By: West S.B. No. 1539
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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 services and of child care
1-3 administrators; 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. Subchapter A, Chapter 42, Human Resources Code,
1-10 is amended to read as follows:
1-11 SUBCHAPTER A. GENERAL PROVISIONS
1-12 Sec. 42.001. PURPOSE. The purpose of this chapter is to
1-13 protect the health, safety, and well-being of the children of the
1-14 state who receive care [reside in child-care facilities] outside
1-15 their homes by establishing statewide minimum standards for their
1-16 safety and protection and by regulating certain child care services
1-17 [the facilities through a licensing program]. It is the policy of
1-18 the state to ensure the protection of all children under care in
1-19 regulated child-care services [facilities] and to encourage and
1-20 assist in the improvement of child-care programs. It is also the
1-21 intent of the legislature that freedom of religion of all citizens
2-1 is inviolate, and nothing in this chapter gives a governmental
2-2 agency authority to regulate, control, supervise, or in any way be
2-3 involved in the form, manner, or content of religious instruction
2-4 or the curriculum of a school sponsored by a religious
2-5 organization.
2-6 Sec. 42.002. DEFINITIONS. In this chapter:
2-7 (1) "Child" means a person under 18 years of age.
2-8 (2) "Division" means the division designated by the
2-9 department to carry out the provisions of this chapter.
2-10 (3) "Child-care facility" means a facility licensed,
2-11 certified or registered by the department to provide [that
2-12 provides] care, training, education, custody, treatment, or
2-13 supervision for a child who is not related by blood, marriage, or
2-14 adoption to the owner or operator of the facility, for all or part
2-15 of the 24-hour day, whether or not the facility is operated for
2-16 profit or charges for the services it offers.
2-17 (4) "Child-care institution" means a child-care
2-18 facility that provides care for more than 12 children for 24 hours
2-19 a day, including facilities known as children's homes, halfway
2-20 houses, residential treatment centers [camps], emergency shelters,
2-21 and therapeutic camps [training or correctional schools for
2-22 children].
2-23 (5) "Foster group home" means a child care facility
2-24 that provides care for 7 to 12 children for 24 hours a day.
2-25 (6) "Foster [family] home" means a child care facility
3-1 that provides care for not more than six children for 24 hours a
3-2 day.
3-3 (7) "Day-care center" means a child care facility that
3-4 provides care for more than 12 children under 14 years of age for
3-5 less than 24 hours a day.
3-6 (8) "Group day-care home" means a child care facility
3-7 that provides care for 7 to 12 children under 14 years of age for
3-8 less than 24 hours a day.
3-9 (9) "Family home" means a child care facility
3-10 registered with the department [home] that regularly provides care
3-11 for less than 24 hours a day in the caretaker's own residence for
3-12 not more than six children under 14 years of age, excluding
3-13 children related to the caretaker [the caretaker's own children],
3-14 and that provides care after school hours for not more than six
3-15 additional elementary school children, but the total number of
3-16 children in the home at any given time, including children related
3-17 to the caretaker [the caretaker's own], shall [does] not exceed 12
3-18 [at any given time]. The term does not include a home that
3-19 provides care exclusively for any number of children related to the
3-20 caretaker.
3-21 (10) "Agency foster group home" means a child care
3-22 facility that provides care for seven to 12 children for 24 hours a
3-23 day, [and] is used only by a licensed child-placing agency, and
3-24 that meets department standards.
3-25 (11) "Agency foster home" means a child care facility
4-1 [private home] that provides care for not more than six children
4-2 for 24 hours a day, [that] is used only by a licensed child-placing
4-3 agency, and that meets department [division] standards.
4-4 (12) "Child-placing agency" means a person, including
4-5 an organization, other than the natural parents or guardian of a
4-6 child who plans for the placement of or places a child in a child
4-7 care facility [an institution], agency foster home, agency foster
4-8 group home or adoptive home.
4-9 (13) "Facilities" includes child-care facilities and
4-10 child-placing agencies.
4-11 (14) "State of Texas" or "state" does not include
4-12 political subdivisions of the state.
4-13 (15) "Religious organization" means a church,
4-14 synagogue, or other religious institution whose purpose is to
4-15 support and serve the propagation of truly held religious beliefs.
4-16 (16) "Child care services" means services offered by a
4-17 licensed, certified or registered child care facility or
4-18 institution regulated under this chapter.
4-19 (17) "Children related to the caretaker" means
4-20 children who are the children, grandchildren, nieces, or nephews of
4-21 the caretaker, whether by affinity or consanguinity or as the
4-22 result of a relationship created by court decree.
4-23 (18) "Department" means the Department of Protective
4-24 and Regulatory Services.
4-25 (19) "Board" means the Board of Protective and
5-1 Regulatory Services.
5-2 (20) "Executive director" means the executive director
5-3 of the Department of Protective and Regulatory Services.
5-4 SECTION 3. Section 42.021(b), Human Resources Code, is
5-5 amended to read as follows:
5-6 (b) The executive director of the department shall appoint
5-7 as director of the division a person who meets the qualifications
5-8 set by the board[:]
5-9 [(1) meets the qualifications required of a child-care
5-10 administrator by Chapter 43 of this code;]
5-11 [(2) holds a graduate degree in social science or law
5-12 and has five years' administrative experience in a field related to
5-13 child care; or]
5-14 [(3) has 10 years' experience in a field related to
5-15 child care, at least 5 of which must be administrative].
