1-1 By: Greenberg (Senate Sponsor - Madla) H.B. No. 155
1-2 (In the Senate - Received from the House May 6, 1997;
1-3 May 7, 1997, read first time and referred to Committee on Health
1-4 and Human Services; May 16, 1997, reported favorably by the
1-5 following vote: Yeas 9, Nays 0; May 16, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the listing and registration of family homes; providing
1-9 penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 42.002, Human Resources Code, is amended
1-12 by amending Subdivision (9) and adding Subdivision (16) to read as
1-13 follows:
1-14 (9) "Family home" means a home that regularly provides
1-15 care in the caretaker's own residence for not more than six
1-16 children under 14 years of age, excluding [the caretaker's own]
1-17 children who are related to the caretaker, and that provides care
1-18 after school hours for not more than six additional elementary
1-19 school children, but the total number of children, including
1-20 children who are related to the caretaker [the caretaker's own],
1-21 does not exceed 12 at any given time. The term does not include a
1-22 home that provides care exclusively for any number of children who
1-23 are related to the caretaker.
1-24 (16) "Children who are related to the caretaker" means
1-25 children who are the children, grandchildren, great-grandchildren,
1-26 first cousins, nieces, or nephews of the caretaker, whether by
1-27 affinity or consanguinity or as the result of a relationship
1-28 created by court decree.
1-29 SECTION 2. Section 42.041(b), Human Resources Code, is
1-30 amended to read as follows:
1-31 (b) This section does not apply to:
1-32 (1) a state-operated facility;
1-33 (2) an agency home;
1-34 (3) a facility that is operated in connection with a
1-35 shopping center, business, religious organization, or establishment
1-36 where children are cared for during short periods while parents or
1-37 persons responsible for the children are attending religious
1-38 services, shopping, or engaging in other activities on or near the
1-39 premises, including but not limited to retreats or classes for
1-40 religious instruction;
1-41 (4) a school or class for religious instruction that
1-42 does not last longer than two weeks and is conducted by a religious
1-43 organization during the summer months;
1-44 (5) a youth camp licensed by the Texas Department of
1-45 Health;
1-46 (6) a hospital licensed by the Texas Department of
1-47 Mental Health and Mental Retardation or the Texas Department of
1-48 Health;
1-49 (7) an educational facility accredited by the Texas
1-50 [Central] Education Agency or the Southern Association of Colleges
1-51 and Schools that operates primarily for educational purposes in
1-52 grades kindergarten and above;
1-53 (8) an educational facility that operates solely for
1-54 educational purposes in grades kindergarten through at least grade
1-55 two, that does not provide custodial care for more than one hour
1-56 during the hours before or after the customary school day, and that
1-57 is a member of an organization that promulgates, publishes, and
1-58 requires compliance with health, safety, fire, and sanitation
1-59 standards equal to standards required by state, municipal, and
1-60 county codes;
1-61 (9) a kindergarten or preschool educational program
1-62 that is operated as part of a public school or a private school
1-63 accredited by the Texas [Central] Education Agency, that offers
1-64 educational programs through grade six, and that does not provide
2-1 custodial care during the hours before or after the customary
2-2 school day;
2-3 (10) a family home, whether registered or listed
2-4 [not];
2-5 (11) an educational facility that is integral to and
2-6 inseparable from its sponsoring religious organization or an
2-7 educational facility both of which do not provide custodial care
2-8 for more than two hours maximum per day, and that offers
2-9 educational programs for children age five and above in one or more
2-10 of the following: kindergarten through at least grade three,
2-11 elementary, or secondary grades;
2-12 (12) an agency group home;
2-13 (13) an emergency shelter facility providing shelter
2-14 to minor mothers who are the sole support of their natural children
2-15 under Section 32.201 [35.05], Family Code, unless the facility
2-16 would otherwise require a license as a child-care facility under
2-17 this section; [or]
2-18 (14) a juvenile detention facility certified under
2-19 Section 51.12, Family Code, or Section 141.042(d) or a juvenile
2-20 facility providing services solely for the Texas Youth
2-21 Commission;[.]
