By: West S.B. No. 1539
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of certain facilities, homes, and
1-2 agencies that provide child care and of child-care administrators;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The heading of Chapter 42, Human Resources Code,
1-6 is amended to read as follows:
1-7 CHAPTER 42. REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,
1-8 HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES
1-9 SECTION 2. Section 42.001, Human Resources Code, is amended
1-10 to read as follows:
1-11 Sec. 42.001. PURPOSE. The purpose of this chapter is to
1-12 protect the health, safety, and well-being of the children of the
1-13 state who receive care outside their homes [reside in child-care
1-14 facilities] by establishing statewide minimum standards for their
1-15 safety and protection and by regulating the provision of certain
1-16 child-care services [facilities through a licensing program]. It
1-17 is the policy of the state to ensure the protection of all children
1-18 receiving child-care services [under care in child-care facilities]
1-19 and to encourage and assist in the improvement of child-care
1-20 programs. It is also the intent of the legislature that freedom of
1-21 religion of all citizens is inviolate, and nothing in this chapter
1-22 gives a governmental agency authority to regulate, control,
1-23 supervise, or in any way be involved in the form, manner, or
2-1 content of religious instruction or the curriculum of a school
2-2 sponsored by a religious organization.
2-3 SECTION 3. Section 42.002, Human Resources Code, is amended
2-4 to read as follows:
2-5 Sec. 42.002. DEFINITIONS. In this chapter:
2-6 (1) "Child" means a person under 18 years of age.
2-7 (2) "Division" means the division designated by the
2-8 department to carry out the provisions of this chapter.
2-9 (3) "Child-care facility" means a facility licensed,
2-10 certified, or registered by the department to provide assessment,
2-11 [that provides] care, training, education, custody, treatment, or
2-12 supervision for a child who is not related by blood, marriage, or
2-13 adoption to the owner or operator of the facility, for all or part
2-14 of the 24-hour day, whether or not the facility is operated for
2-15 profit or charges for the services it offers.
2-16 (4) "Child-care institution" means a child-care
2-17 facility that provides care for more than 12 children for 24 hours
2-18 a day, including facilities known as children's homes, halfway
2-19 houses, residential treatment centers [camps], emergency shelters,
2-20 and therapeutic camps [training or correctional schools for
2-21 children].
2-22 (5) "Foster group home" means a child-care facility
2-23 that provides care for 7 to 12 children for 24 hours a day.
2-24 (6) "Foster [family] home" means a child-care facility
2-25 that provides care for not more than six children for 24 hours a
3-1 day.
3-2 (7) "Day-care center" means a child-care facility that
3-3 provides care for more than 12 children under 14 years of age for
3-4 less than 24 hours a day.
3-5 (8) "Group day-care home" means a child-care facility
3-6 that provides care for 7 to 12 children under 14 years of age for
3-7 less than 24 hours a day.
3-8 (9) "Family home" means a home that [regularly]
3-9 provides regular care in the caretaker's own residence for not more
3-10 than six children under 14 years of age, excluding [the caretaker's
3-11 own] children who are related to the caretaker, and that provides
3-12 care after school hours for not more than six additional elementary
3-13 school children, but the total number of children, including
3-14 children who are related to the caretaker [the caretaker's own,]
3-15 does not exceed 12 at any given time. The term does not include a
3-16 home that provides care exclusively for any number of children who
3-17 are related to the caretaker.
3-18 (10) "Agency foster group home" means a facility that
3-19 provides care for seven to 12 children for 24 hours a day, [and] is
3-20 used only by a licensed child-placing agency, and meets department
3-21 standards.
3-22 (11) "Agency foster home" means a facility [private
3-23 home] that provides care for not more than six children for 24
3-24 hours a day, [that] is used only by a licensed child-placing
3-25 agency, and [that] meets department [division] standards.
4-1 (12) "Child-placing agency" means a person, including
4-2 an organization, other than the natural parents or guardian of a
4-3 child who plans for the placement of or places a child in a
4-4 child-care facility [an institution], agency foster home, agency
4-5 foster group home, or adoptive home.
4-6 (13) "Facilities" includes child-care facilities and
4-7 child-placing agencies.
4-8 (14) "State of Texas" or "state" does not include
4-9 political subdivisions of the state.
4-10 (15) "Religious organization" means a church,
4-11 synagogue, or other religious institution whose purpose is to
4-12 support and serve the propagation of truly held religious beliefs.
4-13 (16) "Children who are related to the caretaker" means
4-14 children who are the children, grandchildren, siblings,
4-15 great-grandchildren, nieces, or nephews of the caretaker, whether
4-16 by affinity or consanguinity or as the result of a relationship
4-17 created by court decree.
4-18 (17) "Regular care" means care that is provided at
4-19 least four hours a day, three or more days a week, for more than
4-20 nine consecutive weeks.
4-21 SECTION 4. Subsections (a) and (b), Section 42.021, Human
4-22 Resources Code, are amended to read as follows:
4-23 (a) The department may [shall] designate a division within
4-24 the department to [regulate and license child-care facilities and
4-25 child-placing agencies. The division shall enforce the provisions
5-1 of this chapter and the rules and standards adopted by the
5-2 department under this chapter and shall] carry out [other]
5-3 responsibilities the department may delegate or assign under this
5-4 chapter.
5-5 (b) The executive director of the department shall appoint
5-6 as director of a [the] division designated under Subsection (a) a
5-7 person who meets the qualifications set by the board[:]
5-8 [(1) meets the qualifications required of a child-care
5-9 administrator by Chapter 43;]
5-10 [(2) holds a graduate degree in social science or law
5-11 and has five years' administrative experience in a field related to
5-12 child care; or]
5-13 [(3) has 10 years' experience in a field related to
5-14 child care, at least 5 of which must be administrative].
5-15 SECTION 5. Subsections (d), (e), and (f), Section 42.022,
5-16 Human Resources Code, are amended to read as follows:
5-17 (d) The department [division] shall provide staff necessary
5-18 for the committee.
