By: Nelson S.B. No. 68

A BILL TO BE ENTITLED

AN ACT

relating to licensing and inspection requirements of the Department of Family and Protective Services for certain facilities and homes providing child care; providing penalties.

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

SECTION 1. Section 42.002, Human Resources Code, is amended by amending Subdivisions (7), (8), (17), and (19) and adding Subdivisions (20) and (21) to read as follows:

(7) "Day-care center" means a child-care facility that provides care at a location other than the residence of the director, owner, or operator of the child-care facility for seven or more [than 12] children under 14 years of age for less than 24 hours a day, but at least two hours a day, three or more days a week.

(8) "Group day-care home" means a child-care facility that provides care at the residence of the director, owner, or operator of the child-care facility for seven or more [7 to 12] children under 14 years of age for less than 24 hours a day, but at least two hours a day, three or more days a week.

(17) "Regular care" means care that is provided at least:

(A) four hours a day, three or more days a week, for three or more [than nine] consecutive weeks; or

(B) four hours a day for 40 or more days in a period of 12 months.

(19) "Residential child-care facility" means a facility licensed or certified by the department that operates [to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility,] for all of the 24-hour day[, whether or not the facility is operated for profit or charges for the services it offers]. The term includes child-care institutions, child-placing agencies, foster group homes, foster homes, agency foster group homes, and agency foster homes.

(20) "Before-school or after-school program" means a child-care facility that provides care before or after, or before and after, the customary school day and during school holidays, for at least two hours a day, three days a week, to children who attend prekindergarten through grade six.

(21) "School-age program" means a child-care facility that provides supervision, along with recreation or skills instruction or training, and may provide transportation, before or after the customary school day, for at least two hours a day, three days a week, to children attending prekindergarten through grade six. A school-age program may also operate during school holidays, the summer period, or any other time when school is not in session.

SECTION 2. The heading to Section 42.041, Human Resources Code, is amended to read as follows:

Sec. 42.041. REQUIRED LICENSE [OR ACCREDITATION].

SECTION 3. Subsection (b), Section 42.041, Human Resources Code, is amended to read as follows:

(b) This section does not apply to:

(1) a state-operated facility;

(2) an agency foster home or agency foster group home;

(3) a facility that is operated in connection with a shopping center, business, religious organization, or establishment where children are cared for during short periods while parents or persons responsible for the children are attending religious services, shopping, or engaging in other activities, including retreats or classes for religious instruction, on or near the premises, that does not advertise as a child-care facility or day-care center, and that informs parents that it is not licensed by the state[, including but not limited to retreats or classes for religious instruction];

(4) a school or class for religious instruction that does not last longer than two weeks and is conducted by a religious organization during the summer months;

(5) a youth camp licensed by the Department of State Health Services;

(6) a facility licensed, operated, certified, or registered by another state agency;

(7) [subject to Subsection (b-1),] an educational facility that is accredited by the Texas Education Agency, the Southern Association of Colleges and Schools, or an accreditation body that is a member of the Texas Private School Accreditation Commission and that operates primarily for educational purposes for prekindergarten [in grades kindergarten] and above, a before-school or [an] after-school program operated directly by an accredited educational facility, or a before-school or [an] after-school program operated by another entity under contract with the educational facility, if the Texas Education Agency, the Southern Association of Colleges and Schools, or the other accreditation body, as applicable, has approved the curriculum content of the before-school or after-school program operated under the contract;

(8) an educational facility that operates solely for educational purposes for prekindergarten [in grades kindergarten] through at least grade two, that does not provide custodial care for more than one hour during the hours before or after the customary school day, and that is a member of an organization that promulgates, publishes, and requires compliance with health, safety, fire, and sanitation standards equal to standards required by state, municipal, and county codes;

(9) a kindergarten or preschool educational program that is operated as part of a public school or a private school accredited by the Texas Education Agency, that offers educational programs through grade six, and that does not provide custodial care during the hours before or after the customary school day;

(10) a family home, whether registered or listed;

(11) [subject to Subsection (b-1),] an educational facility that is integral to and inseparable from its sponsoring religious organization or an educational facility both of which do not provide custodial care for more than two hours maximum per day, and that offers an educational program [programs for children age four and above] in one or more of the following: prekindergarten [preschool, kindergarten] through at least grade three, elementary grades, or secondary grades;