2-22 (15) [(14)] an elementary-age (ages 5-13) recreation
2-23 program operated by a municipality provided the governing body of
2-24 the municipality annually adopts standards of care by ordinance
2-25 after a public hearing for such programs, that such standards are
2-26 provided to the parents of each program participant, and that the
2-27 ordinances shall include, at a minimum, staffing ratios, minimum
2-28 staff qualifications, minimum facility, health, and safety
2-29 standards, and mechanisms for monitoring and enforcing the adopted
2-30 local standards; and further provided that parents be informed that
2-31 the program is not licensed by the state and the program may not be
2-32 advertised as a child-care facility; or
2-33 (16) [(15)] an annual youth camp held in a
2-34 municipality with a population of more than 1.5 million that
2-35 operates for not more than three months and that has been operated
2-36 for at least 10 years by a nonprofit organization that provides
2-37 care for the homeless.
2-38 SECTION 3. Sections 42.042(e), (f), (g), and (l), Human
2-39 Resources Code, are amended to read as follows:
2-40 (e) The department shall promulgate minimum standards that
2-41 apply to licensed child-care facilities and to registered family
2-42 homes covered by this chapter and that will:
2-43 (1) promote the health, safety, and welfare of
2-44 children attending a facility or registered family home;
2-45 (2) promote safe, comfortable, and healthy physical
2-46 facilities and registered family homes for children;
2-47 (3) ensure adequate supervision of children by
2-48 capable, qualified, and healthy personnel;
2-49 (4) ensure adequate and healthy food service where
2-50 food service is offered;
2-51 (5) prohibit racial discrimination by child-care
2-52 facilities and registered family homes; and
2-53 (6) require procedures for parental and guardian
2-54 consultation in the formulation of children's educational and
2-55 therapeutic programs.
2-56 (f) In promulgating minimum standards for the provision of
2-57 child-care services [facilities], the department shall recognize
2-58 the various categories of services [facilities], including services
2-59 for [facilities offering] specialized care, and the various
2-60 categories of children and their particular needs. Standards for
2-61 child-care institutions must require an intake study before a child
2-62 is placed in an institution. The intake study may be conducted at
2-63 a community mental health and mental retardation center.
2-64 (g) In promulgating minimum standards the department may
2-65 recognize and treat differently the following [child-care
2-66 facilities]:
2-67 (1) child-care [child-caring] institutions;[,]
2-68 (2) foster group homes;
2-69 (3) foster homes;[,]
3-1 (4) day-care centers;[,]
3-2 (5) group day-care homes;[,]
3-3 (6) family day homes;[,]
3-4 (7) registered family homes;[,] and
3-5 (8) agency homes.
3-6 (l) In promulgating [The department shall adopt] minimum
3-7 standards for the regulation of [regulating] family homes that
3-8 register with the division, the department[. The rules] must
3-9 address the minimum qualifications, education, and training
3-10 required of a person who operates a family home registered with the
3-11 division.
3-12 SECTION 4. Section 42.044(b), Human Resources Code, is
3-13 amended to read as follows:
3-14 (b) The division shall inspect all licensed or certified
3-15 facilities at least once a year and may inspect other facilities
3-16 and registered family homes as necessary. The department shall
3-17 investigate a listed family home when the department receives a
3-18 complaint of abuse or neglect of a child, as defined by Section
3-19 261.001, Family Code. At least one of the annual visits must be
3-20 unannounced and all may be unannounced.
3-21 SECTION 5. Section 42.046, Human Resources Code, is amended
3-22 to read as follows:
3-23 Sec. 42.046. [LICENSE] APPLICATION FOR LICENSE,
3-24 REGISTRATION, OR LISTING. (a) An applicant for a license to
3-25 operate a child-care facility or child-placing agency or for a
3-26 listing or registration to operate a family home shall submit to
3-27 the division the appropriate fee prescribed by Section 42.054 of
3-28 this code and a completed application on a form provided by the
3-29 division.
3-30 (b) The division shall supply the applicant the application
3-31 form and a copy of the appropriate minimum standards, if
3-32 applicable.