5-19 (e) The committee shall review rules and minimum standards
5-20 for child-care administrators, child-care facilities, and
5-21 child-placing agencies promulgated by state agencies, and shall
5-22 advise the department, [the division,] the council, and state
5-23 agencies on problems of child-care administrators, child-care
5-24 facilities, and child-placing agencies.
5-25 (f) The committee shall receive and review the annual report
6-1 of the department [division].
6-2 SECTION 6. Subsections (a) and (b), Section 42.023, Human
6-3 Resources Code, are amended to read as follows:
6-4 (a) The executive director shall prepare an annual written
6-5 report regarding the department's [division's] activities under
6-6 this chapter.
6-7 (b) The annual report shall include:
6-8 (1) a report by regions of applications for licensure
6-9 or certification, of provisional licenses issued, denied, or
6-10 revoked, of licenses issued, denied, suspended or revoked, of
6-11 emergency closures and injunctions, and of the compliance of
6-12 state-operated agencies with certification requirements;
6-13 (2) a summary of the amount and kind of in-service
6-14 training and other professional development opportunities provided
6-15 for department [division] staff;
6-16 (3) a summary of training and other professional
6-17 development opportunities offered to facilities' staffs; and
6-18 (4) a report of new administrative procedures, of the
6-19 number of staff and staff changes, and of plans for the coming
6-20 year.
6-21 SECTION 7. Chapter 42, Human Resources Code, is amended by
6-22 amending Subchapters C and D to read as follows:
6-23 SUBCHAPTER C. REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,
6-24 HOMES, AND AGENCIES
6-25 Sec. 42.041. REQUIRED LICENSE. (a) No person may operate a
7-1 child-care facility or child-placing agency without a license
7-2 issued by the department [division].
7-3 (b) This section does not apply to:
7-4 (1) a state-operated facility;
7-5 (2) an agency foster home or agency foster group home;
7-6 (3) a facility that is operated in connection with a
7-7 shopping center, business, religious organization, or establishment
7-8 where children are cared for during short periods while parents or
7-9 persons responsible for the children are attending religious
7-10 services, shopping, or engaging in other activities on or near the
7-11 premises, including but not limited to retreats or classes for
7-12 religious instruction;
7-13 (4) a school or class for religious instruction that
7-14 does not last longer than two weeks and is conducted by a religious
7-15 organization during the summer months;
7-16 (5) a youth camp licensed by the Texas Department of
7-17 Health;
7-18 (6) a facility [hospital] licensed, operated,
7-19 certified, or registered by another state agency [the Texas
7-20 Department of Mental Health and Mental Retardation or the Texas
7-21 Department of Health];
7-22 (7) an educational facility accredited by the Texas
7-23 [Central] Education Agency or the Southern Association of Colleges
7-24 and Schools that operates primarily for educational purposes in
7-25 grades kindergarten and above;
8-1 (8) an educational facility that operates solely for
8-2 educational purposes in grades kindergarten through at least grade
8-3 two, that does not provide custodial care for more than one hour
8-4 during the hours before or after the customary school day, and that
8-5 is a member of an organization that promulgates, publishes, and
8-6 requires compliance with health, safety, fire, and sanitation
8-7 standards equal to standards required by state, municipal, and
8-8 county codes;
8-9 (9) a kindergarten or preschool educational program
8-10 that is operated as part of a public school or a private school
8-11 accredited by the Texas [Central] Education Agency, that offers
8-12 educational programs through grade six, and that does not provide
8-13 custodial care during the hours before or after the customary
8-14 school day;
8-15 (10) a family home, whether registered as required by
8-16 Section 42.052 or not;
8-17 (11) an educational facility that is integral to and
8-18 inseparable from its sponsoring religious organization or an
8-19 educational facility both of which do not provide custodial care
8-20 for more than two hours maximum per day, and that offers
8-21 educational programs for children age five and above in one or more
8-22 of the following: kindergarten through at least grade three,
8-23 elementary, or secondary grades;
8-24 (12) [an agency group home;]
8-25 [(13)] an emergency shelter facility providing shelter
9-1 to minor mothers who are the sole support of their natural children
9-2 under Section 32.201 [35.05], Family Code, unless the facility
9-3 would otherwise require a license as a child-care facility under
9-4 this section; [or]
9-5 (13) [(14)] a juvenile detention facility certified
9-6 under Section 51.12, Family Code, or Section 141.042(d), [or] a
9-7 juvenile facility providing services solely for the Texas Youth
9-8 Commission, or any other correctional facility for children
9-9 operated or regulated by another state agency or by a political
9-10 subdivision of the state;[.]
9-11 (14) an elementary-age (ages 5-13) recreation program
9-12 operated by a municipality provided the governing body of the
9-13 municipality annually adopts standards of care by ordinance after a
9-14 public hearing for such programs, that such standards are provided
9-15 to the parents of each program participant, and that the ordinances
9-16 shall include, at a minimum, staffing ratios, minimum staff
9-17 qualifications, minimum facility, health, and safety standards, and
9-18 mechanisms for monitoring and enforcing the adopted local
9-19 standards; and further provided that parents be informed that the
9-20 program is not licensed by the state and the program may not be
9-21 advertised as a child-care facility; or
9-22 (15) an annual youth camp held in a municipality with
9-23 a population of more than 1.5 million that operates for not more
9-24 than three months and that has been operated for at least 10 years
9-25 by a nonprofit organization that provides care for the homeless.
10-1 (c) A single license that lists addresses and the
10-2 appropriate facilities may be issued to a child-care institution
10-3 that operates noncontiguous facilities that are nearby and that are
10-4 demonstrably a single operation as indicated by patterns of
10-5 staffing, finance, administrative supervision, and programs.
