By: Nelson S.B. No. 67

A BILL TO BE ENTITLED

AN ACT

relating to the imposition of background and criminal history check requirements for operators and employees of certain facilities and agencies serving children, the elderly, or persons who are disabled; providing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 42.056, Human Resources Code, is amended by amending Subsections (a), (a-1), (a-2), (b), (b-1), (c), (f), (g), (h), (i), and (j) and adding Subsection (a-3) to read as follows:

(a) In accordance with rules adopted by the executive commissioner [department], the director, owner, or operator of a child-care facility, child-placing agency, or family home shall[, when applying to operate a child-care facility or when listing or registering a family home and at least once during each 24 months after receiving a license, listing, registration, or certification of approval,] submit to the department for use in conducting background and criminal history checks:

(1) when applying to operate a child-care facility or child-placing agency or when listing or registering a family home and at least once during each 24 months after receiving a license, listing, registration, or certification of approval, the name of:

(A) the director, owner, and operator of the facility, agency, or home;

(B) [, and the name of] each person employed at the facility, agency, or home; and

(C) [(2) the name of] each person 14 years of age or older, other than a client in care, who:

(i) is counted in child-to-caregiver ratios in accordance with the minimum standards of the department;

(ii) has unsupervised access to children in care at the facility or family home;

(iii) resides in the facility or family home; or

(iv) will regularly or frequently be staying or working at a [the] facility, family [or] home, or prospective adoptive home, while children are being provided care; and

(2) at the time specified by the rules adopted by the executive commissioner, the name of:

(A) each prospective employee of the child-care facility, child-placing agency, or family home;

(B) each prospective foster parent who will provide care through a child-placing agency;

(C) each prospective adoptive parent seeking to adopt through a child-placing agency; and

(D) each person 14 years of age or older, other than a client in care, who will reside in a prospective adoptive home if the adoption is through a child-placing agency.

(a-1) [In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a residential child-care facility shall submit to the department for use in conducting background and criminal history checks the name of each prospective employee who will provide direct care or have direct access to a child in the residential child-care facility.

[(a-2)] In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a child-care facility, other than a family home, or a child-placing agency [day-care center] shall submit a complete set of fingerprints of each person whose name is required to be submitted [by the director, owner, or operator] under Subsection (a) if the person will provide direct care or have direct access to a child in the child-care facility or child-placing agency, unless the person is:

(1) a child who resides in the facility or prospective adoptive home;

(2) only required to have the person's name submitted based on the criteria specified in Subsection (a)(1)(C)(iv);

(3) an employee of the facility or agency for whom fingerprints have previously been submitted on behalf of the facility or agency under this section; or

(4) precluded from being present at the facility or agency based on the information resulting from the state criminal history check and the background check completed under Subsection (b).

(a-2) In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a family home shall submit a complete set of fingerprints of each person whose name is required to be submitted under Subsection (a) if:

(1) the person:

(A) will provide direct care or have direct access to a child in the family home;

(B) is not precluded from being present at the family home based on the information resulting from the state criminal history check and the background check completed under Subsection (b);

(C) has not had the person's fingerprints previously submitted on behalf of the family home under this section; and

(D) resided in another state during the five years preceding the date the person's name was required to be submitted under Subsection (a); or

(2) the director, owner, or operator has reason to suspect that the person has a criminal history in another state.

(a-3) The rules regarding the submission of fingerprints adopted by the executive commissioner under Subsections (a-1) and (a-2):

(1) must require that the fingerprints be submitted in a form and of a quality acceptable to the Department of Public Safety and the Federal Bureau of Investigation for conducting a criminal history check; and

(2) may require that the fingerprints be submitted electronically through an applicant fingerprinting service center.

(b) The department shall initially conduct background and criminal history checks using:

(1) the information provided under Subsection (a) [Subsections (a) and (a-1)];

(2) the information made available by the Department of Public Safety under Section 411.114, Government Code, or by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code; and

(3) the department's records of reported abuse and neglect.

(b-1) In addition to and after the completion of any other background or criminal history check conducted under Subsection (b), for each person whose fingerprints are [name is] submitted [by the director, owner, or operator of a day-care center] under Subsection (a-1) or (a-2) [(a)], the department shall conduct a state and Federal Bureau of Investigation criminal history check by:

(1) submitting the person's fingerprints [provided under Subsection (a-2),] or causing the fingerprints to be submitted electronically [as authorized by that subsection,] to the Department of Public Safety for the purpose of conducting a state and federal criminal history check; and

(2) using the resulting information made available by that department under Section 411.114, Government Code, and by the Federal Bureau of Investigation and any other criminal justice agency under Section 411.087, Government Code.

(c) The department by rule shall require a child-care facility, child-placing agency, or registered family home to pay to the department a fee in an amount not to exceed the administrative costs the department incurs in conducting a background and criminal history check under this section.

(f) As part of a background check under this section, the department shall provide any relevant information available in the department's records regarding a person's previous employment in a [residential child-care] facility or family home to the person submitting the request.

