Texas 2019 - 86th Regular

Texas Senate Bill SB568 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 568
	1	+	By: Huffman S.B. No. 568
	2	+	(Bonnen of Galveston)
2	3
3	4
	5	+	A BILL TO BE ENTITLED
4	6		AN ACT
5	7		relating to the regulation of child-care facilities and family
6	8		homes; providing administrative penalties.
7	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	10		SECTION 1. Subchapter C, Chapter 42, Human Resources Code,
9	11		is amended by adding Section 42.04215 to read as follows:
10	12		Sec. 42.04215. SAFETY TRAINING ACCOUNT. (a) The safety
11	13		training account is a dedicated account in the general revenue
12	14		fund. The account is composed of:
13	15		(1) money deposited into the account under Section
14	16		42.078;
15	17		(2) gifts, grants, and donations contributed to the
16	18		account; and
17	19		(3) interest earned on the investment of money in the
18	20		account.
19	21		(b) Section 403.0956, Government Code, does not apply to the
20	22		account.
21	23		(c) Money in the account may be appropriated only to the
22	24		commission to provide safety training materials at no cost to a
23	25		facility licensed under this chapter or a family home registered or
24	26		listed under this chapter. The commission may contract with a third
25	27		party to create the training materials.
26	28		(d) The executive commissioner shall adopt rules necessary
27	29		to implement this section.
28	30		SECTION 2. Subchapter C, Chapter 42, Human Resources Code,
29	31		is amended by adding Section 42.0429 to read as follows:
30	32		Sec. 42.0429. SAFE SLEEPING STANDARDS. (a) The executive
31	33		commissioner by rule shall establish safe sleeping standards for
32	34		licensed facilities and registered family homes. Each licensed
33	35		facility and registered family home shall comply with the safe
34	36		sleeping standards.
35	37		(b) If the commission determines that a licensed facility or
36	38		registered family home has violated a safe sleeping standard
37	39		established as required by Subsection (a), the facility or home
38	40		shall provide written notice in the form and manner required by the
39	41		executive commissioner to the parent or legal guardian of each
40	42		child attending the facility or home.
41	43		(c) The executive commissioner shall prescribe the form for
42	44		the notice required by Subsection (b) and post the form on the
43	45		commission's Internet website.
44	46		SECTION 3. Section 42.04425, Human Resources Code, is
45	47		amended to read as follows:
46	48		Sec. 42.04425. INSPECTION INFORMATION DATABASE. (a) If
47	49		feasible using available information systems, the commission
48	50		[department] shall establish a computerized database containing
49	51		relevant inspection information on all licensed facilities
50	52		[day-care centers, licensed group day-care homes,] and registered
51	53		family homes obtained from other state agencies and political
52	54		subdivisions of the state.
53	55		(b) The commission [department] shall make the data
54	56		collected by the commission [department] available to another state
55	57		agency or political subdivision of the state for the purpose of
56	58		administering programs or enforcing laws within the jurisdiction of
57	59		that agency or subdivision. If feasible using available
58	60		information systems, the commission [department] shall make the
59	61		data directly available to [the Department of State Health
60	62		Services, the Department of Aging and Disability Services, and] the
61	63		Texas Workforce Commission through electronic information systems.
62	64		The commission [department, the Department of State Health
63	65		Services, the Department of Aging and Disability Services,] and the
64	66		Texas Workforce Commission shall jointly plan the development of
65	67		child-care inspection databases that, to the extent feasible, are
66	68		similar in their design and architecture to promote the sharing of
67	69		data.
68	70		(c) The commission shall [department may] provide at a
69	71		minimum five years of inspection data for all facilities licensed
70	72		or family homes registered under this chapter to enhance [on
71	73		licensed day-care centers, licensed group day-care homes, or
72	74		registered family homes to the public if the department determines
73	75		that providing inspection data enhances] consumer choice with
74	76		respect to those facilities and homes.
75	77		SECTION 4. Section 42.049, Human Resources Code, is amended
76	78		to read as follows:
77	79		Sec. 42.049. LIABILITY INSURANCE REQUIRED. (a) A license
78	80		or registration holder under this chapter shall maintain liability
79	81		insurance coverage in the amount of $300,000 for each occurrence of
80	82		negligence. An insurance policy or contract required under this
81	83		section must cover injury to a child that occurs while the child is
82	84		on the premises of [the license holder] or in the care of the
83	85		[license] holder.