5-16 SECTION 4. Subchapter C, Chapter 42, Human Resources Code,
5-17 is amended to read as follows:
5-18 SUBCHAPTER C. REGULATION OF CERTAIN CHILD-CARE FACILITIES,
5-19 HOMES, AND AGENCIES
5-20 Sec. 42.041. REQUIRED LICENSE. (a) No person may operate a
5-21 child-care facility or child-placing agency without a license
5-22 issued by the department [division].
5-23 (b) This section does not apply to:
5-24 (1) a state-operated facility;
5-25 (2) an agency foster home or agency foster group home;
6-1 (3) a facility that is operated in connection with a
6-2 shopping center, business, religious organization, or establishment
6-3 where children are cared for during short periods while parents or
6-4 persons responsible for the children are attending religious
6-5 services, shopping, or engaging in other activities on or near the
6-6 premises, including but not limited to retreats or classes for
6-7 religious instruction;
6-8 (4) a school or class for religious instruction that
6-9 does not last longer than two weeks and is conducted by a religious
6-10 organization during the summer months;
6-11 (5) a youth camp licensed by the Texas Department of
6-12 Health;
6-13 (6) a facility [hospital] licensed operated, certified
6-14 or registered by another state agency [the Texas Department of
6-15 Mental Health and Mental Retardation or the Texas Department of
6-16 Health];
6-17 (7) an educational facility accredited by the Central
6-18 Education Agency or the Southern Association of Colleges and
6-19 Schools that operates primarily for educational purposes in grades
6-20 kindergarten and above;
6-21 (8) an educational facility that operates solely for
6-22 educational purposes in grades kindergarten through at least grade
6-23 two, that does not provide custodial care for more than one hour
6-24 during the hours before or after the customary school day, and that
6-25 is a member of an organization that promulgates, publishes, and
7-1 requires compliance with health, safety, fire, and sanitation
7-2 standards equal to standards required by state, municipal, and
7-3 county codes;
7-4 (9) a kindergarten or preschool educational program
7-5 that is operated as part of a public school or a private school
7-6 accredited by the Central Education Agency, that offers educational
7-7 programs through grade six, and that does not provide custodial
7-8 care during the hours before or after the customary school day;
7-9 (10) a family home, whether registered as required by
7-10 Section 42.052 or not;
7-11 (11) an educational facility that is integral to and
7-12 inseparable from its sponsoring religious organization or an
7-13 educational facility both of which do not provide custodial care
7-14 for more than two hours maximum per day, and that offers
7-15 educational programs for children age five and above in one or more
7-16 of the following: kindergarten through at least grade three,
7-17 elementary, or secondary grades;
7-18 (12) [an agency group home;]
7-19 [(13)] an emergency shelter facility providing shelter
7-20 to minor mothers who are the sole support of their natural children
7-21 under Section 32.201 [35.05], Family Code, unless the facility
7-22 would otherwise require a license as a child-care facility under
7-23 this section; [or]
7-24 (13) [(14)] a juvenile detention facility certified
7-25 under Section 51.12, Family Code, or Section 141.042(d) or a
8-1 juvenile facility providing services solely for the Texas Youth
8-2 Commission or any other correctional facility for children operated
8-3 or regulated by a state agency other than the department, or by a
8-4 political subdivision of the state;[.]
8-5 (14) an elementary-age (ages 5-13) recreation program
8-6 operated by a municipality provided the governing body of the
8-7 municipality annually adopts standards of care by ordinance after a
8-8 public hearing for such programs, that such standards are provided
8-9 to the parents of each program participant, and that the ordinances
8-10 shall include, at a minimum, staffing ratios, minimum staff
8-11 qualifications, minimum facility, health, and safety standards, and
8-12 mechanisms for monitoring and enforcing the adopted local
8-13 standards; and further provided that parents be informed that the
8-14 program is not licensed by the state and the program may not be
8-15 advertised as a child-care facility; [or]
8-16 (15) an annual youth camp held in a municipality with
8-17 a population of more than 1.5 million that operates for not more
8-18 than three months and that has been operated for at least 10 years
8-19 by a nonprofit organization that provides care for the homeless; or
8-20 (16) a recreational program for children who are five
8-21 years of age or older that does not operate for a total of more
8-22 than 15 weeks each year.
8-23 (c) A single license that lists addresses and the
8-24 appropriate facilities may be issued to a child-care institution
8-25 that operates noncontiguous facilities that are nearby and that are
9-1 demonstrably a single operation as indicated by patterns of
9-2 staffing, finance, administrative supervision, and programs.
9-3 (d) [A person operating or desiring to operate a child-care
9-4 facility that is exempt from the provisions of Subsection (a) of
9-5 this section may apply to the division for a license as provided in
9-6 Section 42.046 of this code. The division may not deny an exempt
9-7 facility a license on the ground that it is exempt from Subsection
9-8 (a) of this section.] A facility exempt from the provisions of
9-9 Subsection (a) of this section that desires to receive or
9-10 participate in federal or state funding shall be required to comply
9-11 with all other provisions of this chapter [Act] and with all
9-12 regulations promulgated thereunder.
9-13 (e) The exemptions provided by Subsection (b) of this
9-14 section do not affect the authority of local, regional, or state
9-15 health department officials, the state fire marshal, or local fire
9-16 prevention officials to inspect child-care facilities.