(12) an emergency shelter facility providing shelter to minor mothers who are the sole support of their natural children under Section 32.201, Family Code, unless the facility would otherwise require a license as a child-care facility under this section;

(13) a juvenile detention facility certified under Section 51.12, Family Code, a juvenile correctional facility certified under Section 51.125, Family Code, a juvenile facility providing services solely for the Texas Youth Commission, or any other correctional facility for children operated or regulated by another state agency or by a political subdivision of the state;

(14) an elementary-age (ages 5-13) recreation program operated by a municipality provided the governing body of the municipality annually adopts standards of care by ordinance after a public hearing for such programs, that such standards are provided to the parents of each program participant, and that the ordinances shall include, at a minimum, staffing ratios, minimum staff qualifications, minimum facility, health, and safety standards, and mechanisms for monitoring and enforcing the adopted local standards; and further provided that parents be informed that the program is not licensed by the state and the program may not be advertised as a child-care facility;

(15) an annual youth camp held in a municipality with a population of more than 1.5 million that operates for not more than three months and that has been operated for at least 10 years by a nonprofit organization that provides care for the homeless; [or]

(16) a food distribution program that:

(A) serves an evening meal to children two years of age or older; and

(B) is operated by a nonprofit food bank in a nonprofit, religious, or educational facility for not more than two hours a day on regular business days;

(17) a child-care facility that operates for less than three consecutive weeks and less than 40 days in a period of 12 months;

(18) a program:

(A) in which a child receives direct instruction in a single skill, talent, ability, expertise, or proficiency;

(B) that does not provide services or offerings that are not directly related to the single talent, ability, expertise, or proficiency;

(C) that does not advertise or otherwise represent that the program is a child-care facility, day-care center, or licensed before-school or after-school program or that the program offers child-care services;

(D) that informs the parent or guardian:

(i) that the program is not licensed by the state; and

(ii) about the physical risks a child may face while participating in the program; and

(E) that conducts background checks for all program employees and volunteers who work with children in the program using information that is obtained from the Department of Public Safety;

(19) an elementary-age (ages 5-13) recreation program that:

(A) adopts standards of care, including standards relating to staff ratios, staff training, health, and safety;

(B) provides a mechanism for monitoring and enforcing the standards and receiving complaints from parents of enrolled children;

(C) does not advertise as or otherwise represent the program as a child-care facility, day-care center, or licensed before-school or after-school program or that the program offers child-care services;

(D) informs parents that the program is not licensed by the state;

(E) is organized as a nonprofit organization or is located on the premises of a participant's residence;

(F) does not accept any remuneration other than a nominal annual membership fee;

(G) does not solicit donations as compensation or payment for any good or service provided as part of the program; and

(H) conducts background checks for all program employees and volunteers who work with children in the program using information that is obtained from the Department of Public Safety;

(20) a living arrangement in a caretaker's home involving one or more children or a sibling group, excluding children who are related to the caretaker, in which the caretaker:

(A) had a prior relationship with the child or sibling group or other family members of the child or sibling group;

(B) does not care for more than one unrelated child or sibling group;

(C) does not receive compensation or solicit donations for the care of the child or sibling group; and

(D) has a written agreement with the parent to care for the child or sibling group;

(21) a living arrangement in a caretaker's home involving one or more children or a sibling group, excluding children who are related to the caretaker, in which:

(A) the department is the managing conservator of the child or sibling group;

(B) the department placed the child or sibling group in the caretaker's home; and

(C) the caretaker had a long-standing and significant relationship with the child or sibling group before the child or sibling group was placed with the caretaker; or

(22) a living arrangement in a caretaker's home involving one or more children or a sibling group, excluding children who are related to the caretaker, in which the child is in the United States on a time-limited visa under the sponsorship of the caretaker or of a sponsoring organization.

SECTION 4. Section 42.042, Human Resources Code, is amended by amending Subsections (g) and (i) and adding Subsection (g-1) to read as follows:

(g) In promulgating minimum standards the department may recognize and treat differently the types of services provided by the following:

(1) registered family homes;

(2) child-care facilities, including child-care institutions, foster group homes, foster homes, group day-care homes, and day-care centers;

(3) child-placing agencies;

(4) agency foster homes; [and]

(5) agency foster group homes;

(6) before-school or after-school programs; and

(7) school-age programs.

(g-1) In determining and enforcing minimum standards for a school-age program, the department shall consider commonly accepted training methods for the development of a skill, talent, ability, expertise, or proficiency that are implemented with the consent of the parent or guardian of the participant and that are fundamental to the core purpose of the program.