84	86		(b) A license or registration holder under this chapter
85	87		shall annually file with the commission [department] a certificate
86	88		or other evidence from an insurance company showing that the
87	89		[license] holder has an unexpired and uncancelled insurance policy
88	90		or contract that meets the requirements of this section.
89	91		(c) Should the license or registration holder for financial
90	92		reasons or for lack of availability of an underwriter willing to
91	93		issue a policy be unable to secure the insurance required under
92	94		Subsection (a) or should the policy limits be exhausted, the
93	95		[license] holder shall timely notify the parent or guardian of [a
94	96		person standing in parental relationship to] each child for whom
95	97		the [license] holder provides care a written notice that the
96	98		liability coverage is not provided and there will not be a ground
97	99		for an administrative penalty or suspension or revocation of the
98	100		[license] holder's license or registration under this chapter. The
99	101		[license] holder shall also notify the commission [department] that
100	102		the coverage is not provided and provide the reason for same. In no
101	103		case shall the inability to secure coverage serve to indemnify the
102	104		[license] holder for damages due to negligence.
103	105		(c-1) The commission shall prescribe a form that a license
104	106		or registration holder may use to notify a parent or guardian in
105	107		accordance with Subsection (c) that liability coverage is not
106	108		provided. The commission shall post the form on the commission's
107	109		Internet website.
108	110		(d) The insurance policy or contract shall be maintained at
109	111		all times in an amount as required by this section. Failure by a
110	112		license or registration holder to renew the policy or contract or to
111	113		maintain the policy or contract in the required amount is a ground
112	114		for suspension or revocation of the [license] holder's license or
113	115		registration under this chapter.
114	116		[(e) This section does not apply to a group day-care home or
115	117		a listed or registered family home.]
116	118		SECTION 5. Section 42.050, Human Resources Code, is amended
117	119		by amending Subsections (a), (b), and (c) and adding Subsection
118	120		(c-1) to read as follows:
119	121		(a) A license holder may apply for renewal of a license in
120	122		compliance with the requirements of this chapter and commission
121	123		[department] rules.
122	124		(b) The application for renewal of a license must be
123	125		completed and decided on by the commission [department] before the
124	126		expiration of the license under which a facility is operating.
125	127		(c) The commission [department] shall evaluate the
126	128		application for renewal of a license to determine if all licensing
127	129		requirements are met and whether the facility has been cited for
128	130		repeated violations or has established a pattern of violations
129	131		during the preceding two years. The evaluation may include a
130	132		specified number of visits to the facility and must include a review
131	133		of all required forms and records. If the commission determines the
132	134		facility has repeated violations or an established pattern of
133	135		violations, before the commission renews the license the commission
134	136		may place restrictions, conditions, or additional requirements on
135	137		the license to ensure the violations cease.
136	138		(c-1) The commission may not renew the license of a facility
137	139		cited for a violation that is not corrected by the required
138	140		compliance date unless the violation is pending an administrative
139	141		review under commission rules or pending review as a contested case
140	142		under Chapter 2001, Government Code.
141	143		SECTION 6. Section 42.052, Human Resources Code, is amended
142	144		by amending Subsections (a), (b), (c), (d), (f), (i), (j), and (k)
143	145		and adding Subsections (f-2) and (f-3) to read as follows:
144	146		(a) A state-operated child-care facility or child-placing
145	147		agency must receive certification of approval from the commission
146	148		[department]. The certification of approval remains valid until
147	149		the certification expires, is revoked, or is surrendered.
148	150		(b) To be certified, a facility must comply with the
149	151		commission's [department's] rules and standards and any provisions
150	152		of this chapter that apply to a licensed facility of the same
151	153		category. The operator of a certified facility must display the
152	154		certification in a prominent place at the facility.
153	155		(c) A family home that provides care for compensation for
154	156		three or fewer children, excluding children who are related to the
155	157		caretaker, shall list with the commission [department] if the home
156	158		provides regular care in the caretaker's own residence. The home
157	159		may register with the commission [department].
