By: Nelson S.B. No. 427
(In the Senate - Filed February 7, 2013; February 13, 2013,
read first time and referred to Committee on Health and Human
Services; February 26, 2013, reported favorably by the following
vote: Yeas 9, Nays 0; February 26, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain child-care facilities and
administrators of those facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 42.044, Human Resources Code, is amended
by amending Subsections (b) and (b-2) and adding Subsection (b-3)
to read as follows:
(b) Except as provided by Subsection (b-3), the [The]
department shall inspect all licensed or certified facilities at
least once a year and may inspect other facilities or registered
family homes as necessary. At least one of the annual visits must
be unannounced and all may be unannounced.
(b-2) Except as otherwise provided by this subsection,
during an unannounced annual or biennial inspection of a day-care
center, the department shall meet with the director designated by
the day-care center as having daily, on-site responsibility for the
operation of the day-care center to assess whether the director
meets the qualifications of a director specified by this chapter
and department rules. If the director is not present during the
unannounced annual or biennial inspection, the department shall
schedule a subsequent meeting with the director for that purpose
and shall conduct that meeting at the day-care center.
(b-3) The department may, in accordance with rules adopted
by the executive commissioner, designate a licensed day-care center
or group day-care home for a biennial inspection if the department
determines, based on previous inspections, that the facility has a
history of substantial compliance with minimum licensing
standards. The biennial inspection of a day-care center or group
day-care home must be unannounced.
SECTION 2. Subsections (a-2), (a-4), (a-5), and (b-1),
Section 42.056, Human Resources Code, are amended to read as
follows:
(a-2) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a residential
child-care facility, day-care center, before-school or
after-school program, or school-age program shall submit a complete
set of fingerprints of each person whose name is required to be
submitted by the director, owner, or operator under Subsection (a),
unless the person is only required to have the person's name
submitted based on criteria specified by Subsection (a)(7). This
subsection does not apply to a program that is exempt from the
licensing requirements of Section 42.041.
(a-4) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a [child-care]
facility or family home shall submit a complete set of fingerprints
of each person whose name is required to be submitted by the
director, owner, or operator under Subsection (a) if:
(1) the person resided in another state during the
five years preceding the date the person's name was required to be
submitted under Subsection (a); or
(2) the director, owner, or operator has reason to
suspect that the person has a criminal history in another state.
(a-5) The rules adopted by the executive commissioner under
Subsections (a-2)[, (a-3),] and (a-4):
(1) must require that the fingerprints be submitted in
a form and of a quality acceptable to the Department of Public
Safety and the Federal Bureau of Investigation for conducting a
criminal history check;
(2) may require that the fingerprints be submitted
electronically through an applicant fingerprinting service center;
and
(3) may allow the department to waive the submission
of fingerprints required by this section if:
(A) the person for whom the submission is
required has:
(i) a fingerprint-based criminal history
record check on file with the department; or
(ii) a fingerprint-based criminal history
clearinghouse record, as provided by Section 411.0845, Government
Code, that is accessible to the department through the Department
of Public Safety; and
(B) the date on which the current submission of
fingerprints is required occurs before the second anniversary of a
previous name-based criminal history check of the person.
(b-1) In addition to any other background or criminal
history check conducted under Subsection (b), for each person whose
fingerprints are submitted under Subsection (a-2)[, (a-3),] or
(a-4), the department shall conduct a state and Federal Bureau of
Investigation criminal history check by:
(1) submitting the person's fingerprints, or causing
the fingerprints to be submitted electronically, to the Department
of Public Safety for the purpose of conducting a state and federal
criminal history check; and
(2) using the resulting information made available by
that department under Section 411.114, Government Code, and by the
Federal Bureau of Investigation and any other criminal justice
agency under Section 411.087, Government Code.
SECTION 3. Section 42.078, Human Resources Code, is amended
by amending Subsections (a) and (a-1) and adding Subsection (a-2)
to read as follows:
(a) The department may impose an administrative sanction or
an administrative penalty against a facility or family home
licensed, registered, or listed under this chapter that violates
this chapter or a rule or order adopted under this chapter. In
addition, the department may impose an administrative penalty
against a [residential child-care] facility or family home or a
controlling person of a [residential child-care] facility or family
home if the facility, family home, or controlling person:
(1) violates a term of a license or registration
issued under this chapter;
(2) makes a statement about a material fact that the
facility or person knows or should know is false:
(A) on an application for the issuance of a
license or registration or an attachment to the application; or
(B) in response to a matter under investigation;
(3) refuses to allow a representative of the
department to inspect:
(A) a book, record, or file required to be
maintained by the facility; or
(B) any part of the premises of the facility;
(4) purposefully interferes with the work of a
representative of the department or the enforcement of this
chapter; or
(5) fails to pay a penalty assessed under this chapter
on or before the date the penalty is due, as determined under this
section.
(a-1) Except as provided by Subsection (a-2), nonmonetary
[Nonmonetary,] administrative sanctions [penalties or remedies],
including [but not limited to] corrective action plans, probation,
and evaluation periods, shall be imposed when appropriate before
administrative [monetary] penalties.
