Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Greenberg H.B. No. 155
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the listing and registration of certain child-care
1-3 services; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 42.002, Human Resources Code, is amended
1-6 to read as follows:
1-7 Sec. 42.002. DEFINITIONS. In this chapter:
1-8 (9) "Registered family [Family] home" means a home
1-9 that regularly provides care in the caretaker's own residence for
1-10 not more than six children under 14 years of age, excluding
1-11 children related to the caretaker [the caretaker's own children],
1-12 and that provides care after school hours for not more than six
1-13 additional elementary school children, but the total number of
1-14 children, including children related to the caretaker [the
1-15 caretaker's own], does not exceed 12 at any given time. The term
1-16 does not include a home that provides care exclusively for any
1-17 number of children related to the caretaker.
1-18 (10) "Listed family home" means a home that provides
1-19 child-care at least four hours a day, three or more days a week,
1-20 for more than nine consecutive weeks in the caretaker's own
1-21 residence for not more than three children under 14 years of age,
1-22 excluding children related to the caretaker. The term does not
1-23 include a home that provides care exclusively for any number of
1-24 children related to the caretaker.
2-1 (11) [10] "Agency group home" means a facility that
2-2 provides care for seven to 12 children for 24 hours a day and is
2-3 used only by a licensed child-placing agency.
2-4 (12) [11] "Agency home" means a private home that
2-5 provides care for not more than six children, that is used only by
2-6 a licensed child-placing agency, and that meets division standards.
2-7 (13) [12] "Child-placing agency" means a person other
2-8 than the natural parents or guardian of a child who plans for the
2-9 placement of or places a child in an institution, agency home, or
2-10 adoptive home.
2-11 (14) [13] "Facilities" includes child-care facilities
2-12 and child-placing agencies.
2-13 (15) [14] "State of Texas" or "state" does not include
2-14 political subdivisions of the state.
2-15 (16) [15] "Religious organization" means a church,
2-16 synagogue, or other religious institution whose purpose is to
2-17 support and serve the propagation of truly held religious beliefs.
2-18 (17) "Children related to the caretaker" means
2-19 children who are the children, grandchildren, nieces, or nephews of
2-20 the caretaker, whether by affinity or consanguinity or as the
2-21 result of a relationship created by court decree.
2-22 (18) "Department" means the Department of Protective
2-23 and Regulatory Services.
2-24 SECTION 2. Section 42.041(b)(10), Human Resources Code, is
2-25 amended to read as follows:
2-26 Sec. 42.041. REQUIRED LICENSE.
2-27 (b) This section does not apply to:
2-28 (10) a family home, whether registered or listed
2-29 [not];
2-30 SECTION 3. Section 42.042(e), Human Resources Code, is
3-1 amended to read as follows:
3-2 Sec. 42.042. RULES AND STANDARDS.
3-3 (e) The department shall promulgate minimum standards that
3-4 apply to licensed child-care facilities and registered family homes
3-5 covered by this chapter that will:
3-6 (1) promote the health, safety, and welfare of
3-7 children attending a facility;
3-8 (2) promote safe, comfortable, and healthy physical
3-9 facilities for children;
3-10 (3) ensure adequate supervision of children by
3-11 capable, qualified, and healthy personnel;
3-12 (4) ensure adequate and healthy food service where
3-13 food service is offered;
3-14 (5) prohibit racial discrimination by child-care
3-15 facilities; and
3-16 (6) require procedures for parental and guardian
3-17 consultation in the formulation of children's educational and
3-18 therapeutic programs.
3-19 SECTION 4. Section 42.044(b), Human Resources Code, is
3-20 amended and a new subsection (d) is added and the remaining
3-21 subsection renumbered to read as follows:
3-22 (b) The division shall inspect all licensed or certified
3-23 facilities at least once a year and may inspect other facilities or
3-24 registered family homes as necessary. At least one of the annual
3-25 visits must be unannounced and all may be unannounced.
3-26 (d) The department must investigate a listed family home
3-27 when an abuse or neglect complaint as defined by Chapter 261, Texas
3-28 Family Code, is received.
3-29 (e) The division may call on political subdivisions and
3-30 governmental agencies for assistance within their authorized
4-1 fields.
4-2 SECTION 5. Section 42.046, Human Resources Code, is amended
4-3 to read as follows:
4-4 Sec. 42.046. [LICENSE] APPLICATION. (a) An applicant for
4-5 listing or registration to operate a family home or a license to
4-6 operate a child-care facility or child-placing agency shall submit
4-7 to the division the appropriate fee prescribed by Section 42.054 of
4-8 this code and a completed application on a form provided by the
4-9 division.
