86R5585 MCK-D
By: Hinojosa H.B. No. 2930
A BILL TO BE ENTITLED
AN ACT
relating to the enforcement activities of the Health and Human
Services Commission against certain child-care facilities;
authorizing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 42.0421(g), Human Resources Code, is
amended to read as follows:
(g) A person described by Subsection (f)(6) may provide
training under this section only if the commission [department] has
not taken an action under Section 42.071 or[,] 42.072[, or 42.078,
other than an evaluation,] against the license, listing, or
registration of the person or the home or center for which the
person is a provider or director during the two-year period
preceding the date on which the person provides the training.
SECTION 2. Section 42.04412(b), Human Resources Code, is
amended to read as follows:
(b) During an investigation or inspection of a facility or
family home under this chapter, the facility or family home shall
cooperate with the commission or department and allow the
commission or department to:
(1) access the records of the facility or family home,
including a photograph, videotape, audiotape, or other audio or
visual recording;
(2) access any part of the premises of the facility or
family home; and
(3) interview any child, employee, or other person who
is present at the facility or family home and who may have
information relevant to the investigation or inspection.
SECTION 3. Section 42.0704, Human Resources Code, is
amended to read as follows:
Sec. 42.0704. ENFORCEMENT POLICY. (a) The executive
commissioner by rule shall adopt a general enforcement policy that
describes the commission's [department's] approach to enforcement
of this chapter.
(b) The enforcement policy must:
(1) summarize the commission's [department's] general
expectations in enforcing this chapter;
(2) include the methodology required by Subsection
(c); and
(3) describe the commission's [department's] plan for
strengthening its enforcement efforts and for making objective
regulatory decisions.
(c) As part of the enforcement policy, the commission
[department] shall develop and implement a methodology for
determining the appropriate disciplinary action to take against a
person who violates this chapter or a commission [department] rule.
The methodology must provide guidance on when to use each of the
available tools of enforcement, including technical assistance,
voluntary plans of action, [evaluation,] probation, suspension or
revocation of a license or registration, denial of a license or
registration, administrative penalties, and emergency suspension.
The methodology must allow the commission [department] to consider
the circumstances of a particular case, including the nature and
seriousness of the violation, history of previous violations, and
aggravating and mitigating factors, in determining the appropriate
disciplinary action.
(d) The commission [department] shall make the methodology
described by Subsection (c) available to the public, including by
posting the methodology on the commission's [department's] Internet
website.
SECTION 4. Section 42.071, Human Resources Code, is amended
to read as follows:
Sec. 42.071. SUSPENSION[, EVALUATION,] OR PROBATION OF
LICENSE OR REGISTRATION. (a) The commission [department] may
suspend the license of a facility or the registration of a family
home that has temporarily ceased operation but has definite plans
for starting operations again within the time limits of the issued
license or registration.
(b) The commission [department] may suspend a facility's
license or a family home's registration for a definite period
rather than deny or revoke the license or registration if the
commission [department] finds repeated noncompliance with
standards that do not endanger the health and safety of children.
To qualify for license or registration suspension under this
subsection, a facility or family home must suspend its operations
and show that standards can be met within the suspension period.
(c) If the commission [department] finds a facility or
family home is in repeated noncompliance with standards that do not
endanger the health and safety of children, the commission
[department] may place [schedule] the facility or family home on
[for evaluation or] probation rather than suspend or revoke the
facility's license or the family home's registration. The
commission [department] shall provide notice to the facility or
family home of the [evaluation or] probation and of the items of
noncompliance not later than the 10th day before the [evaluation
or] probation period begins. [The department shall designate a
period of not less than 30 days during which the facility or family
home will remain under evaluation.] During the [evaluation or]
probation period, the facility or family home must correct the
items that were in noncompliance and report the corrections to the
commission [department] for approval.
(d) The commission [department] shall revoke the license of
a facility or the registration of a family home that does not comply
with standards at the end of a license or registration suspension.
(e) The commission [department] may suspend or revoke the
license of a facility or the registration of a family home that does
not correct items that were in noncompliance or that does not comply
with required standards within the applicable [evaluation or]
probation period.
SECTION 5. Section 42.078, Human Resources Code, is amended
by amending Subsections (a), (a-2), and (c) and adding Subsection
(b-1) to read as follows:
(a) The commission [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 other law or a commission rule
[or order adopted under this chapter]. In addition, the commission
[department] may impose an administrative penalty against a
facility or family home or a controlling person of a 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, family home, or person knows or should know is false:
(A) on an application for the issuance or renewal
of a license or registration or an attachment to the application; or
(B) in response to a matter under investigation
by the commission or the department;
(3) refuses to allow a representative of the
commission or department to inspect:
(A) a book, record, or file [required to be]
maintained by the facility or family home; or
(B) any part of the premises of the facility or
family home;
(4) purposefully interferes with:
(A) the work of a representative of the
commission or department; or
(B) 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-2) The commission [department] may impose an
administrative penalty without first imposing a nonmonetary
administrative sanction for violating a minimum standard
applicable to a facility or family home under this chapter that is
determined by the commission [department] to be a high-risk
standard, including background check standards, safety hazard
standards, and supervision standards.
(b-1) The executive commissioner shall, in consultation
with appropriate interested parties, adopt rules on the imposition
of an administrative penalty under this section. The rules must:
(1) specify the types of violations that warrant
imposition of an administrative penalty by examining the scope and
severity of the relevant minimum standard violated;
(2) prescribe reasonable penalty amounts, subject to
Subdivision (4), to be imposed for each violation subject to an
administrative penalty;
(3) establish a schedule of progressive
administrative penalties and amounts, subject to Subdivision (4),
in accordance with the type, frequency, and seriousness of a
violation;
(4) authorize the imposition of an administrative
penalty in an amount not to exceed:
(A) $500 for a first violation; and
(B) $2,000 for progressive violations;
(5) provide that a facility or family home commits a
separate violation each day the facility or home continues to
violate the law or rule;
(6) ensure standard and consistent application of the
administrative penalties throughout the state; and
(7) provide for an administrative appeals process in
accordance with Chapter 2001, Government Code, to adjudicate claims
and appeals relating to the imposition of an administrative penalty
under this section.
(c) In determining [addition to the number of children,] the
amount of the penalty, the commission shall consider [be based on]:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited acts,
and the hazard or potential hazard created to the health and[,]
safety of the children to whom the facility or family home provides
care[, or economic welfare of the public];
(2) the number of children to whom the facility or
family home was authorized to provide care or the number of children
under the care of the child-placing agency when the violation
occurred [the economic harm to property or the environment caused
by the violation];
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) the efforts to correct the violation; and
(6) any other matter that justice may require.
SECTION 6. Sections 42.078(a-1), (b), (e), (f), (g), (h),
(i), (j), (k), (l), (m), (n), (o), (p), and (q), Human Resources
Code, are repealed.
SECTION 7. This Act takes effect September 1, 2019.