10-6 (d) [A person operating or desiring to operate a child-care
10-7 facility that is exempt from the provisions of Subsection (a) of
10-8 this section may apply to the division for a license as provided in
10-9 Section 42.046 of this code. The division may not deny an exempt
10-10 facility a license on the ground that it is exempt from Subsection
10-11 (a) of this section.] A facility exempt from the provisions of
10-12 Subsection (a) of this section that desires to receive or
10-13 participate in federal or state funding shall be required to comply
10-14 with all other provisions of this chapter [Act] and with all
10-15 regulations promulgated under this chapter [thereunder].
10-16 (e) The exemptions provided by Subsection (b) of this
10-17 section do not affect the authority of local, regional, or state
10-18 health department officials, the state fire marshal, or local fire
10-19 prevention officials to inspect child-care facilities.
10-20 Sec. 42.042. RULES AND STANDARDS. (a) The department shall
10-21 make rules to carry out the provisions of this chapter.
10-22 (b) The department shall conduct a comprehensive review of
10-23 all rules and standards at least every six years. For purposes of
10-24 this subsection, the six-year period begins on the latest of the
10-25 date of:
11-1 (1) the conclusion of the review of the rules and
11-2 standards;
11-3 (2) a decision by the department not to revise the
11-4 rules and standards;
11-5 (3) a decision by the board not to revise the rules
11-6 and standards; or
11-7 (4) board action adopting new standards.
11-8 (c) The department shall provide a standard procedure for
11-9 receiving and recording complaints [and a standard form for
11-10 recording complaints].
11-11 (d) The department shall provide standard forms for
11-12 applications and inspection reports.
11-13 (e) The department shall promulgate minimum standards that
11-14 apply to licensed child-care facilities and to registered family
11-15 homes covered by this chapter and that will:
11-16 (1) promote the health, safety, and welfare of
11-17 children attending a facility or registered family home;
11-18 (2) promote safe, comfortable, and healthy physical
11-19 facilities and registered family homes for children;
11-20 (3) ensure adequate supervision of children by
11-21 capable, qualified, and healthy personnel;
11-22 (4) ensure adequate and healthy food service where
11-23 food service is offered;
11-24 (5) prohibit racial discrimination by child-care
11-25 facilities and registered family homes; [and]
12-1 (6) require procedures for parental and guardian
12-2 consultation in the formulation of children's educational and
12-3 therapeutic programs; and
12-4 (7) prevent the breakdown of foster care and adoptive
12-5 placement.
12-6 (f) In promulgating minimum standards for the provision of
12-7 child-care services [facilities], the department shall recognize
12-8 the various categories of services [facilities], including services
12-9 for [facilities offering] specialized care, [and] the various
12-10 categories of children and their particular needs, and the
12-11 differences in the organization and operation of child-care
12-12 facilities and institutions. Standards for child-care institutions
12-13 must require an intake study before a child is placed in an
12-14 institution. The intake study may be conducted at a community
12-15 mental health and mental retardation center.
12-16 (g) In promulgating minimum standards the department may
12-17 recognize and treat differently the types of services provided by
12-18 the following:
12-19 (1) family homes;
12-20 (2) child-care facilities, including child-care[:
12-21 child-caring] institutions, foster group homes, foster homes, group
12-22 day-care homes, and day-care centers;
12-23 (3) child-placing agencies;
12-24 (4) [, group day-care homes, family day homes,
12-25 registered family homes, and] agency foster homes; and
13-1 (5) agency foster group homes.
13-2 (h) The department shall promulgate minimum standards for
13-3 child-placing agencies.
13-4 (i) Before adopting minimum standards, the department
13-5 [division] shall present the proposed standards to the State
13-6 Advisory Committee on Child-Care Facilities for review and comment,
13-7 and shall send a copy of the proposed standards to each licensee
13-8 covered by the proposed standards at least 60 days before the
13-9 standards take effect to provide the licensee an opportunity to
13-10 review and to send written suggestions to the committee [council]
13-11 and the department.
13-12 (j) The department may waive compliance with a minimum
13-13 standard in a specific instance if it determines that the economic
13-14 impact of compliance is sufficiently great to make compliance
13-15 impractical.
13-16 (k) The department may not regulate or attempt to regulate
13-17 or control the content or method of any instruction or curriculum
13-18 of a school sponsored by a religious organization.
13-19 (l) In promulgating [The department shall adopt] minimum
13-20 standards for the regulation of [regulating] family homes that
13-21 register with the department, the department [division. The rules]
13-22 must address the minimum qualifications, education, and training
13-23 required of a person who operates a family home registered with the
13-24 department [division].
13-25 (m) [The department shall ensure that each child-care
14-1 facility that provides care for less than 24 hours a day complies
14-2 with the appropriate minimum standards relating to staff-child
14-3 ratios, group sizes, and square footage as those minimum standards
14-4 existed on September 1, 1985. The department may not enforce new
14-5 standards in relation to staff-child ratios, group sizes, or square
14-6 footage that are more stringent than the 1985 standards for those
14-7 facilities. This subsection expires September 1, 1997.]
14-8 [(n)] In determining minimum standards for nonresidential
14-9 child-care facilities that provide care for less than 24 hours a
14-10 day, the department shall, within available appropriations, conduct
14-11 a comprehensive cost-benefit analysis and economic impact study
14-12 that includes families and licensed child-care providers.
14-13 (n) [(o)] Not later than the 60th day before the date the
14-14 board adopts a revision to the minimum standards for child-care
14-15 facilities, the department shall present the revision to the
14-16 appropriate legislative oversight committees that have jurisdiction
14-17 over child-care facilities for review and comment.
14-18 Sec. 42.043. RULES FOR IMMUNIZATIONS. (a) The department
14-19 shall make rules for the immunization of children in [admitted to]
14-20 facilities regulated under this chapter.
14-21 (b) The department shall require that each child at an
14-22 appropriate age have a test for tuberculosis and be immunized
14-23 against diphtheria, tetanus, poliomyelitis, mumps, rubella, and
14-24 rubeola and against any other communicable disease as recommended
14-25 by the Texas Department of Health. The immunization must be
15-1 effective on the date of first entry into the facility. However, a
15-2 child may be provisionally admitted if the required immunizations
15-3 have begun and are completed as rapidly as medically feasible.
