S.B. No. 427
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. Subsection (b), Section 42.041, Human Resources
Code, is amended to read as follows:
(b) This section does not apply to:
(1) a state-operated facility;
(2) an agency foster home or agency foster group home;
(3) a facility that is operated in connection with a
shopping center, business, religious organization, or
establishment where children are cared for during short periods
while parents or persons responsible for the children are attending
religious services, shopping, or engaging in other activities,
including retreats or classes for religious instruction, on or near
the premises, that does not advertise as a child-care facility or
day-care center, and that informs parents that it is not licensed by
the state;
(4) a school or class for religious instruction that
does not last longer than two weeks and is conducted by a religious
organization during the summer months;
(5) a youth camp licensed by the Department of State
Health Services;
(6) a facility licensed, operated, certified, or
registered by another state agency;
(7) an educational facility that is accredited by the
Texas Education Agency, the Southern Association of Colleges and
Schools, or an accreditation body that is a member of the Texas
Private School Accreditation Commission and that operates
primarily for educational purposes for prekindergarten and above, a
before-school or after-school program operated directly by an
accredited educational facility, or a before-school or
after-school program operated by another entity under contract with
the educational facility, if the Texas Education Agency, the
Southern Association of Colleges and Schools, or the other
accreditation body, as applicable, has approved the curriculum
content of the before-school or after-school program operated under
the contract;
(8) an educational facility that operates solely for
educational purposes for prekindergarten through at least grade
two, that does not provide custodial care for more than one hour
during the hours before or after the customary school day, and that
is a member of an organization that promulgates, publishes, and
requires compliance with health, safety, fire, and sanitation
standards equal to standards required by state, municipal, and
county codes;
(9) a kindergarten or preschool educational program
that is operated as part of a public school or a private school
accredited by the Texas Education Agency, that offers educational
programs through grade six, and that does not provide custodial
care during the hours before or after the customary school day;
(10) a family home, whether registered or listed;
(11) an educational facility that is integral to and
inseparable from its sponsoring religious organization or an
educational facility both of which do not provide custodial care
for more than two hours maximum per day, and that offers an
educational program in one or more of the
following: prekindergarten through at least grade three,
elementary grades, or secondary grades;
(12) an emergency shelter facility providing shelter
to minor mothers who are the sole support of their natural children
under Section 32.201, Family Code, unless the facility would
otherwise require a license as a child-care facility under this
section;
(13) a juvenile detention facility certified under
Section 51.12, Family Code, a juvenile correctional facility
certified under Section 51.125, Family Code, a juvenile facility
providing services solely for the Texas Juvenile Justice Department
[Youth Commission], or any other correctional facility for children
operated or regulated by another state agency or by a political
subdivision of the state;
(14) an elementary-age (ages 5-13) recreation program
operated by a municipality provided the governing body of the
municipality annually adopts standards of care by ordinance after a
public hearing for such programs, that such standards are provided
to the parents of each program participant, and that the ordinances
shall include, at a minimum, staffing ratios, minimum staff
qualifications, minimum facility, health, and safety standards,
and mechanisms for monitoring and enforcing the adopted local
standards; and further provided that parents be informed that the
program is not licensed by the state and the program may not be
advertised as a child-care facility;
(15) an annual youth camp held in a municipality with a
population of more than 1.5 million that operates for not more than
three months and that has been operated for at least 10 years by a
nonprofit organization that provides care for the homeless;
(16) a food distribution program that:
(A) serves an evening meal to children two years
of age or older; and
(B) is operated by a nonprofit food bank in a
nonprofit, religious, or educational facility for not more than two
hours a day on regular business days;
(17) a child-care facility that operates for less than
three consecutive weeks and less than 40 days in a period of 12
months;
(18) a program:
(A) in which a child receives direct instruction
in a single skill, talent, ability, expertise, or proficiency;
(B) that does not provide services or offerings
that are not directly related to the single talent, ability,
expertise, or proficiency;
(C) that does not advertise or otherwise
represent that the program is a child-care facility, day-care
center, or licensed before-school or after-school program or that
the program offers child-care services;
(D) that informs the parent or guardian:
(i) that the program is not licensed by the
state; and
(ii) about the physical risks a child may
face while participating in the program; and
(E) that conducts background checks for all
program employees and volunteers who work with children in the
program using information that is obtained from the Department of
Public Safety;
(19) an elementary-age (ages 5-13) recreation program
that:
(A) adopts standards of care, including
standards relating to staff ratios, staff training, health, and
safety;
(B) provides a mechanism for monitoring and
enforcing the standards and receiving complaints from parents of
enrolled children;
(C) does not advertise as or otherwise represent
the program as a child-care facility, day-care center, or licensed
before-school or after-school program or that the program offers
child-care services;
(D) informs parents that the program is not
licensed by the state;
(E) is organized as a nonprofit organization or
is located on the premises of a participant's residence;
(F) does not accept any remuneration other than a
nominal annual membership fee;
(G) does not solicit donations as compensation or
payment for any good or service provided as part of the program; and
(H) conducts background checks for all program
employees and volunteers who work with children in the program
using information that is obtained from the Department of Public
Safety;
(20) a living arrangement in a caretaker's home
involving one or more children or a sibling group, excluding
children who are related to the caretaker, in which the caretaker:
(A) had a prior relationship with the child or
sibling group or other family members of the child or sibling group;
(B) does not care for more than one unrelated
child or sibling group;
(C) does not receive compensation or solicit
donations for the care of the child or sibling group; and
(D) has a written agreement with the parent to
care for the child or sibling group;
(21) a living arrangement in a caretaker's home
involving one or more children or a sibling group, excluding
children who are related to the caretaker, in which:
(A) the department is the managing conservator of
the child or sibling group;
(B) the department placed the child or sibling
group in the caretaker's home; and
(C) the caretaker had a long-standing and
significant relationship with the child or sibling group before the
child or sibling group was placed with the caretaker; [or]
(22) a living arrangement in a caretaker's home
involving one or more children or a sibling group, excluding
children who are related to the caretaker, in which the child is in
the United States on a time-limited visa under the sponsorship of
the caretaker or of a sponsoring organization; or
(23) a facility operated by a nonprofit organization
that:
(A) does not otherwise operate as a child-care
facility that is required to be licensed under this section;
(B) provides emergency shelter and care for not
more than 15 days to children 13 years of age or older but younger
than 18 years of age who are victims of human trafficking alleged
under Section 20A.02, Penal Code;
(C) is located in a municipality with a
population of at least 600,000 that is in a county on an
international border; and
(D) meets one of the following criteria:
(i) is licensed by, or operates under an
agreement with, a state or federal agency to provide shelter and
care to children; or
(ii) meets the eligibility requirements for
a contract under Section 51.005(b)(3).
SECTION 2. 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 3. 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 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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 10. Subsection (a-3), Section 42.056 and
Subdivision (1), Section 43.001, Human Resources Code, are
repealed.
SECTION 11. 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 12. This Act takes effect September 1, 2013.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 427 passed the Senate on
April 9, 2013, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 20, 2013, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 427 passed the House, with
amendment, on May 17, 2013, by the following vote: Yeas 135,
Nays 5, three present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor