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A BILL TO BE ENTITLED
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AN ACT
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relating to licensing and inspection requirements of the Department |
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of Family and Protective Services for certain facilities and homes |
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providing child care; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 42.002, Human Resources Code, is amended |
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by amending Subdivisions (7), (8), (17), and (19) and adding |
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Subdivision (20) to read as follows: |
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(7) "Day-care center" means a child-care facility that |
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provides care at a location other than the residence of the |
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director, owner, or operator of the child-care facility for seven |
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or more [than 12] children under 14 years of age for less than 24 |
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hours a day, but at least two hours a day, three or more days a week. |
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(8) "Group day-care home" means a child-care facility |
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that provides care at the residence of the director, owner, or |
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operator of the child-care facility for 7 to 12 children under 14 |
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years of age for less than 24 hours a day, but at least two hours a |
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day, three or more days a week. |
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(17) "Regular care" means care that is provided at |
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least: |
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(A) four hours a day, three or more days a week, |
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for three or more [than nine] consecutive weeks; or |
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(B) four hours a day for 40 or more days in a |
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period of 12 months. |
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(19) "Residential child-care facility" means a |
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facility licensed or certified by the department that operates [to
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provide assessment, care, training, education, custody, treatment,
|
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or supervision for a child who is not related by blood, marriage, or
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adoption to the owner or operator of the facility,] for all of the |
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24-hour day[, whether or not the facility is operated for profit or
|
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charges for the services it offers]. The term includes child-care |
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institutions, child-placing agencies, foster group homes, foster |
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homes, agency foster group homes, and agency foster homes. |
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(20) "Before-school and after-school program" means a |
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child-care facility that provides care before and after the |
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customary school day and during school holidays, for at least two |
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hours a day, three days a week, to children who attend |
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prekindergarten through grade six. |
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SECTION 2. The heading to Section 42.041, Human Resources |
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Code, is amended to read as follows: |
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Sec. 42.041. REQUIRED LICENSE [OR ACCREDITATION]. |
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SECTION 3. Section 42.041(b), Human Resources Code, is |
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amended to read as follows: |
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(b) This section does not apply to: |
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(1) a state-operated facility; |
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(2) an agency foster home or agency foster group home; |
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(3) a facility that is operated in connection with a |
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shopping center, business, religious organization, or |
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establishment where children are cared for during short periods |
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while parents or persons responsible for the children are attending |
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religious services, shopping, or engaging in other activities, |
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including retreats or classes for religious instruction, on or near |
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the premises, that does not advertise as a child-care facility or |
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day-care center, and that informs parents that it is not licensed by |
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the state[, including but not limited to retreats or classes for
|
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religious instruction]; |
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(4) a school or class for religious instruction that |
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does not last longer than two weeks and is conducted by a religious |
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organization during the summer months; |
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(5) a youth camp licensed by the Department of State |
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Health Services; |
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(6) a facility licensed, operated, certified, or |
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registered by another state agency; |
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(7) [subject to Subsection (b-1),] an educational |
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facility that is accredited by the Texas Education Agency, the |
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Southern Association of Colleges and Schools, or an accreditation |
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body that is a member of the Texas Private School Accreditation |
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Commission and that operates primarily for educational purposes |
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for prekindergarten [in grades kindergarten] and above, a |
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before-school and [an] after-school program operated directly by an |
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accredited educational facility, or a before-school and [an] |
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after-school program operated by another entity under contract with |
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the educational facility, if the Texas Education Agency, the |
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Southern Association of Colleges and Schools, or the other |
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accreditation body, as applicable, has approved the curriculum |
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content of the before-school and after-school program operated |
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under the contract; |
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(8) an educational facility that operates solely for |
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educational purposes for prekindergarten [in grades kindergarten] |
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through at least grade two, that does not provide custodial care for |
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more than one hour during the hours before or after the customary |
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school day, and that is a member of an organization that |
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promulgates, publishes, and requires compliance with health, |
|
safety, fire, and sanitation standards equal to standards required |
|
by state, municipal, and county codes; |
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(9) a kindergarten or preschool educational program |
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that is operated as part of a public school or a private school |
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accredited by the Texas Education Agency, that offers educational |
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programs through grade six, and that does not provide custodial |
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care during the hours before or after the customary school day; |