15-4 (c) The Texas Department of Health shall make rules for the
15-5 provisional admission of children to facilities regulated under
15-6 this chapter and may modify or delete any of the immunizations
15-7 listed in Subsection (b) of this section or require additional
15-8 immunizations as a requirement for admission to a facility.
15-9 (d) No immunization may be required for admission to a
15-10 facility regulated under this chapter if a person applying for a
15-11 child's admission submits one of the following affidavits:
15-12 (1) an affidavit signed by a licensed physician
15-13 stating that the immunization would be injurious to the health and
15-14 well-being of the child or a member of the child's family or
15-15 household; or
15-16 (2) an affidavit signed by the child's parent or
15-17 guardian stating that the immunization conflicts with the tenets
15-18 and practices of a recognized religious organization of which the
15-19 applicant is an adherent or a member.
15-20 (e) Each regulated facility shall keep an individual
15-21 immunization record for each child admitted, and the records shall
15-22 be open for inspection by the department [division] at all
15-23 reasonable times.
15-24 (f) The Texas Department of Health shall provide the
15-25 immunizations required by this section to children in areas where
16-1 there is no local provision of these services.
16-2 Sec. 42.044. INSPECTIONS. (a) An authorized representative
16-3 of the department [division] may visit a facility regulated under
16-4 this chapter or a registered family home during operating hours to
16-5 investigate, inspect, and evaluate.
16-6 (b) The department [division] shall inspect all licensed or
16-7 certified facilities at least once a year and may inspect other
16-8 facilities or registered family homes as necessary. At least one
16-9 of the annual visits must be unannounced and all may be
16-10 unannounced.
16-11 (c) The department [division] must investigate a facility
16-12 regulated under this chapter or a registered family home when a
16-13 complaint is received. The [division] representative of the
16-14 department must notify the operator of a registered family home or
16-15 the [facility's] director or authorized representative of a
16-16 regulated facility when a complaint is being investigated and
16-17 report in writing the results of the investigation to the family
16-18 home's operator or to the regulated facility's director or the
16-19 director's authorized representative.
16-20 (d) The department [division] may call on political
16-21 subdivisions and governmental agencies for assistance within their
16-22 authorized fields.
16-23 Sec. 42.045. RECORDS. (a) A person who operates a licensed
16-24 or certified facility shall maintain individual child development
16-25 records, individual health records, statistical records, and
17-1 complete financial records.
17-2 (b) A person who provides adoption services under a license
17-3 to operate [operates] a child-placing agency shall furnish
17-4 information required by the department to determine whether
17-5 adoption related income and disbursements are reasonable,
17-6 appropriate, and in compliance with the department's minimum
17-7 standards [have an annual audit by a certified public accountant of
17-8 the facility's books. The audit must include a statement of
17-9 income and disbursements].
17-10 (c) If a child-placing agency terminates operation as a
17-11 child-placing agency, it shall, after giving notice to the
17-12 department, transfer its files and records concerning adopted
17-13 children, their biological families, and their adoptive families to
17-14 the department or to a facility licensed by the department to place
17-15 children for adoption.
17-16 Sec. 42.046. [LICENSE] APPLICATION FOR LICENSE OR
17-17 REGISTRATION. (a) An applicant for a license to operate a
17-18 child-care facility or child-placing agency or for a registration
17-19 to operate a family home shall submit to the department [division]
17-20 the appropriate fee prescribed by Section 42.054 of this code and a
17-21 completed application on a form provided by the department
17-22 [division].
17-23 (b) The department [division] shall supply the applicant the
17-24 application form and a copy of the appropriate minimum standards.
17-25 (c) After receiving an application, the department
18-1 [division] shall investigate the applicant and the plan of care for
18-2 children.
18-3 (d) The department [division] shall complete the
18-4 investigation and decide on an application within two months after
18-5 the date the department [division] receives a completed [an]
18-6 application.
18-7 Sec. 42.047. CONSULTATIONS. (a) The department shall offer
18-8 consultation to potential applicants, applicants, and license,
18-9 registration, and certification holders about meeting and
18-10 maintaining standards for licensing, registration, and
18-11 certification and achieving programs of excellence in child care.
18-12 (b) The department shall offer consultation to prospective
18-13 and actual users of facilities or homes.
18-14 [Sec. 42.048. ADVISORY OPINIONS. (a) The director of the
18-15 division may give an advisory opinion on whether or not a planned
18-16 facility or a planned change in an existing facility complies with
18-17 the division's rules and minimum standards.]
18-18 [(b) A written opinion authorized by Subsection (a) of this
18-19 section is binding on the division as a declaratory order if it is
18-20 signed by the division director and the division representative
18-21 administering this chapter in a division region, and if an
18-22 applicant or license holder has acted in reliance on the opinion.]
18-23 Sec. 42.048 [42.049]. LICENSING. (a) The department
18-24 [division] shall issue a license after determining that an
18-25 applicant has satisfied all requirements.
19-1 (b) When issuing a license, the department [division] may
19-2 impose restrictions on a facility, including but not limited to the
19-3 number of children to be served and the type of children to be
19-4 served.
19-5 (c) The department [division] may grant a variance of an
19-6 individual standard set forth in the applicable standards for good
19-7 and just cause.
19-8 (d) A license holder must display a license issued under
19-9 this chapter in a prominent place at the facility.
19-10 (e) A license issued under this chapter is not transferable
19-11 and applies only to the operator and facility location stated in
19-12 the license application. A change in location or ownership
19-13 automatically revokes a license.
19-14 (f) A license must be issued if the department [division]
19-15 determines that a facility meets all requirements. The evaluation
19-16 shall be based on one or more visits to the facility and a review
19-17 of required forms and records. A license is valid until revoked or
19-18 surrendered.
