seeking to convert a license to a permit under this section if the
277	277	department determines that previously conducted inspections or
278	278	background and criminal history checks, as applicable, are
279	279	sufficient to ensure the safety of children receiving care at the
280	280	facility.
281	281	Sec. 42.205. CAREGIVER QUALIFICATIONS AND TRAINING;
282	282	CHILD-TO-CAREGIVER RATIOS. (a) The executive commissioner shall
283	283	adopt rules that specify the minimum:
284	284	(1) qualifications and training required for a person
285	285	providing child care in a shelter day-care facility; and
286	286	(2) child-to-caregiver ratios in a shelter day-care
287	287	facility.
288	288	(b) In adopting rules under this section, the executive
289	289	commissioner shall consider:
290	290	(1) the special circumstances and needs of families
291	291	that seek temporary shelter; and
292	292	(2) the role of a shelter in assisting and supporting
293	293	families in crisis.
294	294	Sec. 42.206. BACKGROUND AND CRIMINAL HISTORY CHECKS
295	295	REQUIRED. (a) In accordance with rules adopted by the executive
296	296	commissioner, a shelter shall, when applying for a permit under
297	297	this subchapter and at least once during each 24-month period after
298	298	receiving that permit, submit to the department for use in
299	299	conducting background and criminal history checks:
300	300	(1) the name of any director or prospective director
301	301	of the shelter day-care facility and the name of each caregiver or
302	302	prospective caregiver employed at the facility to provide care to
303	303	children;
304	304	(2) the name of each person counted in
305	305	child-to-caregiver ratios at the shelter day-care facility; and
306	306	(3) the name of each person 14 years of age or older
307	307	who will have unsupervised access to one or more children while in
308	308	the care of the shelter day-care facility.
309	309	(b) In addition to the requirements of Subsection (a), a
310	310	shelter shall submit a complete set of fingerprints of each person
311	311	required to undergo a criminal history check under Subsection (a)
312	312	if:
313	313	(1) the person has lived outside the state at any time
314	314	during the previous five years; or
315	315	(2) the shelter has reason to suspect that the person
316	316	has a criminal history in another state.
317	317	(c) The department shall conduct background and criminal
318	318	history checks using:
319	319	(1) the information provided under Subsection (a) or
320	320	(b), as applicable;
321	321	(2) the information made available by the Department
322	322	of Public Safety under Section 411.114, Government Code, or by the
323	323	Federal Bureau of Investigation or another criminal justice agency
324	324	under Section 411.087, Government Code; and
325	325	(3) the department's records of reported abuse and
326	326	neglect.
327	327	(d) For purposes of Sections 411.114 and 411.087,
328	328	Government Code:
329	329	(1) a shelter that applies for a permit is considered
330	330	to be an applicant for a license under this chapter; and
331	331	(2) a shelter day-care facility operating under a
332	332	permit issued under this subchapter is considered to be a
333	333	child-care facility licensed under this chapter.
334	334	(e) The department shall require the shelter to pay to the
335	335	department a fee in an amount not to exceed the administrative costs
336	336	the department incurs in conducting a background and criminal
337	337	history check under this section.
338	338	Sec. 42.207. APPLICABILITY OF OTHER LAW. Except as
339	339	otherwise provided by this subchapter, a shelter day-care facility
340	340	operating under this subchapter is not a child-care facility, as
341	341	defined by Section 42.002, and the provisions of this chapter and
342	342	the department's rules that apply to a child-care facility licensed
343	343	under Subchapter C do not apply to a shelter day-care facility.
344	344	Sec. 42.208. REPORTING OF INCIDENTS AND VIOLATIONS. A
345	345	shelter day-care facility operating under this subchapter and each
346	346	employee of that facility are subject to the reporting requirements
347	347	of Section 42.063 to the same extent a licensed child-care facility
348	348	and employees of licensed child-care facilities are subject to that
349	349	section.
350	350	Sec. 42.209. AUTHORITY TO CONDUCT LIMITED INSPECTIONS.
351	351	(a) The department may inspect a shelter day-care facility
352	352	operating under this subchapter if the department receives a
353	353	complaint or report of child abuse or neglect alleged to have
354	354	occurred at the shelter day-care facility.
