Texas 2019 - 86th Regular

Texas House Bill HB4261 Compare Versions

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1	1	By: Bonnen of Galveston H.B. No. 4261
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the regulation of child-care facilities and family
7	7	homes; providing administrative penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subchapter C, Chapter 42, Human Resources Code,
10	10	is amended by adding Section 42.04215 to read as follows:
11	11	Sec. 42.04215. SAFETY TRAINING ACCOUNT. (a) The safety
12	12	training account is a dedicated account in the general revenue
13	13	fund. The account is composed of:
14	14	(1) money deposited into the account under Section
15	15	42.078;
16	16	(2) gifts, grants, and donations contributed to the
17	17	account; and
18	18	(3) interest earned on the investment of money in the
19	19	account.
20	20	(b) Section 403.0956, Government Code, does not apply to the
21	21	account.
22	22	(c) Money in the account may be appropriated only to the
23	23	commission to provide safety training materials at no cost to a
24	24	facility licensed under this chapter or a family home registered or
25	25	listed under this chapter. The commission may contract with a third
26	26	party to create the training materials.
27	27	(d) The executive commissioner shall adopt rules necessary
28	28	to implement this section.
29	29	SECTION 2. Subchapter C, Chapter 42, Human Resources Code,
30	30	is amended by adding Section 42.0429 to read as follows:
31	31	Sec. 42.0429. SAFE SLEEPING STANDARDS. (a) The executive
32	32	commissioner by rule shall establish safe sleeping standards for
33	33	licensed facilities and registered family homes. Each licensed
34	34	facility and registered family home shall comply with the safe
35	35	sleeping standards.
36	36	(b) If the commission determines that a licensed facility or
37	37	registered family home has violated a safe sleeping standard
38	38	established as required by Subsection (a), the facility or home
39	39	shall provide written notice in the form and manner required by the
40	40	executive commissioner to the parent or legal guardian of each
41	41	child attending the facility or home.
42	42	(c) The executive commissioner shall prescribe the form for
43	43	the notice required by Subsection (b) and post the form on the
44	44	commission's Internet website.
45	45	SECTION 3. Section 42.04425, Human Resources Code, is
46	46	amended to read as follows:
47	47	Sec. 42.04425. INSPECTION INFORMATION DATABASE. (a) If
48	48	feasible using available information systems, the commission
49	49	[department] shall establish a computerized database containing
50	50	relevant inspection information on all licensed facilities
51	51	[day-care centers, licensed group day-care homes,] and registered
52	52	family homes obtained from other state agencies and political
53	53	subdivisions of the state.
54	54	(b) The commission [department] shall make the data
55	55	collected by the commission [department] available to another state
56	56	agency or political subdivision of the state for the purpose of
57	57	administering programs or enforcing laws within the jurisdiction of
58	58	that agency or subdivision. If feasible using available
59	59	information systems, the commission [department] shall make the
60	60	data directly available to [the Department of State Health
61	61	Services, the Department of Aging and Disability Services, and] the
62	62	Texas Workforce Commission through electronic information systems.
63	63	The commission [department, the Department of State Health
64	64	Services, the Department of Aging and Disability Services,] and the
65	65	Texas Workforce Commission shall jointly plan the development of
66	66	child-care inspection databases that, to the extent feasible, are
67	67	similar in their design and architecture to promote the sharing of
68	68	data.
69	69	(c) The commission shall [department may] provide at a
70	70	minimum five years of inspection data for all facilities licensed
71	71	or family homes registered under this chapter to enhance [on
72	72	licensed day-care centers, licensed group day-care homes, or
73	73	registered family homes to the public if the department determines
74	74	that providing inspection data enhances] consumer choice with
75	75	respect to those facilities and homes.