19-19 Sec. 42.049 [42.0491]. LIABILITY INSURANCE REQUIRED. (a) A
19-20 license holder shall maintain liability insurance coverage in the
19-21 amount of $300,000 for each occurrence of negligence. An insurance
19-22 policy or contract required under this section must cover injury to
19-23 a child that occurs while the child is on the premises of the
19-24 license holder or in the care of the license holder.
19-25 (b) A license holder shall file with the department
20-1 [division] a certificate or other evidence from an insurance
20-2 company showing that the license holder has an unexpired and
20-3 uncancelled insurance policy or contract that meets the
20-4 requirements of this section.
20-5 (c) Should the license holder for financial reasons or for
20-6 lack of availability of an underwriter willing to issue a policy be
20-7 unable to secure the insurance required under Subsection (a) or
20-8 should the policy limits be exhausted, the license holder shall
20-9 notify the parent or a person standing in parental relationship to
20-10 each child for whom the license holder provides care a written
20-11 notice that the liability coverage is not provided and there will
20-12 not be a ground for suspension or revocation of the license
20-13 holder's license under this chapter. The license holder shall also
20-14 notify the department that the coverage is not provided and provide
20-15 the reason for same. In no case shall the inability to secure
20-16 coverage serve to indemnify the license holder for damages due to
20-17 negligence.
20-18 (d) The insurance policy or contract shall be maintained at
20-19 all times in an amount as required by this section. Failure by a
20-20 license holder to renew the policy or contract or to maintain the
20-21 policy or contract in the required amount is a ground for
20-22 suspension or revocation of the license holder's license under this
20-23 chapter.
20-24 (e) This section does not apply to a group [or registered]
20-25 day-care [day care] home or registered family home.
21-1 Sec. 42.050. LICENSE RENEWAL. (a) A license holder may
21-2 apply for a new license in compliance with the requirements of this
21-3 chapter and the rules promulgated by the department [division].
21-4 (b) The application for a new license must be completed and
21-5 decided on by the department [division] before the expiration of
21-6 the license under which a facility is operating.
21-7 (c) The department [division] shall evaluate the application
21-8 for a new license to determine if all licensing requirements are
21-9 met. The evaluation may include a specified number of visits to
21-10 the facility and must include a review of all required forms and
21-11 records.
21-12 Sec. 42.051. PROVISIONAL LICENSE. (a) The department
21-13 [division] shall issue a provisional license when a facility's
21-14 plans meet the department's licensing requirements and one of the
21-15 following situations exists:
21-16 (1) the facility is not currently operating;
21-17 (2) the facility has relocated and has made changes in
21-18 the type of child-care service it provides; or
21-19 (3) there is a change in ownership of the facility
21-20 resulting in changes in policy and procedure or in the staff who
21-21 have direct contact with the children.
21-22 (b) A provisional license is valid for six months from the
21-23 date it is issued and may be renewed for an additional six months
21-24 [is not renewable].
21-25 Sec. 42.052. CERTIFICATION AND REGISTRATION. (a) A
22-1 state-operated child-care facility or child-placing agency must
22-2 receive certification of approval from the department [division].
22-3 The certification of approval remains valid until revoked or
22-4 surrendered.
22-5 (b) To be certified, a facility must comply with the
22-6 department's rules and standards and any provisions of this chapter
22-7 that apply to a licensed facility of the same category. The
22-8 operator of a certified facility must display the certification in
22-9 a prominent place at the facility.
22-10 (c) A family home that provides care for three or fewer
22-11 children, excluding [the caretaker's own] children who are related
22-12 to the caretaker, may register with the department [division]. A
22-13 family home that provides care for four or more children, excluding
22-14 [the caretaker's own] children who are related to the caretaker,
22-15 shall [must] register with the department [division]. A
22-16 registration remains valid until revoked or surrendered. The
22-17 operator of a registered home must display the registration in a
22-18 prominent place at the home.
22-19 (d) To remain registered with the department [division], a
22-20 family home must comply with the department's rules and standards
22-21 and any provision of this chapter that applies to a registered
22-22 family home.
22-23 (e) The certification requirements of this section do not
22-24 apply to a Texas Youth Commission [Council] facility, a Texas
22-25 Juvenile Probation Commission facility, or a facility providing
23-1 services solely for the Texas Youth Commission [Council].
23-2 (f) A family home may not place a public advertisement that
23-3 uses the title "registered family home" or any variation of the
23-4 phrase unless the home is registered [with the division] under this
23-5 chapter. Any public advertisement for a registered family home
23-6 which uses the title "registered family home" must contain a
23-7 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
23-8 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
23-9 LICENSED OR REGULARLY INSPECTED."
23-10 (g) The certification requirements of this section do not
23-11 apply to a juvenile detention facility certified under Section
23-12 51.12, Family Code, or Section 141.042(d).
23-13 Sec. 42.0521. DEPOSIT OF FEES. The fees authorized by this
23-14 chapter and received by the department shall be deposited in the
23-15 general revenue fund.
23-16 Sec. 42.053. AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP
23-17 HOMES. (a) An agency foster home or agency foster group home is
23-18 considered part of the child-placing agency that operates the
23-19 agency foster home or agency foster group home for purposes of
23-20 licensing.
23-21 (b) The operator of a licensed agency shall display a copy
23-22 of the license in a prominent place in the agency foster home or
23-23 agency foster group home used by the agency.
23-24 (c) An agency foster home or agency foster group home shall
23-25 comply with all provisions of this chapter and all department rules
24-1 and standards that apply to a child-care facility caring for a
24-2 similar number of children for a similar number of hours each day.
24-3 (d) The department [division] shall revoke or suspend the
24-4 license of a child-placing agency if an agency foster home or
24-5 agency foster group home operated by the licensed agency fails to
24-6 comply with Subsection (c) of this section.
24-7 [Sec. 42.054. FEES. (a) The division shall charge a
24-8 nonrefundable application fee of $25 to an applicant for an initial
24-9 license to operate a child-care facility or child-placing agency.]
