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  81R1869 UM-F
 
  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
  Subdivision (20) 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 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 and after-school program" means a
  child-care facility that provides care 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.
         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.  Section 42.041(b), 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 and [an] after-school program operated directly by an
  accredited educational facility, or a before-school and [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 and 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,
  including 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 caretaker:
                           (i)  had a prior relationship with the child
  or sibling group or with other family members of the child or
  sibling group;
                           (ii)  does not care for more than one
  unrelated child or sibling group;
                           (iii)  does not receive compensation or
  solicit donations for the care of the child or sibling group; and
                           (iv)  has a written agreement with the
  parent to care for the child or sibling group;
                     (B)  the department is the managing conservator of
  the child or sibling group and has placed the child or sibling group
  in the caretaker's home and 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
                     (C)  the child is in the United States on a
  time-limited visa and under the sponsorship of the caretaker or of a
  sponsoring organization;
               (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 in which a child receives instruction
  in a single talent, ability, expertise, or proficiency, for less
  than two hours a day, that is not operated as part of an educational
  facility, day-care center, or before-school and after-school
  program; or
               (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 a child-care facility
  or day-care center and informs parents that it is not licensed by
  the state;
                     (D)  does not collect compensation for its
  services;
                     (E)  allows a participating child to come and go
  at will;
                     (F)  requires the parents of a participating child
  to sign a statement allowing the child to come and go from the
  program at will;
                     (G)  if the program provides transportation to the
  program from a school, allows a participating child to choose
  whether to use the transportation or to leave the program and walk
  home without adult supervision; and
                     (H)  conducts background checks for all program
  employees and volunteers who work with children using information
  from the Department of Public Safety.
         SECTION 4.  Section 42.042(i), Human Resources Code, is
  amended to read as follows:
         (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.  Section 42.044(b), 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.  Section 42.0461(a), 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.  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
  follows:
         (a)  In accordance with rules adopted by the executive
  commissioner [department], the director, owner, or operator of a
  child-care facility, child-placing agency, or family home shall,
  when applying to operate a child-care facility or 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:
               (1)  [the name of] the director, owner, and operator of
  the facility, agency, or home;
               (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 
  [and]
               (7)  [(2)  the name of] each person 14 years of age or
  older, other than a client in care, who will regularly or frequently
  be staying or working at a [the] facility, family [or] home, or
  prospective adoptive home, while children are being provided care.
         (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:
               (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.