9-17 Sec. 42.042. Rules and Standards. (a) The department shall
9-18 make rules to carry out the provisions of this chapter.
9-19 (b) The department shall conduct a comprehensive review of
9-20 all rules and standards at least every six years. For purposes of
9-21 this subsection, the six year period begins from the conclusion of
9-22 the past review of such standards, the decision by the department
9-23 not to revise the standards, board action determining not to revise
9-24 the standards, or board action adopting new standards whichever is
9-25 later.
10-1 (c) The department shall provide a standard procedure for
10-2 receiving and recording complaints [and a standard form for
10-3 recording complaints].
10-4 (d) The department shall provide standard forms for
10-5 applications and inspection reports.
10-6 (e) The department shall promulgate minimum standards that
10-7 apply to registered and licensed child-care facilities regulated
10-8 under [covered by] this chapter and that will:
10-9 (1) promote the health, safety, and welfare of
10-10 children attending a facility;
10-11 (2) promote safe, comfortable, and healthy physical
10-12 facilities for children;
10-13 (3) ensure adequate supervision of children by
10-14 capable, qualified, and healthy personnel;
10-15 (4) ensure adequate and healthy food service where
10-16 food service is offered;
10-17 (5) prohibit racial discrimination by child-care
10-18 facilities; and
10-19 (6) require procedures for parental and guardian
10-20 consultation in the formulation of children's educational and
10-21 therapeutic programs;
10-22 (7) prevent the breakdown of foster care and adoptive
10-23 placement; and
10-24 (8) prescribe the minimum qualifications, education,
10-25 and training required for a person who operates a regulated
11-1 facility.
11-2 (f) In promulgating minimum standards for child-care
11-3 services [facilities], the department shall recognize the various
11-4 categories of services [facilities], including services
11-5 [facilities] offering specialized care, and the various categories
11-6 of children and their particular needs, as well as differences in
11-7 the organization and operation of child care facilities and
11-8 institutions. Standards for child-care institutions must require
11-9 an intake study before a child is placed in an institution. The
11-10 intake study may be conducted at a community mental health and
11-11 mental retardation center.
11-12 (g) In promulgating minimum standards the department may
11-13 recognize and treat differently the types of services provided by
11-14 the following [child-care facilities: child-caring institutions,
11-15 foster homes, day-care centers, group day-care homes, registered
11-16 family homes, and agency homes.]:
11-17 (1) child-care facilities;
11-18 (2) child-care institutions;
11-19 (3) child placing agencies;
11-20 (4) foster group homes;
11-21 (5) foster homes;
11-22 (6) day care centers;
11-23 (7) group day-care homes;
11-24 (8) registered family homes;
11-25 (9) agency foster group homes; and
12-1 (10) agency foster homes.
12-2 (h) [The department shall promulgate minimum standards for
12-3 child-placing agencies.]
12-4 [(i)] Before adopting minimum standards, the department
12-5 [division] shall present the proposed standards to the State
12-6 Advisory Committee on Child-Care Facilities for review and comment,
12-7 and shall send a copy of the proposed standards to each licensee
12-8 covered by the proposed standards at least 60 days before the
12-9 standards take effect to provide the licensee an opportunity to
12-10 review and to send written suggestions to the committee [council]
12-11 and the department.
12-12 (i) [(j)] The department may waive compliance with a minimum
12-13 standard in a specific instance if it determines that the economic
12-14 impact of compliance is sufficiently great to make compliance
12-15 impractical.
12-16 (j) [(k)] The department may not regulate or attempt to
12-17 regulate or control the content or method of any instruction or
12-18 curriculum of a school sponsored by a religious organization.
12-19 [(l) The department shall adopt minimum standards regulating
12-20 family homes that register with the division. The rules must
12-21 address the minimum qualifications, education, and training
12-22 required of a person who operates a family home registered with the
12-23 division.]
12-24 [(m) The department shall ensure that each child-care
12-25 facility that provides care for less than 24 hours a day complies
13-1 with the appropriate minimum standards relating to staff-child
13-2 ratios, group sizes, and square footage as those minimum standards
13-3 existed on September 1, 1985. The department may not enforce new
13-4 standards in relation to staff-child ratios, group sizes, or square
13-5 footage that are more stringent than the 1985 standards for those
13-6 facilities. This subsection expires September 1, 1997.]
13-7 (k) [(n)] In determining minimum standards for
13-8 non-residential child-care facilities that provide care for less
13-9 than 24 hours a day, the department shall, within available
13-10 appropriations, conduct a comprehensive cost-benefit analysis and
13-11 economic impact study that includes families and licensed
13-12 child-care providers.
13-13 (l) [(o)] Not later than the 60th day before the date the
13-14 board adopts a revision to the minimum standards for child-care
13-15 facilities, the department shall present the revision to the
13-16 appropriate legislative oversight committees that have jurisdiction
13-17 over child-care facilities for review and comment.
13-18 Sec. 42.043. Rules for Immunizations. (a) The department
13-19 shall make rules for the immunization of children in [admitted to]
13-20 facilities regulated under this chapter.
13-21 (b) The department shall require that each child at an
13-22 appropriate age have a test for tuberculosis and be immunized
13-23 against diphtheria, tetanus, poliomyelitis, mumps, rubella, and
13-24 rubeola and against any other communicable disease as recommended
13-25 by the Texas Department of Health. The immunization must be
14-1 effective on the date of first entry into the facility. However, a
14-2 child may be provisionally admitted if the required immunizations
14-3 have begun and are completed as rapidly as medically feasible.