3-33 (c) After receiving an application, the division shall
3-34 investigate the applicant and the plan of care for children, if
3-35 applicable.
3-36 (d) The division shall complete the investigation and decide
3-37 on an application within two months after the date the division
3-38 receives an application.
3-39 SECTION 6. Section 42.047(a), Human Resources Code, is
3-40 amended to read as follows:
3-41 (a) The department shall offer consultation to potential
3-42 applicants, applicants, and license, listing, registration, and
3-43 certification holders about meeting and maintaining standards for
3-44 licensing, listing, registration, and certification and achieving
3-45 programs of excellence in child care.
3-46 SECTION 7. Section 42.0491(e), Human Resources Code, is
3-47 amended to read as follows:
3-48 (e) This section does not apply to a group [or registered]
3-49 day care home or a listed or registered family home.
3-50 SECTION 8. Section 42.052, Human Resources Code, is amended
3-51 to read as follows:
3-52 Sec. 42.052. CERTIFICATION, LISTING, AND REGISTRATION.
3-53 (a) A state-operated child-care facility or child-placing agency
3-54 must receive certification of approval from the division. The
3-55 certification of approval remains valid until revoked or
3-56 surrendered.
3-57 (b) To be certified, a facility must comply with the
3-58 department's rules and standards and any provisions of this chapter
3-59 that apply to a licensed facility of the same category. The
3-60 operator of a certified facility must display the certification in
3-61 a prominent place at the facility.
3-62 (c) A family home that provides care for compensation for
3-63 three or fewer children, excluding [the caretaker's own] children
3-64 who are related to the caretaker, shall list with the division if
3-65 the home provides child care at least four hours a day, three or
3-66 more days a week, for more than nine consecutive weeks in the
3-67 caretaker's own residence. The home may register with the
3-68 division.
3-69 (d) A family home that provides care for four or more
4-1 children, excluding [the caretaker's own] children who are related
4-2 to the caretaker, shall[, must] register with the division. A
4-3 family home that provides care exclusively for any number of
4-4 children who are related to the caretaker is not required to be
4-5 listed or registered with the division.
4-6 (e) A registration or listing remains valid until revoked or
4-7 surrendered. The operator of a registered home must display the
4-8 registration in a prominent place at the home.
4-9 (f) [(d)] To remain listed or registered with the division,
4-10 a family home must comply with the department's rules and
4-11 standards, if applicable, and any provision of this chapter that
4-12 applies to a listed or registered family home.
4-13 (g) [(e)] The certification requirements of this section do
4-14 not apply to a Texas Youth Council facility or a facility providing
4-15 services solely for the Texas Youth Council.
4-16 [(f) A family home may not place a public advertisement that
4-17 uses the title "registered family home" or any variation of the
4-18 phrase unless the home is registered with the division under this
4-19 chapter. Any public advertisement for a registered family home
4-20 which uses the title "registered family home" must contain a
4-21 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
4-22 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
4-23 LICENSED OR INSPECTED."]
4-24 (h) [(g)] The certification requirements of this section do
4-25 not apply to a juvenile detention facility certified under Section
4-26 51.12, Family Code, or Section 141.042(d).
4-27 (i) The division shall provide to a listed family home a
4-28 copy of the listing. A listing must contain a provision that
4-29 states: "THIS HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR
4-30 REGISTERED WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY
4-31 SERVICES. IT HAS NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."
4-32 The operator of a listed home is not required to display the
4-33 listing in a prominent place at the home but shall make the listing
4-34 available for examination. The department by rule shall provide
4-35 for a sufficient period to allow operators of family homes to
4-36 comply with the listing requirement of this section.
4-37 (j) The operator of a listed family home shall undergo
4-38 initial and subsequent background and criminal history checks
4-39 required under Section 42.057.
4-40 (k) The department shall issue a listing or registration to
4-41 a family home, as appropriate, in both English and Spanish when the
4-42 most recent federal census shows that more than one-half of the
4-43 population in a municipality or in a commissioners precinct in a
4-44 county in which the family home is located is of Hispanic origin or
4-45 Spanish-speaking.