158	160		(d) A family home that provides care for four or more
159	161		children, excluding children who are related to the caretaker,
160	162		shall register with the commission [department]. A family home
161	163		that provides care exclusively for any number of children who are
162	164		related to the caretaker is not required to be listed or registered
163	165		with the commission [department].
164	166		(f) To remain listed or registered with the commission
165	167		[department], a family home must comply with the commission's
166	168		[department's] rules and standards, if applicable, and any
167	169		provision of this chapter that applies to a listed or registered
168	170		family home.
169	171		(f-2) The commission shall evaluate an application for
170	172		renewal of a facility certification or family home registration to
171	173		determine if all requirements are met and whether the applicant has
172	174		been cited for repeated violations or has established a pattern of
173	175		violations during the preceding two years. The evaluation may
174	176		include a specified number of visits to the facility or family home
175	177		subject to this section and must include a review of all required
176	178		forms and records. If the commission determines the facility or
177	179		family home has repeated violations or an established pattern of
178	180		violations, before the commission renews the certification or
179	181		registration the commission may place restrictions, conditions, or
180	182		additional requirements on the certification or registration to
181	183		ensure the violations cease.
182	184		(f-3) The commission may not renew the certification or
183	185		registration of a facility or family home cited for a violation that
184	186		is not corrected by the required compliance date unless the
185	187		violation is pending an administrative review under commission
186	188		rules or pending review as a contested case under Chapter 2001,
187	189		Government Code.
188	190		(i) The commission [department] shall provide to a listed
189	191		family home a copy of the listing. A listing must contain a
190	192		provision that states: "THIS HOME IS A LISTED FAMILY HOME. IT IS
191	193		NOT LICENSED OR REGISTERED WITH THE HEALTH AND HUMAN SERVICES
192	194		COMMISSION [DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES]. IT HAS
193	195		NOT BEEN INSPECTED AND WILL NOT BE INSPECTED." The operator of a
194	196		listed home is not required to display the listing in a prominent
195	197		place at the home but shall make the listing available for
196	198		examination. The executive commissioner by rule shall provide for
197	199		a sufficient period to allow operators of family homes to comply
198	200		with the listing requirement of this section.
199	201		(j) The operator of a listed family home shall undergo
200	202		initial and subsequent background and criminal history checks
201	203		required under Section 42.056. If the operator of a listed family
202	204		home fails to submit the information required by Section 42.056 for
203	205		a subsequent background and criminal history check, the commission
204	206		[department] shall automatically:
205	207		(1) suspend the home's listing until the required
206	208		information is submitted; and
207	209		(2) revoke the home's listing if the required
208	210		information is not submitted within six months after the date the
209	211		automatic suspension begins.
210	212		(k) The commission [department] shall issue a listing or
211	213		registration to a family home, as appropriate, in both English and
212	214		Spanish when the most recent federal census shows that more than
213	215		one-half of the population in a municipality or in a commissioners
214	216		precinct in a county in which the family home is located is of
215	217		Hispanic origin or Spanish-speaking.
216	218		SECTION 7. Section 42.063, Human Resources Code, is amended
217	219		by amending Subsections (b), (d), and (g) and adding Subsections
218	220		(b-1) and (b-2) to read as follows:
219	221		(b) A person licensed under this chapter shall report to the
220	222		commission [department] each serious incident involving a child who
221	223		receives services from the person, regardless of whether the
222	224		department is the managing conservator of the child.
223	225		(b-1) A person licensed or registered under this chapter
224	226		shall notify in accordance with commission rule a parent or
225	227		guardian of a child in the care of the person of an incident of
226	228		abuse, neglect, or exploitation of the child, injury of the child
227	229		that requires treatment by a medical professional or
228	230		hospitalization, or illness of the child that requires
229	231		hospitalization.
230	232		(b-2) A person licensed or registered under this chapter
231	233		shall notify in accordance with commission rule a parent or
232	234		guardian of each child in the care of the person of a violation that
233	235		constitutes abuse, neglect, or exploitation of a child.
234	236		(d) An employee or volunteer of a general residential
235	237		operation, child-placing agency, continuum-of-care residential
236	238		operation, cottage home operation, or specialized child-care home
237	239		shall report any serious incident directly to the commission
238	240		[department] if the incident involves a child under the care of the
239	241		operation, agency, or home.
