1-1     By:  West                                             S.B. No. 1539

 1-2           (In the Senate - Filed March 13, 1997; March 20, 1997, read

 1-3     first time and referred to Committee on Health and Human Services;

 1-4     April 22, 1997, reported adversely, with favorable Committee

 1-5     Substitute; April 22, 1997, recommitted to Committee on Health and

 1-6     Human Services; April 28, 1997, reported adversely, with favorable

 1-7     Committee Substitute by the following vote: Yeas 10, Nays 0;

 1-8     April 28, 1997, sent to printer.)

 1-9     COMMITTEE SUBSTITUTE FOR S.B. No. 1539                    By:  West

1-10                            A BILL TO BE ENTITLED

1-11                                   AN ACT

1-12     relating to the regulation of certain facilities, homes, and

1-13     agencies that provide child care and of child-care administrators;

1-14     providing penalties.

1-15           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-16           SECTION 1.  The heading of Chapter 42, Human Resources Code,

1-17     is amended to read as follows:

1-18         CHAPTER 42.  REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,

1-19            HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES

1-20           SECTION 2.  Section 42.001, Human Resources Code, is amended

1-21     to read as follows:

1-22           Sec. 42.001.  PURPOSE.  The purpose of this chapter is to

1-23     protect the health, safety, and well-being of the children of the

1-24     state who receive care outside their homes [reside in child-care

1-25     facilities] by establishing statewide minimum standards for their

1-26     safety and protection and by regulating the provision of certain

1-27     child-care services [facilities through a licensing program].  It

1-28     is the policy of the state to ensure the protection of all children

1-29     receiving child-care services [under care in child-care facilities]

1-30     and to encourage and assist in the improvement of child-care

1-31     programs.  It is also the intent of the legislature that freedom of

1-32     religion of all citizens is inviolate, and nothing in this chapter

1-33     gives a governmental agency authority to regulate, control,

1-34     supervise, or in any way be involved in the form, manner, or

1-35     content of religious instruction or the curriculum of a school

1-36     sponsored by a religious organization.

1-37           SECTION 3.  Section 42.002, Human Resources Code, is amended

1-38     to read as follows:

1-39           Sec. 42.002.  DEFINITIONS.  In this chapter:

1-40                 (1)  "Child" means a person under 18 years of age.

1-41                 (2)  "Division" means the division designated by the

1-42     department to carry out the provisions of this chapter.

1-43                 (3)  "Child-care facility" means a facility licensed,

1-44     certified, or registered by the department to provide assessment,

1-45     [that provides] care, training, education, custody, treatment, or

1-46     supervision for a child who is not related by blood, marriage, or

1-47     adoption to the owner or operator of the facility, for all or part

1-48     of the 24-hour day, whether or not the facility is operated for

1-49     profit or charges for the services it offers.

1-50                 (4)  "Child-care institution" means a child-care

1-51     facility that provides care for more than 12 children for 24 hours

1-52     a day, including facilities known as children's homes, halfway

1-53     houses, residential treatment centers [camps], emergency shelters,

1-54     and therapeutic camps [training or correctional schools for

1-55     children].

1-56                 (5)  "Foster group home" means a child-care facility

1-57     that provides care for 7 to 12 children for 24 hours a day.

1-58                 (6)  "Foster [family] home" means a child-care facility

1-59     that provides care for not more than six children for 24 hours a

1-60     day.

1-61                 (7)  "Day-care center" means a child-care facility that

1-62     provides care for more than 12 children under 14 years of age for

1-63     less than 24 hours a day.

1-64                 (8)  "Group day-care home" means a child-care facility

 2-1     that provides care for 7 to 12 children under 14 years of age for

 2-2     less than 24 hours a day.

 2-3                 (9)  "Family home" means a home that [regularly]

 2-4     provides regular care in the caretaker's own residence for not more

 2-5     than six children under 14 years of age, excluding [the caretaker's

 2-6     own] children who are related to the caretaker, and that provides

 2-7     care after school hours for not more than six additional elementary

 2-8     school children, but the total number of children, including

 2-9     children who are related to the caretaker [the caretaker's own,]

2-10     does not exceed 12 at any given time.  The term does not include a

2-11     home that provides care exclusively for any number of children who

2-12     are related to the caretaker.

2-13                 (10)  "Agency foster group home" means a facility that

2-14     provides care for seven to 12 children for 24 hours a day, [and] is

2-15     used only by a licensed child-placing agency, and meets department

2-16     standards.

2-17                 (11)  "Agency foster home" means a facility [private

2-18     home] that provides care for not more than six children for 24

2-19     hours a day, [that] is used only by a licensed child-placing

2-20     agency, and [that] meets department [division] standards.

2-21                 (12)  "Child-placing agency" means a person, including

2-22     an organization, other than the natural parents or guardian of a

2-23     child who plans for the placement of or places a child in a

2-24     child-care facility [an institution], agency foster home, agency

2-25     foster group home, or adoptive home.

2-26                 (13)  "Facilities" includes child-care facilities and

2-27     child-placing agencies.

2-28                 (14)  "State of Texas" or "state" does not include

2-29     political subdivisions of the state.

2-30                 (15)  "Religious organization" means a church,

2-31     synagogue, or other religious institution whose purpose is to

2-32     support and serve the propagation of truly held religious beliefs.

2-33                 (16)  "Children who are related to the caretaker" means

2-34     children who are the children, grandchildren, siblings,

2-35     great-grandchildren, nieces, or nephews of the caretaker, whether

2-36     by affinity or consanguinity or as the result of a relationship

2-37     created by court decree.

2-38                 (17)  "Regular care" means care that is provided at

2-39     least four hours a day, three or more days a week, for more than

2-40     nine consecutive weeks.

2-41           SECTION 4.  Subsections (a) and (b), Section 42.021, Human

2-42     Resources Code, are amended to read as follows:

2-43           (a)  The department may [shall] designate a division within

2-44     the department to [regulate and license child-care facilities and

2-45     child-placing agencies.  The division shall enforce the provisions

2-46     of this chapter and the rules and standards adopted by the

2-47     department under this chapter and shall] carry out [other]

2-48     responsibilities the department may delegate or assign under this

2-49     chapter.