14-4 (c) The Texas Department of Health shall make rules for the
14-5 provisional admission of children to facilities regulated under
14-6 this chapter and may modify or delete any of the immunizations
14-7 listed in Subsection (b) of this section or require additional
14-8 immunizations as a requirement for admission to a facility.
14-9 (d) No immunization may be required for admission to a
14-10 facility regulated under this chapter if a person applying for a
14-11 child's admission submits one of the following affidavits:
14-12 (1) an affidavit signed by a licensed physician
14-13 stating that the immunization would be injurious to the health and
14-14 well-being of the child or a member of the child's family or
14-15 household; or
14-16 (2) an affidavit signed by the child's parent or
14-17 guardian stating that the immunization conflicts with the tenets
14-18 and practices of a recognized religious organization of which the
14-19 applicant is an adherent or a member.
14-20 (e) Each facility shall keep an individual immunization
14-21 record for each child admitted, and the records shall be open for
14-22 inspection by the department [division] at all reasonable times.
14-23 (f) The Texas Department of Health shall provide the
14-24 immunizations required by this section to children in areas where
14-25 there is no local provision of these services.
15-1 Sec. 42.044. Inspections. (a) An authorized representative
15-2 of the department [division] may visit a facility regulated under
15-3 this chapter during operating hours to investigate, inspect, and
15-4 evaluate.
15-5 (b) The department [division] shall inspect all licensed or
15-6 certified facilities at least once a year and may inspect other
15-7 facilities as necessary. At least one of the annual visits must be
15-8 unannounced and all may be unannounced.
15-9 (c) The department [division] must investigate a facility
15-10 regulated under this chapter when a complaint is received. The
15-11 department [division] representative must notify the facility's
15-12 director or authorized representative or the operator of the
15-13 registered family home when a complaint is being investigated and
15-14 report in writing the results of the investigation to the director
15-15 or the director's authorized representative or the operator of the
15-16 registered family home.
15-17 (d) The department [division] may call on political
15-18 subdivisions and governmental agencies for assistance within their
15-19 authorized fields.
15-20 Sec. 42.045. Records. (a) A person who operates a licensed
15-21 or certified facility shall maintain individual child development
15-22 records, individual health records, statistical records, and
15-23 complete financial records.
15-24 (b) A person who provides adoption services pursuant to
15-25 [operates] a child-placing agency license shall furnish information
16-1 required by the department to allow the department to determine
16-2 that adoption related income and disbursements are reasonable,
16-3 appropriate and in compliance with the department's minimum
16-4 standards [have an annual audit by a certified public accountant of
16-5 the facility's books. The audit must include a statement of income
16-6 and disbursements].
16-7 (c) If a child-placing agency terminates operation as a
16-8 child-placing agency, it shall, after giving notice to the
16-9 department, transfer its files and records concerning adopted
16-10 children, their biological families, and their adoptive families to
16-11 the department or to a facility licensed by the department to place
16-12 children for adoption.
16-13 Sec. 42.046. [LICENSE] APPLICATION. (a) An applicant for
16-14 registration or a license to operate a child-care facility or
16-15 child-placing agency shall submit to the department [division] the
16-16 appropriate fee authorized by this subchapter [prescribed by
16-17 Section 42.054 of this code] and a completed application on a form
16-18 provided by the department [division].
16-19 (b) The department [division] shall supply the applicant the
16-20 application form and a copy of the appropriate minimum standards.
16-21 (c) After receiving an application, the department
16-22 [division] shall investigate the applicant and the plan of care for
16-23 children.
16-24 (d) The department [division] shall complete the
16-25 investigation and decide on an application within two months after
17-1 the date the department [division] receives a completed [an]
17-2 application.
17-3 Sec. 42.047. Consultations. (a) The department shall offer
17-4 consultation to potential applicants, applicants, and license,
17-5 registration and certification holders about meeting and
17-6 maintaining standards for licensing, registering and certification
17-7 and achieving programs of excellence in child care.
17-8 (b) The department shall offer consultation to prospective
17-9 and actual users of child care facilities.
17-10 Sec. 42.048. Advisory Opinions. (a) The department
17-11 [director of the division] may give an advisory opinion on whether
17-12 or not a planned service [facility] or a planned change in an
17-13 existing service [facility] complies with the department's
17-14 [division's] rules and minimum standards.
17-15 (b) A written opinion authorized by Subsection (a) of this
17-16 section is binding on the department [division] as a declaratory
17-17 order if it is signed by the division director and the division
17-18 representative administering this chapter in a [division] region,
17-19 and if an applicant or licensee [license holder] has acted in
17-20 reliance on the opinion.
17-21 Sec. 42.049. Licensing. (a) The department [division]
17-22 shall issue a license after determining that an applicant has
17-23 satisfied all requirements.
17-24 (b) When issuing a license, the department [division] may
17-25 impose restrictions on a facility, including but not limited to the
18-1 number of children to be served and the type of children to be
18-2 served.
18-3 (c) The department [division] may grant a variance of an
18-4 individual standard set forth in the applicable standards for good
18-5 and just cause.
18-6 (d) A license holder must display a license issued under
18-7 this chapter in a prominent place at the facility.
18-8 (e) A license issued under this chapter is not transferable
18-9 and applies only to the operator and facility location stated in
18-10 the license application. A change in location or ownership
18-11 automatically revokes a license.