240	242		(g) The commission [department] shall implement this
241	243		section using existing appropriations.
242	244		SECTION 8. Sections 42.072(a), (b), (c), (e), (f), and (g),
243	245		Human Resources Code, are amended to read as follows:
244	246		(a) The commission [department] may suspend, deny, revoke,
245	247		or refuse to renew the license, listing, registration, or
246	248		certification of approval of a facility or family home that does not
247	249		comply with the requirements of this chapter, commission
248	250		[department] standards and rules, or the specific terms of the
249	251		license, listing, registration, or certification. The commission
250	252		[department] may revoke the probation of a person whose license,
251	253		listing, or registration is suspended if the person violates a term
252	254		of the conditions of probation.
253	255		(b) If the commission [department] proposes to take an
254	256		action under Subsection (a), the person is entitled to a hearing
255	257		conducted by the State Office of Administrative Hearings.
256	258		Proceedings for a disciplinary action are governed by the
257	259		administrative procedure law, Chapter 2001, Government Code. An
258	260		action under this section, including a revocation of a person's
259	261		license, is a contested case as defined by Chapter 2001, Government
260	262		Code, and is subject to judicial review under the substantial
261	263		evidence rule in accordance with that chapter. Rules of practice
262	264		adopted by the executive commissioner under Section 2001.004,
263	265		Government Code, applicable to the proceedings for a disciplinary
264	266		action may not conflict with rules adopted by the State Office of
265	267		Administrative Hearings.
266	268		(c) The commission [department] may not issue a license,
267	269		listing, registration, or certification to a person whose license,
268	270		listing, registration, or certification is revoked or not renewed
269	271		or whose application for a license, listing, registration, or
270	272		certification is denied for a substantive reason under this chapter
271	273		before the fifth anniversary of the date on which the revocation or
272	274		nonrenewal takes effect by commission [department] or court order
273	275		or the decision to deny the application is final.
274	276		(e) A person may continue to operate a facility or family
275	277		home during an appeal of a [license, listing, or registration]
276	278		revocation or refusal to renew a license, certification, or
277	279		registration unless the operation of the facility or family home
278	280		poses a risk to the health or safety of children. The executive
279	281		commissioner shall by rule establish the criteria for determining
280	282		whether the operation of a facility or family home poses a risk to
281	283		the health or safety of children. The commission [department]
282	284		shall notify the facility or family home of the criteria the
283	285		commission [department] used to determine that the operation of the
284	286		facility or family home poses a risk to health or safety and that
285	287		the facility or family home may not operate. A person who has been
286	288		notified by the commission [department] that the facility or home
287	289		may not operate under this section may seek injunctive relief from a
288	290		district court in Travis County or in the county in which the
289	291		facility or home is located to allow operation during the pendency
290	292		of an appeal. The court may grant injunctive relief against the
291	293		commission's [department's] action only if the court finds that the
292	294		child-care operation does not pose a health or safety risk to
293	295		children. A court granting injunctive relief under this subsection
294	296		shall have no other jurisdiction over an appeal of final commission
295	297		[department] action unless conferred by Chapter 2001, Government
296	298		Code.
297	299		(f) The commission [department] shall deny an application
298	300		or renewal for listing or registering a family home or shall revoke
299	301		a family home's listing or registration if the results of a
300	302		background or criminal history check conducted by the commission
301	303		[department] under Section 42.056 show that a person has been
302	304		convicted of an offense under Title 5 or 6, Penal Code, or Chapter
303	305		43, Penal Code.
304	306		(g) Notwithstanding Subsection (c), the commission
305	307		[department] may refuse to issue a license, listing, registration,
306	308		or certification to:
307	309		(1) a person whose license, listing, registration, or
308	310		certification for a facility or family home was revoked by the
309	311		commission [department] or by court order;
310	312		(2) a person who was a controlling person of a facility
311	313		or family home at the time conduct occurred that resulted in the
312	314		revocation of the license, listing, registration, or certification
313	315		of the facility or family home;
314	316		(3) a person who voluntarily closed a facility or
315	317		family home or relinquished the person's license, listing,
316	318		registration, or certification after:
317	319		(A) the commission [department] took an action
318	320		under Subsection (a) in relation to the facility, family home, or
319	321		person; or
320	322		(B) the person received notice that the
321	323		commission [department] intended to take an action under Subsection
322	324		(a) in relation to the facility, family home, or person; or
323	325		(4) a person who was a controlling person of a facility
324	326		or family home at the time conduct occurred that resulted in the
325	327		closure of the facility or family home or relinquishment of the
326	328		license, listing, registration, or certification in the manner
327	329		described by Subdivision (3).