2-50           (b)  The executive director of the department shall appoint

2-51     as director of a [the] division designated under Subsection (a) a

2-52     person who meets the qualifications set by the board[:]

2-53                 [(1)  meets the qualifications required of a child-care

2-54     administrator by Chapter 43;]

2-55                 [(2)  holds a graduate degree in social science or law

2-56     and has five years' administrative experience in a field related to

2-57     child care; or]

2-58                 [(3)  has 10 years' experience in a field related to

2-59     child care, at least 5 of which must be administrative].

2-60           SECTION 5.  Subsections (d), (e), and (f), Section 42.022,

2-61     Human Resources Code, are amended to read as follows:

2-62           (d)  The department [division] shall provide staff necessary

2-63     for the committee.

2-64           (e)  The committee shall review rules and minimum standards

2-65     for child-care administrators, child-care facilities, and

2-66     child-placing agencies promulgated by state agencies, and shall

2-67     advise the department, [the division,] the council, and state

2-68     agencies on problems of child-care administrators, child-care

2-69     facilities, and child-placing agencies.

 3-1           (f)  The committee shall receive and review the annual report

 3-2     of the department [division].

 3-3           SECTION 6.  Subsections (a) and (b), Section 42.023, Human

 3-4     Resources Code, are amended to read as follows:

 3-5           (a)  The executive director shall prepare an annual written

 3-6     report regarding the department's [division's] activities under

 3-7     this chapter.

 3-8           (b)  The annual report shall include:

 3-9                 (1)  a report by regions of applications for licensure

3-10     or certification, of provisional licenses issued, denied, or

3-11     revoked, of licenses issued, denied, suspended or revoked, of

3-12     emergency closures and injunctions, and of the compliance of

3-13     state-operated agencies with certification requirements;

3-14                 (2)  a summary of the amount and kind of in-service

3-15     training and other professional development opportunities provided

3-16     for department [division] staff;

3-17                 (3)  a summary of training and other professional

3-18     development opportunities offered to facilities' staffs; and

3-19                 (4)  a report of new administrative procedures, of the

3-20     number of staff and staff changes, and of plans for the coming

3-21     year.

3-22           SECTION 7.  Chapter 42, Human Resources Code, is amended by

3-23     amending Subchapters C and D  to read as follows:

3-24        SUBCHAPTER C.  REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,

3-25                             HOMES, AND AGENCIES

3-26           Sec. 42.041.  REQUIRED LICENSE.  (a)  No person may operate a

3-27     child-care facility or child-placing agency without a license

3-28     issued by the department [division].

3-29           (b)  This section does not apply to:

3-30                 (1)  a state-operated facility;

3-31                 (2)  an agency foster home or agency foster group home;

3-32                 (3)  a facility that is operated in connection with a

3-33     shopping center, business, religious organization, or establishment

3-34     where children are cared for during short periods while parents or

3-35     persons responsible for the children are attending religious

3-36     services, shopping, or engaging in other activities on or near the

3-37     premises, including but not limited to retreats or classes for

3-38     religious instruction;

3-39                 (4)  a school or class for religious instruction that

3-40     does not last longer than two weeks and is conducted by a religious

3-41     organization during the summer months;

3-42                 (5)  a youth camp licensed by the Texas Department of

3-43     Health;

3-44                 (6)  a facility [hospital] licensed, operated,

3-45     certified, or registered by another state agency [the Texas

3-46     Department of Mental Health and Mental Retardation or the Texas

3-47     Department of Health];

3-48                 (7)  an educational facility accredited by the Texas

3-49     [Central] Education Agency or the Southern Association of Colleges

3-50     and Schools that operates primarily for educational purposes in

3-51     grades kindergarten and above;

3-52                 (8)  an educational facility that operates solely for

3-53     educational purposes in grades kindergarten through at least grade

3-54     two, that does not provide custodial care for more than one hour

3-55     during the hours before or after the customary school day, and that

3-56     is a member of an organization that promulgates, publishes, and

3-57     requires compliance with health, safety, fire, and sanitation

3-58     standards equal to standards required by state, municipal, and

3-59     county codes;

3-60                 (9)  a kindergarten or preschool educational program

3-61     that is operated as part of a public school or a private school

3-62     accredited by the Texas [Central] Education Agency, that offers

3-63     educational programs through grade six, and that does not provide

3-64     custodial care during the hours before or after the customary

3-65     school day;

3-66                 (10)  a family home, whether registered as required by

3-67     Section 42.052 or not;

3-68                 (11)  an educational facility that is integral to and

3-69     inseparable from its sponsoring religious organization or an

 4-1     educational facility both of which do not provide custodial care

 4-2     for more than two hours maximum per day, and that offers

 4-3     educational programs for children age five and above in one or more

 4-4     of the following:  kindergarten through at least grade three,

 4-5     elementary, or secondary grades;

 4-6                 (12)  [an agency group home;]

 4-7                 [(13)]  an emergency shelter facility providing shelter

 4-8     to minor mothers who are the sole support of their natural children

 4-9     under Section 32.201 [35.05], Family Code, unless the facility

4-10     would otherwise require a license as a child-care facility under

4-11     this section; [or]

4-12                 (13) [(14)]  a juvenile detention facility certified

4-13     under Section 51.12, Family Code, or Section 141.042(d), [or] a

4-14     juvenile facility providing services solely for the Texas Youth

4-15     Commission, or any other correctional facility for children

4-16     operated or regulated by another state agency or by a political

4-17     subdivision of the state;[.]

4-18                 (14)  an elementary-age (ages 5-13) recreation program

4-19     operated by a municipality provided the governing body of the

4-20     municipality annually adopts standards of care by ordinance after a

4-21     public hearing for such programs, that such standards are provided

4-22     to the parents of each program participant, and that the ordinances

4-23     shall include, at a minimum, staffing ratios, minimum staff

4-24     qualifications, minimum facility, health, and safety standards, and

4-25     mechanisms for monitoring and enforcing the adopted local

4-26     standards; and further provided that parents be informed that the

4-27     program is not licensed by the state and the program may not be

4-28     advertised as a child-care facility; or

4-29                 (15)  an annual youth camp held in a municipality with

4-30     a population of more than 1.5 million that operates for not more

4-31     than three months and that has been operated for at least 10 years

4-32     by a nonprofit organization that provides care for the homeless.

