By: Moncrief S.B. No. 65
97S0009/1 08/30/96
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of family homes that care for children
1-3 that are not the caretaker's own; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsections (c) and (f), Section 42.052, Human
1-6 Resources Code, are amended to read as follows:
1-7 (c) [A family home that provides care for three or fewer
1-8 children, excluding the caretaker's own children may register with
1-9 the division.] A family home that provides care for one [four] or
1-10 more children, excluding the caretaker's own children, must
1-11 register with the division. A registration remains valid until
1-12 revoked or surrendered. The operator of a registered home must
1-13 display the registration in a prominent place at the home.
1-14 (f) [A family home may not place a public advertisement that
1-15 uses the title "registered family home" or any variation of the
1-16 phrase unless the home is registered with the division under this
1-17 chapter.] Any public advertisement for a registered family home
1-18 which uses the title "registered family home" must contain a
1-19 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
1-20 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
1-21 LICENSED OR INSPECTED."
1-22 SECTION 2. Subsection (e), Section 42.054, Human Resources
1-23 Code, as added by Section 3, Chapter 212, Acts of the 69th
2-1 Legislature, Regular Session, 1985, is amended to read as follows:
2-2 (e) The division shall charge each [registered] family home
2-3 an annual registration fee to cover the department's cost in
2-4 regulating family homes [of $15]. The division may implement a
2-5 graduated fee schedule based on the number of children in care in a
2-6 family home that are not the caretaker's own. The fee is due on
2-7 the date on which the division registers the home and on the
2-8 anniversary of that date.
2-9 SECTION 3. Subsection (e), Section 42.054, Human Resources
2-10 Code, as added by Section 6, Chapter 239, Acts of the 69th
2-11 Legislature, Regular Session, 1985, is amended to read as follows:
2-12 (e) The division shall charge each family home [that is
2-13 registered with the division] an annual registration fee [of $35]
2-14 to cover the department's cost in regulating family homes. The
2-15 division may implement a graduated fee schedule based on the number
2-16 of children in care in a family home that are not the caretaker's
2-17 own. The fee is due on the date on which the division registers
2-18 the home and on the anniversary of that date.
2-19 SECTION 4. Section 42.071, Human Resources Code, is amended
2-20 to read as follows:
2-21 Sec. 42.071. [LICENSE] SUSPENSION, EVALUATION, OR PROBATION.
2-22 (a) The division may suspend the license of a facility or the
2-23 registration of a family home that has temporarily ceased operation
2-24 but has definite plans for starting operations again within the
2-25 time limits of the issued license or registration.
3-1 (b) The division may suspend a facility's license or a
3-2 family home's registration for a definite period rather than deny
3-3 or revoke the license or registration if the division finds
3-4 repeated noncompliance with standards that do not endanger the
3-5 health and safety of children. To qualify for license or
3-6 registration suspension under this subsection, a facility or family
3-7 home must suspend its operations and show that standards can be met
3-8 within the suspension period.
3-9 (c) If the division finds a facility or family home is in
3-10 repeated noncompliance with standards that do not endanger the
3-11 health and safety of children, the division may schedule the
3-12 facility or family home for evaluation or probation rather than
3-13 suspend or revoke the facility's license or the family home's
3-14 registration. The division shall provide notice to the facility or
3-15 family home of the evaluation or probation and of the items of
3-16 noncompliance not later than the 10th day before the evaluation or
3-17 probation period begins. The division shall designate a period of
3-18 not less than 30 days during which the facility or family home will
3-19 remain under evaluation. During the evaluation or probation
3-20 period, the facility or family home must correct the items that
3-21 were in noncompliance and report the corrections to the division
3-22 for approval.
3-23 (d) The division shall revoke the license of a facility or
3-24 the registration of a family home that does not comply with
3-25 standards at the end of a license or registration suspension.
4-1 (e) The division may suspend or revoke the license of a
4-2 facility or the registration of a family home that does not correct
4-3 items that were in noncompliance or that does not comply with
4-4 required standards within the applicable evaluation or probation
4-5 period.
4-6 SECTION 5. Section 42.072, Human Resources Code, is amended
4-7 to read as follows:
4-8 Sec. 42.072. [LICENSE] DENIAL OR REVOCATION. (a) The
4-9 division may deny or revoke the license or certification of
4-10 approval of a facility or the registration of a family home that
4-11 does not comply with the requirements of this chapter, the
4-12 standards and rules of the department, or the specific terms of the
4-13 license, [or] certification, or registration.
4-14 (b) The division shall notify the person operating or
4-15 proposing to operate a facility or family home of the reasons for
4-16 the denial or revocation and of the person's right to appeal the
4-17 decision within 30 days after receiving the notice.
4-18 (c) A person who wishes to appeal a license or registration
4-19 denial or revocation shall notify the director by certified mail
4-20 within 30 days after receiving the notice required in Subsection
4-21 (b) [of this section]. The person shall send a copy of the notice
4-22 of appeal to the assigned division representative.
4-23 (d) The denial or revocation of a license, [or]
4-24 certification, or registration and the appeal from that action are
4-25 governed by the procedure for a contested case hearing under
5-1 Chapter 2001, Government Code.
5-2 (e) A person whose license or registration has been denied
5-3 or revoked may challenge the decision by filing a suit in a
5-4 district court of Travis County or the county in which the person's
5-5 facility or family home that is the subject of the license or
5-6 registration is located within 30 days after receiving the
5-7 decision. The trial shall be de novo.