328	330		SECTION 9. Section 42.078, Human Resources Code, is amended
329	331		by amending Subsections (a), (a-2), (e), (f), (g), (h), (i), (m),
330	332		(n), and (r) and adding Subsections (e-1), (e-2), and (e-3) to read
331	333		as follows:
332	334		(a) The commission [department] may impose an
333	335		administrative sanction or an administrative penalty against a
334	336		facility or family home licensed, registered, or listed under this
335	337		chapter that violates this chapter or a rule or order adopted under
336	338		this chapter. In addition, the commission [department] may impose
337	339		an administrative penalty against a facility or family home or a
338	340		controlling person of a facility or family home if the facility,
339	341		family home, or controlling person:
340	342		(1) violates a term of a license or registration
341	343		issued under this chapter;
342	344		(2) makes a statement about a material fact that the
343	345		facility or person knows or should know is false:
344	346		(A) on an application for the issuance of a
345	347		license or registration or an attachment to the application; or
346	348		(B) in response to a matter under investigation;
347	349		(3) refuses to allow a representative of the
348	350		commission [department] to inspect:
349	351		(A) a book, record, or file required to be
350	352		maintained by the facility; or
351	353		(B) any part of the premises of the facility;
352	354		(4) purposefully interferes with the work of a
353	355		representative of the commission [department] or the enforcement of
354	356		this chapter; or
355	357		(5) fails to pay a penalty assessed under this chapter
356	358		on or before the date the penalty is due, as determined under this
357	359		section.
358	360		(a-2) The commission [department] may impose an
359	361		administrative penalty without first imposing a nonmonetary
360	362		administrative sanction for violating a minimum standard
361	363		applicable to a facility or family home under this chapter that is
362	364		determined by the commission [department] to be a high-risk
363	365		standard, including standards for a violation constituting abuse,
364	366		neglect, or exploitation of a child, background check standards,
365	367		safety hazard standards, standards establishing times for
366	368		reporting information to a parent or guardian or the commission,
367	369		and supervision standards.
368	370		(e) If the commission [department] determines that a
369	371		violation has occurred, the commission [department] may issue a
370	372		recommendation on the imposition of a penalty, including a
371	373		recommendation on the amount of the penalty.
372	374		(e-1) Notwithstanding the amounts required by Subsections
373	375		(b) and (c) and except as provided by Subsection (e-3), the
374	376		commission shall recommend the penalty for the following violations
375	377		by a facility or family home to be assessed in the following
376	378		amounts:
377	379		(1) $1,000 for a violation that constitutes abuse,
378	380		neglect, or exploitation of a child;
379	381		(2) $500 for failure to report to a parent or guardian
380	382		of a child or the commission within the time required by commission
381	383		standards an injury of a child in the care of the facility or home
382	384		that requires treatment by a medical professional or
383	385		hospitalization or an illness of a child that requires
384	386		hospitalization;
385	387		(3) $50 for failure to report to a parent or guardian
386	388		of each child in the care of the facility or home within the time
387	389		required by commission standards that the commission cited the
388	390		facility or home for a violation:
389	391		(A) that constitutes abuse, neglect, or
390	392		exploitation of a child; or
391	393		(B) of a safe sleeping standard; and
392	394		(4) $50 for failure to report to a parent or guardian
393	395		of each child in the care of the facility or home within the time
394	396		required by commission standards that the facility or home does not
395	397		maintain liability insurance coverage.
396	398		(e-2) For purposes of Subsections (e-1)(3) and (4), the
397	399		commission shall recommend a penalty of $50 for the initial
398	400		violation and an additional penalty of $50 for each day the
399	401		violation continues or occurs.
400	402		(e-3) Subsection (e-1)(1) does not apply to a residential
401	403		child-care facility.
