BILL ANALYSIS
C.S.H.B. 2391
By: Black
05-01-95
Committee Report (Substituted)
BACKGROUND
The placement of high risk children in community-based
treatment facilities has had unintended consequences in Texas
communities. Residential placement facilities for youth have
received licenses from the Dept. of Protective & Regulatory
Services (serving abused and neglected kids), Juvenile Probation
Comm'n (serving mildly delinquent kids) and Texas Youth Comm'n
(serving juvenile delinquents), among others, without the public
having adequate opportunity to learn the impact of such facilities
on the local community.
Rural communities and schools have been severely impacted,
since the agencies provide only minimal regulation of residential
treatment facilities homes, such as annual inspections. The impact
of extra students in local school systems, without the appropriate
teaching staff, also has been detrimental to students and faculty
in local schools, as well as the rest of the community.
PURPOSE
H.B. 2391 would establish a system of assessment and community
oversight to assure adequate and appropriate services for these
special children's needs.
RULEMAKING AUTHORITY
It is the committee's opinion that H.B. 2391 expressly grants
rulemaking in SECTION 13 of the bill, in Sections 22 and 23 of
Article 4413(502), Revised Statutes, to the following agencies:
Health & Human Services Comm'n (HHSC), Central Education Agency
(TEA), Texas Youth Comm'n (TYC), and each health & human services
agency under the HHSC umbrella which are undesignated in the
legislation, for the purpose of developing and agreeing to a memo
of understanding regarding the placement and agency responsibility
of children in care and to assure approval of new or expanded
licensing or certification of resident care facilities.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter B, Chapter 21, Education Code, by
adding new Section 21.0314, as follows:
Section 21.0314. NOTICE CONCERNING CHILD IN RESIDENTIAL CARE
FACILITY.
(a) Requires persons operating residential care facilities, to
send notice of admission or placement of children to local school
districts within 24 hours after accepting a child into placement.
(b) Defines "residential care facility" as:
(1) facility, including groups home, operated under
contract with the TX Dept. of Mental Health & Mental
Retardation (MHMR) or a MHMR community center;
(2) a home & community support services agency licensed
under Chapter 142, Health & Safety Code, providing 24-hour care for children;
(3) Nursing facilities licensed under Chapter 242,
Health & Safety Code;
(4) Child-care institutions, foster groups homes or
group homes licensed under Chapter 42, Human Resources
Code; or
(5) community homes for people with disabilities under
to Chapter 123, Human Resources Code.
SECTION 2. Amends Subchapter A, Chapter 142, Health & Safety Code,
by adding new Section 142.005, as follows:
Section 142.005. NOTICE CONCERNING PROPOSED RESIDENTIAL FACILITY.
(a) Applies section to persons filing applications for licenses to
establish home and community support agencies providing living
quarters for 6 or more persons.
(b) Requires persons in (a) to publish notice of their
applications in local newspapers at least two times, including name
and address of applicant and name and address of licensing agency,
within 7 days after filing of application.
(c) Requires person to submit written notice of application,
within 7 days, to the following persons in the locality of the
facility:
(1) municipal or county law enforcement, including
juvenile probation department of locality;
(2) governing body of municipality;
(3) commissioners court of county;
(4) board of trustees of school district.
SECTION 3. Amends Sec. 142.006, Health & Safety Code, by adding
new subsection (f) as follows:
(f) Requires department issuing or renewing a license for a home
and community support services agency, providing living quarters
for 6 or more children, to consider impact of the facility on the
local school district.
SECTION 4. Amends Subchapter A, Chapter 142, Health & Safety Code,
by adding new Section 142.017, as follows:
Sec. 142.017. LIABILITY OF CERTAIN HOME & COMMUNITY SUPPORT
SERVICES AGENCIES FOR CONDUCT OF CHILD.
(a) Holds persons operating home & community support services
agencies providing living quarters for 6 or more children liable
for property damage caused by:
(1) negligent conduct of child placed in the facility;
and
(2) intentional and malicious conduct of placed child
who is at least 12 years of age.
(b) Limits recovery for damage caused by intentional and malicious
conduct to actual damages not to exceed $15,000, plus court costs
and reasonable attorney's fees;
(c) Defines "child" as persons younger than 18.