(g) Except as otherwise provided by Subsection (e) and this subsection, a person whose name is required to be submitted [by the director, owner, or operator of a day-care center] under Subsection (a) may not provide direct care or have direct access to a child in a facility or family home [day-care center] before the person's background and criminal history checks under Subsections (b) and, as applicable, (b-1) are completed. A person may be employed at a facility or family home or [day-care center and] may provide direct care or have direct access to a child in the facility or family home [day-care center] before the person's criminal history check under Subsection (b-1) is completed if:

(1) the facility or family home is experiencing a staffing shortage;

(2) the state criminal history check and the background check using the department's records of reported abuse and neglect have been completed under Subsection (b), and the resulting information does not preclude the person from being present at the facility or family home [day-care center]; and

(3) [(2)] the person's fingerprints are submitted as soon as possible, but not later than the 30th day after the earliest of the date the person:

(A) first provides direct care to a child in the facility or family home;

(B) first has direct access to a child in the facility or family home; or

(C) is hired [day-care center is experiencing a staffing shortage that, if the day-care center were not allowed to employ the person until completion of the federal criminal history check, would result in a staff-to-child ratio that violates the department's minimum standards].

(h) If the results of a criminal history check under Subsection (b-1) for a person employed by a facility or family home [day-care center] during a staffing shortage as authorized by Subsection (g) preclude the person from being present at the facility or family home [day-care center], the director, owner, or operator of the facility or family home [day-care center] shall immediately terminate the person's employment.

(i) A director, owner, or operator of a facility or family home [day-care center] commits an offense if the director, owner, or operator knowingly:

(1) fails to submit to the department information about a person as required by this section or [and] department rules for use in conducting background and criminal history checks with respect to the person; and

(2) employs the person at the facility or family home [day-care center] or otherwise allows the person to regularly or frequently stay or work at the facility or family home [day-care center] while children are being provided care.

(j) A director, owner, or operator of a facility or family home [day-care center] commits an offense if, after the date the director, owner, or operator receives notice from the department that, based on the results of a person's background or criminal history check, the person is precluded from being present at the facility or family home [day-care center], the director, owner, or operator knowingly:

(1) employs the person at the facility or family home [day-care center]; or

(2) otherwise allows the person to regularly or frequently stay or work at the facility or family home [day-care center] while children are being provided care.

SECTION 2. Section 43.004, Human Resources Code, is amended to read as follows:

Sec. 43.004. QUALIFICATIONS FOR LICENSE. (a) To be eligible for a child-care administrator's license a person must:

(1) provide information and fingerprints for the department's use in conducting a criminal history and background check under Subsection (c);

(2) pass an examination developed and administered by the department that demonstrates competence in the field of child-care administration;

(3) have one year of full-time experience in management or supervision of child-care personnel and programs; and

(4) have one of the following educational and experience qualifications:

(A) a master's or doctoral degree in social work or other area of study; or

(B) a bachelor's degree and two years' full-time experience in child care or a closely related field.

(b) To be eligible for a child-placing agency administrator's license a person must:

(1) provide information and fingerprints for the department's use in conducting a criminal history and background check under Subsection (c);

(2) pass an examination developed and administered by the department that demonstrates competence in the field of placing children in residential settings or adoptive homes;

(3) have one year of full-time experience in management or supervision of child-placing personnel and programs; and

(4) have one of the following educational and experience qualifications:

(A) a master's or doctoral degree in social work or other area of study; or

(B) a bachelor's degree and two years' full-time experience in the field of placing children in residential settings or adoptive homes or a closely related field.

(c) Before the department issues a license under this chapter, the department must conduct a criminal history and background check of the applicant using the information:

(1) provided by an individual under this section;

(2) [the information] made available by the Department of Public Safety under Section 411.114, Government Code, and [or] by the Federal Bureau of Investigation or other criminal justice agency under Section 411.087, Government Code, after conducting a state and federal criminal history check using the fingerprints provided by the applicant under this section; and

(3) [(2) the information] in the central registry of reported cases of child abuse or neglect established under Section 261.002, Family Code.

SECTION 3. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Section 161.076 to read as follows:

Sec. 161.076. REQUIRED BACKGROUND AND CRIMINAL HISTORY CHECKS; CRIMINAL PENALTIES. (a) In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a facility or agency licensed by the department shall submit to the Department of Public Safety for use in conducting background and criminal history checks:

(1) when applying for a license from the department, the name of each person who will provide direct care or who has direct access to residents or clients of the facility or agency and who is:

(A) a director, owner, or operator of the facility or agency;

(B) a person employed at the facility or by the agency; or

(C) a person 14 years of age or older, other than a resident or client in care, who will regularly or frequently be staying or working at the facility or agency while residents or clients are being provided care; and

(2) at the time specified by the rules adopted by the executive commissioner, the name of each person who will provide direct care or who will have direct access to residents or clients of the facility or agency and who is a prospective:

(A) employee of the facility or agency; or

(B) volunteer at the facility or with the agency.