24-10 [(b) The division shall charge each child-care facility a
24-11 fee of $25 for a provisional license. The division shall charge
24-12 each child-placing agency a fee of $50 for a provisional license.]
24-13 [(c) The division shall charge each child-care facility an
24-14 annual license fee in the amount of $40 for each child-care
24-15 facility plus $1 for each child the child-care facility is
24-16 permitted to serve, except that the total fee may not exceed $150.
24-17 The fee is due on the date on which the division issues the
24-18 child-care facility's license and on the anniversary of that date.]
24-19 [(d) The division shall charge each child-placing agency an
24-20 annual license fee of $100. The fee is due on the date on which
24-21 the division issues the child-placing agency's license and on the
24-22 anniversary of that date.]
24-23 [(e) The division shall charge each registered family home
24-24 an annual registration fee of $15. The fee is due on the date on
24-25 which the division registers the home and on the anniversary of
25-1 that date.]
25-2 [(f) If a facility, agency, or home fails to pay the annual
25-3 license or registration fee when due, the license or registration
25-4 is suspended until the fee is paid.]
25-5 [(g) The provisions of Subsections (b) through (f) do not
25-6 apply to:]
25-7 [(1) licensed foster family homes and licensed foster
25-8 family group homes;]
25-9 [(2) nonprofit facilities regulated under this chapter
25-10 that provided 24-hour care for children in the managing
25-11 conservatorship of the department during the 12-month period
25-12 immediately prior to the anniversary date of the facility's
25-13 license.]
25-14 Sec. 42.054. FEES. (a) The department [division] shall
25-15 charge an applicant a nonrefundable application fee of $35 [to an
25-16 applicant] for an initial license to operate a child-care facility
25-17 or a child-placing agency.
25-18 (b) The department [division] shall charge each child-care
25-19 facility a fee of $35 for a provisional license. The department
25-20 [division] shall charge each child-placing agency a fee of $50 for
25-21 a provisional license.
25-22 (c) The department [division] shall charge each licensed
25-23 child-care facility an annual license fee in the amount of $35 [for
25-24 each child-care facility] plus $1 for each child the child-care
25-25 facility is permitted to serve. The fee is due on the date on
26-1 which the department [division] issues the child-care facility's
26-2 initial license and on the anniversary of that date.
26-3 (d) The department [division] shall charge each licensed
26-4 child-placing agency an annual license fee of $100. The fee is due
26-5 on the date on which the department [division] issues the
26-6 child-placing agency's initial license and on the anniversary of
26-7 that date.
26-8 (e) The department [division] shall charge each family home
26-9 that is registered with the department [division] an annual
26-10 registration fee of $35 to cover the department's cost in
26-11 regulating family homes. The fee is due on the date on which the
26-12 department initially [division] registers the home and on the
26-13 anniversary of that date.
26-14 (f) If a facility, agency, or home fails to pay the annual
26-15 [license or registration] fee when due, the license or
26-16 registration, as appropriate, is suspended until the fee is paid.
26-17 (g) The provisions of Subsections (b) through (f) of this
26-18 section do not apply to:
26-19 (1) licensed foster [family] homes and licensed foster
26-20 [family] group homes;
26-21 (2) nonprofit facilities regulated under this chapter
26-22 that provided 24-hour care for children in the managing
26-23 conservatorship of the department during the 12-month period
26-24 immediately preceding the anniversary date of the facility's
26-25 license; or
27-1 (3) facilities operated by a nonprofit corporation or
27-2 foundation that provides 24-hour residential care and does not
27-3 charge for the care provided.
27-4 Sec. 42.055. [USE OF FEES. The child-care training fund is
27-5 established as a special fund in the state treasury, and the
27-6 division shall deposit fees received under this subchapter to the
27-7 credit of that fund. The child-care training fund may be used only
27-8 to provide programs of parent education and caretaker training
27-9 designed to ensure the health, safety, and well-being of children.
27-10 Up to three percent of the amount collected as fees under the
27-11 authority of this chapter may be used by the department for actual
27-12 costs of collecting the fees and administering the fund.]
27-13 [Sec. 42.056.] SIGN POSTING. (a) Each child-care [child
27-14 care] facility shall post in a location that is conspicuous to all
27-15 employees and customers a sign that includes:
27-16 (1) a description of the provisions of the [Chapter
27-17 34,] Family Code[,] relating to the duty to report child abuse or
27-18 neglect; and
27-19 (2) a description of the penalties for violating the
27-20 reporting provisions of the [Chapter 34,] Family Code.
27-21 (b) The department by rule shall determine the design, size,
27-22 and wording of the sign.
27-23 (c) The department shall provide the sign to each child-care
27-24 [child care] facility without charge.
27-25 (d) A person who operates a child-care [child care] facility
28-1 commits an offense if the department provides a sign to the
28-2 facility as provided by this section and the person intentionally
28-3 fails to display the sign in the facility as prescribed by this
28-4 section. An offense under this subsection is a Class C
28-5 misdemeanor.
28-6 Sec. 42.056. REQUIRED BACKGROUND AND CRIMINAL HISTORY
28-7 CHECKS. (a) In accordance with rules adopted by the department,
28-8 the director, owner, or operator of a child-care facility or family
28-9 home shall, when applying to operate a child-care facility or when
28-10 registering a family home and at least once during each 24 months
28-11 after receiving a license, registration, or certification of
28-12 approval, submit to the department for use in conducting background
28-13 and criminal history checks:
28-14 (1) the name of the director, owner, and operator of
28-15 the facility or home, and the name of each person employed at the
28-16 facility or home; and
28-17 (2) the name of each person 14 years of age or older
28-18 who will regularly or frequently be staying or working at the
28-19 facility or home while children are being provided care.
28-20 (b) The department shall conduct background and criminal
28-21 history checks using:
28-22 (1) the information provided under Subsection (a);
28-23 (2) the information made available by the Department
28-24 of Public Safety under Section 411.114, Government Code, or by the
28-25 Federal Bureau of Investigation or other criminal justice agency
29-1 under Section 411.087, Government Code; and
29-2 (3) the department's records of reported abuse and
29-3 neglect.