4-46 SECTION 9. Subchapter C, Chapter 42, Human Resources Code,
4-47 is amended by adding Section 42.0522 to read as follows:
4-48 Sec. 42.0522. PUBLIC ADVERTISING OF FAMILY HOMES. (a) A
4-49 family home may not place a public advertisement that uses the
4-50 title "registered family home" or any variation of the phrase
4-51 unless the home is registered with the division under this chapter.
4-52 Any public advertisement for a registered family home that uses the
4-53 title "registered family home" must contain a provision in bold
4-54 type stating: "THIS HOME IS REGISTERED WITH THE DEPARTMENT OF
4-55 PROTECTIVE AND REGULATORY SERVICES BUT IS NOT LICENSED OR REGULARLY
4-56 INSPECTED."
4-57 (b) A family home may not place a public advertisement that
4-58 uses the title "listed family home" or any variation of the phrase
4-59 unless the home is listed as provided by this chapter. Any public
4-60 advertisement for a listed family home that uses the title "listed
4-61 family home" must contain a provision in bold type stating: "THIS
4-62 HOME IS A LISTED FAMILY HOME. IT IS NOT LICENSED OR REGISTERED
4-63 WITH THE DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. IT HAS
4-64 NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."
4-65 SECTION 10. Section 42.054(e), Human Resources Code, as
4-66 added by Chapter 239, Acts of the 69th Legislature, Regular
4-67 Session, 1985, is amended to read as follows:
4-68 (e) The division shall charge each family home that is
4-69 listed or registered with the division an annual [registration] fee
5-1 [of $35] to cover a part of the department's cost in regulating
5-2 family homes. The amount of the fee is $20 for a listed home or
5-3 $35 for a registered home. The fee is due on the date on which the
5-4 division initially lists or registers the home and on the
5-5 anniversary of that date.
5-6 SECTION 11. Section 42.054(f), Human Resources Code, is
5-7 amended to read as follows:
5-8 (f) If a facility, agency, or home fails to pay the annual
5-9 [license or registration] fee when due, the license, listing, or
5-10 registration, as appropriate, is suspended until the fee is paid.
5-11 SECTION 12. Subchapter C, Chapter 42, Human Resources Code,
5-12 is amended by adding Section 42.057 to read as follows:
5-13 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
5-14 CHECKS. (a) In accordance with rules adopted by the department,
5-15 the operator of a family home shall, when listing or registering a
5-16 family home and at least once during each 24 months after receiving
5-17 a listing or registration, submit to the department for use in
5-18 conducting background and criminal history checks:
5-19 (1) the name and date of birth of the owner and each
5-20 person employed at the home; and
5-21 (2) the name and date of birth of each resident of the
5-22 home and any other person who will regularly or frequently be
5-23 staying or working at the home while children are being provided
5-24 care.
5-25 (b) The department shall conduct background and criminal
5-26 history checks using:
5-27 (1) the information provided under Subsection (a);
5-28 (2) the information made available by the Department
5-29 of Public Safety under Section 411.114, Government Code; and
5-30 (3) the department's records of reported abuse and
5-31 neglect.
5-32 SECTION 13. Section 42.072, Human Resources Code, is amended
5-33 to read as follows:
5-34 Sec. 42.072. [LICENSE] DENIAL OR REVOCATION OF LICENSE,
5-35 LISTING, OR REGISTRATION. (a) The division may deny or revoke the
5-36 license or certification of approval of a facility or the listing
5-37 or registration of a family home that does not comply with the
5-38 requirements of this chapter, the standards and rules of the
5-39 department, or the specific terms of the license, [or]
5-40 certification, listing, or registration.
5-41 (b) The division shall notify the person operating or
5-42 proposing to operate a facility or family home of the reasons for
5-43 the denial or revocation and of the person's right to appeal the
5-44 decision within 30 days after receiving the notice.
5-45 (c) A person who wishes to appeal a [license] denial or
5-46 revocation of a license, listing, or registration shall notify the
5-47 director by certified mail within 30 days after receiving the
5-48 notice required in Subsection (b) of this section. The person
5-49 shall send a copy of the notice of appeal to the assigned division
5-50 representative.
