By: Nelson S.B. No. 427
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of certain child-care facilities and
  administrators of those facilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 42.044, Human Resources Code, is amended
  by amending Subsections (b) and (b-2) and adding Subsection (b-3)
  to read as follows:
         (b)  Except as provided by Subsection (b-3), the [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.  At least one of the annual visits must
  be unannounced and all may be unannounced.
         (b-2)  Except as otherwise provided by this subsection,
  during an unannounced annual or biennial inspection of a day-care
  center, the department shall meet with the director designated by
  the day-care center as having daily, on-site responsibility for the
  operation of the day-care center to assess whether the director
  meets the qualifications of a director specified by this chapter
  and department rules. If the director is not present during the
  unannounced annual or biennial inspection, the department shall
  schedule a subsequent meeting with the director for that purpose
  and shall conduct that meeting at the day-care center.
         (b-3)  The department may, in accordance with rules adopted
  by the executive commissioner, designate a licensed day-care center
  or group day-care home for a biennial inspection if the department
  determines, based on previous inspections, that the facility has a
  history of substantial compliance with minimum licensing
  standards. The biennial inspection of a day-care center or group
  day-care home must be unannounced.
         SECTION 2.  Subsections (a-2), (a-4), (a-5), and (b-1),
  Section 42.056, Human Resources Code, are amended to read as
  follows:
         (a-2)  In accordance with rules adopted by the executive
  commissioner, the director, owner, or operator of a residential
  child-care facility, day-care center, before-school or
  after-school program, or school-age program 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),
  unless the person is only required to have the person's name
  submitted based on criteria specified by Subsection (a)(7).  This
  subsection does not apply to a program that is exempt from the
  licensing requirements of Section 42.041.
         (a-4)  In accordance with rules adopted by the executive
  commissioner, the director, owner, or operator of a [child-care]
  facility or family home 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:
               (1)  the person 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-5)  The rules adopted by the executive commissioner under
  Subsections (a-2)[, (a-3),] and (a-4):
               (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)  may allow the department to waive the submission
  of fingerprints required by this section if:
                     (A)  the person for whom the submission is
  required has:
                           (i)  a fingerprint-based criminal history
  record check on file with the department; or
                           (ii)  a fingerprint-based criminal history
  clearinghouse record, as provided by Section 411.0845, Government
  Code, that is accessible to the department through the Department
  of Public Safety; and
                     (B)  the date on which the current submission of
  fingerprints is required occurs before the second anniversary of a
  previous name-based criminal history check of the person.
         (b-1)  In addition to any other background or criminal
  history check conducted under Subsection (b), for each person whose
  fingerprints are submitted under Subsection (a-2)[, (a-3),] or
  (a-4), the department shall conduct a state and Federal Bureau of
  Investigation criminal history check by:
               (1)  submitting the person's fingerprints, or causing
  the fingerprints to be submitted electronically, 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.
         SECTION 3.  Section 42.078, Human Resources Code, is amended
  by amending Subsections (a) and (a-1) and adding Subsection (a-2)
  to read as follows:
         (a)  The department may impose an administrative sanction or
  an administrative penalty against a facility or family home
  licensed, registered, or listed under this chapter that violates
  this chapter or a rule or order adopted under this chapter.  In
  addition, the department may impose an administrative penalty
  against a [residential child-care] facility or family home or a
  controlling person of a [residential child-care] facility or family
  home if the facility, family home, or controlling person:
               (1)  violates a term of a license or registration
  issued under this chapter;
               (2)  makes a statement about a material fact that the
  facility or person knows or should know is false:
                     (A)  on an application for the issuance of a
  license or registration or an attachment to the application; or
                     (B)  in response to a matter under investigation;
               (3)  refuses to allow a representative of the
  department to inspect:
                     (A)  a book, record, or file required to be
  maintained by the facility; or
                     (B)  any part of the premises of the facility;
               (4)  purposefully interferes with the work of a
  representative of the department or the enforcement of this
  chapter; or
               (5)  fails to pay a penalty assessed under this chapter
  on or before the date the penalty is due, as determined under this
  section.
         (a-1)  Except as provided by Subsection (a-2), nonmonetary
  [Nonmonetary,] administrative sanctions [penalties or remedies],
  including [but not limited to] corrective action plans, probation,
  and evaluation periods, shall be imposed when appropriate before
  administrative [monetary] penalties.
         (a-2)  The department may impose an administrative penalty
  without first imposing a nonmonetary administrative sanction for
  the following violations:
               (1)  failing to timely submit the information required
  to conduct a background and criminal history check under Section
  42.056 and applicable department rules on two or more occasions;
               (2)  failing to submit the information required to
  conduct a background and criminal history check under Section
  42.056 and applicable department rules before the 30th day after
  the date the facility or family home is notified by the department
  that the information is overdue;
               (3)  except as provided by Section 42.056(g), knowingly
  allowing a person to be present in a facility or family home when
  the person's background and criminal history check has not been
  received;
               (4)  knowingly allowing a person to be present in a
  facility or family home when the person's background and criminal
  history check has been received and contains criminal history or
  central registry findings that under department rules preclude the
  person from being present in the facility or family home; or
               (5)  violating a condition or restriction the
  department places on a person's presence at a facility or family
  home as part of a pending or approved risk evaluation of the
  person's background and criminal history or central registry
  findings.