(a-2) The department may impose an administrative penalty
without first imposing a nonmonetary administrative sanction for
the following violations:
(1) failing to timely submit the information required
to conduct a background and criminal history check under Section
42.056 and applicable department rules on two or more occasions;
(2) failing to submit the information required to
conduct a background and criminal history check under Section
42.056 and applicable department rules before the 30th day after
the date the facility or family home is notified by the department
that the information is overdue;
(3) except as provided by Section 42.056(g), knowingly
allowing a person to be present in a facility or family home when
the person's background and criminal history check has not been
received;
(4) knowingly allowing a person to be present in a
facility or family home when the person's background and criminal
history check has been received and contains criminal history or
central registry findings that under department rules preclude the
person from being present in the facility or family home; or
(5) violating a condition or restriction the
department places on a person's presence at a facility or family
home as part of a pending or approved risk evaluation of the
person's background and criminal history or central registry
findings.
SECTION 4. Section 43.001, Human Resources Code, is amended
by adding Subdivisions (5), (6), and (7) to read as follows:
(5) "Controlling person" has the meaning assigned by
Section 42.002.
(6) "General residential operation" has the meaning
assigned by Section 42.002.
(7) "Permit" means a license, listing, registration,
or certification issued to a facility or family home under Chapter
42.
SECTION 5. Subsection (a), Section 43.003, Human Resources
Code, is amended to read as follows:
(a) Except as provided by Subsection (b) of this section, a
person may not serve as a child-care administrator of a general
residential operation [child-care institution] without a license
issued by the department under this chapter.
SECTION 6. Section 43.004, Human Resources Code, is amended
by amending Subsections (a) and (b) and adding Subsection (d) to
read as follows:
(a) To be eligible for a child-care administrator's license
a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c), including a complete set of the person's fingerprints;
(2) satisfy the minimum requirements under department
rules relating to criminal history and background checks;
(3) pass an examination developed and administered by
the department that demonstrates competence in the field of
child-care administration;
(4) [(3)] have one year of full-time experience in
management or supervision of child-care personnel and programs; and
(5) [(4)] have one of the following educational and
experience qualifications:
(A) a master's or doctoral degree in social work
or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in child care or a closely related field.
(b) To be eligible for a child-placing agency
administrator's license a person must:
(1) provide information for the department's use in
conducting a criminal history and background check under Subsection
(c), including a complete set of the person's fingerprints;
(2) satisfy the minimum requirements under department
rules relating to criminal history and background checks;
(3) pass an examination developed and administered by
the department that demonstrates competence in the field of placing
children in residential settings or adoptive homes;
(4) [(3)] have one year of full-time experience in
management or supervision of child-placing personnel and programs;
and
(5) [(4)] have one of the following educational and
experience qualifications:
(A) a master's or doctoral degree in social work
or other area of study; or
(B) a bachelor's degree and two years' full-time
experience in the field of placing children in residential settings
or adoptive homes or a closely related field.
(d) The executive commissioner shall adopt rules consistent
with Section 42.056 relating to requiring a criminal history and
background check before issuing or renewing a license under this
chapter.
SECTION 7. Subsection (a), Section 43.009, Human Resources
Code, is amended to read as follows:
(a) To be eligible for license renewal, a license holder
shall:
(1) present evidence to the department of
participation in a program of continuing education for 15 hours of
formal study each year during the two-year period before the
renewal; and
(2) provide information for the department's use in
conducting a criminal history and background check under Section
43.004(c) and applicable department rules, including a complete set
of the person's fingerprints.
SECTION 8. Subsection (a), Section 43.010, Human Resources
Code, is amended to read as follows:
(a) The department may deny, revoke, suspend, or refuse to
renew a license, or place on probation or reprimand a license holder
for:
(1) violating this chapter or a rule adopted under
this chapter;
(2) circumventing or attempting to circumvent the
requirements of this chapter or a rule adopted under this chapter;
(3) engaging in fraud or deceit related to the
requirements of this chapter or a rule adopted under this chapter;
(4) providing false or misleading information to the
department during the license application or renewal process for
any person's license;
(5) making a statement about a material fact during
the license application or renewal process that the person knows or
should know is false;
(6) having:
(A) a criminal history or central registry record
that would prohibit a person from working in a child-care facility,
as defined by Section 42.002, under rules applicable to that type of
facility; or
(B) a criminal history relevant to the duties of
a licensed child-care or child-placing administrator, as those
duties are specified in rules adopted by the executive
commissioner;
(7) using drugs or alcohol in a manner that
jeopardizes the person's ability to function as an administrator;
[or]
(8) performing duties as a child-care administrator in
a negligent manner; or
(9) engaging in conduct that makes the license holder
ineligible for:
(A) a permit under Section 42.072; or
(B) employment as a controlling person or service
in that capacity in a facility or family home under Section 42.062.
SECTION 9. Subsection (a-3), Section 42.056 and Subdivision
(1), Section 43.001, Human Resources Code, are repealed.
SECTION 10. The changes in law made by this Act to Section
42.078, Human Resources Code, apply only to a violation committed
on or after the effective date of this Act. A violation committed
before the effective date of this Act is governed by the law in
effect when the violation was committed, and the former law is
continued in effect for that purpose.
SECTION 11. This Act takes effect September 1, 2013.
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