29-4 (c) The department by rule shall require a child-care
29-5 facility or family home to pay to the department a fee in an amount
29-6 not to exceed the administrative costs the department incurs in
29-7 conducting a background and criminal history check under this
29-8 section.
29-9 SUBCHAPTER D. REMEDIES
29-10 Sec. 42.071. [LICENSE] SUSPENSION, EVALUATION, OR PROBATION
29-11 OF LICENSE OR REGISTRATION. (a) The department [division] may
29-12 suspend the license of a facility or the registration of a family
29-13 home that has temporarily ceased operation but has definite plans
29-14 for starting operations again within the time limits of the issued
29-15 license or registration.
29-16 (b) The department [division] may suspend a facility's
29-17 license or a family home's registration for a definite period
29-18 rather than deny or revoke the license or registration if the
29-19 department [division] finds repeated noncompliance with standards
29-20 that do not endanger the health and safety of children. To qualify
29-21 for license or registration suspension under this subsection, a
29-22 facility or family home must suspend its operations and show that
29-23 standards can be met within the suspension period.
29-24 (c) If the department [division] finds a facility or family
29-25 home is in repeated noncompliance with standards that do not
30-1 endanger the health and safety of children, the department
30-2 [division] may schedule the facility or family home for evaluation
30-3 or probation rather than suspend or revoke the facility's license
30-4 or the family home's registration. The department [division] shall
30-5 provide notice to the facility or family home of the evaluation or
30-6 probation and of the items of noncompliance not later than the 10th
30-7 day before the evaluation or probation period begins. The
30-8 department [division] shall designate a period of not less than 30
30-9 days during which the facility or family home will remain under
30-10 evaluation. During the evaluation or probation period, the
30-11 facility or family home must correct the items that were in
30-12 noncompliance and report the corrections to the department
30-13 [division] for approval.
30-14 (d) The department [division] shall revoke the license of a
30-15 facility or the registration of a family home that does not comply
30-16 with standards at the end of a license or registration suspension.
30-17 (e) The department [division] may suspend or revoke the
30-18 license of a facility or the registration of a family home that
30-19 does not correct items that were in noncompliance or that does not
30-20 comply with required standards within the applicable evaluation or
30-21 probation period.
30-22 Sec. 42.072. LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR
30-23 REVOCATION. (a) The department [division] may suspend, deny, [or]
30-24 revoke, or refuse to renew the license, registration, or
30-25 certification of approval of a facility or family home that does
31-1 not comply with the requirements of this chapter, the standards and
31-2 rules of the department, or the specific terms of the license,
31-3 registration, or certification. The department may revoke the
31-4 probation of a person whose license or registration is suspended if
31-5 the person violates a term of the conditions of probation.
31-6 (b) If the department proposes to take an action under
31-7 Subsection (a), the person is entitled to a hearing conducted by
31-8 the State Office of Administrative Hearings. Proceedings for a
31-9 disciplinary action are governed by the administrative procedure
31-10 law, Chapter 2001, Government Code. Rules of practice adopted by
31-11 the board under Section 2001.004, Government Code, applicable to
31-12 the proceedings for a disciplinary action may not conflict with
31-13 rules adopted by the State Office of Administrative Hearings.
31-14 (c) [The division shall notify the person operating or
31-15 proposing to operate a facility of the reasons for the denial or
31-16 revocation and of the person's right to appeal the decision within
31-17 30 days after receiving the notice.]
31-18 [(c) A person who wishes to appeal a license denial or
31-19 revocation shall notify the director by certified mail within 30
31-20 days after receiving the notice required in Subsection (b) of this
31-21 section. The person shall send a copy of the notice of appeal to
31-22 the assigned division representative.]
31-23 [(d) The denial or revocation of a license or certification
31-24 and the appeal from that action are governed by the procedure for a
31-25 contested case hearing under Chapter 2001, Government Code.]
32-1 [(e) A person whose license has been denied or revoked may
32-2 challenge the decision by filing a suit in a district court of
32-3 Travis County or the county in which the person's facility is
32-4 located within 30 days after receiving the decision. The trial
32-5 shall be de novo.]
32-6 [(f) Records of the hearing shall be kept for two years
32-7 after a decision is rendered. On request, and at the person's own
32-8 expense, the division shall supply a copy of the verbatim
32-9 transcript of the hearing to a person appealing a license denial or
32-10 revocation in district court.]
32-11 [(g) A person may continue to operate a facility during an
32-12 appeal of a license denial or revocation unless the division has
32-13 obtained injunctive relief under Section 42.074 or civil penalties
32-14 under Section 42.075 or the facility has been closed under Section
32-15 42.073.]
32-16 [(h)] A person whose license, registration, or certification
32-17 is revoked may not apply for any license, registration, or
32-18 certification under this chapter before the second anniversary of
32-19 the date on which the revocation takes effect by department or
32-20 court order.
32-21 (d) The department by rule may provide for denial of an
32-22 application or renewal for a licensed facility or for registering a
32-23 family home or may revoke a facility's license or a family home's
32-24 registration based on the results of a background or criminal
32-25 history check.
33-1 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
33-2 OR FAMILY HOME. (a) The department [division] shall suspend a
33-3 facility's license or a family home's registration and[,] order the
33-4 immediate closing of the facility or family home[, and place the
33-5 children attending or residing in the facility elsewhere] if:
33-6 (1) the department [division] finds the facility or
33-7 family home is operating in violation of the applicable standards
33-8 prescribed by this chapter; and
33-9 (2) the violation creates an immediate threat to the
33-10 health and safety of the children attending or residing in the
33-11 facility or family home.
33-12 (b) An order suspending a license or registration and an
33-13 order closing a facility or family home under this section is
33-14 immediately effective on the date on which the [license] holder of
33-15 the license or registration receives written notice or on a later
33-16 date specified in the order.