4-33           (c)  A single license that lists addresses and the

4-34     appropriate facilities may be issued to a child-care institution

4-35     that operates noncontiguous facilities that are nearby and that are

4-36     demonstrably a single operation as indicated by patterns of

4-37     staffing, finance, administrative supervision, and programs.

4-38           (d)  [A person operating or desiring to operate a child-care

4-39     facility that is exempt from the provisions of Subsection (a) of

4-40     this section may apply to the division for a license as provided in

4-41     Section 42.046 of this code.  The division may not deny an exempt

4-42     facility a license on the ground that it is exempt from Subsection

4-43     (a) of this section.]  A facility exempt from the provisions of

4-44     Subsection (a) of this section that desires to receive or

4-45     participate in federal or state funding shall be required to comply

4-46     with all other provisions of this chapter [Act] and with all

4-47     regulations promulgated under this chapter [thereunder].

4-48           (e)  The exemptions provided by Subsection (b) of this

4-49     section do not affect the authority of local, regional, or state

4-50     health department officials, the state fire marshal, or local fire

4-51     prevention officials to inspect child-care facilities.

4-52           Sec. 42.042.  RULES AND STANDARDS.  (a)  The department shall

4-53     make rules to carry out the provisions of this chapter.

4-54           (b)  The department shall conduct a comprehensive review of

4-55     all rules and standards at least every six years.  For purposes of

4-56     this subsection, the six-year period begins on the latest of the

4-57     date of:

4-58                 (1)  the conclusion of the review of the rules and

4-59     standards;

4-60                 (2)  a decision by the department not to revise the

4-61     rules and standards;

4-62                 (3)  a decision by the board not to revise the rules

4-63     and standards; or

4-64                 (4)  board action adopting new standards.

4-65           (c)  The department shall provide a standard procedure for

4-66     receiving and recording complaints [and a standard form for

4-67     recording complaints].

4-68           (d)  The department shall provide standard forms for

4-69     applications and inspection reports.

 5-1           (e)  The department shall promulgate minimum standards that

 5-2     apply to licensed child-care facilities and to registered family

 5-3     homes covered by this chapter and that will:

 5-4                 (1)  promote the health, safety, and welfare of

 5-5     children attending a facility or registered family home;

 5-6                 (2)  promote safe, comfortable, and healthy physical

 5-7     facilities and registered family homes for children;

 5-8                 (3)  ensure adequate supervision of children by

 5-9     capable, qualified, and healthy personnel;

5-10                 (4)  ensure adequate and healthy food service where

5-11     food service is offered;

5-12                 (5)  prohibit racial discrimination by child-care

5-13     facilities and registered family homes; [and]

5-14                 (6)  require procedures for parental and guardian

5-15     consultation in the formulation of children's educational and

5-16     therapeutic programs; and

5-17                 (7)  prevent the breakdown of foster care and adoptive

5-18     placement.

5-19           (f)  In promulgating minimum standards for the provision of

5-20     child-care services [facilities], the department shall recognize

5-21     the various categories of services [facilities], including services

5-22     for [facilities offering] specialized care, [and] the various

5-23     categories of children and their particular needs, and the

5-24     differences in the organization and operation of child-care

5-25     facilities and institutions.  Standards for child-care institutions

5-26     must require an intake study before a child is placed in an

5-27     institution.  The intake study may be conducted at a community

5-28     mental health and mental retardation center.

5-29           (g)  In promulgating minimum standards the department may

5-30     recognize and treat differently the types of services provided by

5-31     the following:

5-32                 (1)  family homes;

5-33                 (2)  child-care facilities, including child-care[:

5-34     child-caring] institutions, foster group homes, foster homes, group

5-35     day-care homes, and day-care centers;

5-36                 (3)  child-placing agencies;

5-37                 (4)  [, group day-care homes, family day homes,

5-38     registered family homes, and] agency foster homes; and

5-39                 (5)  agency foster group homes.

5-40           (h)  The department shall promulgate minimum standards for

5-41     child-placing agencies.

5-42           (i)  Before adopting minimum standards, the department

5-43     [division] shall present the proposed standards to the State

5-44     Advisory Committee on Child-Care Facilities for review and comment,

5-45     and shall send a copy of the proposed standards to each licensee

5-46     covered by the proposed standards at least 60 days before the

5-47     standards take effect to provide the licensee an opportunity to

5-48     review and to send written suggestions to the committee [council]

5-49     and the department.

5-50           (j)  The department may waive compliance with a minimum

5-51     standard in a specific instance if it determines that the economic

5-52     impact of compliance is sufficiently great to make compliance

5-53     impractical.

5-54           (k)  The department may not regulate or attempt to regulate

5-55     or control the content or method of any instruction or curriculum

5-56     of a school sponsored by a religious organization.

5-57           (l)  In promulgating [The department shall adopt] minimum

5-58     standards for the regulation of [regulating] family homes that

5-59     register with the department, the department [division.  The rules]

5-60     must address the minimum qualifications, education, and training

5-61     required of a person who operates a family home registered with the

5-62     department [division].

5-63           (m)  [The department shall ensure that each child-care

5-64     facility that provides care for less than 24 hours a day complies

5-65     with the appropriate minimum standards relating to staff-child

5-66     ratios, group sizes, and square footage as those minimum standards

5-67     existed on September 1, 1985.  The department may not enforce new

5-68     standards in relation to staff-child ratios, group sizes, or square

5-69     footage that are more stringent than the 1985 standards for those

 6-1     facilities.  This subsection expires September 1, 1997.]

 6-2           [(n)]  In determining minimum standards for nonresidential

 6-3     child-care facilities that provide care for less than 24 hours a

 6-4     day, the department shall, within available appropriations, conduct

 6-5     a comprehensive cost-benefit analysis and economic impact study

 6-6     that includes families and licensed child-care providers.

 6-7           (n) [(o)]  Not later than the 60th day before the date the

 6-8     board adopts a revision to the minimum standards for child-care

 6-9     facilities, the department shall present the revision to the

6-10     appropriate legislative oversight committees that have jurisdiction

6-11     over child-care facilities for review and comment.

6-12           Sec. 42.043.  RULES FOR IMMUNIZATIONS.  (a)  The department

6-13     shall make rules for the immunization of children in [admitted to]

6-14     facilities regulated under this chapter.