SECTION 5. Amends Subchapter A, Chapter 242, Health & Safety Code,
by adding Sec. 242.015 as follows:
(a) Holds persons operating institutions providing living quarters
for 6 or more children liable for property damage caused by:
(1) negligent conduct of child placed in the facility;
and
(2) intentional and malicious conduct of placed child
who is at least 12 years of age.
(b) Limits recovery for damage caused by intentional and malicious
conduct to actual damages not to exceed $15,000, plus court costs
and reasonable attorney's fees;
(c) Defines "child" as persons younger than 18.
SECTION 6. Amends Subchapter B, Chapter 242, Health & Safety Code,
by adding new Section 242.0321 as follows:
Sec 242.0321. NOTICE CONCERNING PROPOSED INSTITUTION.
(a) Requires persons filing applications to operate nursing
facilities to publish notice of their applications in local
newspapers at least two times, including name and address of
applicant and name and address of licensing agency, within 7 days
after filing of application.
(b) Requires person to submit written notice of application,
within 7 days, to the following persons in the locality of the
facility:
(1) municipal or county law enforcement, including
juvenile probation department of locality;
(2) governing body of municipality;
(3) commissioners court of county;
(4) board of trustees of school district.
SECTION 7. Amends Sec. 242.033, Health & Safety Code, by adding
new subsection (f) as follows:
(f) Requires department issuing or renewing a license for nursing
facilities providing living quarters for 6 or more children, to
consider impact of the facility on the local school district.
SECTION 8. Amends Subchapter A, Chapter 42, Human Resources Code
by adding new Section 42.003 as follows:
Sec. 42.003. LIABILITY OF CERTAIN FACILITIES FOR CONDUCT OF CHILD.
(a) Holds persons operating facilities providing care for 24 hours
a day liable for property damage caused by:
(1) negligent conduct of child placed in the facility;
and
(2) intentional and malicious conduct of placed child
who is at least 12 years of age.
(b) Limits recovery for damage caused by intentional and malicious
conduct to actual damages not to exceed $15,000, plus court costs
and reasonable attorney's fees;
SECTION 9. Amends Subchapter C, Chapter 42, Human Resources Code,
by adding new Section 42.0455 as follows:
Section 42.0455. NOTICE CONCERNING PROPOSED CHILD-CARE FACILITY.
(a) Applies section to persons filing applications for licenses
to establish 24-hour care facilities.
(b) Requires persons in (a) to publish notice of their
applications in local newspapers at least two times, including name
and address of applicant and name and address of licensing agency,
within 7 days after filing of application.
(c) Requires person to submit written notice of application,
within 7 days, to the following persons in the locality of the
facility:
(1) municipal or county law enforcement, including
juvenile probation department of locality;
(2) governing body of municipality;
(3) commissioners court of county;
(4) board of trustees of school district.
SECTION 10. Amends Section 42.049(b), Human Resources Code, as
follows:
(b) Requires the licensing division of the Dept. of Protective &
Regulatory Services to consider impact of facilities on local
school districts, and allows division to impose restrictions
concerning the number of children in care.
SECTION 11. Amends Chapter 123, Human Resources Code, by adding
new Sections 123.0081 and 123.011, as follows:
Sec. 123.0081. NOTICE CONCERNING PROPOSED COMMUNITY HOME.
(a) Requires persons establishing community homes for disabled
persons to publish notice of their proposals in local newspapers at
least two times, including name and address of applicant and name
and address of licensing agency, within 7 days after filing of
application.
(b) Requires person to submit written notice of application,
within 7 days, to the following persons in the locality of the
facility:
(1) municipal or county law enforcement, including
juvenile probation department of locality;
(2) governing body of municipality;
(3) commissioners court of county;
(4) board of trustees of school district.
Sec. 123.011. LIABILITY OF CERTAIN COMMUNITY HOMES FOR CONDUCT OF
CHILD.
(a) Holds persons operating community homes for children liable
for property damage caused by:
(1) negligent conduct of child placed in the facility;
and
(2) intentional and malicious conduct of placed child
who is at least 12 years of age.
(b) Limits recovery for damage caused by intentional and malicious
conduct to actual damages not to exceed $15,000, plus court costs
and reasonable attorney's fees;
(c) Defines "child" as persons younger than 18.