355	355	(b) If the department inspects a shelter day-care facility
356	356	as authorized by this section, the department may require the
357	357	facility to take appropriate corrective action the department
358	358	determines necessary to comply with the requirements of this
359	359	subchapter and to ensure the health and safety of children
360	360	receiving care at the facility. The department may continue to
361	361	inspect the facility until corrective action is taken and for a
362	362	reasonable time after that action is taken to ensure continued
363	363	compliance.
364	364	(c) The department may charge a shelter issued a permit
365	365	under this subchapter a reasonable fee for the cost of services
366	366	provided by the department in formulating, monitoring, and
367	367	implementing a corrective action plan under this section.
368	368	Sec. 42.210. SUSPENSION, DENIAL, OR REVOCATION. (a) The
369	369	department may suspend, deny, or revoke a permit issued to a shelter
370	370	under this subchapter if the shelter does not comply with the
371	371	provisions of this subchapter or any applicable department rules.
372	372	(b) The department may refuse to issue a permit under this
373	373	subchapter to a shelter that had its authorization to operate a
374	374	child-care facility issued under another subchapter revoked,
375	375	suspended, or not renewed for a reason relating to child health or
376	376	safety as determined by the department.
377	377	(c) A shelter day-care facility is subject to the emergency
378	378	suspension of its permit to operate and to closure under Section
379	379	42.073 to the same extent and in the same manner as a licensed
380	380	child-care facility is subject to that section.
381	381	SECTION 11. Subsection (a), Section 43.010, Human Resources
382	382	Code, is amended to read as follows:
383	383	(a) The department may deny, revoke, suspend, or refuse to
384	384	renew a license, or place on probation or reprimand a license holder
385	385	for:
386	386	(1) violating this chapter or a rule adopted under
387	387	this chapter;
388	388	(2) circumventing or attempting to circumvent the
389	389	requirements of this chapter or a rule adopted under this chapter;
390	390	(3) engaging in fraud or deceit related to the
391	391	requirements of this chapter or a rule adopted under this chapter;
392	392	(4) providing false or misleading information to the
393	393	department during the license application or renewal process for
394	394	any person's license;
395	395	(5) making a statement about a material fact during
396	396	the license application or renewal process that the person knows or
397	397	should know is false;
398	398	(6) having:
399	399	(A) a criminal history or central registry record
400	400	that would prohibit a person from working in a child-care facility,
401	401	as defined by Section 42.002, under rules applicable to that type of
402	402	facility; or
403	403	(B) a criminal history relevant to the duties of
404	404	a licensed child-care or child-placing administrator, as those
405	405	duties are specified in rules adopted by the executive
406	406	commissioner;
407	407	(7) using drugs or alcohol in a manner that
408	408	jeopardizes the person's ability to function as an administrator;
409	409	or
410	410	(8) performing duties as a child-care administrator in
411	411	a negligent manner.
412	412	SECTION 12. Section 411.087, Government Code, is amended by
413	413	amending Subsections (a) and (e) and adding Subsection (f) to read
414	414	as follows:
415	415	(a) Unless otherwise authorized by Subsection (e), a [A]
416	416	person, agency, department, political subdivision, or other entity
417	417	that is authorized by this subchapter to obtain from the department
418	418	criminal history record information maintained by the department
419	419	that relates to another person is authorized to:
420	420	(1) obtain through the Federal Bureau of Investigation
421	421	criminal history record information maintained or indexed by that
422	422	bureau that pertains to that person; or
423	423	(2) obtain from any other criminal justice agency in
424	424	this state criminal history record information maintained by that
425	425	criminal justice agency that relates to that person.
426	426	(e) The department may provide access to state and national
427	427	criminal history record information to qualified [nongovernmental]
428	428	entities entitled to that information under 42 U.S.C. Section
429	429	5119a. The department must follow federal law and regulation,
430	430	federal executive orders, and federal policy in releasing
431	431	information under this subsection.
432	432	(f) Notwithstanding any other law, a person, agency,
433	433	department, political subdivision, or other entity entitled to
434	434	access the criminal history record information of a person under
435	435	Subsection (e) is not required to collect or submit the person's
436	436	fingerprints if:
437	437	(1) a complete set of the person's fingerprints was
438	438	previously submitted under Subsection (d)(1);
439	439	(2) the department retained the fingerprints;
440	440	(3) the fingerprints are acceptable to the Federal
441	441	Bureau of Investigation for access to criminal history record
442	442	information; and
443	443	(4) the only purpose for which the person's
444	444	fingerprints are collected is to access criminal history record
445	445	information under Subsection (e).