(i) Before adopting minimum standards, the department shall [present the proposed standards to the State Advisory Committee on Child-Care Facilities for review and comment, and shall] send a copy of the proposed standards to each licensee covered by the proposed standards at least 60 days before the standards take effect to provide the licensee an opportunity to review and to send written suggestions to [the committee and] the department.

SECTION 5. Subsection (b), Section 42.044, Human Resources Code, is amended to read as follows:

(b) The department shall inspect all licensed or certified facilities at least once a year and may inspect other facilities or registered family homes as necessary. The department shall investigate a listed family home when the department receives a complaint of abuse or neglect of a child, as defined by Section 261.401 [261.001], Family Code. At least one of the annual visits must be unannounced and all may be unannounced.

SECTION 6. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.04412 to read as follows:

Sec. 42.04412. INTERFERENCE WITH INSPECTION; COURT ORDER. (a) A person may not interfere with an investigation or inspection of a facility or family home conducted by the department under this chapter.

(b) During an investigation or inspection of a facility or family home under this chapter, the facility or family home shall cooperate with the department and allow the department to:

(1) access the records of the facility or family home;

(2) access any part of the premises of the facility or family home; and

(3) interview any child, employee, or other person who is present at the facility or family home and who may have information relevant to the investigation or inspection.

(c) If access to the records or premises of the facility or family home cannot be obtained, a district court in Travis County or in the county in which the facility or family home is located, for good cause shown and without prior notice or a hearing, shall issue an order granting the department access to the records or premises in order to conduct the inspection, investigation, or interview.

(d) To assist the department in investigating whether a person is operating a facility or family home without a required license, certification, registration, or listing, a district court in Travis County or in the county in which the suspected facility or family home is located may, for good cause shown and without prior notice or a hearing, issue an order allowing the department to enter the suspected facility or family home at a time when the department's evidence shows that the suspected facility or family home may be providing child care subject to regulation under this chapter.

SECTION 7. Subsection (a), Section 42.0461, Human Resources Code, is amended to read as follows:

(a) Before the department may issue a license or certificate [to operate under Subchapter E] for the operation or the expansion of the capacity of a foster group home or foster family home that is located in a county with a population of less than 300,000 and that provides child care for 24 hours a day at a location other than the actual residence of a child's primary caretaker or of a child care institution, the applicant for the license, certificate, or expansion shall, at the applicant's expense:

(1) conduct a public hearing on the application in accordance with department rules after notifying the department of the date, time, and location of the hearing; and

(2) publish notice of the application in a newspaper of general circulation in the community in which the child-care services are proposed to be provided.

SECTION 8. Subsections (c) and (e), Section 42.072, Human Resources Code, are amended to read as follows:

(c) The department may not issue a license, listing, registration, or certification to a person whose license, listing, registration, or certification is revoked or whose application for a license, listing, registration, or certification is denied for a substantive reason under this chapter before[:

[(1)] the fifth anniversary of the date on which the revocation takes effect by department or court order or the decision to deny the application is final[, if the facility is a residential child-care facility; or

[(2) the second anniversary of the date on which the revocation takes effect by department or court order or the decision to deny the application is final, if the facility is not a residential child-care facility].

(e) A person may continue to operate a facility or family home during an appeal of a license, listing, or registration denial or revocation unless the operation of the facility or family home [revocation or denial is based on a violation which] poses a risk to the health or safety of children. The executive commissioner [department] shall by rule establish the criteria for determining whether the operation of a facility or family home poses [violations which pose] a risk to the health or safety of children. The department shall notify the facility or family home of the criteria the department used to determine that the operation of the facility or family home [violation which] poses a risk to health or safety and that the facility or family home may not operate. A person who has been notified by the department that the facility or home may not operate under this section may seek injunctive relief from a district court in Travis County or in the county in which the facility or home is located to allow operation during the pendency of an appeal. The court may grant injunctive relief against the agency's action only if the court finds that the child-care operation does not pose a health or safety risk to children. A court granting injunctive relief under this subsection shall have no other jurisdiction over an appeal of final agency action unless conferred by Chapter 2001, Government Code.

SECTION 9. Subsection (c), Section 42.073, Human Resources Code, is amended to read as follows:

(c) An order is valid for 30 [10] days after the effective date of the order[, except that an order relating to a residential child-care facility is valid for 30 days after the effective date of the order].