18-12 (f) A license must be issued if the department [division]
18-13 determines that a facility meets all requirements. The evaluation
18-14 shall be based on one or more visits to the facility and a review
18-15 of required forms and records. A license is valid until revoked or
18-16 surrendered.
18-17 Sec. 42.0491. Liability Insurance Required. (a) A license
18-18 holder shall maintain liability insurance coverage in the amount of
18-19 $300,000 for each occurrence of negligence. An insurance policy or
18-20 contract required under this section must cover injury to a child
18-21 that occurs while the child is on the premises of the license
18-22 holder or in the care of the license holder.
18-23 (b) A license holder shall file with the department
18-24 [division] a certificate or other evidence from an insurance
18-25 company showing that the license holder has an unexpired and
19-1 uncancelled insurance policy or contract that meets the
19-2 requirements of this section.
19-3 (c) Should the license holder for financial reasons or for
19-4 lack of availability of an underwriter willing to issue a policy be
19-5 unable to secure the insurance required under Subsection (a) or
19-6 should the policy limits be exhausted, the license holder shall
19-7 notify the parent or a person standing in parental relationship to
19-8 each child for whom the license holder provides care a written
19-9 notice that the liability coverage is not provided and there will
19-10 not be a ground for suspension or revocation of the license
19-11 holder's license under this chapter. The license holder shall also
19-12 notify the department that the coverage is not provided and provide
19-13 the reason for same. In no case shall the inability to secure
19-14 coverage serve to indemnify the license holder for damages due to
19-15 negligence.
19-16 (d) The insurance policy or contract shall be maintained at
19-17 all times in an amount as required by this section. Failure by a
19-18 license holder to renew the policy or contract or to maintain the
19-19 policy or contract in the required amount is a ground for
19-20 suspension or revocation of the license holder's license under this
19-21 chapter.
19-22 (e) This section does not apply to a group [or registered]
19-23 day care home or registered family home.
19-24 Sec. 42.051. Provisional License. (a) The department
19-25 [division] shall issue a provisional license when a facility's
20-1 plans meet the department's licensing requirements and one of the
20-2 following situations exists:
20-3 (1) the facility is not currently operating;
20-4 (2) the facility has relocated and has made changes in
20-5 the type of child-care service it provides; or
20-6 (3) there is a change in ownership of the facility
20-7 resulting in changes in policy and procedure or in the staff who
20-8 have direct contact with the children.
20-9 (b) A provisional license is valid for six months from the
20-10 date it is issued and may be renewed for an additional six months
20-11 [is not renewable].
20-12 Sec. 42.052. Certification and Registration. (a) A
20-13 state-operated child-care facility or child-placing agency must
20-14 receive certification of approval from the department [division].
20-15 The certification of approval remains valid until revoked or
20-16 surrendered.
20-17 (b) To be certified, a facility must comply with the
20-18 department's rules and standards and any provisions of this chapter
20-19 that apply to a licensed facility of the same category. The
20-20 operator of a certified facility or agency must display the
20-21 certification in a prominent place at the facility or agency.
20-22 (c) A family home that provides care for three or fewer
20-23 children, excluding children related to the caretaker [the
20-24 caretaker's own children] may register with the department
20-25 [division]. A family home that provides care for four or more
21-1 children, excluding children related to the caretaker [the
21-2 caretaker's own children], shall [must] register with the
21-3 department [division]. A registration remains valid until revoked
21-4 or surrendered. The operator of a registered home must display the
21-5 registration in a prominent place at the home. A person who
21-6 provides care exclusively for any number of children related to the
21-7 caretaker is not required to register with the department.
21-8 (d) To remain registered with the department [division], a
21-9 family home must comply with the department's rules and standards
21-10 and any provision of this chapter that applies to a registered
21-11 family home.
21-12 (e) The certification requirements of this section do not
21-13 apply to a Texas Youth Commission [Council] or Texas Juvenile
21-14 Probation Commission facility or a facility providing services
21-15 solely for the Texas Youth Commission [Council] or Texas Juvenile
21-16 Probation Commission.
21-17 (f) A family home may not place a public advertisement that
21-18 uses the title "registered family home" or any variation of the
21-19 phrase unless the home is registered [with the division] under this
21-20 chapter. Any public advertisement for a registered family home
21-21 which uses the title "registered family home" must contain a
21-22 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
21-23 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
21-24 LICENSED OR REGULARLY INSPECTED."
21-25 (g) The certification requirements of this section do not
22-1 apply to a juvenile detention facility certified under Section
22-2 51.12, Family Code, or Section 141.042(d).
22-3 (h) The department by rule may provide for denial of an
22-4 application or renewal for registering a family home or may revoke
22-5 a family home's registration based on the results of a background
22-6 or criminal history check as provided by Section 42.057.
22-7 Sec. 42.0521. Deposit of Fees. The fees authorized by this
22-8 chapter and received by the department shall be deposited in the
22-9 general revenue fund.
22-10 Sec. 42.053. AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP
22-11 HOMES. (a) An agency foster home or agency foster group home is
22-12 considered part of the child-placing agency that operates the
22-13 agency foster home or agency foster group home for purposes of
22-14 licensing.
22-15 (b) The operator of a licensed agency shall display a copy
22-16 of the license in a prominent place in the agency foster home or
22-17 agency foster group home used by the agency.
