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 * * * * *