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(10) a family home, whether registered or listed, |
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including a living arrangement in a caretaker's home involving one |
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or more children or a sibling group, excluding children who are |
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related to the caretaker, in which: |
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(A) the caretaker: |
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(i) had a prior relationship with the child |
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or sibling group or with other family members of the child or |
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sibling group; |
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(ii) does not care for more than one |
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unrelated child or sibling group; |
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(iii) does not receive compensation or |
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solicit donations for the care of the child or sibling group; and |
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(iv) has a written agreement with the |
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parent to care for the child or sibling group; |
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(B) the department is the managing conservator of |
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the child or sibling group and has placed the child or sibling group |
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in the caretaker's home and the caretaker had a long-standing and |
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significant relationship with the child or sibling group before the |
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child or sibling group was placed with the caretaker; or |
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(C) the child is in the United States on a |
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time-limited visa and under the sponsorship of the caretaker or of a |
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sponsoring organization; |
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(11) [subject to Subsection (b-1),] an educational |
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facility that is integral to and inseparable from its sponsoring |
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religious organization or an educational facility both of which do |
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not provide custodial care for more than two hours maximum per day, |
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and that offers an educational program [programs for children age
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four and above] in one or more of the following: prekindergarten |
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[preschool, kindergarten] through at least grade three, elementary |
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grades, or secondary grades; |
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(12) an emergency shelter facility providing shelter |
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to minor mothers who are the sole support of their natural children |
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under Section 32.201, Family Code, unless the facility would |
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otherwise require a license as a child-care facility under this |
|
section; |
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(13) a juvenile detention facility certified under |
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Section 51.12, Family Code, a juvenile correctional facility |
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certified under Section 51.125, Family Code, a juvenile facility |
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providing services solely for the Texas Youth Commission, or any |
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other correctional facility for children operated or regulated by |
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another state agency or by a political subdivision of the state; |
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(14) an elementary-age (ages 5-13) recreation program |
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operated by a municipality provided the governing body of the |
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municipality annually adopts standards of care by ordinance after a |
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public hearing for such programs, that such standards are provided |
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to the parents of each program participant, and that the ordinances |
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shall include, at a minimum, staffing ratios, minimum staff |
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qualifications, minimum facility, health, and safety standards, |
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and mechanisms for monitoring and enforcing the adopted local |
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standards; and further provided that parents be informed that the |
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program is not licensed by the state and the program may not be |
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advertised as a child-care facility; |
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(15) an annual youth camp held in a municipality with a |
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population of more than 1.5 million that operates for not more than |
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three months and that has been operated for at least 10 years by a |
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nonprofit organization that provides care for the homeless; [or] |
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(16) a food distribution program that: |
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(A) serves an evening meal to children two years |
|
of age or older; and |
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(B) is operated by a nonprofit food bank in a |
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nonprofit, religious, or educational facility for not more than two |
|
hours a day on regular business days; |
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(17) a child-care facility that operates for less than |
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three consecutive weeks and less than 40 days in a period of 12 |
|
months; |
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(18) a program in which a child receives instruction |
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in a single talent, ability, expertise, or proficiency, for less |
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than two hours a day, that is not operated as part of an educational |
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facility, day-care center, or before-school and after-school |
|
program; or |
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(19) an elementary-age (ages 5-13) recreation program |
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that: |
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(A) adopts standards of care, including |
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standards relating to staff ratios, staff training, health, and |
|
safety; |
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(B) provides a mechanism for monitoring and |
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enforcing the standards and receiving complaints from parents of |
|
enrolled children; |
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(C) does not advertise as a child-care facility |
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or day-care center and informs parents that it is not licensed by |
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the state; |
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(D) does not collect compensation for its |
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services; |
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(E) allows a participating child to come and go |
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at will; |
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(F) requires the parents of a participating child |
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to sign a statement allowing the child to come and go from the |
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program at will; |
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(G) if the program provides transportation to the |
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program from a school, allows a participating child to choose |
|
whether to use the transportation or to leave the program and walk |
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home without adult supervision; and |
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(H) conducts background checks for all program |
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employees and volunteers who work with children using information |
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from the Department of Public Safety. |
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SECTION 4. Section 42.042(i), Human Resources Code, is |
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amended to read as follows: |