76	76	SECTION 4. Section 42.049, Human Resources Code, is amended
77	77	to read as follows:
78	78	Sec. 42.049. LIABILITY INSURANCE REQUIRED. (a) A license
79	79	or registration holder under this chapter shall maintain liability
80	80	insurance coverage in the amount of $300,000 for each occurrence of
81	81	negligence. An insurance policy or contract required under this
82	82	section must cover injury to a child that occurs while the child is
83	83	on the premises of [the license holder] or in the care of the
84	84	[license] holder.
85	85	(b) A license or registration holder under this chapter
86	86	shall annually file with the commission [department] a certificate
87	87	or other evidence from an insurance company showing that the
88	88	[license] holder has an unexpired and uncancelled insurance policy
89	89	or contract that meets the requirements of this section.
90	90	(c) Should the license or registration holder for financial
91	91	reasons or for lack of availability of an underwriter willing to
92	92	issue a policy be unable to secure the insurance required under
93	93	Subsection (a) or should the policy limits be exhausted, the
94	94	[license] holder shall timely notify the parent or guardian of [a
95	95	person standing in parental relationship to] each child for whom
96	96	the [license] holder provides care a written notice that the
97	97	liability coverage is not provided and there will not be a ground
98	98	for an administrative penalty or suspension or revocation of the
99	99	[license] holder's license or registration under this chapter. The
100	100	[license] holder shall also notify the commission [department] that
101	101	the coverage is not provided and provide the reason for same. In no
102	102	case shall the inability to secure coverage serve to indemnify the
103	103	[license] holder for damages due to negligence.
104	104	(c-1) The commission shall prescribe a form that a license
105	105	or registration holder may use to notify a parent or guardian in
106	106	accordance with Subsection (c) that liability coverage is not
107	107	provided. The commission shall post the form on the commission's
108	108	Internet website.
109	109	(d) The insurance policy or contract shall be maintained at
110	110	all times in an amount as required by this section. Failure by a
111	111	license or registration holder to renew the policy or contract or to
112	112	maintain the policy or contract in the required amount is a ground
113	113	for suspension or revocation of the [license] holder's license or
114	114	registration under this chapter.
115	115	[(e) This section does not apply to a group day-care home or
116	116	a listed or registered family home.]
117	117	SECTION 5. Section 42.050, Human Resources Code, is amended
118	118	by amending Subsections (a), (b), and (c) and adding Subsection
119	119	(c-1) to read as follows:
120	120	(a) A license holder may apply for renewal of a license in
121	121	compliance with the requirements of this chapter and commission
122	122	[department] rules.
123	123	(b) The application for renewal of a license must be
124	124	completed and decided on by the commission [department] before the
125	125	expiration of the license under which a facility is operating.
126	126	(c) The commission [department] shall evaluate the
127	127	application for renewal of a license to determine if all licensing
128	128	requirements are met and whether the facility has been cited for
129	129	repeated violations or has established a pattern of violations
130	130	during the preceding two years. The evaluation may include a
131	131	specified number of visits to the facility and must include a review
132	132	of all required forms and records. If the commission determines the
133	133	facility has repeated violations or an established pattern of
134	134	violations, before the commission renews the license the
135	135	commission may place restrictions, conditions, or additional
136	136	requirements on the license to ensure the violations cease.
137	137	(c-1) The commission may not renew the license of a facility
138	138	cited for a violation that is not corrected by the required
139	139	compliance date unless the violation is pending an administrative
140	140	review under commission rules or pending review as a contested case
141	141	under Chapter 2001, Government Code.
142	142	SECTION 6. Section 42.052, Human Resources Code, is amended
143	143	by amending Subsections (a), (b), (c), (d), (f), (i), (j), and (k)
144	144	and adding Subsections (f-2) and (f-3) to read as follows:
145	145	(a) A state-operated child-care facility or child-placing
146	146	agency must receive certification of approval from the commission
147	147	[department]. The certification of approval remains valid until
148	148	the certification expires, is revoked, or is surrendered.
149	149	(b) To be certified, a facility must comply with the
150	150	commission's [department's] rules and standards and any provisions
151	151	of this chapter that apply to a licensed facility of the same
152	152	category. The operator of a certified facility must display the
153	153	certification in a prominent place at the facility.