6-15           (b)  The department shall require that each child at an

6-16     appropriate age have a test for tuberculosis and be immunized

6-17     against diphtheria, tetanus, poliomyelitis, mumps, rubella, and

6-18     rubeola and against any other communicable disease as recommended

6-19     by the Texas Department of Health.  The immunization must be

6-20     effective on the date of first entry into the facility.  However, a

6-21     child may be provisionally admitted if the required immunizations

6-22     have begun and are completed as rapidly as medically feasible.

6-23           (c)  The Texas Department of Health shall make rules for the

6-24     provisional admission of children to facilities regulated under

6-25     this chapter and may modify or delete any of the immunizations

6-26     listed in Subsection (b) of this section or require additional

6-27     immunizations as a requirement for admission to a facility.

6-28           (d)  No immunization may be required for admission to a

6-29     facility regulated under this chapter if a person applying for a

6-30     child's admission submits one of the following affidavits:

6-31                 (1)  an affidavit signed by a licensed physician

6-32     stating that the immunization would be injurious to the health and

6-33     well-being of the child or a member of the child's family or

6-34     household; or

6-35                 (2)  an affidavit signed by the child's parent or

6-36     guardian stating that the immunization conflicts with the tenets

6-37     and practices of a recognized religious organization of which the

6-38     applicant is an adherent or a member.

6-39           (e)  Each regulated facility shall keep an individual

6-40     immunization record for each child admitted, and the records shall

6-41     be open for inspection by the department [division] at all

6-42     reasonable times.

6-43           (f)  The Texas Department of Health shall provide the

6-44     immunizations required by this section to children in areas where

6-45     there is no local provision of these services.

6-46           Sec. 42.044.  INSPECTIONS.  (a)  An authorized representative

6-47     of the department [division] may visit a facility regulated under

6-48     this chapter or a registered family home during operating hours to

6-49     investigate, inspect, and evaluate.

6-50           (b)  The department [division] shall inspect all licensed or

6-51     certified facilities at least once a year and may inspect other

6-52     facilities or registered family homes as necessary.  At least one

6-53     of the annual visits must be unannounced and all may be

6-54     unannounced.

6-55           (c)  The department [division] must investigate a facility

6-56     regulated under this chapter or a registered family home  when a

6-57     complaint is received.  The [division] representative of the

6-58     department must notify the operator of a registered family home or

6-59     the [facility's] director or authorized representative of a

6-60     regulated facility when a complaint is being investigated and

6-61     report in writing the results of the investigation to the family

6-62     home's operator or to the regulated facility's director or the

6-63     director's authorized representative.

6-64           (d)  The department [division] may call on political

6-65     subdivisions and governmental agencies for assistance within their

6-66     authorized fields.

6-67           Sec. 42.045.  RECORDS.  (a)  A person who operates a licensed

6-68     or certified facility shall maintain individual child development

6-69     records, individual health records, statistical records, and

 7-1     complete financial records.

 7-2           (b)  A person who provides adoption services under a  license

 7-3     to operate [operates] a child-placing agency shall furnish

 7-4     information required by the department to determine whether

 7-5     adoption related income and disbursements are reasonable,

 7-6     appropriate, and in compliance with the department's minimum

 7-7     standards [have an annual audit by a certified public accountant of

 7-8     the facility's books.  The audit  must include a statement of

 7-9     income and disbursements].

7-10           (c)  If a child-placing agency terminates operation as a

7-11     child-placing agency, it shall, after giving notice to the

7-12     department, transfer its files and records concerning adopted

7-13     children, their biological families, and their adoptive families to

7-14     the department or to a facility licensed by the department to place

7-15     children for adoption.

7-16           Sec. 42.046.  [LICENSE] APPLICATION FOR LICENSE OR

7-17     REGISTRATION.  (a)  An applicant for a license to operate a

7-18     child-care facility or child-placing agency or for a registration

7-19     to operate a family home shall submit to the department [division]

7-20     the appropriate fee prescribed by Section 42.054 of this code and a

7-21     completed application on a form provided by the department

7-22     [division].

7-23           (b)  The department [division] shall supply the applicant the

7-24     application form and a copy of the appropriate minimum standards.

7-25           (c)  After receiving an application, the department

7-26     [division] shall investigate the applicant and the plan of care for

7-27     children.

7-28           (d)  The department [division] shall complete the

7-29     investigation and decide on an application within two months after

7-30     the date the department [division] receives a completed [an]

7-31     application.

7-32           Sec. 42.047.  CONSULTATIONS.  (a)  The department shall offer

7-33     consultation to potential applicants, applicants, and license,

7-34     registration, and certification holders about meeting and

7-35     maintaining standards for licensing, registration, and

7-36     certification and achieving programs of excellence in child care.

7-37           (b)  The department shall offer consultation to prospective

7-38     and actual users of facilities or homes.

7-39           [Sec. 42.048.  ADVISORY OPINIONS.  (a)  The director of the

7-40     division may give an advisory opinion on whether or not a planned

7-41     facility or a planned change in an existing facility complies with

7-42     the division's rules and minimum standards.]

7-43           [(b)  A written opinion authorized by Subsection (a) of this

7-44     section is binding on the division as a declaratory order if it is

7-45     signed by the division director and the division representative

7-46     administering this chapter in a division region, and if an

7-47     applicant or license holder has acted in reliance on the opinion.]

7-48           Sec. 42.048 [42.049].  LICENSING.  (a)  The department

7-49     [division] shall issue a license after determining that an

7-50     applicant has satisfied all requirements.

7-51           (b)  When issuing a license, the department [division] may

7-52     impose restrictions on a facility, including but not limited to the

7-53     number of children to be served and the type of children to be

7-54     served.

7-55           (c)  The department [division] may grant a variance of an

7-56     individual standard set forth in the applicable standards for good

7-57     and just cause.

7-58           (d)  A license holder must display a license issued under

7-59     this chapter in a prominent place at the facility.

7-60           (e)  A license issued under this chapter is not transferable

7-61     and applies only to the operator and facility location stated in

7-62     the license application.  A change in location or ownership

7-63     automatically revokes a license.