22-18 (c) An agency foster home or agency foster group home shall
22-19 comply with all provisions of this chapter and all department rules
22-20 and standards that apply to a child-care facility caring for a
22-21 similar number of children for a similar number of hours each day.
22-22 (d) The department [division] shall revoke or suspend the
22-23 license of a child-placing agency if an agency foster home or
22-24 agency foster group home operated by the licensed agency fails to
22-25 comply with Subsection (c) of this section.
23-1 Sec. 42.054. Fees. (a) The department [division] shall
23-2 charge a nonrefundable application fee of $35 to an applicant for
23-3 an initial license to operate a child-care facility or a
23-4 child-placing agency.
23-5 (b) The department [division] shall charge each child-care
23-6 facility a fee of $35 for a provisional license. The department
23-7 [division] shall charge each child-placing agency a fee of $50 for
23-8 a provisional license.
23-9 (c) The department [division] shall charge each child-care
23-10 facility an annual license fee in the amount of $35 for each
23-11 child-care facility plus $1 for each child the child-care facility
23-12 is permitted to serve. The fee is due on the date on which the
23-13 department [division] issues the child-care facility's license and
23-14 on the anniversary of that date.
23-15 (d) The department [division] shall charge each
23-16 child-placing agency an annual license fee of $100. The fee is due
23-17 on the date on which the department [division] issues the
23-18 child-placing agency's license and on the anniversary of that date.
23-19 (e) The department [division] shall charge each family home
23-20 that is registered with the department [division] an annual
23-21 registration fee of $35 to cover the department's cost in
23-22 regulating family homes. The fee is due on the date on which the
23-23 department [division] registers the home and on the anniversary of
23-24 that date.
23-25 (f) If a facility, agency, or home fails to pay the annual
24-1 [license or registration] fee when due, the license or registration
24-2 is suspended until the fee is paid.
24-3 (g) The provisions of Subsections (b) through (f) of this
24-4 section do not apply to:
24-5 (1) licensed foster [family] homes and licensed foster
24-6 [family] group homes;
24-7 (2) nonprofit facilities regulated under this chapter
24-8 that provided 24-hour care for children in the managing
24-9 conservatorship of the department during the 12-month period
24-10 immediately preceding the anniversary date of the facility's
24-11 license; or
24-12 (3) facilities operated by a nonprofit corporation or
24-13 foundation that provides 24-hour residential care and does not
24-14 charge for the care provided.
24-15 Sec. 42.055. Use of Fees. The child-care training fund is
24-16 established as a special fund in the state treasury, and the
24-17 department [division] shall deposit fees received under this
24-18 subchapter to the credit of that fund. The child-care training
24-19 fund may be used only to provide programs of parent education and
24-20 caretaker training designed to ensure the health, safety, and
24-21 well-being of children. Up to three percent of the amount
24-22 collected as fees under the authority of this chapter may be used
24-23 by the department for actual costs of collecting the fees and
24-24 administering the fund.
24-25 Sec. 42.056. Sign Posting. (a) Each child care facility
25-1 shall post in a location that is conspicuous to all employees and
25-2 customers a sign that includes:
25-3 (1) a description of the provisions of the [Chapter
25-4 34,] Family Code, relating to the duty to report child abuse or
25-5 neglect; and
25-6 (2) a description of the penalties for violating the
25-7 reporting provisions of the [Chapter 34,] Family Code.
25-8 (b) The department by rule shall determine the design, size,
25-9 and wording of the sign.
25-10 (c) The department shall provide the sign to each child care
25-11 facility without charge.
25-12 (d) A person who operates a child care facility commits an
25-13 offense if the department provides a sign to the facility as
25-14 provided by this section and the person intentionally fails to
25-15 display the sign in the facility as prescribed by this section. An
25-16 offense under this subsection is a Class C misdemeanor.
25-17 Sec. 42.057. REQUIRED BACKGROUND AND CRIMINAL HISTORY
25-18 CHECKS. (a) In accordance with rules adopted by the department,
25-19 the director, owner, or operator of a child care facility shall,
25-20 when applying to operate a child care facility and at least once
25-21 during each 24 months after receiving a licensing, certification or
25-22 registration submit to the department for use in conducting
25-23 background and criminal history checks:
25-24 (1) the name of the director, owner, operator and each
25-25 person employed at the facility; and
26-1 (2) the name of each person over fourteen years of age
26-2 who will regularly or frequently be staying or working at the
26-3 facility while children are being provided care.
26-4 (b) The department shall conduct background and criminal
26-5 history checks using:
26-6 (1) the information provided under Subsection (a):
26-7 (2) the information made available by the Department
26-8 of Public Safety under Section 411.114, Government Code; and
26-9 (3) the department's records of reported abuse and
26-10 neglect.
26-11 (c) The department by rule shall require a facility
26-12 regulated under this chapter to pay to the department a fee in an
26-13 amount not to exceed the administrative costs the department incurs
26-14 in conducting a background and criminal history check under this
26-15 section.
26-16 SECTION 5. Subchapter D, Chapter 42, Human Resources Code,
26-17 is amended to read as follows:
26-18 SUBCHAPTER D. REMEDIES
26-19 Sec. 42.071. LICENSE, CERTIFICATE OR REGISTRATION
26-20 SUSPENSION, EVALUATION, OR PROBATION. (a) The department
26-21 [division] may suspend the license, certificate or registration of
26-22 a facility that has temporarily ceased operation but has definite
26-23 plans for starting operations again within the time limits of the
26-24 issued license, certificate or registration.