5-51 (d) The denial or revocation of a license, listing,
5-52 registration, or certification and the appeal from that action are
5-53 governed by the procedure for a contested case hearing under
5-54 Chapter 2001, Government Code.
5-55 (e) A person whose license, listing, or registration has
5-56 been denied or revoked may challenge the decision by filing a suit
5-57 in a district court of Travis County or the county in which the
5-58 person's facility or family home is located within 30 days after
5-59 receiving the decision. The trial shall be de novo.
5-60 (f) Records of the hearing shall be kept for two years after
5-61 a decision is rendered. On request, and at the person's own
5-62 expense, the division shall supply a copy of the verbatim
5-63 transcript of the hearing to a person appealing a [license] denial
5-64 or revocation of a license, listing, or registration in district
5-65 court.
5-66 (g) A person may continue to operate a facility or family
5-67 home during an appeal of a [license] denial or revocation of a
5-68 license, listing, or registration unless the division has obtained
5-69 injunctive relief under Section 42.074 or civil penalties under
6-1 Section 42.075 or the facility or family home has been closed under
6-2 Section 42.073.
6-3 (h) A person whose license, listing, registration, or
6-4 certification is revoked may not apply for any license, listing,
6-5 registration, or certification under this chapter before the second
6-6 anniversary of the date on which the revocation takes effect by
6-7 department or court order.
6-8 SECTION 14. Subchapter D, Chapter 42, Human Resources Code,
6-9 is amended by adding Section 42.0725 to read as follows:
6-10 Sec. 42.0725. DENIAL OR REVOCATION OF LISTING OR
6-11 REGISTRATION OF FAMILY HOME BASED ON BACKGROUND OR CRIMINAL HISTORY
6-12 CHECK. (a) The department shall deny an application or renewal
6-13 for listing or registering a family home or shall revoke a family
6-14 home's listing or registration if the results of a background or
6-15 criminal history check conducted by the department under Section
6-16 42.057 show that a person has been convicted of an offense under
6-17 Title 5 or 6, Penal Code, or Chapter 43, Penal Code.
6-18 (b) The department by rule may provide for denial of an
6-19 application or renewal for listing or registering a family home
6-20 based on the results of a background or criminal history check.
6-21 SECTION 15. Section 42.073, Human Resources Code, is amended
6-22 to read as follows:
6-23 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
6-24 OR FAMILY HOME. (a) The division shall suspend a facility's
6-25 license or the listing or registration of a family home, order the
6-26 immediate closing of the facility or home, and place the children
6-27 attending or residing in the facility or home elsewhere if:
6-28 (1) the division finds the facility or home is
6-29 operating in violation of the applicable standards prescribed by
6-30 this chapter; and
6-31 (2) the violation creates an immediate threat to the
6-32 health and safety of the children attending or residing in the
6-33 facility or home.
6-34 (b) An order suspending a license, listing, or registration
6-35 and an order closing a facility or family home under this section
6-36 are [is] immediately effective on the date on which the [license]
6-37 holder of the license, listing, or registration receives written
6-38 notice or on a later date specified in the order.
6-39 (c) An order is valid for 10 days after the effective date
6-40 of the order.
6-41 (d) The suspension of a license, listing, or registration
6-42 and the closure of a [the] facility or family home and the appeal
6-43 from that action are governed by the procedures for a contested
6-44 case hearing under Chapter 2001, Government Code.
6-45 SECTION 16. Sections 42.074(a) and (c), Human Resources
6-46 Code, are amended to read as follows:
6-47 (a) When it appears that a person has violated, is
6-48 violating, or is threatening to violate the licensing,
6-49 certification, listing, or registration requirements of this
6-50 chapter or the department's licensing, certification, listing, or
6-51 registration rules and standards, the division may file a suit in a
6-52 district court in Travis County or in the county where the facility
6-53 or family home is located for assessment and recovery of civil
6-54 penalties under Section 42.075 of this code, for injunctive relief,
6-55 including a temporary restraining order, or for both injunctive
6-56 relief and civil penalties.