7-64           (f)  A license must be issued if the department [division]

7-65     determines that a facility meets all requirements.  The evaluation

7-66     shall be based on one or more visits to the facility and a review

7-67     of required forms and records.  A license is valid until revoked or

7-68     surrendered.

7-69           Sec. 42.049 [42.0491].  LIABILITY INSURANCE REQUIRED.  (a)  A

 8-1     license holder shall maintain liability insurance coverage in the

 8-2     amount of $300,000 for each occurrence of negligence.  An insurance

 8-3     policy or contract required under this section must cover injury to

 8-4     a child that occurs while the child is on the premises of the

 8-5     license holder or in the care of the license holder.

 8-6           (b)  A license holder shall file with the department

 8-7     [division] a certificate or other evidence from an insurance

 8-8     company showing that the license holder has an unexpired and

 8-9     uncancelled insurance policy or contract that meets the

8-10     requirements of this section.

8-11           (c)  Should the license holder for financial reasons or for

8-12     lack of availability of an underwriter willing to issue a policy be

8-13     unable to secure the insurance required under Subsection (a) or

8-14     should the policy limits be exhausted, the license holder shall

8-15     notify the parent or a person standing in parental relationship to

8-16     each child for whom the license holder provides care a written

8-17     notice that the liability coverage is not provided and there will

8-18     not be a ground for suspension or revocation of the license

8-19     holder's license under this chapter.  The license holder shall also

8-20     notify the department that the coverage is not provided and provide

8-21     the reason for same.  In no case shall the inability to secure

8-22     coverage serve to indemnify the license holder for damages due to

8-23     negligence.

8-24           (d)  The insurance policy or contract shall be maintained at

8-25     all times in an amount as required by this section.  Failure by a

8-26     license holder to renew the policy or contract or to maintain the

8-27     policy or contract in the required amount is a ground for

8-28     suspension or revocation of the license holder's license under this

8-29     chapter.

8-30           (e)  This section does not apply to a group [or registered]

8-31     day-care [day care] home or registered family home.

8-32           Sec. 42.050.  LICENSE RENEWAL.  (a)  A license holder may

8-33     apply for a new license in compliance with the requirements of this

8-34     chapter and the rules promulgated by the department [division].

8-35           (b)  The application for a new license must be completed and

8-36     decided on by the department [division] before the expiration of

8-37     the license under which a facility is operating.

8-38           (c)  The department [division] shall evaluate the application

8-39     for a new license to determine if all licensing requirements are

8-40     met.  The evaluation may include a specified number of visits to

8-41     the facility and must include a review of all required forms and

8-42     records.

8-43           Sec. 42.051.  PROVISIONAL LICENSE.  (a)  The department

8-44     [division] shall issue a provisional license when a facility's

8-45     plans meet the department's licensing requirements and one of the

8-46     following situations exists:

8-47                 (1)  the facility is not currently operating;

8-48                 (2)  the facility has relocated and has made changes in

8-49     the type of child-care service it provides; or

8-50                 (3)  there is a change in ownership of the facility

8-51     resulting in changes in policy and procedure or in the staff who

8-52     have direct contact with the children.

8-53           (b)  A provisional license is valid for six months from the

8-54     date it is issued and may be renewed for an additional six months

8-55     [is not renewable].

8-56           Sec. 42.052.  CERTIFICATION AND REGISTRATION.  (a)  A

8-57     state-operated child-care facility or child-placing  agency must

8-58     receive certification of approval from the department [division].

8-59     The certification of approval remains valid until revoked or

8-60     surrendered.

8-61           (b)  To be certified, a facility must comply with the

8-62     department's rules and standards and any provisions of this chapter

8-63     that apply to a licensed facility of the same category.  The

8-64     operator of a certified facility must display the certification in

8-65     a prominent place at the facility.

8-66           (c)  A family home that provides care for three or fewer

8-67     children, excluding [the caretaker's own] children who are related

8-68     to the caretaker, may register with the department [division].  A

8-69     family home that provides care for four or more children, excluding

 9-1     [the caretaker's own] children who are related to the caretaker,

 9-2     shall [must] register with the department [division].  A

 9-3     registration remains valid until revoked or surrendered.  The

 9-4     operator of a registered home must display the registration in a

 9-5     prominent place at the home.

 9-6           (d)  To remain registered with the department [division], a

 9-7     family home must comply with the department's rules and standards

 9-8     and any provision of this chapter that applies to a registered

 9-9     family home.

9-10           (e)  The certification requirements of this section do not

9-11     apply to a Texas Youth Commission [Council] facility, a Texas

9-12     Juvenile Probation Commission facility,  or a facility providing

9-13     services solely for the Texas Youth Commission [Council].

9-14           (f)  A family home may not place a public advertisement that

9-15     uses the title "registered family home" or any variation of the

9-16     phrase unless the home is registered [with the division] under this

9-17     chapter.  Any public advertisement for a registered family home

9-18     which uses the title "registered family home" must contain a

9-19     provision in bold type stating:  "THIS HOME IS REGISTERED WITH THE

9-20     DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT

9-21     LICENSED OR REGULARLY INSPECTED."

9-22           (g)  The certification requirements of this section do not

9-23     apply to a juvenile detention facility certified under Section

9-24     51.12, Family Code, or Section 141.042(d).

9-25           Sec. 42.0521.  DEPOSIT OF FEES.  The fees authorized by this

9-26     chapter and received by the department shall be deposited in the

9-27     general revenue fund.

9-28           Sec. 42.053.  AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP

9-29     HOMES.  (a)  An agency foster home or agency foster group home is

9-30     considered part of the child-placing agency that operates the

9-31     agency foster home or agency foster group home for purposes of

9-32     licensing.

9-33           (b)  The operator of a licensed agency shall display a copy

9-34     of the license in a prominent place in the agency foster home or

9-35     agency foster group home used by the agency.

9-36           (c)  An agency foster home or agency foster group home shall

9-37     comply with all provisions of this chapter and all department rules

9-38     and standards that apply to a child-care facility caring for a

9-39     similar number of children for a similar number of hours each day.

9-40           (d)  The department [division] shall revoke or suspend the

9-41     license of a child-placing agency if an agency foster home or

9-42     agency foster group home operated by the licensed agency fails to

9-43     comply with Subsection (c) of this section.