154	154	(c) A family home that provides care for compensation for
155	155	three or fewer children, excluding children who are related to the
156	156	caretaker, shall list with the commission [department] if the home
157	157	provides regular care in the caretaker's own residence. The home
158	158	may register with the commission [department].
159	159	(d) A family home that provides care for four or more
160	160	children, excluding children who are related to the caretaker,
161	161	shall register with the commission [department]. A family home
162	162	that provides care exclusively for any number of children who are
163	163	related to the caretaker is not required to be listed or registered
164	164	with the commission [department].
165	165	(f) To remain listed or registered with the commission
166	166	[department], a family home must comply with the commission's
167	167	[department's] rules and standards, if applicable, and any
168	168	provision of this chapter that applies to a listed or registered
169	169	family home.
170	170	(f-2) The commission shall evaluate an application for
171	171	renewal of a facility certification or family home registration to
172	172	determine if all requirements are met and whether the applicant has
173	173	been cited for repeated violations or has established a pattern of
174	174	violations during the preceding two years. The evaluation may
175	175	include a specified number of visits to the facility or family home
176	176	subject to this section and must include a review of all required
177	177	forms and records. If the commission determines the facility or
178	178	family home has repeated violations or an established pattern of
179	179	violations, before the commission renews the certification or
180	180	registration the commission may place restrictions, conditions, or
181	181	additional requirements on the certification or registration to
182	182	ensure the violations cease.
183	183	(f-3) The commission may not renew the certification or
184	184	registration of a facility or family home cited for a violation that
185	185	is not corrected by the required compliance date unless the
186	186	violation is pending an administrative review under commission
187	187	rules or pending review as a contested case under Chapter 2001,
188	188	Government Code.
189	189	(i) The commission [department] shall provide to a listed
190	190	family home a copy of the listing. A listing must contain a
191	191	provision that states: "THIS HOME IS A LISTED FAMILY HOME. IT IS
192	192	NOT LICENSED OR REGISTERED WITH THE HEALTH AND HUMAN SERVICES
193	193	COMMISSION [DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES]. IT HAS
194	194	NOT BEEN INSPECTED AND WILL NOT BE INSPECTED." The operator of a
195	195	listed home is not required to display the listing in a prominent
196	196	place at the home but shall make the listing available for
197	197	examination. The executive commissioner by rule shall provide for
198	198	a sufficient period to allow operators of family homes to comply
199	199	with the listing requirement of this section.
200	200	(j) The operator of a listed family home shall undergo
201	201	initial and subsequent background and criminal history checks
202	202	required under Section 42.056. If the operator of a listed family
203	203	home fails to submit the information required by Section 42.056 for
204	204	a subsequent background and criminal history check, the commission
205	205	[department] shall automatically:
206	206	(1) suspend the home's listing until the required
207	207	information is submitted; and
208	208	(2) revoke the home's listing if the required
209	209	information is not submitted within six months after the date the
210	210	automatic suspension begins.
211	211	(k) The commission [department] shall issue a listing or
212	212	registration to a family home, as appropriate, in both English and
213	213	Spanish when the most recent federal census shows that more than
214	214	one-half of the population in a municipality or in a commissioners
215	215	precinct in a county in which the family home is located is of
216	216	Hispanic origin or Spanish-speaking.
217	217	SECTION 7. Section 42.063, Human Resources Code, is amended
218	218	by amending Subsections (b), (d), and (g) and adding Subsections
219	219	(b-1) and (b-2) to read as follows:
220	220	(b) A person licensed under this chapter shall report to the
221	221	commission [department] each serious incident involving a child who
222	222	receives services from the person, regardless of whether the
223	223	department is the managing conservator of the child.