26-25 (b) The department [division] may suspend a [facility's]
27-1 license, certificate or registration for a definite period rather
27-2 than deny or revoke the license, certificate or registration if the
27-3 department [division] finds repeated noncompliance with standards
27-4 that do not endanger the health and safety of children. To qualify
27-5 for license, certificate or registration suspension under this
27-6 subsection, a facility must suspend its operations and show that
27-7 standards can be met within the suspension period.
27-8 (c) If the department [division] finds a facility is in
27-9 repeated noncompliance with standards that do not endanger the
27-10 health and safety of children, the department [division] may
27-11 schedule the facility for evaluation or probation rather than
27-12 suspend or revoke the [facility's] license, certificate or
27-13 registration. The department [division] shall provide notice to
27-14 the facility of the evaluation or probation and of the items of
27-15 noncompliance not later than the 10th day before the evaluation or
27-16 probation period begins. The department [division] shall designate
27-17 a period of not less than 30 days during which the facility will
27-18 remain under evaluation. During the evaluation or probation
27-19 period, the facility must correct the items that were in
27-20 noncompliance and report the corrections to the department
27-21 [division] for approval.
27-22 (d) The department [division] shall revoke the license,
27-23 certificate or registration of a facility that does not comply with
27-24 standards at the end of a [license] suspension.
27-25 (e) The department [division] may suspend or revoke the
28-1 license, certificate or registration of a facility that does not
28-2 correct items that were in noncompliance or that does not comply
28-3 with required standards within the applicable evaluation or
28-4 probation period.
28-5 Sec. 42.072. LICENSE, CERTIFICATE OR REGISTRATION DENIAL OR
28-6 REVOCATION. (a) The department [division] may deny or revoke the
28-7 license, certificate or registration [or certification of approval]
28-8 of a facility that does not comply with the requirements of this
28-9 chapter, the standards and rules of the department, or the specific
28-10 terms of the license, certificate or registration [or
28-11 certification].
28-12 (b) The department [division] shall notify the person
28-13 operating or proposing to operate a facility of the reasons for the
28-14 denial or revocation and of the person's right to appeal the
28-15 decision within 30 days after receiving the notice.
28-16 (c) A person who wishes to appeal a license, certificate or
28-17 registration denial or revocation shall notify the department
28-18 [director] by certified mail within 30 days after receiving the
28-19 notice required in Subsection (b) of this section. The person
28-20 shall send a copy of the notice of appeal to the assigned
28-21 department [division] representative.
28-22 (d) The denial or revocation of a license, certificate or
28-23 registration [or certification] and the appeal from that action are
28-24 governed by the procedure for a contested case hearing under
28-25 Chapter 2001, Government Code.
29-1 (e) A person whose license, certificate or registration has
29-2 been denied or revoked may challenge the decision by filing a suit
29-3 as prescribed in Chapter 2001, Government Code [in a district court
29-4 of Travis County or the county in which the person's facility is
29-5 located] within 30 days after receiving the decision. [The trial
29-6 shall be de novo].
29-7 (f) Records of the hearing shall be kept for two years after
29-8 a decision is rendered. On request, and at the person's own
29-9 expense, the department [division] shall supply a copy of the
29-10 verbatim transcript of the hearing to a person appealing a license,
29-11 certificate or registration denial or revocation in district court.
29-12 (g) [A person may continue to operate a facility during an
29-13 appeal of a license denial or revocation unless the division has
29-14 obtained injunctive relief under Section 42.074 or civil penalties
29-15 under Section 42.075 or the facility has been closed under Section
29-16 42.073.]
29-17 [(h)] A person whose license, certificate or registration
29-18 [or certification] is revoked may not apply for any license,
29-19 certificate or registration [or certification] under this chapter
29-20 before the second anniversary of the date on which the revocation
29-21 takes effect by department or court order.
29-22 Sec. 42.073. Emergency Suspension and Closure of a Facility
29-23 OR HOME. (a) The department [division] shall suspend a facility's
29-24 license or registration and[,] order the immediate closing of the
29-25 facility[, and place the children attending or residing in the
30-1 facility elsewhere] if:
30-2 (1) the department [division] finds the facility is
30-3 operating in violation of the standards prescribed by this chapter;
30-4 and
30-5 (2) the violation creates an immediate threat to the
30-6 health and safety of the children attending or residing in the
30-7 facility.
30-8 (b) An order suspending a license or registration and
30-9 closing a facility under this section is immediately effective on
30-10 the date on which the license or registration holder receives
30-11 written notice or on a later date specified in the order.
30-12 (c) An order is valid for 10 days after the effective date
30-13 of the order.
30-14 [(d) The suspension of a license and the closure of the
30-15 facility and the appeal from that action are governed by the
30-16 procedures for a contested case hearing under Chapter 2001,
30-17 Government Code.]
30-18 Sec. 42.074. Injunctive Relief. (a) When it appears that a
30-19 person has violated, is violating, or is threatening to violate the
30-20 licensing, certification, or registration requirements of this
30-21 chapter or the department's licensing, certification, or
30-22 registration rules and standards, the department [division] may
30-23 file a suit in a district court in Travis County or in the county
30-24 where the facility is located for assessment and recovery of civil
30-25 penalties under Section 42.075 of this code, for injunctive relief,
31-1 including a temporary restraining order, or for both injunctive
31-2 relief and civil penalties.