9-44           [Sec. 42.054.  FEES.  (a)  The division shall charge a

9-45     nonrefundable application fee of $25 to an applicant for an initial

9-46     license to operate a child-care facility or child-placing agency.]

9-47           [(b)  The division shall charge each child-care facility a

9-48     fee of $25 for a provisional license.  The division shall charge

9-49     each child-placing agency a fee of $50 for a provisional license.]

9-50           [(c)  The division shall charge each child-care facility an

9-51     annual license fee in the amount of $40 for each child-care

9-52     facility plus $1 for each child the child-care facility is

9-53     permitted to serve, except that the total fee may not exceed $150.

9-54     The fee is due on the date on which the division issues the

9-55     child-care facility's license and on the anniversary of that date.]

9-56           [(d)  The division shall charge each child-placing agency an

9-57     annual license fee of $100.  The fee is due on the date on which

9-58     the division issues the child-placing agency's license and on the

9-59     anniversary of that date.]

9-60           [(e)  The division shall charge each registered family home

9-61     an annual registration fee of $15.  The fee is due on the date on

9-62     which the division registers the home and on the anniversary of

9-63     that date.]

9-64           [(f)  If a facility, agency, or home fails to pay the annual

9-65     license or registration fee when due, the license or registration

9-66     is suspended until the fee is paid.]

9-67           [(g)  The provisions of Subsections (b) through (f) do not

9-68     apply to:]

9-69                 [(1)  licensed foster family homes and licensed foster

 10-1    family group homes;]

 10-2                [(2)  nonprofit facilities regulated under this chapter

 10-3    that provided 24-hour care for children in the managing

 10-4    conservatorship of the department during the 12-month period

 10-5    immediately prior to the anniversary date of the facility's

 10-6    license.]

 10-7          Sec. 42.054.  FEES.  (a)  The department [division] shall

 10-8    charge an applicant a nonrefundable application fee of $35 [to an

 10-9    applicant] for an initial license to operate a child-care facility

10-10    or a child-placing agency.

10-11          (b)  The department [division] shall charge each child-care

10-12    facility a fee of $35 for a provisional license.  The department

10-13    [division] shall charge each child-placing agency a fee of $50 for

10-14    a provisional license.

10-15          (c)  The department [division] shall charge each licensed

10-16    child-care facility an annual license fee in the amount of $35 [for

10-17    each child-care facility] plus $1 for each child the child-care

10-18    facility is permitted to serve.  The fee is due on the date on

10-19    which the department [division] issues the child-care facility's

10-20    initial license and on the anniversary of that date.

10-21          (d)  The department [division] shall charge each licensed

10-22    child-placing agency an annual license fee of $100.  The fee is due

10-23    on the date on which the department [division] issues the

10-24    child-placing agency's initial license and on the anniversary of

10-25    that date.

10-26          (e)  The department [division] shall charge each family home

10-27    that is registered with the department [division] an annual

10-28    registration fee of $35 to cover the department's cost in

10-29    regulating family homes.  The fee is due on the date on which the

10-30    department initially [division] registers the home and on the

10-31    anniversary of that date.

10-32          (f)  If a facility, agency, or home fails to pay the annual

10-33    [license or registration] fee when due, the license or

10-34    registration, as appropriate, is suspended until the fee is paid.

10-35          (g)  The provisions of Subsections (b) through (f) of this

10-36    section do not apply to:

10-37                (1)  licensed foster [family] homes and licensed foster

10-38    [family] group homes;

10-39                (2)  nonprofit facilities regulated under this chapter

10-40    that provided 24-hour care for children in the managing

10-41    conservatorship of the department during the 12-month period

10-42    immediately preceding the anniversary date of the facility's

10-43    license; or

10-44                (3)  facilities operated by a nonprofit corporation or

10-45    foundation that provides 24-hour residential care and does not

10-46    charge for the care provided.

10-47          Sec. 42.055.  [USE OF FEES.  The child-care training fund is

10-48    established as a special fund in the state treasury, and the

10-49    division shall deposit fees received under this subchapter to the

10-50    credit of that fund.  The child-care training fund may be used only

10-51    to provide programs of parent education and caretaker training

10-52    designed to ensure the health, safety, and well-being of children.

10-53    Up to three percent of the amount collected as fees under the

10-54    authority of this chapter may be used by the department for actual

10-55    costs of collecting the fees and administering the fund.]

10-56          [Sec. 42.056.]  SIGN POSTING.  (a)  Each child-care [child

10-57    care] facility shall post in a location that is conspicuous to all

10-58    employees and customers a sign that includes:

10-59                (1)  a description of the provisions of the [Chapter

10-60    34,] Family Code[,] relating to the duty to report child abuse or

10-61    neglect; and

10-62                (2)  a description of the penalties for violating the

10-63    reporting provisions of the [Chapter 34,] Family Code.

10-64          (b)  The department by rule shall determine the design, size,

10-65    and wording of the sign.

10-66          (c)  The department shall provide the sign to each child-care

10-67    [child care] facility without charge.

10-68          (d)  A person who operates a child-care [child care] facility

10-69    commits an offense if the department provides a sign to the

 11-1    facility as provided by this section and the person intentionally

 11-2    fails to display the sign in the facility as prescribed by this

 11-3    section.  An offense under this subsection is a Class C

 11-4    misdemeanor.

 11-5          Sec. 42.056.  REQUIRED BACKGROUND AND CRIMINAL HISTORY

 11-6    CHECKS.  (a)  In accordance with rules adopted by the department,

 11-7    the director, owner, or operator of a child-care facility or family

 11-8    home shall, when applying to operate a child-care facility or when

 11-9    registering a family home and at least once during each 24 months

11-10    after receiving a license, registration, or certification of

11-11    approval, submit to the department for use in conducting background

11-12    and criminal history checks:

11-13                (1)  the name of the director, owner, and operator of

11-14    the facility or home, and the name of each person employed at the

11-15    facility or home; and

11-16                (2)  the name of each person 14 years of age or older

11-17    who will regularly or frequently be staying or working at the

11-18    facility or home while children are being provided care.