SECTION 12. Amends Section 1, Art. 4413 (502), Revised Statutes,
by adding new subsection (3) as follows:
(3) Defines "residential care facility" as having the meaning
established in Sec. 21.0314, Education Code, above.
SECTION 13. Amends Art. 4413(502), Revised Statutes, by adding new
Sections 22 and 23, as follows:
Sec. 22. MEMORANDUM OF UNDERSTANDING CONCERNING CHILDREN WITH
DISABILITIES IN RESIDENTIAL CARE FACILITIES.
(a) Requires the Health & Human Services Comm'n (HHSC), Central
Education Agency (TEA), Texas Youth Comm'n (TYC), and each health
& human services agency under the HHSC umbrella, by rule, to
develop and agree to a memo of understanding that:
(1) establishes respective responsibility of each agency
for addressing needs of children with disabilities
younger than 22 who are placed in residential care
facilities;
(2) contains specific procedures for coordinating
responsibilities of each agency concerning referral and
placement, evaluation, sharing of confidential records,
panning and delivery of care, investigation and review of
complaints and use of space; and
(3) defines each agency's legal enforcement procedures.
(b) Requires HHSC to coordinate development of the memo of
understanding.
Sec. 23. PREVENTION OF DISPROPORTIONATE IMPACT OF RESIDENTIAL CARE
FACILITIES ON SCHOOL DISTRICTS AND COMMUNITIES. Requires HHSC and
each agency under its umbrella, and in cooperation with TEA and
TYC, to establish procedures and adopt rules to assure approval of
new or expanded licensing or certification of resident care
facilities, based on a comprehensive assessment of facility impact
on school districts and communities where the facility is to be
located. Requires such assessment to include an analysis of the
effects of denying the license or certificate.
SECTION 14. Repeals Sec. 42.050, Human Resources Code, relating to
renewal of licenses by Dept. of Protective & Regulatory Services.
SECTION 15. Declares new Sec. 21.0314, Education Code, as
prevailing over any revision, recodification or reenactment of
Titles 1 and 2 of the Education Code by the 74th Legislature,
Regular Session, 1995, including S.B. 1.
SECTION 16. Effective date, September 1, 1995.
SECTION 17. Emergency Clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Two sections in the original bill relating to payment of
tuition by residential care facilities and license renewal were
eliminated from the substitute version of H.B. 2391. Also modified
were sections relating to notice, which were changed to reflect
current standards of TEA.
Also added were provisions holding operators of the various
residential care facilities in the bill liable for property damage
caused by children in care. A memorandum of understanding between
the various agencies relating to each agency's responsibilities was
also included, as was a provision declaring legislative intent to
prevent disproportionate impact by residential care facilities on
school districts and local communities.
SUMMARY OF COMMITTEE ACTION
The Human Services Committee convened in a public hearing on
April 10, 1995, and the Chairman laid out H.B. 2391, asking Rep.
Black to explain the bill. The following witnesses testified as
neutral on H.B. 2391:
Mart Hoffman, Director, Dept. of Protective & Regulatory Services
Ken Crow, Texas Education Agency (TEA)
Tommy Cowan, TEA
The following witnesses testified against H.B. 2391:
Barrett Markland, Advocacy Inc.
Shannon Noble, Texas Network of Youth Services
Rita P. Powell, Buda
Bob Kafka, ADAPT of Texas
Mary Jo Magruder, Texas Planning Council for Developmental
Disabilities
Christine Devall, Mental Health Association of Texas
Denise Brady, The ARC of Texas (Ass'n of Retarded Citizens)
No one testified for H.B. 2391. Rep. Black closed on the bill and
H.B. 2391 was left pending.
In a formal meeting on May 1, the Chairman laid out H.B. 2391
by Rep. Black which had been pending. The Chairman offered a
committee substitute for H.B. 2391 and explained the differences.
The Chair recognized Rep. Denny who moved adoption of the
substitute. Hearing no objection, the committee substitute for
H.B. 2391 was adopted. The Chairman recognized Rep. Denny who
moved to report H.B. 2391 favorably as substituted; Rep. Park
seconded the motion. The motion prevailed by a record vote of 5
Ayes, 3 Nays, 0 PNV and 1 Absent.