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(i) Before adopting minimum standards, the department shall |
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[present the proposed standards to the State Advisory Committee on
|
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Child-Care Facilities for review and comment, and shall] send a |
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copy of the proposed standards to each licensee covered by the |
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proposed standards at least 60 days before the standards take |
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effect to provide the licensee an opportunity to review and to send |
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written suggestions to [the committee and] the department. |
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SECTION 5. Section 42.044(b), Human Resources Code, is |
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amended to read as follows: |
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(b) The department shall inspect all licensed or certified |
|
facilities at least once a year and may inspect other facilities or |
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registered family homes as necessary. The department shall |
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investigate a listed family home when the department receives a |
|
complaint of abuse or neglect of a child, as defined by Section |
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261.401 [261.001], Family Code. At least one of the annual visits |
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must be unannounced and all may be unannounced. |
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SECTION 6. Subchapter C, Chapter 42, Human Resources Code, |
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is amended by adding Section 42.04412 to read as follows: |
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Sec. 42.04412. INTERFERENCE WITH INSPECTION; COURT ORDER. |
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(a) A person may not interfere with an investigation or inspection |
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of a facility or family home conducted by the department under this |
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chapter. |
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(b) During an investigation or inspection of a facility or |
|
family home under this chapter, the facility or family home shall |
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cooperate with the department and allow the department to: |
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(1) access the records of the facility or family home; |
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(2) access any part of the premises of the facility or |
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family home; and |
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(3) interview any child, employee, or other person who |
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is present at the facility or family home and who may have |
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information relevant to the investigation or inspection. |
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(c) If access to the records or premises of the facility or |
|
family home cannot be obtained, a district court in Travis County or |
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in the county in which the facility or family home is located, for |
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good cause shown and without prior notice or a hearing, shall issue |
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an order granting the department access to the records or premises |
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in order to conduct the inspection, investigation, or interview. |
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(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 |
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the suspected facility or family home at a time when the |
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department's evidence shows that the suspected facility or family |
|
home may be providing child care subject to regulation under this |
|
chapter. |
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SECTION 7. Section 42.0461(a), Human Resources Code, is |
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amended to read as follows: |
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(a) Before the department may issue a license or certificate |
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[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. |
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SECTION 8. Section 42.056, Human Resources Code, is amended |
|
by amending Subsections (a), (a-2), (b), (b-1), (c), (f), (g), (h), |
|
(i), and (j) and adding Subsections (a-3) and (a-4) to read as |
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follows: |
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(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 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, submit to the |
|
department for use in conducting background and criminal history |
|
checks the name of: |
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(1) [the name of] the director, owner, and operator of |
|
the facility, agency, or home; |
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(2)[, and the name of] each person employed at the |
|
facility, agency, or home; |
|
(3) each prospective employee of the facility, agency, |
|
or home; |
|
(4) each current or prospective foster parent |
|
providing foster care through a child-placing agency; |
|
(5) each prospective adoptive parent seeking to adopt |
|
through a child-placing agency; |
|
(6) each person at least 14 years of age, other than a |
|
client in care, who: |
|
(A) is counted in child-to-caregiver ratios in |
|
accordance with the minimum standards of the department; |
|
(B) will reside in a prospective adoptive home if |
|
the adoption is through a child-placing agency; |
|
(C) has unsupervised access to children in care |
|
at the facility or family home; or |
|
(D) resides in the facility or family home; or |
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[and] |
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(7) [(2) the name of] each person 14 years of age or |
|
older, other than a client in care, who will regularly or frequently |
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be staying or working at a [the] facility, family [or] home, or |
|
prospective adoptive home, while children are being provided care. |
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(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), unless the person: |
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(1) is a child who resides in the facility or |
|
prospective adoptive home; |
|
(2) is only required to have the person's name |
|
submitted based on criteria specified by Subsection (a)(7); or |
|
(3) already has a valid fingerprint-based criminal |
|
history record on file with the department. |
|
(a-3) 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 by the director, owner, or operator |
|
under Subsection (a) only 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-4) The rules adopted by the executive commissioner under |
|
Subsections (a-2) and (a-3): |
|
(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 conduct background and criminal |
|
history checks using: |
|
(1) the information provided under Subsection |
|
[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 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-2) or (a-3) |
|
[Subsection (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 this subsection, a |
|
person whose name is 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 (b-1) are completed. A |
|
person may be employed at a facility or family home [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 |
|
staff 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 on which the person first: |
|
(A) provides direct care to a child; |
|
(B) has direct access to a child; 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 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 9. Sections 42.072(c) and (e), 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 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 10. Section 42.073(c), 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 11. 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 12. Section 261.401(b), 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 13. The following provisions of the Human Resources |
|
Code are repealed: |
|
(1) Section 42.041(b-1); |
|
(2) Section 42.0431(c); and |
|
(3) Sections 42.056(a-1), (d), and (e). |
|
SECTION 14. (a) The changes in law made by this Act to |
|
Sections 42.056(i) and (j), Human Resources Code, apply only to an |
|
offense committed on or after the effective date of this Act. An |
|
offense committed before the effective date of this Act is governed |
|
by the law in effect when the offense was committed, and the former |
|
law is continued in effect for that purpose. For the purposes of |
|
this section, an offense was committed before the effective date of |
|
this Act if any element of the offense occurred before that date. |
|
(b) The change in law made by this Act to Section 42.072(c), |
|
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. |
|
SECTION 15. This Act takes effect September 1, 2009. |