11-19          (b)  The department shall conduct background and criminal

11-20    history checks using:

11-21                (1)  the information provided under Subsection (a);

11-22                (2)  the information made available by the Department

11-23    of Public Safety under Section 411.114, Government Code, or by the

11-24    Federal Bureau of Investigation or other criminal justice agency

11-25    under Section 411.087, Government Code; and

11-26                (3)  the department's records of reported abuse and

11-27    neglect.

11-28          (c)  The department by rule shall require a child-care

11-29    facility or family home to pay to the department a fee in an amount

11-30    not to exceed the administrative costs the department incurs in

11-31    conducting a background and criminal history check under this

11-32    section.

11-33                          SUBCHAPTER D.  REMEDIES

11-34          Sec. 42.071.  [LICENSE] SUSPENSION, EVALUATION, OR PROBATION

11-35    OF LICENSE OR REGISTRATION.  (a)  The department [division] may

11-36    suspend the license of a facility or the registration of a family

11-37    home that has temporarily ceased operation but has definite plans

11-38    for starting operations again within the time limits of the issued

11-39    license or registration.

11-40          (b)  The department [division] may suspend a facility's

11-41    license or a family home's registration for a definite period

11-42    rather than deny or revoke the license or registration if the

11-43    department [division] finds repeated noncompliance with standards

11-44    that do not endanger the health and safety of children.  To qualify

11-45    for license or registration suspension under this subsection, a

11-46    facility or family home must suspend its operations and show that

11-47    standards can be met within the suspension period.

11-48          (c)  If the department [division] finds a facility or family

11-49    home is in repeated noncompliance with standards that do not

11-50    endanger the health and safety of children, the department

11-51    [division] may schedule the facility or family home for evaluation

11-52    or probation rather than suspend or revoke the facility's license

11-53    or the family home's registration.  The department [division] shall

11-54    provide notice to the facility or family home of the evaluation or

11-55    probation and of the items of noncompliance not later than the 10th

11-56    day before the evaluation or probation period begins.  The

11-57    department [division] shall designate a period of not less than 30

11-58    days during which the facility or family home will remain under

11-59    evaluation.  During the evaluation or probation period, the

11-60    facility or family home must correct the items that were in

11-61    noncompliance and report the corrections to the department

11-62    [division] for approval.

11-63          (d)  The department [division] shall revoke the license of a

11-64    facility or the registration of a family home that does not comply

11-65    with standards at the end of a license or registration suspension.

11-66          (e)  The department [division] may suspend or revoke the

11-67    license of a facility or the registration of a family home that

11-68    does not correct items that were in noncompliance or that does not

11-69    comply with required standards within the applicable evaluation or

 12-1    probation period.

 12-2          Sec. 42.072.  LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR

 12-3    REVOCATION.  (a)  The department [division] may suspend, deny, [or]

 12-4    revoke, or refuse to renew the license, registration, or

 12-5    certification of approval of a facility or family home that does

 12-6    not comply with the requirements of this chapter, the standards and

 12-7    rules of the department, or the specific terms of the license,

 12-8    registration, or certification.  The department may revoke the

 12-9    probation of a person whose license or registration is suspended if

12-10    the person violates a term of the conditions of probation.

12-11          (b)  If the department proposes to take an action under

12-12    Subsection (a), the person is entitled to a hearing conducted by

12-13    the State Office of Administrative Hearings.  Proceedings for a

12-14    disciplinary action are governed by the administrative procedure

12-15    law, Chapter 2001, Government Code.  Rules of practice adopted by

12-16    the board under Section 2001.004, Government Code, applicable to

12-17    the proceedings for a disciplinary action may not conflict with

12-18    rules adopted by the State Office of Administrative Hearings.

12-19          (c)  [The division shall notify the person operating or

12-20    proposing to operate a facility of the reasons for the denial or

12-21    revocation and of the person's right to appeal the decision within

12-22    30 days after receiving the notice.]

12-23          [(c)  A person who wishes to appeal a license denial or

12-24    revocation shall notify the director by certified mail within 30

12-25    days after receiving the notice required in Subsection (b) of this

12-26    section.  The person shall send a copy of the notice of appeal to

12-27    the assigned division representative.]

12-28          [(d)  The denial or revocation of a license or certification

12-29    and the appeal from that action are governed by the procedure for a

12-30    contested case hearing under Chapter 2001, Government Code.]

12-31          [(e)  A person whose license has been denied or revoked may

12-32    challenge the decision by filing a suit in a district court of

12-33    Travis County or the county in which the person's facility is

12-34    located within 30 days after receiving the decision.  The trial

12-35    shall be de novo.]

12-36          [(f)  Records of the hearing shall be kept for two years

12-37    after a decision is rendered.  On request, and at the person's own

12-38    expense, the division shall supply a copy of the verbatim

12-39    transcript of the hearing to a person appealing a license denial or

12-40    revocation in district court.]

12-41          [(g)  A person may continue to operate a facility during an

12-42    appeal of a license denial or revocation unless the division has

12-43    obtained injunctive relief under Section 42.074 or civil penalties

12-44    under Section 42.075 or the facility has been closed under Section

12-45    42.073.]

12-46          [(h)]  A person whose license, registration, or certification

12-47    is revoked may not apply for any license, registration, or

12-48    certification under this chapter before the second anniversary of

12-49    the date on which the revocation takes effect by department or

12-50    court order.

12-51          (d)  The department by rule may provide for denial of an

12-52    application or renewal for a licensed facility or for registering a

12-53    family home or may revoke a facility's license or a family home's

12-54    registration based on the results of a background or criminal

12-55    history check.

12-56          Sec. 42.073.  EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY

12-57    OR FAMILY HOME.  (a)  The department [division] shall suspend a

12-58    facility's license or a family home's registration and[,] order the

12-59    immediate closing of the facility or family home [, and place the

12-60    children attending or residing in the facility elsewhere] if:

12-61                (1)  the department [division] finds the facility or

12-62    family home is operating in violation of the applicable standards

12-63    prescribed by this chapter; and

12-64                (2)  the violation creates an immediate threat to the

12-65    health and safety of the children attending or residing in the

12-66    facility or family home.

12-67          (b)  An order suspending a license or registration and an

12-68    order closing a facility or family home under this section is

12-69    immediately effective on the date on which the [license] holder of

 13-1    the license or registration receives written notice or on a later

 13-2    date specified in the order.

