S.B. No. 427

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. 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;

(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) 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 and above, a before-school or after-school program operated directly by an accredited educational facility, or a before-school or 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 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) 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 in one or more of the following: prekindergarten 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 Juvenile Justice Department [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;

(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; or

(23) a facility operated by a nonprofit organization that:

(A) does not otherwise operate as a child-care facility that is required to be licensed under this section;

(B) provides emergency shelter and care for not more than 15 days to children 13 years of age or older but younger than 18 years of age who are victims of human trafficking alleged under Section 20A.02, Penal Code;

(C) is located in a municipality with a population of at least 600,000 that is in a county on an international border; and

(D) meets one of the following criteria:

(i) is licensed by, or operates under an agreement with, a state or federal agency to provide shelter and care to children; or

(ii) meets the eligibility requirements for a contract under Section 51.005(b)(3).

SECTION 2. 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 3. 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 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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 10. Subsection (a-3), Section 42.056 and Subdivision (1), Section 43.001, Human Resources Code, are repealed.

SECTION 11. 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 12. This Act takes effect September 1, 2013.

______________________________ ______________________________

President of the Senate Speaker of the House

I hereby certify that S.B. No. 427 passed the Senate on April 9, 2013, by the following vote: Yeas 31, Nays 0; and that the Senate concurred in House amendment on May 20, 2013, by the following vote: Yeas 31, Nays 0.

______________________________ Secretary of the Senate

I hereby certify that S.B. No. 427 passed the House, with amendment, on May 17, 2013, by the following vote: Yeas 135, Nays 5, three present not voting.

______________________________ Chief Clerk of the House

Approved:

______________________________

Date

______________________________

Governor