31-3 (b) The district court shall grant the injunctive relief the
31-4 facts may warrant.
31-5 (c) At the department's [division's] request, the attorney
31-6 general or the county or district attorney of the county in which
31-7 the facility is located shall conduct a suit in the name of the
31-8 State of Texas for injunctive relief, to recover the civil penalty,
31-9 or for both injunctive relief and civil penalties as authorized by
31-10 Subsection (a) of this section.
31-11 (d) Injunctive relief provided by this section is in
31-12 addition to any other action, proceeding, or remedy authorized by
31-13 law and it shall not be necessary to allege or prove either that an
31-14 adequate remedy at law does not exist or that substantial or
31-15 irreparable damage would result from the continued violation.
31-16 (e) Either party to such action may appeal to the appellate
31-17 court having jurisdiction of such injunction. The department shall
31-18 not be required to give any appeal bond in any cause arising under
31-19 this Chapter.
31-20 Sec. 42.075. Civil Penalty. (a) A person is subject to a
31-21 civil penalty of not less than $50 nor more than $100 for each day
31-22 of violation and for each act of violation if the person:
31-23 (1) threatens serious harm to a child in a facility by
31-24 violating a provision of this chapter or a department rule or
31-25 standard;
32-1 (2) violates a provision of this chapter or a
32-2 department rule or standard three or more times within a 12-month
32-3 period; or
32-4 (3) places a public advertisement for an unlicensed
32-5 facility or an unregistered family home.
32-6 (b) The civil penalty authorized by this section is
32-7 cumulative and in addition to the criminal penalties and injunctive
32-8 relief provided by this chapter.
32-9 Sec. 42.076. Criminal Penalties. (a) A person who operates
32-10 a child-care facility or child-placing agency without a license,
32-11 certificate or registration commits a Class B misdemeanor.
32-12 (b) A person who places a public advertisement for a
32-13 facility that is not licensed, certified or registered under this
32-14 chapter [an unlicensed facility] commits a Class C misdemeanor.
32-15 [(c) A person who places an advertisement for a registered
32-16 family home in violation of Section 42.052(f) of this code commits
32-17 a Class C misdemeanor.]
32-18 [(d) It is not an offense under this section if a
32-19 professional provides legal or medical services to]:
32-20 [(1) a parent who identifies the prospective adoptive
32-21 parent and places the child for adoption without the assistance of
32-22 the professional; or]
32-23 [(2) a prospective adoptive parent who identifies a
32-24 parent and receives placement of a child for adoption without
32-25 assistance of the professional.]
33-1 Sec. 42.077. Notice of Action Against Facility. (a) If the
33-2 department revokes or suspends a facility's license, certificate or
33-3 registration the department shall publish notice of this action in
33-4 a newspaper of general circulation in the county in which the
33-5 facility is located. The newspaper shall place the notice in the
33-6 section in which advertisements for child care [day-care] services
33-7 are normally published.
33-8 (b) If a person who operates a facility that has had its
33-9 license, certificate or registration revoked or suspended later
33-10 applies for a new license, certificate or registration to operate
33-11 the same facility, the department shall charge the person an
33-12 application fee in an amount necessary to reimburse the department
33-13 for the cost of the notice relating to that facility.
33-14 (c) The department shall pay for publication of the notice
33-15 from funds appropriated to the department for licensing and
33-16 regulating child-care services [facilities] and from appeal and
33-17 application fees collected under Subsection (b) of this section and
33-18 appropriated to the department.
33-19 (d) A facility that has its license, certificate or
33-20 registration revoked or suspended shall mail notification of this
33-21 action by certified mail to the parents or guardian of the child
33-22 served by the facility. The facility shall mail the notification
33-23 within five days of the effective date of the license, certificate
33-24 or registration revocation or suspension.
33-25 SECTION 6. Section 43.001, Human Resources Code, is amended
34-1 by adding a new Subsection (3) to read as follows:
34-2 (3) "Department" means the Department of Protective
34-3 and Regulatory Services.
34-4 SECTION 7. Section 43.012, Human Resources Code, is amended
34-5 to read as follows:
34-6 Sec. 43.012. PENALTY. A person who serves as a child-care
34-7 administrator without the license required by this chapter commits
34-8 a Class C misdemeanor [and may be fined not less than $50 nor more
34-9 than $100].
34-10 SECTION 8. (a) This Act takes effect September 1, 1997.
34-11 (b) The change in law made by this Act applies only to an
34-12 offense committed on or after the effective date of this Act. For
34-13 purposes of this subsection, an offense is committed before the
34-14 effective date of this Act if any element of the offense occurs
34-15 before that date. An offense committed before the effective date
34-16 of this Act is covered by the law in effect when the offense was
34-17 committed, and the former law is continued in effect for that
34-18 purpose.
34-19 (c) The change in law made by this Act applies only to a
34-20 license or registration fee due to be paid on or after the
34-21 effective date of this Act. A license or registration fee due to
34-22 be paid before the effective date of this Act is governed by the
34-23 law in effect immediately before the effective date of this Act,
34-24 and that law is continued in effect for that purpose.
34-25 SECTION 9. The importance of this legislation and the
35-1 crowded condition of the calendars in both houses create an
35-2 emergency and an imperative public necessity that the
35-3 constitutional rule requiring bills to be read on three several
35-4 days in each house be suspended, and this rule is hereby suspended.