224	224	(b-1) A person licensed or registered under this chapter
225	225	shall notify in accordance with commission rule a parent or
226	226	guardian of a child in the care of the person of an incident of
227	227	abuse, neglect, or exploitation of the child, injury of the child
228	228	that requires treatment by a medical professional or
229	229	hospitalization, or illness of the child that requires
230	230	hospitalization.
231	231	(b-2) A person licensed or registered under this chapter
232	232	shall notify in accordance with commission rule a parent or
233	233	guardian of each child in the care of the person of a violation that
234	234	constitutes abuse, neglect, or exploitation of a child. The
235	235	commission shall prescribe the form for the notice required under
236	236	this subsection and post the form on the commission's Internet
237	237	website.
238	238	(d) An employee or volunteer of a general residential
239	239	operation, child-placing agency, continuum-of-care residential
240	240	operation, cottage home operation, or specialized child-care home
241	241	shall report any serious incident directly to the commission
242	242	[department] if the incident involves a child under the care of the
243	243	operation, agency, or home.
244	244	(g) The commission [department] shall implement this
245	245	section using existing appropriations.
246	246	SECTION 8. Sections 42.072(a), (b), (c), (e), (f), and (g),
247	247	Human Resources Code, are amended to read as follows:
248	248	(a) The commission [department] may suspend, deny, revoke,
249	249	or refuse to renew the license, listing, registration, or
250	250	certification of approval of a facility or family home that does not
251	251	comply with the requirements of this chapter, commission
252	252	[department] standards and rules, or the specific terms of the
253	253	license, listing, registration, or certification. The commission
254	254	[department] may revoke the probation of a person whose license,
255	255	listing, or registration is suspended if the person violates a term
256	256	of the conditions of probation.
257	257	(b) If the commission [department] proposes to take an
258	258	action under Subsection (a), the person is entitled to a hearing
259	259	conducted by the State Office of Administrative Hearings.
260	260	Proceedings for a disciplinary action are governed by the
261	261	administrative procedure law, Chapter 2001, Government Code. An
262	262	action under this section, including a revocation of a person's
263	263	license, is a contested case as defined by Chapter 2001, Government
264	264	Code, and is subject to judicial review under the substantial
265	265	evidence rule in accordance with that chapter. Rules of practice
266	266	adopted by the executive commissioner under Section 2001.004,
267	267	Government Code, applicable to the proceedings for a disciplinary
268	268	action may not conflict with rules adopted by the State Office of
269	269	Administrative Hearings.
270	270	(c) The commission [department] may not issue or renew a
271	271	license, listing, registration, or certification to a person whose
272	272	license, listing, registration, or certification is revoked or not
273	273	renewed or whose application for a license, listing, registration,
274	274	or certification is denied for a substantive reason under this
275	275	chapter before the fifth anniversary of the date on which the
276	276	revocation takes effect by commission [department] or court order
277	277	or the decision to deny the application is final.
278	278	(e) A person may continue to operate a facility or family
279	279	home during an appeal of a [license, listing, or registration]
280	280	revocation or refusal to renew a license, certification, or
281	281	registration unless the operation of the facility or family home
282	282	poses a risk to the health or safety of children. The executive
283	283	commissioner shall by rule establish the criteria for determining
284	284	whether the operation of a facility or family home poses a risk to
285	285	the health or safety of children. The commission [department]
286	286	shall notify the facility or family home of the criteria the
287	287	commission [department] used to determine that the operation of the
288	288	facility or family home poses a risk to health or safety and that
289	289	the facility or family home may not operate. A person who has been
290	290	notified by the commission [department] that the facility or home
291	291	may not operate under this section may seek injunctive relief from a
292	292	district court in Travis County or in the county in which the
293	293	facility or home is located to allow operation during the pendency
294	294	of an appeal. The court may grant injunctive relief against the
295	295	commission's [department's] action only if the court finds that the
296	296	child-care operation does not pose a health or safety risk to
297	297	children. A court granting injunctive relief under this subsection
298	298	shall have no other jurisdiction over an appeal of final commission
299	299	[department] action unless conferred by Chapter 2001, Government
300	300	Code.