33-17 (c) An order is valid for 10 days after the effective date
33-18 of the order.
33-19 (d) The suspension of a license or registration and the
33-20 closure of a [the] facility or family home and the appeal from that
33-21 action are governed by the procedures for a contested case hearing
33-22 under Chapter 2001, Government Code.
33-23 Sec. 42.074. INJUNCTIVE RELIEF. (a) When it appears that a
33-24 person has violated, is violating, or is threatening to violate the
33-25 licensing, certification, or registration requirements of this
34-1 chapter or the department's licensing, certification, or
34-2 registration rules and standards, the department [division] may
34-3 file a suit in a district court in Travis County or in the county
34-4 where the facility or family home is located for assessment and
34-5 recovery of civil penalties under Section 42.075 [of this code],
34-6 for injunctive relief, including a temporary restraining order, or
34-7 for both injunctive relief and civil penalties.
34-8 (b) The district court shall grant the injunctive relief the
34-9 facts may warrant.
34-10 (c) At the department's [division's] request, the attorney
34-11 general or the county or district attorney of the county in which
34-12 the facility or family home is located shall conduct a suit in the
34-13 name of the State of Texas for injunctive relief, to recover the
34-14 civil penalty, or for both injunctive relief and civil penalties as
34-15 authorized by Subsection (a) [of this section].
34-16 (d) Injunctive relief provided by this section is in
34-17 addition to any other action, proceeding, or remedy authorized by
34-18 law. It is not necessary to allege or prove in an action filed
34-19 under this section that an adequate remedy at law does not exist or
34-20 that substantial or irreparable harm would result from the
34-21 continued violation.
34-22 (e) The department is not required to give an appeal bond in
34-23 an action arising under this section.
34-24 Sec. 42.075. CIVIL PENALTY. (a) A person is subject to a
34-25 civil penalty of not less than $50 nor more than $100 for each day
35-1 of violation and for each act of violation if the person:
35-2 (1) threatens serious harm to a child in a facility or
35-3 family home by violating a provision of this chapter or a
35-4 department rule or standard;
35-5 (2) violates a provision of this chapter or a
35-6 department rule or standard three or more times within a 12-month
35-7 period; or
35-8 (3) places a public advertisement for an unlicensed
35-9 facility or unregistered family home.
35-10 (b) The civil penalty authorized by this section is
35-11 cumulative and in addition to the criminal penalties and injunctive
35-12 relief provided by this chapter.
35-13 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
35-14 a child-care facility or child-placing agency without a license
35-15 commits a Class B misdemeanor.
35-16 (b) A person who operates a family home without a
35-17 registration commits a Class B misdemeanor.
35-18 (c) A person who places a public advertisement for an
35-19 unlicensed facility or an unregistered family home commits a Class
35-20 C misdemeanor.
35-21 [(c) A person who places an advertisement for a registered
35-22 family home in violation of Section 42.052(f) of this code commits
35-23 a Class C misdemeanor.]
35-24 (d) It is not an offense under this section if a
35-25 professional provides legal or medical services to:
36-1 (1) a parent who identifies the prospective adoptive
36-2 parent and places the child for adoption without the assistance of
36-3 the professional; or
36-4 (2) a prospective adoptive parent who identifies a
36-5 parent and receives placement of a child for adoption without
36-6 assistance of the professional.
36-7 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
36-8 HOME. (a) If the department revokes or suspends a facility's
36-9 license or a family home's registration, the department shall
36-10 publish notice of this action in a newspaper of general circulation
36-11 in the county in which the facility or family home is located. The
36-12 newspaper shall place the notice in the section in which
36-13 advertisements for day-care services are normally published.
36-14 (b) If a person who operates a facility or family home that
36-15 has had its license or registration revoked or suspended later
36-16 applies for a new license or registration to operate the same
36-17 facility or family home, the department shall charge the person an
36-18 application fee in an amount necessary to reimburse the department
36-19 for the cost of the notice relating to that facility or family
36-20 home.
36-21 (c) The department shall pay for publication of the notice
36-22 from funds appropriated to the department for licensing and
36-23 regulating child-care facilities and for registering and regulating
36-24 family homes and from appeal and application fees collected under
36-25 Subsection (b) [of this section] and appropriated to the
37-1 department.
37-2 (d) A facility or family home that has its license or
37-3 registration revoked or suspended shall mail notification of this
37-4 action by certified mail to the parents or guardian of the child
37-5 served by the facility or family home. The facility or family home
37-6 shall mail the notification within five days of the effective date
37-7 of the [license] revocation or suspension of the license or
37-8 registration.
37-9 SECTION 8. Section 43.012, Human Resources Code, is amended
37-10 to read as follows:
37-11 Sec. 43.012. PENALTY. A person who serves as a child-care
37-12 administrator without the license required by this chapter commits
37-13 a Class C misdemeanor [and may be fined not less than $50 nor more
37-14 than $100].
37-15 SECTION 9. (a) This Act takes effect September 1, 1997.
37-16 (b) The change in law made by this Act applies only to an
37-17 offense committed on or after the effective date of this Act. For
37-18 purposes of this subsection, an offense is committed before the
37-19 effective date of this Act if any element of the offense occurs
37-20 before that date. An offense committed before the effective date
37-21 of this Act is covered by the law in effect when the offense was
37-22 committed, and the former law is continued in effect for that
37-23 purpose.
37-24 (c) The change in law made by this Act applies only to a
37-25 license or registration fee due to be paid on or after the
38-1 effective date of this Act. A license or registration fee due to
38-2 be paid before the effective date of this Act is governed by the
38-3 law in effect immediately before the effective date of this Act,
38-4 and that law is continued in effect for that purpose.
38-5 SECTION 10. The importance of this legislation and the
38-6 crowded condition of the calendars in both houses create an
38-7 emergency and an imperative public necessity that the
38-8 constitutional rule requiring bills to be read on three several
38-9 days in each house be suspended, and this rule is hereby suspended.