6-57 (c) At the division's request, the attorney general or the
6-58 county or district attorney of the county in which the facility or
6-59 family home is located shall conduct a suit in the name of the
6-60 State of Texas for injunctive relief, to recover the civil
6-61 penalty, or for both injunctive relief and civil penalties as
6-62 authorized by Subsection (a) of this section.
6-63 SECTION 17. Section 42.075(a), Human Resources Code, is
6-64 amended to read as follows:
6-65 (a) A person is subject to a civil penalty of not less than
6-66 $50 nor more than $100 for each day of violation and for each act
6-67 of violation if the person:
6-68 (1) threatens serious harm to a child in a facility or
6-69 family home by violating a provision of this chapter or a
7-1 department rule or standard;
7-2 (2) violates a provision of this chapter or a
7-3 department rule or standard three or more times within a 12-month
7-4 period; or
7-5 (3) places a public advertisement for an unlicensed
7-6 facility or an unlisted or unregistered family home.
7-7 SECTION 18. Section 42.076, Human Resources Code, is amended
7-8 to read as follows:
7-9 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
7-10 a child-care facility or child-placing agency without a license
7-11 commits a Class B misdemeanor.
7-12 (b) A person who operates a family home without a required
7-13 listing or registration commits a Class B misdemeanor.
7-14 (c) A person who places a public advertisement for an
7-15 unlicensed facility or an unlisted or unregistered family home
7-16 commits a Class C misdemeanor.
7-17 [(c) A person who places an advertisement for a registered
7-18 family home in violation of Section 42.052(f) of this code commits
7-19 a Class C misdemeanor.]
7-20 (d) It is not an offense under this section if a
7-21 professional provides legal or medical services to:
7-22 (1) a parent who identifies the prospective adoptive
7-23 parent and places the child for adoption without the assistance of
7-24 the professional; or
7-25 (2) a prospective adoptive parent who identifies a
7-26 parent and receives placement of a child for adoption without
7-27 assistance of the professional.
7-28 SECTION 19. Section 42.077, Human Resources Code, is amended
7-29 to read as follows:
7-30 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
7-31 HOME. (a) If the department revokes or suspends a facility's
7-32 license or a family home's listing or registration, the department
7-33 shall publish notice of this action in a newspaper of general
7-34 circulation in the county in which the facility or home is located.
7-35 The newspaper shall place the notice in the section in which
7-36 advertisements for day-care services are normally published.
7-37 (b) If a person who operates a facility or family home that
7-38 has had its license, listing, or registration revoked or suspended
7-39 later applies for a new license, listing, or registration to
7-40 operate the same facility or family home, the department shall
7-41 charge the person an application fee in an amount necessary to
7-42 reimburse the department for the cost of the notice relating to
7-43 that facility or family home.
7-44 (c) The department shall pay for publication of the notice
7-45 from funds appropriated to the department for licensing and
7-46 regulating child-care facilities and from appeal and application
7-47 fees collected under Subsection (b) of this section and
7-48 appropriated to the department.
7-49 (d) A facility or family home that has its license, listing,
7-50 or registration revoked or suspended shall mail notification of
7-51 this action by certified mail to the parents or guardian of the
7-52 child served by the facility or family home. The facility shall
7-53 mail the notification within five days of the effective date of the
7-54 [license] revocation or suspension of the license, listing, or
7-55 registration.
7-56 (e) When the most recent federal census shows that more than
7-57 one-half of the population in a municipality or in a commissioners
7-58 precinct in a county in which a family home whose listing or
7-59 registration has been revoked or suspended is located is of
7-60 Hispanic origin or Spanish-speaking, the department shall publish
7-61 the notice under Subsection (a) in both English and Spanish.
7-62 SECTION 20. This Act takes effect September 1, 1997.
7-63 SECTION 21. The importance of this legislation and the
7-64 crowded condition of the calendars in both houses create an
7-65 emergency and an imperative public necessity that the
7-66 constitutional rule requiring bills to be read on three several
7-67 days in each house be suspended, and this rule is hereby suspended.
7-68 * * * * *