446	446	SECTION 13. Subsection (a), Section 411.114, Government
447	447	Code, is amended to read as follows:
448	448	(a)(1) In this subsection:
449	449	(A) "Child," "child-care facility,"
450	450	"child-placing agency," and "family home" have the meanings
451	451	assigned by Section 42.002, Human Resources Code.
452	452	(B) "Elderly person" has the meaning assigned by
453	453	Section 48.002, Human Resources Code.
454	454	[(C) "Maternity home" has the meaning assigned by
455	455	Section 249.001, Health and Safety Code.]
456	456	(D) "Person with a disability" means a disabled
457	457	person as defined by Section 48.002, Human Resources Code.
458	458	(E) "Ward" has the meaning assigned by Section
459	459	601, Texas Probate Code.
460	460	(2) The Department of Family and Protective Services
461	461	shall obtain from the department criminal history record
462	462	information maintained by the department that relates to a person
463	463	who is:
464	464	(A) an applicant for a license, registration,
465	465	certification, or listing under Chapter 42, Human Resources Code[,
466	466	or Chapter 249, Health and Safety Code];
467	467	(B) an owner, operator, or employee of or an
468	468	applicant for employment by a child-care facility, child-placing
469	469	agency, or family home[, or maternity home] licensed, registered,
470	470	certified, or listed under Chapter 42, Human Resources Code[, or
471	471	Chapter 249, Health and Safety Code];
472	472	(C) a person 14 years of age or older who will be
473	473	regularly or frequently working or staying in a child-care facility
474	474	or[,] family home[, or maternity home] while children are being
475	475	provided care, other than a child in the care of the home or
476	476	facility;
477	477	(D) an applicant selected for a position with the
478	478	Department of Family and Protective Services, the duties of which
479	479	include direct delivery of protective services to children, elderly
480	480	persons, or persons with a disability;
481	481	(E) an employee of, an applicant for employment
482	482	with, or a volunteer or an applicant volunteer with a business
483	483	entity or person that contracts with the Department of Family and
484	484	Protective Services to provide direct delivery of protective
485	485	services to children, elderly persons, or persons with a
486	486	disability, if the person's duties or responsibilities include
487	487	direct contact with children, elderly persons, or persons with a
488	488	disability;
489	489	(F) a registered volunteer with the Department of
490	490	Family and Protective Services;
491	491	(G) a person providing or applying to provide
492	492	in-home, adoptive, or foster care for children in the care of the
493	493	Department of Family and Protective Services and other persons
494	494	living in the residence in which the child will reside;
495	495	(H) a Department of Family and Protective
496	496	Services employee who is engaged in the direct delivery of
497	497	protective services to children, elderly persons, or persons with a
498	498	disability;
499	499	(I) a person who is the subject of a report the
500	500	Department of Family and Protective Services receives alleging that
501	501	the person has abused, neglected, or exploited a child, an elderly
502	502	person, or a person with a disability, provided that:
503	503	(i) the report alleges the person has
504	504	engaged in conduct that meets the statutory definition of abuse,
505	505	neglect, or exploitation under Chapter 261, Family Code, or Chapter
506	506	48, Human Resources Code; and
507	507	(ii) the person who is the subject of the
508	508	report is not also the victim of the alleged conduct;
509	509	(J) a person providing child care for a child who
510	510	is in the care of the Department of Family and Protective Services
511	511	and who is or will be receiving adoptive, foster, or in-home care;
512	512	(K) through a contract with a nonprofit
513	513	management center, an employee of, an applicant for employment
514	514	with, or a volunteer or an applicant volunteer with a nonprofit,
515	515	tax-exempt organization that provides any service that involves the
516	516	care of or access to children, elderly persons, or persons with a
517	517	disability; or
518	518	(L) an applicant for a child-care administrator
519	519	or child-placing agency administrator license under Chapter 43,
520	520	Human Resources Code.