4-10 (b) The division shall supply the applicant the application
4-11 form and a copy of the appropriate minimum standards, if
4-12 applicable.
4-13 (c) After receiving an application, the division shall
4-14 investigate the applicant and the plan of care for children, if
4-15 applicable.
4-16 (d) the division shall complete the investigation and decide
4-17 on an application within two months after the date the division
4-18 receives an application.
4-19 SECTION 6. Section 42.0491(e), Human Resources Code, is
4-20 amended to read as follows:
4-21 Sec. 42.0491. LIABILITY INSURANCE REQUIRED.
4-22 (e) This section does not apply to a group [or registered]
4-23 day-care home, a listed or registered family home.
4-24 SECTION 7. Section 42.052, Human Resources Code, is amended
4-25 to read as follows:
4-26 Sec. 42.052. CERTIFICATION, LISTING AND REGISTRATION.
4-27 (a) A state-operated child-care facility or child-placing agency
4-28 must receive certification of approval from the division. The
4-29 certification of approval remains valid until revoked or
4-30 surrendered.
5-1 (b) To be certified, a facility must comply with the
5-2 department's rules and standards and any provisions of this chapter
5-3 that apply to a licensed facility of the same category. The
5-4 operator of a certified facility must display the certification in
5-5 a prominent place at the facility.
5-6 (c) A family home that provides care for three or fewer
5-7 children, excluding children related to the caretaker [the
5-8 caretaker's own children], shall list or may register with the
5-9 division. A family home that provides care for four or more
5-10 children, excluding children related to the caretaker [the
5-11 caretaker's own children], shall [must] register with the division.
5-12 A registration or listing remains valid until revoked or
5-13 surrendered. The operator of a registered home must display the
5-14 registration in a prominent place at the home. A person who
5-15 provides care exclusively for any number of children related to the
5-16 caretaker is not required to list or register with the department.
5-17 (d) To remain listed or registered with the division, a
5-18 family home must comply with the department's rules and standards,
5-19 if applicable, and any provision of this chapter that applies to a
5-20 listed or registered family home.
5-21 (e) The certification requirements of this section do not
5-22 apply to a Texas Youth Council facility or a facility providing
5-23 services solely for the Texas Youth Council.
5-24 (f) A family home may not place a public advertisement that
5-25 uses the title "registered family home" or any variation of the
5-26 phrase unless the home is registered with the division under this
5-27 chapter. Any public advertisement for a registered family home
5-28 which uses the title "registered family home" must contain a
5-29 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
5-30 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
6-1 LICENSED OR REGULARLY INSPECTED."
6-2 (g) The certification requirements of this section do not
6-3 apply to a juvenile detention facility certified under Section
6-4 51.12, Family Code, or Section 141.042(d).
6-5 (h) The division shall provide to a listed family home a
6-6 copy of the listing which contains a provision that states: "THIS
6-7 HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED
6-8 WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS
6-9 NOT BEEN INSPECTED AND WILL NOT BE REGULARLY INSPECTED." The
6-10 operator of a listed home is not required to display the listing in
6-11 a prominent place at the home but shall make the listing available
6-12 for examination. The department by rule shall provide for a
6-13 sufficient period to allow operators of family homes to comply with
6-14 the listing requirement of this section.
6-15 (i) The operator of a listed family home shall undergo
6-16 initial and subsequent background and criminal history checks
6-17 required under Section 42.057.
6-18 (j) A family home may not place a public advertisement that
6-19 uses the title "listed family home" or any variation of the phrase
6-20 unless the home is listed as provided by this chapter. Any public
6-21 advertisement for a listed family home that uses the title "listed
6-22 family home" must contain a provision in bold type stating: "THIS
6-23 HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED
6-24 WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS
6-25 NOT BEEN INSPECTED AND WILL NOT BE REGULARLY INSPECTED."
6-26 (k) The department by rule may provide for denial of an
6-27 application or renewal for listing or registering of a family home
6-28 or may revoke a family home's listing or registration based on the
6-29 results of a background or criminal history check.
6-30 SECTION 8. Section 42.054(e) and (f), Human Resources Code,
7-1 is amended to read as follows:
7-2 (e) The division shall charge each family home that is
7-3 listed or registered with the division an annual [registration] fee
7-4 [of $35] to cover a portion of the department's cost in regulating
7-5 family homes. The fee is $30 for a listed home or $35 for a
7-6 registered home. The fee is due on the date on which the division
7-7 lists or registers the home and on the anniversary of that date.
7-8 (f) If a facility, agency, or home fails to pay the annual
7-9 [license or registration] fee when due, the license, listing or
7-10 registration is suspended until the fee is paid.