5-8 (f) Records of the hearing shall be kept for two years after
5-9 a decision is rendered. On request, and at the person's own
5-10 expense, the division shall supply a copy of the verbatim
5-11 transcript of the hearing to a person appealing a license or
5-12 registration denial or revocation in district court.
5-13 (g) A person may continue to operate a facility or family
5-14 home during an appeal of a license or registration denial or
5-15 revocation unless the division has obtained injunctive relief under
5-16 Section 42.074 or civil penalties under Section 42.075 or the
5-17 facility or family home has been closed under Section 42.073.
5-18 (h) A person whose license, [or] certification, or
5-19 registration is revoked may not apply for any license, [or]
5-20 certification, or registration under this chapter before the second
5-21 anniversary of the date on which the revocation takes effect by
5-22 department or court order.
5-23 SECTION 6. Section 42.073, Human Resources Code, is amended
5-24 to read as follows:
5-25 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE [OF A
6-1 FACILITY]. (a) The division shall suspend a facility's license or
6-2 a family home's registration, order the immediate closing of the
6-3 facility or family home, and place the children attending or
6-4 residing in the facility or attending the home elsewhere if:
6-5 (1) the division finds the facility or family home is
6-6 operating in violation of the standards prescribed by this chapter;
6-7 and
6-8 (2) the violation creates an immediate threat to the
6-9 health and safety of the children attending or residing in the
6-10 facility or attending the family home.
6-11 (b) An order suspending a license or registration and
6-12 closing a facility or family home under this section is immediately
6-13 effective on the date on which the license or registration holder
6-14 receives written notice or on a later date specified in the order.
6-15 (c) An order is valid for 10 days after the effective date
6-16 of the order.
6-17 (d) The suspension of a license or registration and the
6-18 closure of the facility or family home and the appeal from that
6-19 action are governed by the procedures for a contested case hearing
6-20 under Chapter 2001, Government Code.
6-21 SECTION 7. Subsections (a) and (c), Section 42.074, Human
6-22 Resources Code, are amended to read as follows:
6-23 (a) When it appears that a person has violated, is
6-24 violating, or is threatening to violate the licensing,
6-25 certification, or registration requirements of this chapter or the
7-1 department's licensing, certification, or registration rules and
7-2 standards, the division may file a suit in a district court in
7-3 Travis County or in the county where the facility or family home is
7-4 located for assessment and recovery of civil penalties under
7-5 Section 42.075 [of this code], for injunctive relief, including a
7-6 temporary restraining order, or for both injunctive relief and
7-7 civil penalties.
7-8 (c) At the division's request, the attorney general or the
7-9 county or district attorney of the county in which the facility or
7-10 family home is located shall conduct a suit in the name of the
7-11 State of Texas for injunctive relief, to recover the civil penalty,
7-12 or for both injunctive relief and civil penalties as authorized by
7-13 Subsection (a) [of this section].
7-14 SECTION 8. Subsection (a), Section 42.075, Human Resources
7-15 Code, is amended to read as follows:
7-16 (a) A person is subject to a civil penalty of not less than
7-17 $50 nor more than $100 for each day of violation and for each act
7-18 of violation if the person:
7-19 (1) threatens serious harm to a child in a facility or
7-20 family home by violating a provision of this chapter or a
7-21 department rule or standard;
7-22 (2) violates a provision of this chapter or a
7-23 department rule or standard three or more times within a 12-month
7-24 period; or
7-25 (3) places a public advertisement for an unlicensed
8-1 facility or unregistered family home.
8-2 SECTION 9. Subsections (a) and (b), Section 42.076, Human
8-3 Resources Code, are amended to read as follows:
8-4 (a) A person who operates a family home, child-care
8-5 facility, or child-placing agency without the required registration
8-6 or [a] license commits a Class B misdemeanor.
8-7 (b) A person who places a public advertisement for an
8-8 unregistered family home or unlicensed facility commits a Class C
8-9 misdemeanor.
8-10 SECTION 10. Section 42.077, Human Resources Code, is amended
8-11 to read as follows:
8-12 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR HOME.
8-13 (a) If the department revokes or suspends a facility's license or
8-14 a family home's registration, the department shall publish notice
8-15 of this action in a newspaper of general circulation in the county
8-16 in which the facility or family home is located. The newspaper
8-17 shall place the notice in the section in which advertisements for
8-18 day-care services are normally published.
8-19 (b) If a person who operates a facility or family home that
8-20 has had its license or registration revoked or suspended later
8-21 applies for a new license or registration to operate the same
8-22 facility or family home, the department shall charge the person an
8-23 application fee in an amount necessary to reimburse the department
8-24 for the cost of the notice relating to that facility or family
8-25 home.
9-1 (c) The department shall pay for publication of the notice
9-2 from funds appropriated to the department for licensing and
9-3 regulating child-care facilities and for registering and regulating
9-4 family homes and from appeal and application fees collected under
9-5 Subsection (b) [of this section] and appropriated to the
9-6 department.
9-7 (d) A facility or family home that has its license or
9-8 registration revoked or suspended shall mail notification of this
9-9 action by certified mail to the parents or guardian of the child
9-10 served by the facility or family home. The facility or family home
9-11 shall mail the notification within five days of the effective date
9-12 of the license or registration revocation or suspension.
9-13 SECTION 11. The importance of this legislation and the
9-14 crowded condition of the calendars in both houses create an
9-15 emergency and an imperative public necessity that the
9-16 constitutional rule requiring bills to be read on three several
9-17 days in each house be suspended, and this rule is hereby suspended,
9-18 and that this Act take effect and be in force from and after its
9-19 passage, and it is so enacted.