521	521	(3) The Department of Family and Protective [and
522	522	Regulatory] Services is entitled to obtain from the department
523	523	criminal history record information maintained by the department
524	524	that relates to a person who is:
525	525	(A) a volunteer or applicant volunteer with a
526	526	local affiliate in this state of Big Brothers/Big Sisters of
527	527	America;
528	528	(B) a volunteer or applicant volunteer with the
529	529	"I Have a Dream/Houston" program;
530	530	(C) a volunteer or applicant volunteer with an
531	531	organization that provides court-appointed special advocates for
532	532	abused or neglected children;
533	533	(D) a person providing, at the request of the
534	534	child's parent, in-home care for a child who is the subject of a
535	535	report alleging the child has been abused or neglected;
536	536	(E) a volunteer or applicant volunteer with a
537	537	Texas chapter of the Make-a-Wish Foundation of America;
538	538	(F) a person providing, at the request of the
539	539	child's parent, in-home care for a child only if the person gives
540	540	written consent to the release and disclosure of the information;
541	541	(G) a child who is related to the caretaker, as
542	542	determined under Section 42.002, Human Resources Code, and who
543	543	resides in or is present in a child-care facility or[,] family
544	544	home[, or maternity home], other than a child described by
545	545	Subdivision (2)(C), or any other person who has unsupervised access
546	546	to a child in the care of a child-care facility or[,] family home[,
547	547	or maternity home];
548	548	(H) an applicant for a position with the
549	549	Department of Family and Protective [and Regulatory] Services,
550	550	other than a position described by Subdivision (2)(D), regardless
551	551	of the duties of the position;
552	552	(I) a volunteer or applicant volunteer with the
553	553	Department of Family and Protective [and Regulatory] Services,
554	554	other than a registered volunteer, regardless of the duties to be
555	555	performed;
556	556	(J) a person providing or applying to provide
557	557	in-home, adoptive, or foster care for children to the extent
558	558	necessary to comply with Subchapter B, Chapter 162, Family Code;
559	559	(K) a Department of Family and Protective [and
560	560	Regulatory] Services employee, other than an employee described by
561	561	Subdivision (2)(H), regardless of the duties of the employee's
562	562	position;
563	563	(L) a relative of a child in the care of the
564	564	Department of Family and Protective [and Regulatory] Services, to
565	565	the extent necessary to comply with Section 162.007, Family Code;
566	566	(M) a person, other than the subject of a report
567	567	described in Subdivision (2)(I), living in the residence in which
568	568	the alleged victim of the report resides;
569	569	(N) a contractor or an employee of a contractor
570	570	who delivers services to a ward of the Department of Family and
571	571	Protective [and Regulatory] Services under a contract with the
572	572	estate of the ward;
573	573	(O) a person who seeks unsupervised visits with a
574	574	ward of the Department of Family and Protective [and Regulatory]
575	575	Services, including a relative of the ward; or
576	576	(P) an employee, volunteer, or applicant
577	577	volunteer of a children's advocacy center under Subchapter E,
578	578	Chapter 264, Family Code, including a member of the governing board
579	579	of a center.
580	580	(4) Subject to Section 411.087, the Department of
581	581	Family and Protective [and Regulatory] Services is entitled to:
582	582	(A) obtain through the Federal Bureau of
583	583	Investigation criminal history record information maintained or
584	584	indexed by that bureau that pertains to a person described by
585	585	Subdivision (2); and
586	586	(B) obtain from any other criminal justice agency
587	587	in this state criminal history record information maintained by
588	588	that criminal justice agency that relates to a person described by
589	589	Subdivision (2) or (3). Law enforcement entities shall expedite
590	590	the furnishing of such information to Department of Family and
591	591	Protective [and Regulatory] Services workers to ensure prompt
592	592	criminal background checks for the safety of alleged victims and
593	593	Department of Family and Protective [and Regulatory] Services
594	594	workers.
595	595	(5) The Department of Family and Protective [and
596	596	Regulatory] Services may not use the authority granted under this
597	597	section to harass an employee or volunteer. The executive
598	598	commissioner of the Health and Human Services Commission [Board of
599	599	Protective and Regulatory Services] shall adopt rules to prevent
600	600	the harassment of an employee or volunteer through the request and
601	601	use of criminal records.