7-11 SECTION 9. A new Section 42.057, Human Resources Code, is
7-12 added to read as follows:
7-13 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
7-14 CHECKS. (a) In accordance with rules adopted by the department,
7-15 the operator of a listed or registered family home shall, when the
7-16 operator applies for listing or registration and at least once
7-17 during each 24 months after listing or registration, submit to the
7-18 department for use in conducting background and criminal history
7-19 checks:
7-20 (1) the name of the owner and each person employed at
7-21 the family home; and
7-22 (2) the name of each resident of the home and any
7-23 other person who will regularly or frequently be staying or working
7-24 at the home while children are being provided care.
7-25 (b) The department shall conduct background and criminal
7-26 history checks using:
7-27 (1) the information provided under Subsection (a);
7-28 (2) the information made available by the Department
7-29 of Public Safety under section 411.114, Government Code; and
7-30 (3) the department's records of reported abuse and
8-1 neglect.
8-2 (c) The department by rule shall require a listed or
8-3 registered family home to pay to the department a fee in an amount
8-4 not to exceed the administrative costs the department incurs in
8-5 conducting a background and criminal history check under this
8-6 section.
8-7 SECTION 10. Sections 42.072 through 42.077, Human Resources
8-8 Code, are amended to read as follows:
8-9 Sec. 42.072. LICENSE, LISTING OR REGISTRATION DENIAL OR
8-10 REVOCATION. (a) The division may deny or revoke the license,
8-11 listing, registration or certification of approval of a facility or
8-12 home that does not comply with the requirements of this chapter,
8-13 the standards and rules of the department, or the specific terms of
8-14 the license, listing, registration or certification.
8-15 (b) The division shall notify the person operating or
8-16 proposing to operate a facility or home of the reasons for the
8-17 denial or revocation and of the person's right to appeal the
8-18 decision within 30 days after receiving the notice.
8-19 (c) A person who wishes to appeal a license, listing or
8-20 registration denial or revocation shall notify the director by
8-21 certified mail within 30 days after receiving the notice required
8-22 in Subsection (b) of this section. The person shall send a copy of
8-23 the notice of appeal to the assigned division representative.
8-24 (d) The denial or revocation of a license, listing,
8-25 registration or certification and the appeal from that action are
8-26 governed by the procedure for a contested case hearing under
8-27 Chapter 2001, Government Code.
8-28 (e) A person whose license, listing or registration has been
8-29 denied or revoked may challenge the decision by filing a suit in a
8-30 district court of Travis County or the county in which the person's
9-1 facility or home is located within 30 days after receiving the
9-2 decision. The trial shall be de novo.
9-3 (f) Records of the hearing shall be kept for two years after
9-4 a decision is rendered. On request, and at the person's own
9-5 expense, the division shall supply a copy of the verbatim
9-6 transcript of the hearing to a person appealing a license, listing
9-7 or registration denial or revocation in district court.
9-8 (g) A person may continue to operate a facility or home
9-9 during an appeal of a license, listing or registration denial or
9-10 revocation unless the division has obtained injunctive relief under
9-11 Section 42.074 or civil penalties under Section 42.075 or the
9-12 facility or home has been closed under Section 42.073.
9-13 (h) A person whose license, listing, registration or
9-14 certification is revoked may not apply for any license, listing,
9-15 registration or certification under this chapter before the second
9-16 anniversary of the date on which the revocation takes effect by
9-17 department or court order.
9-18 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
9-19 OR HOME. (a) The division shall suspend a facility's license,
9-20 listing or registration, order the immediate closing of the
9-21 facility or home, and place the children attending or residing in
9-22 the facility or home elsewhere if:
9-23 (1) the division finds the facility or home is
9-24 operating in violation of the standards prescribed by this chapter;
9-25 and
9-26 (2) the violation creates an immediate threat to the
9-27 health and safety of the children attending or residing in the
9-28 facility or home.
9-29 (b) An order suspending a license, listing or registration
9-30 and closing a facility or home under this section is immediately
10-1 effective on the date on which the license, listing or registration
10-2 holder receives written notice or on a later date specified in the
10-3 order.
10-4 (c) An order is valid for 10 days after the effective date
10-5 of the order.
10-6 (d) The suspension of a license, listing or registration and
10-7 the closure of the facility or home and the appeal from that action
10-8 are governed by the procedures for a contested case hearing under
10-9 Chapter 2001, Government Code.