(b) In accordance with rules adopted by the executive commissioner, the director, owner, or operator of a facility or agency licensed by the department shall submit a complete set of fingerprints of each employee or prospective employee whose name is required to be submitted under Subsection (a) and who will provide direct care or have direct access to a resident or client in the facility or of the agency, unless the person:

(1) is a person for whom fingerprints have previously been submitted on behalf of the facility or agency under this section; or

(2) is precluded from providing direct care or having direct access to a resident or client in the facility or of the agency based on the information resulting from a completed state criminal history check.

(c) The director, owner, or operator of a facility or agency licensed by the department shall ensure that the facility or agency complies with this section and that the facility or agency immediately terminates the employment of a person who, as a result of a background check completed under this section, is precluded from providing direct care or having direct access to a resident or client in the facility or of the agency.

(d) The rules adopted under Subsections (a) and (b):

(1) must require that the fingerprints be submitted in a form and of a quality acceptable to the Department of Public Safety and the Federal Bureau of Investigation for conducting a criminal history check;

(2) may require that the fingerprints be submitted electronically through an applicant fingerprinting service center; and

(3) shall require a facility or agency licensed by the department to pay to the department a fee in an amount not to exceed the administrative costs the department incurs in processing background and criminal history checks conducted under this section.

(e) A director, owner, or operator of a facility or agency licensed by the department commits an offense if the director, owner, or operator knowingly:

(1) fails to submit information about a person as required by this section or rules adopted by the executive commissioner to conduct background and criminal history checks with respect to the person; and

(2) employs the person at the facility or agency or otherwise allows the person to regularly or frequently stay or work at the facility or agency while residents or clients are being provided care.

(f) A director, owner, or operator of a facility or agency licensed by the department commits an offense if, after the date the director, owner, or operator discovers that, based on the results of a person's background or criminal history check, the person is precluded from providing direct care or having direct access to a resident or client in the facility or of the agency, the director, owner, or operator knowingly:

(1) employs the person at the facility or agency; or

(2) otherwise allows the person to regularly or frequently stay or work at the facility or agency while residents or clients are being provided care.

(g) An offense under Subsection (e) or (f) is a Class B misdemeanor.

SECTION 4. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.1146 to read as follows:

Sec. 411.1146. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: DEPARTMENT OF AGING AND DISABILITY SERVICES LICENSEES. (a) The Department of Aging and Disability Services is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is:

(1) an applicant for a license issued by the Department of Aging and Disability Services;

(2) an employee or an applicant for employment at a facility or agency licensed by the Department of Aging and Disability Services;

(3) a volunteer or applicant to be a volunteer at a facility or agency licensed by the Department of Aging and Disability Services; or

(4) at least 14 years of age, other than a person who is a resident or client of a licensed facility or licensed agency, who will regularly or frequently be staying or working at a licensed facility or working with residents or clients of a licensed agency, other than a person who is a resident or client of a licensed facility or licensed agency.

(b) Criminal history record information obtained by the Department of Aging and Disability Services under Subsection (a) may not be released or disclosed to any person except:

(1) on court order;

(2) with the consent of the person who is the subject of the criminal history record information;

(3) for purposes of an administrative hearing held by the Department of Aging and Disability Services concerning the person who is the subject of the criminal history record information; or

(4) as provided by Subsection (c).

(c) The Department of Aging and Disability Services is not prohibited from releasing criminal history record information obtained under this section to:

(1) the person who is the subject of the criminal history record information; or

(2) a facility or agency:

(A) that employs or is considering employing the person who is the subject of the criminal history record information; or

(B) at which the person regularly stays or works.

(d) Subject to Section 411.087, the Department of Aging and Disability Services is entitled to:

(1) obtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subsection (a); and

(2) obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to a person described by Subsection (a).

(e) The Department of Aging and Disability Services shall collect and destroy criminal history record information that relates to a person immediately after providing the information to a facility or agency making an employment decision or taking a personnel action relating to the person who is the subject of the criminal history record information.

SECTION 5. Subsection (d), Section 42.056, Human Resources Code, is repealed.

SECTION 6. (a) The changes in law made by this Act relating to background and criminal history checks apply only to background and criminal history checks performed on or after September 1, 2011.

(b) Not later than September 1, 2010, the executive commissioner of the Health and Human Services Commission shall adopt rules as required by Section 42.056, Human Resources Code, as amended by this Act, and Section 161.076, Human Resources Code, as added by this Act.

SECTION 7. (a) Subsections (i) and (j), Section 42.056, Human Resources Code, as amended by this Act, take effect September 1, 2011.

(b) Subsections (e), (f), and (g), Section 161.076, Human Resources Code, as added by this Act, take effect September 1, 2011.

SECTION 8. This Act does not make an appropriation. A provision in this Act that creates a new governmental program, creates a new entitlement, or imposes a new duty on a governmental entity is not mandatory during a fiscal period for which the legislature has not made a specific appropriation to implement the provision.

SECTION 9. Except as otherwise provided by this Act, this Act takes effect September 1, 2009.