602	602	(6) Criminal history record information obtained by
603	603	the Department of Family and Protective [and Regulatory] Services
604	604	under this subsection may not be released to any person except:
605	605	(A) on court order;
606	606	(B) with the consent of the person who is the
607	607	subject of the criminal history record information;
608	608	(C) for purposes of an administrative hearing
609	609	held by the Department of Family and Protective [and Regulatory]
610	610	Services concerning the person who is the subject of the criminal
611	611	history record information; or
612	612	(D) as provided by Subdivision (7).
613	613	(7) The Department of Family and Protective [and
614	614	Regulatory] Services is not prohibited from releasing criminal
615	615	history record information obtained under this subsection to:
616	616	(A) the person who is the subject of the criminal
617	617	history record information;
618	618	(B) a child-care facility, child-placing agency,
619	619	or family home[, or maternity home] listed in Subdivision (2) that
620	620	employs or is considering employing the person who is the subject of
621	621	the criminal history record information;
622	622	(C) a person or business entity described by
623	623	Subdivision (2)(E) or (3) who uses or intends to use the services of
624	624	the volunteer or employs or is considering employing the person who
625	625	is the subject of the criminal history record information; or
626	626	(D) an adult residing with a child, elderly
627	627	person, or person with a disability and the person who is the
628	628	subject of the criminal history record information, if the
629	629	Department of Family and Protective [and Regulatory] Services
630	630	determines that the release of information to the adult is
631	631	necessary to ensure the safety or welfare of the child, elderly
632	632	person, or person with a disability or the adult.
633	633	SECTION 14. Subsection (e), Section 81.042, Health and
634	634	Safety Code, is amended to read as follows:
635	635	(e) The following persons shall report to the local health
636	636	authority or the department a suspected case of a reportable
637	637	disease and all information known concerning the person who has or
638	638	is suspected of having the disease if a report is not made as
639	639	required by Subsections (a)-(d):
640	640	(1) a professional registered nurse;
641	641	(2) an administrator or director of a public or
642	642	private temporary or permanent child-care facility;
643	643	(3) an administrator or director of a nursing home,
644	644	personal care home, [maternity home,] adult respite care center, or
645	645	adult day-care center;
646	646	(4) an administrator of a home health agency;
647	647	(5) an administrator or health official of a public or
648	648	private institution of higher education;
649	649	(6) an owner or manager of a restaurant, dairy, or
650	650	other food handling or processing establishment or outlet;
651	651	(7) a superintendent, manager, or health official of a
652	652	public or private camp, home, or institution;
653	653	(8) a parent, guardian, or householder;
654	654	(9) a health professional;
655	655	(10) an administrator or health official of a penal or
656	656	correctional institution; or
657	657	(11) emergency medical service personnel, a peace
658	658	officer, or a firefighter.
659	659	SECTION 15. (a) The Department of Family and Protective
660	660	Services shall develop and implement a procedure by which a
661	661	maternity home that provides residential child care to a minor
662	662	mother and that holds a license issued under Chapter 249, Health and
663	663	Safety Code, before September 1, 2012, may convert the license to a
664	664	residential child-care facility license issued under Chapter 42,
665	665	Human Resources Code.
666	666	(b) The Department of Family and Protective Services may
667	667	waive requirements for an initial inspection or initial background
668	668	and criminal history checks with respect to a maternity home
669	669	seeking to convert a license under Subsection (a) of this section if
670	670	the department determines that previously conducted inspections or
671	671	background and criminal history checks, as applicable, are
672	672	sufficient to ensure the safety of children receiving care at the
673	673	facility.
674	674	SECTION 16. The following laws are repealed:
675	675	(1) Chapter 249, Health and Safety Code; and
676	676	(2) Subsection (g-2), Section 42.042, Human Resources
677	677	Code.
678	678	SECTION 17. (a) Except as provided by Subsection (b) of
679	679	this section, this Act takes effect September 1, 2011.
680	680	(b) The changes in law made by this Act by the amendment of
681	681	Subsection (a), Section 411.114, Government Code, and Subsection
682	682	(e), Section 81.042, Health and Safety Code, the enactment of
683	683	Subchapter G, Chapter 42, Human Resources Code, and the repeal of
684	684	Chapter 249, Health and Safety Code, and Subsection (g-2), Section
685	685	42.042, Human Resources Code, take effect September 1, 2012.