SECTION 10. Subsection (a), Section 42.074, Human Resources Code, is amended to read as follows:

(a) The department may file suit in a district court in Travis County or in the county in which a facility or family home is located for assessment and recovery of a civil penalty under Section 42.075, for injunctive relief, including a temporary restraining order, or for both a civil penalty and injunctive relief when [When] it appears that a person:

(1) has violated, is violating, or is threatening to violate the licensing, certification, listing, or registration requirements of this chapter or the department's licensing, certification, listing, or registration rules and standards; or

(2) knowingly fails to meet or maintain an exemption authorized under Section 42.041 and engages in activities that require a license or registration[, the department may file a suit in a district court in Travis County or in the county where the facility or family home is located for assessment and recovery of civil penalties under Section 42.075, for injunctive relief, including a temporary restraining order, or for both injunctive relief and civil penalties].

SECTION 11. Subsection (a), Section 42.075, Human Resources Code, is amended to read as follows:

(a) A person is subject to a civil penalty of not less than $50 nor more than $100 for each day of violation and for each act of violation if the person:

(1) threatens serious harm to a child in a facility or family home by violating a provision of this chapter or a department rule or standard;

(2) violates a provision of this chapter or a department rule or standard three or more times within a 12-month period; [or]

(3) places a public advertisement for an unlicensed facility or an unlisted or unregistered family home;

(4) knowingly fails to meet or maintain any criterion of an exemption authorized under Section 42.041 and engages in activities that require a license or registration; or

(5) fails to inform the department of a change in status and the person knows the change in status requires the person to be licensed or registered under this chapter.

SECTION 12. Section 42.077, Human Resources Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) If the department revokes or suspends a facility's license or a family home's listing or registration, the department shall publish notice of this action:

(1) in a newspaper of general circulation in the county in which the facility or family home is located; or

(2) on the department's Internet website along with other information regarding child-care services.

(a-1) If notice is published in a newspaper under Subsection (a), the [The] newspaper shall place the notice in the section in which advertisements for day-care services are normally published.

SECTION 13. Subsection (b), Section 261.401, Family Code, is amended to read as follows:

(b) A state agency that operates, licenses, certifies, [or] registers, or lists a facility in which children are located or provides oversight of a program that serves children shall make a prompt, thorough investigation of a report that a child has been or may be abused, neglected, or exploited in the facility or program. The primary purpose of the investigation shall be the protection of the child.

SECTION 14. The following provisions of the Human Resources Code are repealed:

(1) Subsection (b-1), Section 42.041; and

(2) Subsection (c), Section 42.0431.

SECTION 15. (a) The change in law made by this Act to Subsection (c), Section 42.072, Human Resources Code, applies only to the issuance of a license, listing, registration, or certification to a person whose license, listing, registration, or certification is revoked or whose application for a license, listing, registration, or certification is denied for a substantive reason on or after the effective date of this Act. The issuance of a license, listing, registration, or certification to a person whose license, listing, registration, or certification was revoked or whose application for a license, listing, registration, or certification was denied for a substantive reason before the effective date of this Act is governed by the law in effect when the license, listing, registration, or certification was revoked or the application was denied for a substantive reason, and the former law is continued in effect for that purpose.

(b) Sections 42.074 and 42.075, Human Resources Code, as amended by this Act, apply only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTION 16. (a) The change in law made by this Act by which a school-age program is required to be licensed under Chapter 42, Human Resources Code, as amended by this Act, takes effect on the later of:

(1) the date on which the Department of Family and Protective Services adopts minimum standards for school-age programs in accordance with Section 42.042, Human Resources Code, as amended by this Act; or

(2) September 1, 2010.

(b) The change in law made by this Act by which a before-school or after-school program is required to be licensed under Chapter 42, Human Resources Code, as amended by this Act, takes effect on the later of:

(1) the date on which the Department of Family and Protective Services adopts minimum standards for before-school or after-school programs in accordance with Section 42.042, Human Resources Code, as amended by this Act; or

(2) September 1, 2010.

(c) The Department of Family and Protective Services shall adopt minimum standards as provided by Section 42.042, Human Resources Code, as amended by this Act, as soon as practicable after the effective date of this Act, but not later than September 1, 2010.

SECTION 17. Except as otherwise provided by this Act, this Act takes effect September 1, 2009.