402	404		(f) Within 14 days after the date the recommendation is
403	405		issued, the commission [department] shall give written notice of
404	406		the recommendation to the person owning or operating the facility
405	407		or family home or to the controlling person, if applicable. The
406	408		notice may be given by certified mail. The notice must include a
407	409		brief summary of the alleged violation and a statement of the amount
408	410		of the recommended penalty and must inform the person that the
409	411		person has a right to a hearing on the occurrence of the violation,
410	412		the amount of the penalty, or both the occurrence of the violation
411	413		and the amount of the penalty.
412	414		(g) Within 20 days after the date the person receives the
413	415		notice, the person in writing may accept the determination and
414	416		recommended penalty of the commission [department] or may make a
415	417		written request for a hearing on the occurrence of the violation,
416	418		the amount of the penalty, or both the occurrence of the violation
417	419		and the amount of the penalty.
418	420		(h) If the person accepts the determination and recommended
419	421		penalty of the commission [department] or fails to respond to the
420	422		notice in a timely manner, the commission [department] shall issue
421	423		an order and impose the recommended penalty.
422	424		(i) If the person requests a hearing, the commission
423	425		[department] shall set a hearing and give notice of the hearing to
424	426		the person. The hearing shall be held by an administrative law
425	427		judge of the State Office of Administrative Hearings. The
426	428		administrative law judge shall make findings of fact and
427	429		conclusions of law and issue a final decision finding that a
428	430		violation has occurred and imposing a penalty or finding that no
429	431		violation occurred.
430	432		(m) On receipt of a copy of an affidavit under Subsection
431	433		(l)(2), the commission [department] may file with the court, within
432	434		five days after the date the copy is received, a contest to the
433	435		affidavit. The court shall hold a hearing on the facts alleged in
434	436		the affidavit as soon as practicable and shall stay the enforcement
435	437		of the penalty on finding that the alleged facts are true. The
436	438		person who files an affidavit has the burden of proving that the
437	439		person is financially unable to pay the amount of the penalty and to
438	440		give a supersedeas bond.
439	441		(n) If the person does not pay the amount of the penalty and
440	442		the enforcement of the penalty is not stayed, the commission
441	443		[department] may refer the matter to the attorney general for
442	444		collection of the amount of the penalty.
443	445		(r) A penalty collected under this section shall be sent to
444	446		the comptroller for deposit in the safety training account
445	447		established under Section 42.04215 [general revenue fund].
446	448		SECTION 10. As soon as practicable after the effective date
447	449		of this Act, the executive commissioner of the Health and Human
448	450		Services Commission shall adopt the rules necessary to implement
449	451		the changes in law made by this Act.
450	452		SECTION 11. The Health and Human Services Commission is
451	453		required to implement a provision of this Act only if the
452	454		legislature appropriates money specifically for that purpose. If
453	455		the legislature does not appropriate money specifically for that
454	456		purpose, the commission may, but is not required to, implement a
455	457		provision of this Act using other appropriations available for that
456	458		purpose.
457	459		SECTION 12. This Act takes effect September 1, 2019.
458		-	______________________________ ______________________________
459		-	President of the Senate Speaker of the House
460		-	I hereby certify that S.B. No. 568 passed the Senate on
461		-	April 4, 2019, by the following vote: Yeas 30, Nays 1;
462		-	May 23, 2019, Senate refused to concur in House amendment and
463		-	requested appointment of Conference Committee; May 23, 2019, House
464		-	granted request of the Senate; May 25, 2019, Senate adopted
465		-	Conference Committee Report by the following vote: Yeas 30,
466		-	Nays 0.
467		-	______________________________
468		-	Secretary of the Senate
469		-	I hereby certify that S.B. No. 568 passed the House, with
470		-	amendment, on May 21, 2019, by the following vote: Yeas 135,
471		-	Nays 12, one present not voting; May 23, 2019, House granted
472		-	request of the Senate for appointment of Conference Committee;
473		-	May 25, 2019, House adopted Conference Committee Report by the
474		-	following vote: Yeas 131, Nays 10, one present not voting.
475		-	______________________________
476		-	Chief Clerk of the House
477		-	Approved:
478		-	______________________________
479		-	Date
480		-	______________________________
481		-	Governor