         SECTION 4.  Section 43.001, Human Resources Code, is amended
  by adding Subdivisions (5), (6), and (7) to read as follows:
               (5)  "Controlling person" has the meaning assigned by
  Section 42.002.
               (6)  "General residential operation" has the meaning
  assigned by Section 42.002.
               (7)  "Permit" means a license, listing, registration,
  or certification issued to a facility or family home under Chapter
  42.
         SECTION 5.  Subsection (a), Section 43.003, Human Resources
  Code, is amended to read as follows:
         (a)  Except as provided by Subsection (b) of this section, a
  person may not serve as a child-care administrator of a general
  residential operation [child-care institution] without a license
  issued by the department under this chapter.
         SECTION 6.  Section 43.004, Human Resources Code, is amended
  by amending Subsections (a) and (b) and adding Subsection (d) to
  read as follows:
         (a)  To be eligible for a child-care administrator's license
  a person must:
               (1)  provide information for the department's use in
  conducting a criminal history and background check under Subsection
  (c), including a complete set of the person's fingerprints;
               (2)  satisfy the minimum requirements under department
  rules relating to criminal history and background checks;
               (3)  pass an examination developed and administered by
  the department that demonstrates competence in the field of
  child-care administration;
               (4) [(3)]  have one year of full-time experience in
  management or supervision of child-care personnel and programs; and
               (5) [(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 for the department's use in
  conducting a criminal history and background check under Subsection
  (c), including a complete set of the person's fingerprints;
               (2)  satisfy the minimum requirements under department
  rules relating to criminal history and background checks;
               (3)  pass an examination developed and administered by
  the department that demonstrates competence in the field of placing
  children in residential settings or adoptive homes;
               (4) [(3)]  have one year of full-time experience in
  management or supervision of child-placing personnel and programs;
  and
               (5) [(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.
         (d)  The executive commissioner shall adopt rules consistent
  with Section 42.056 relating to requiring a criminal history and
  background check before issuing or renewing a license under this
  chapter.
         SECTION 7.  Subsection (a), Section 43.009, Human Resources
  Code, is amended to read as follows:
         (a)  To be eligible for license renewal, a license holder
  shall:
               (1)  present evidence to the department of
  participation in a program of continuing education for 15 hours of
  formal study each year during the two-year period before the
  renewal; and
               (2)  provide information for the department's use in
  conducting a criminal history and background check under Section
  43.004(c) and applicable department rules, including a complete set
  of the person's fingerprints.
         SECTION 8.  Subsection (a), Section 43.010, Human Resources
  Code, is amended to read as follows:
         (a)  The department may deny, revoke, suspend, or refuse to
  renew a license, or place on probation or reprimand a license holder
  for:
               (1)  violating this chapter or a rule adopted under
  this chapter;
               (2)  circumventing or attempting to circumvent the
  requirements of this chapter or a rule adopted under this chapter;
               (3)  engaging in fraud or deceit related to the
  requirements of this chapter or a rule adopted under this chapter;
               (4)  providing false or misleading information to the
  department during the license application or renewal process for
  any person's license;
               (5)  making a statement about a material fact during
  the license application or renewal process that the person knows or
  should know is false;
               (6)  having:
                     (A)  a criminal history or central registry record
  that would prohibit a person from working in a child-care facility,
  as defined by Section 42.002, under rules applicable to that type of
  facility; or
                     (B)  a criminal history relevant to the duties of
  a licensed child-care or child-placing administrator, as those
  duties are specified in rules adopted by the executive
  commissioner;
               (7)  using drugs or alcohol in a manner that
  jeopardizes the person's ability to function as an administrator;
  [or]
               (8)  performing duties as a child-care administrator in
  a negligent manner; or
               (9)  engaging in conduct that makes the license holder
  ineligible for:
                     (A)  a permit under Section 42.072; or
                     (B)  employment as a controlling person or service
  in that capacity in a facility or family home under Section 42.062.
         SECTION 9.  Subsection (a-3), Section 42.056 and Subdivision
  (1), Section 43.001, Human Resources Code, are repealed.
         SECTION 10.  The changes in law made by this Act to Section
  42.078, Human Resources Code, apply only to a violation committed
  on or after the effective date of this Act. A violation committed
  before the effective date of this Act is governed by the law in
  effect when the violation was committed, and the former law is
  continued in effect for that purpose.
         SECTION 11.  This Act takes effect September 1, 2013.