301	301	(f) The commission [department] shall deny an application
302	302	or renewal for listing or registering a family home or shall revoke
303	303	a family home's listing or registration if the results of a
304	304	background or criminal history check conducted by the commission
305	305	[department] under Section 42.056 show that a person has been
306	306	convicted of an offense under Title 5 or 6, Penal Code, or Chapter
307	307	43, Penal Code.
308	308	(g) Notwithstanding Subsection (c), the commission
309	309	[department] may refuse to issue a license, listing, registration,
310	310	or certification to:
311	311	(1) a person whose license, listing, registration, or
312	312	certification for a facility or family home was revoked by the
313	313	commission [department] or by court order;
314	314	(2) a person who was a controlling person of a facility
315	315	or family home at the time conduct occurred that resulted in the
316	316	revocation of the license, listing, registration, or certification
317	317	of the facility or family home;
318	318	(3) a person who voluntarily closed a facility or
319	319	family home or relinquished the person's license, listing,
320	320	registration, or certification after:
321	321	(A) the commission [department] took an action
322	322	under Subsection (a) in relation to the facility, family home, or
323	323	person; or
324	324	(B) the person received notice that the
325	325	commission [department] intended to take an action under Subsection
326	326	(a) in relation to the facility, family home, or person; or
327	327	(4) a person who was a controlling person of a facility
328	328	or family home at the time conduct occurred that resulted in the
329	329	closure of the facility or family home or relinquishment of the
330	330	license, listing, registration, or certification in the manner
331	331	described by Subdivision (3).
332	332	SECTION 9. Section 42.078, Human Resources Code, is amended
333	333	by amending Subsections (a), (a-2), (e), (f), (g), (h), (i), (m),
334	334	(n), and (r) and adding Subsections (e-1) and (e-2) to read as
335	335	follows:
336	336	(a) The commission [department] may impose an
337	337	administrative sanction or an administrative penalty against a
338	338	facility or family home licensed, registered, or listed under this
339	339	chapter that violates this chapter or a rule or order adopted under
340	340	this chapter. In addition, the commission [department] may impose
341	341	an administrative penalty against a facility or family home or a
342	342	controlling person of a facility or family home if the facility,
343	343	family home, or controlling person:
344	344	(1) violates a term of a license or registration
345	345	issued under this chapter;
346	346	(2) makes a statement about a material fact that the
347	347	facility or person knows or should know is false:
348	348	(A) on an application for the issuance of a
349	349	license or registration or an attachment to the application; or
350	350	(B) in response to a matter under investigation;
351	351	(3) refuses to allow a representative of the
352	352	commission [department] to inspect:
353	353	(A) a book, record, or file required to be
354	354	maintained by the facility; or
355	355	(B) any part of the premises of the facility;
356	356	(4) purposefully interferes with the work of a
357	357	representative of the commission [department] or the enforcement of
358	358	this chapter; or
359	359	(5) fails to pay a penalty assessed under this chapter
360	360	on or before the date the penalty is due, as determined under this
361	361	section.
362	362	(a-2) The commission [department] may impose an
363	363	administrative penalty without first imposing a nonmonetary
364	364	administrative sanction for violating a minimum standard
365	365	applicable to a facility or family home under this chapter that is
366	366	determined by the commission [department] to be a high-risk
367	367	standard, including standards for a violation constituting abuse,
368	368	neglect, or exploitation of a child, background check standards,
369	369	safety hazard standards, standards establishing times for
370	370	reporting information to a parent or guardian or the commission,
371	371	and supervision standards.
372	372	(e) If the commission [department] determines that a
373	373	violation has occurred, the commission [department] may issue a
374	374	recommendation on the imposition of a penalty, including a
375	375	recommendation on the amount of the penalty.