10-10 Sec. 42.074. INJUNCTIVE RELIEF. (a) When it appears that a
10-11 person has violated, is violating, or is threatening to violate the
10-12 licensing, certification, listing or registration requirements of
10-13 this chapter or the department's licensing, certification, listing
10-14 or registration rules and standards, the division may file a suit
10-15 in a district court in Travis County or in the county where the
10-16 facility or home is located for assessment and recovery of civil
10-17 penalties under Section 42.075 of this code, for injunctive relief,
10-18 including a temporary restraining order, or for both injunctive
10-19 relief and civil penalties.
10-20 (b) the district court shall grant the injunctive relief the
10-21 facts may warrant.
10-22 (c) At the division's request, the attorney general or the
10-23 county or district attorney of the county in which the facility or
10-24 home is located shall conduct a suit in the name of the State of
10-25 Texas for injunctive relief, to recover the civil penalty, or for
10-26 both injunctive relief and civil penalties as authorized by
10-27 Subsection (a) of this section.
10-28 Sec. 42.075. CIVIL PENALTY. (a) A person is subject to a
10-29 civil penalty of not less than $50 nor more than $100 for each day
10-30 of violation and for each act of violation if the person:
11-1 (1) threatens serious harm to a child in a facility or
11-2 home by violating a provision of this chapter or a department rule
11-3 or standard;
11-4 (2) violates a provision of this chapter or a
11-5 department rule or standard three or more times within a 12-month
11-6 period; or
11-7 (3) places a public advertisement for an unlicensed
11-8 facility, an unlisted or unregistered family home.
11-9 (b) The civil penalty authorized by this section is
11-10 cumulative and in addition to the criminal penalties and injunctive
11-11 relief provided by this chapter.
11-12 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
11-13 a child-care facility, home or child-placing agency without a
11-14 license, listing or registration commits a Class B misdemeanor.
11-15 (b) A person who places a public advertisement for an
11-16 unlicensed facility, an unlisted or unregistered family home
11-17 commits a Class C misdemeanor.
11-18 (c) [A person who places an advertisement for a registered
11-19 family home in violation of Section 42.052(f) of this code commits
11-20 a Class C misdemeanor.]
11-21 [(d)] It is not an offense under this section if a
11-22 professional provides legal or medical services to:
11-23 (1) a parent who identifies the prospective adoptive
11-24 parent and places the child for adoption without the assistance of
11-25 the professional; or
11-26 (2) a prospective adoptive parent who identifies a
11-27 parent and receives placement of a child for adoption without
11-28 assistance of the professional.
11-29 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY. (a) If the
11-30 department revokes or suspends a facility's license, listing, or
12-1 registration the department shall publish notice of this action in
12-2 a newspaper of general circulation in the county in which the
12-3 facility or home is located. The newspaper shall place the notice
12-4 in the section in which advertisements for day-care services are
12-5 normally published.
12-6 (b) If a person who operates a facility or home that has had
12-7 its license, listing, or registration revoked or suspended later
12-8 applies for a new license, listing, or registration to operate the
12-9 same facility or home, the department shall charge the person an
12-10 application fee in an amount necessary to reimburse the department
12-11 for the cost of the notice relating to that facility or home.
12-12 (c) The department shall pay for publication of the notice
12-13 from funds appropriated to the department for licensing and
12-14 regulation child-care facilities and from appeal and application
12-15 fees collected under Subsection (b) of this section and
12-16 appropriated to the department.
12-17 (d) A facility or home that has its license, listing, or
12-18 registration revoked or suspended shall mail notification of this
12-19 action by certified mail to the parents or guardian of the child
12-20 served by the facility or home. The facility or home shall mail
12-21 the notification within five days of the effective date of the
12-22 license, listing, or registration revocation or suspension.
12-23 SECTION 11. (a) This Act takes effect September 1, 1997.
12-24 (b) The change in law made by this Act applies only to an
12-25 offense committed on or after the effective date of this Act. For
12-26 purposes of this subsection, an offense is committed before the
12-27 effective date of this Act if any element of the offense occurs
12-28 before that date. An offense committed before the effective date
12-29 of this Act is covered by the law in effect when the offense was
12-30 committed, and the former law is continued in effect for that
13-1 purpose.
13-2 (c) The change in law made by this Act applies only to a
13-3 license, listing or registration fee to be paid on or after the
13-4 effective date of this Act. A license fee due to be paid before
13-5 the effective date of this Act is governed by the law in effect
13-6 immediately before the effective date of this Act, and that law is
13-7 continued in effect for that purpose.
13-8 SECTION 12. The importance of this legislation and the
13-9 crowded condition of the calendars in both houses create an
13-10 emergency and an imperative public necessity that the
13-11 constitutional rule requiring bills to be read on three several
13-12 days in each house be suspended, and this rule is hereby suspended.