 13-3          (c)  An order is valid for 10 days after the effective date

 13-4    of the order.

 13-5          (d)  The suspension of a license or registration and the

 13-6    closure of a [the] facility or family home and the appeal from that

 13-7    action are governed by the procedures for a contested case hearing

 13-8    under Chapter 2001, Government Code.

 13-9          Sec. 42.074.  INJUNCTIVE RELIEF.  (a)  When it appears that a

13-10    person has violated, is violating, or is threatening to violate the

13-11    licensing, certification, or registration requirements of this

13-12    chapter or the department's licensing, certification, or

13-13    registration rules and standards, the department [division] may

13-14    file a suit in a district court in Travis County or in the county

13-15    where the facility or family home is located for assessment and

13-16    recovery of civil penalties under Section 42.075 [of this code],

13-17    for injunctive relief, including a temporary restraining order, or

13-18    for both injunctive relief and civil penalties.

13-19          (b)  The district court shall grant the injunctive relief the

13-20    facts may warrant.

13-21          (c)  At the department's [division's] request, the attorney

13-22    general or the county or district attorney of the county in which

13-23    the facility or family home is located shall conduct a suit in the

13-24    name of the State of Texas for injunctive relief, to recover the

13-25    civil penalty, or for both injunctive relief and civil penalties as

13-26    authorized by Subsection (a) [of this section].

13-27          (d)  Injunctive relief provided by this section is in

13-28    addition to any other action, proceeding, or remedy authorized by

13-29    law.  It is not necessary to allege or prove in an action filed

13-30    under this section that an adequate remedy at law does not exist or

13-31    that substantial or irreparable harm would result from the

13-32    continued violation.

13-33          (e)  The department is not required to give an appeal bond in

13-34    an action arising under this section.

13-35          Sec. 42.075.  CIVIL PENALTY.  (a)  A person is subject to a

13-36    civil penalty of not less than $50 nor more than $100 for each day

13-37    of violation and for each act of violation if the person:

13-38                (1)  threatens serious harm to a child in a facility or

13-39    family home by violating a provision of this chapter or a

13-40    department rule or standard;

13-41                (2)  violates a provision of this chapter or a

13-42    department rule or standard three or more times within a 12-month

13-43    period; or

13-44                (3)  places a public advertisement for an unlicensed

13-45    facility or unregistered family home.

13-46          (b)  The civil penalty authorized by this section is

13-47    cumulative and in addition to the criminal penalties and injunctive

13-48    relief provided by this chapter.

13-49          Sec. 42.076.  CRIMINAL PENALTIES.  (a)  A person who operates

13-50    a child-care facility or child-placing agency without a license

13-51    commits a Class B misdemeanor.

13-52          (b)  A person who operates a family home without a

13-53    registration commits a Class B misdemeanor.

13-54          (c)  A person who places a public advertisement for an

13-55    unlicensed facility or an unregistered family home commits a Class

13-56    C misdemeanor.

13-57          [(c)  A person who places an advertisement for a registered

13-58    family home in violation of Section 42.052(f) of this code commits

13-59    a Class C misdemeanor.]

13-60          (d)  It is not an offense under this section if a

13-61    professional provides legal or medical services to:

13-62                (1)  a parent who identifies the prospective adoptive

13-63    parent and places the child for adoption without the assistance of

13-64    the professional; or

13-65                (2)  a prospective adoptive parent who identifies a

13-66    parent and receives placement of a child for adoption without

13-67    assistance of the professional.

13-68          Sec. 42.077.  NOTICE OF ACTION AGAINST FACILITY OR FAMILY

13-69    HOME.  (a)  If the department revokes or suspends a facility's

 14-1    license or a family home's registration, the department shall

 14-2    publish notice of this action in a newspaper of general circulation

 14-3    in the county in which the facility or family home is located.  The

 14-4    newspaper shall place the notice in the section in which

 14-5    advertisements for day-care services are normally published.

 14-6          (b)  If a person who operates a facility or family home that

 14-7    has had its license or registration revoked or suspended later

 14-8    applies for a new license or registration to operate the same

 14-9    facility or family home, the department shall charge the person an

14-10    application fee in an amount necessary to reimburse the department

14-11    for the cost of the notice relating to that facility or family

14-12    home.

14-13          (c)  The department shall pay for publication of the notice

14-14    from funds appropriated to the department for licensing and

14-15    regulating child-care facilities and for registering and regulating

14-16    family homes and from appeal and application fees collected under

14-17    Subsection (b) [of this section] and appropriated to the

14-18    department.

14-19          (d)  A facility or family home that has its license or

14-20    registration revoked or suspended shall mail notification of this

14-21    action by certified mail to the parents or guardian of the child

14-22    served by the facility or family home.  The facility or family home

14-23    shall mail the notification within five days of the effective date

14-24    of the [license] revocation or suspension of the license or

14-25    registration.

14-26          SECTION 8.  Section 43.012, Human Resources Code, is amended

14-27    to read as follows:

14-28          Sec. 43.012.  PENALTY.  A person who serves as a child-care

14-29    administrator without the license required by this chapter commits

14-30    a Class C misdemeanor [and may be fined not less than $50 nor more

14-31    than $100].

14-32          SECTION 9.  (a)  This Act takes effect September 1, 1997.

14-33          (b)  The change in law made by this Act applies only to an

14-34    offense committed on or after the effective date of this Act.  For

14-35    purposes of this subsection, an offense is committed before the

14-36    effective date of this Act if any element of the offense occurs

14-37    before that date.  An offense committed before the effective date

14-38    of this Act is covered by the law in effect when the offense was

14-39    committed, and the former law is continued in effect for that

14-40    purpose.

14-41          (c)  The change in law made by this Act applies only to a

14-42    license or registration fee due to be paid on or after the

14-43    effective date of this Act.  A license or registration fee due to

14-44    be paid before the effective date of this Act is governed by the

14-45    law in effect immediately before the effective date of this Act,

14-46    and that law is continued in effect for that purpose.

14-47          SECTION 10.  The importance of this legislation and the

14-48    crowded condition of the calendars in both houses create an

14-49    emergency and an imperative public necessity that the

14-50    constitutional rule requiring bills to be read on three several

14-51    days in each house be suspended, and this rule is hereby suspended.

14-52                                 * * * * *