376	376	(e-1) Notwithstanding the amounts required by Subsections
377	377	(b) and (c), the commission shall recommend the penalty for the
378	378	following violations by a facility or family home to be assessed in
379	379	the following amounts:
380	380	(1) $1,000 for a violation that constitutes abuse,
381	381	neglect, or exploitation of a child;
382	382	(2) $500 for failure to report to a parent or guardian
383	383	of a child or the commission within the time required by commission
384	384	standards an injury of a child in the care of the facility or home
385	385	that requires treatment by a medical professional or
386	386	hospitalization or an illness of a child that requires
387	387	hospitalization;
388	388	(3) $50 for failure to report to a parent or guardian
389	389	of each child in the care of the facility or home within the time
390	390	required by commission standards that the commission cited the
391	391	facility or home for a violation:
392	392	(A) that constitutes abuse, neglect, or
393	393	exploitation of a child; or
394	394	(B) of a safe sleeping standard; and
395	395	(4) $50 for failure to report to a parent or guardian
396	396	of each child in the care of the facility or home within the time
397	397	required by commission standards that the facility or home does not
398	398	maintain liability insurance coverage.
399	399	(e-2) For purposes of Subsections (e-1)(3) and (4), the
400	400	commission shall recommend a penalty of $50 for the initial
401	401	violation and an additional penalty of $50 for each day the
402	402	violation continues or occurs.
403	403	(f) Within 14 days after the date the recommendation is
404	404	issued, the commission [department] shall give written notice of
405	405	the recommendation to the person owning or operating the facility
406	406	or family home or to the controlling person, if applicable. The
407	407	notice may be given by certified mail. The notice must include a
408	408	brief summary of the alleged violation and a statement of the amount
409	409	of the recommended penalty and must inform the person that the
410	410	person has a right to a hearing on the occurrence of the violation,
411	411	the amount of the penalty, or both the occurrence of the violation
412	412	and the amount of the penalty.
413	413	(g) Within 20 days after the date the person receives the
414	414	notice, the person in writing may accept the determination and
415	415	recommended penalty of the commission [department] or may make a
416	416	written request for a hearing on the occurrence of the violation,
417	417	the amount of the penalty, or both the occurrence of the violation
418	418	and the amount of the penalty.
419	419	(h) If the person accepts the determination and recommended
420	420	penalty of the commission [department] or fails to respond to the
421	421	notice in a timely manner, the commission [department] shall issue
422	422	an order and impose the recommended penalty.
423	423	(i) If the person requests a hearing, the commission
424	424	[department] shall set a hearing and give notice of the hearing to
425	425	the person. The hearing shall be held by an administrative law
426	426	judge of the State Office of Administrative Hearings. The
427	427	administrative law judge shall make findings of fact and
428	428	conclusions of law and issue a final decision finding that a
429	429	violation has occurred and imposing a penalty or finding that no
430	430	violation occurred.
431	431	(m) On receipt of a copy of an affidavit under Subsection
432	432	(l)(2), the commission [department] may file with the court, within
433	433	five days after the date the copy is received, a contest to the
434	434	affidavit. The court shall hold a hearing on the facts alleged in
435	435	the affidavit as soon as practicable and shall stay the enforcement
436	436	of the penalty on finding that the alleged facts are true. The
437	437	person who files an affidavit has the burden of proving that the
438	438	person is financially unable to pay the amount of the penalty and to
439	439	give a supersedeas bond.
440	440	(n) If the person does not pay the amount of the penalty and
441	441	the enforcement of the penalty is not stayed, the commission
442	442	[department] may refer the matter to the attorney general for
443	443	collection of the amount of the penalty.
444	444	(r) A penalty collected under this section shall be sent to
445	445	the comptroller for deposit in the safety training account
446	446	established under Section 42.04215 [general revenue fund].
447	447	SECTION 10. As soon as practicable after the effective date
448	448	of this Act, the executive commissioner of the Health and Human
449	449	Services Commission shall adopt the rules necessary to implement
450	450	the changes in law made by this Act.
451	451	SECTION 11. This Act takes effect September 1, 2019.