Bill Text: TX HB4261 | 2019-2020 | 86th Legislature | Introduced


Bill Title: Relating to the regulation of child-care facilities and family homes; providing administrative penalties.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2019-04-09 - Left pending in committee [HB4261 Detail]

Download: Texas-2019-HB4261-Introduced.html
 
 
  By: Bonnen of Galveston H.B. No. 4261
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of child-care facilities and family
  homes; providing administrative penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter C, Chapter 42, Human Resources Code,
  is amended by adding Section 42.04215 to read as follows:
         Sec. 42.04215.  SAFETY TRAINING ACCOUNT. (a) The safety
  training account is a dedicated account in the general revenue
  fund. The account is composed of:
               (1)  money deposited into the account under Section
  42.078;
               (2)  gifts, grants, and donations contributed to the
  account; and
               (3)  interest earned on the investment of money in the
  account.
         (b)  Section 403.0956, Government Code, does not apply to the
  account.
         (c)  Money in the account may be appropriated only to the
  commission to provide safety training materials at no cost to a
  facility licensed under this chapter or a family home registered or
  listed under this chapter. The commission may contract with a third
  party to create the training materials.
         (d)  The executive commissioner shall adopt rules necessary
  to implement this section.
         SECTION 2.  Subchapter C, Chapter 42, Human Resources Code,
  is amended by adding Section 42.0429 to read as follows:
         Sec. 42.0429.  SAFE SLEEPING STANDARDS. (a) The executive
  commissioner by rule shall establish safe sleeping standards for
  licensed facilities and registered family homes.  Each licensed
  facility and registered family home shall comply with the safe
  sleeping standards.
         (b)  If the commission determines that a licensed facility or
  registered family home has violated a safe sleeping standard
  established as required by Subsection (a), the facility or home
  shall provide written notice in the form and manner required by the
  executive commissioner to the parent or legal guardian of each
  child attending the facility or home.
         (c)  The executive commissioner shall prescribe the form for
  the notice required by Subsection (b) and post the form on the
  commission's Internet website.
         SECTION 3.  Section 42.04425, Human Resources Code, is
  amended to read as follows:
         Sec. 42.04425.  INSPECTION INFORMATION DATABASE. (a) If
  feasible using available information systems, the commission 
  [department] shall establish a computerized database containing
  relevant inspection information on all licensed facilities
  [day-care centers, licensed group day-care homes,] and registered
  family homes obtained from other state agencies and political
  subdivisions of the state.
         (b)  The commission [department] shall make the data
  collected by the commission [department] available to another state
  agency or political subdivision of the state for the purpose of
  administering programs or enforcing laws within the jurisdiction of
  that agency or subdivision.  If feasible using available
  information systems, the commission [department] shall make the
  data directly available to [the Department of State Health
  Services, the Department of Aging and Disability Services, and] the
  Texas Workforce Commission through electronic information systems.  
  The commission [department, the Department of State Health
  Services, the Department of Aging and Disability Services,] and the
  Texas Workforce Commission shall jointly plan the development of
  child-care inspection databases that, to the extent feasible, are
  similar in their design and architecture to promote the sharing of
  data.
         (c)  The commission shall [department may] provide at a
  minimum five years of inspection data for all facilities licensed
  or family homes registered under this chapter to enhance [on
  licensed day-care centers, licensed group day-care homes, or
  registered family homes to the public if the department determines
  that providing inspection data enhances] consumer choice with
  respect to those facilities and homes.
         SECTION 4.  Section 42.049, Human Resources Code, is amended
  to read as follows:
         Sec. 42.049.  LIABILITY INSURANCE REQUIRED. (a) A license
  or registration holder under this chapter shall maintain liability
  insurance coverage in the amount of $300,000 for each occurrence of
  negligence. An insurance policy or contract required under this
  section must cover injury to a child that occurs while the child is
  on the premises of [the license holder] or in the care of the
  [license] holder.
         (b)  A license or registration holder under this chapter
  shall annually file with the commission [department] a certificate
  or other evidence from an insurance company showing that the
  [license] holder has an unexpired and uncancelled insurance policy
  or contract that meets the requirements of this section.
         (c)  Should the license or registration holder for financial
  reasons or for lack of availability of an underwriter willing to
  issue a policy be unable to secure the insurance required under
  Subsection (a) or should the policy limits be exhausted, the
  [license] holder shall timely notify the parent or guardian of [a
  person standing in parental relationship to] each child for whom
  the [license] holder provides care a written notice that the
  liability coverage is not provided and there will not be a ground
  for an administrative penalty or suspension or revocation of the
  [license] holder's license or registration under this chapter. The
  [license] holder shall also notify the commission [department] that
  the coverage is not provided and provide the reason for same. In no
  case shall the inability to secure coverage serve to indemnify the
  [license] holder for damages due to negligence.
         (c-1)  The commission shall prescribe a form that a license
  or registration holder may use to notify a parent or guardian in
  accordance with Subsection (c) that liability coverage is not
  provided. The commission shall post the form on the commission's
  Internet website.
         (d)  The insurance policy or contract shall be maintained at
  all times in an amount as required by this section. Failure by a
  license or registration holder to renew the policy or contract or to
  maintain the policy or contract in the required amount is a ground
  for suspension or revocation of the [license] holder's license or
  registration under this chapter.
         [(e)     This section does not apply to a group day-care home or
  a listed or registered family home.]
         SECTION 5.  Section 42.050, Human Resources Code, is amended
  by amending Subsections (a), (b), and (c) and adding Subsection
  (c-1) to read as follows:
         (a)  A license holder may apply for renewal of a license in
  compliance with the requirements of this chapter and commission 
  [department] rules.
         (b)  The application for renewal of a license must be
  completed and decided on by the commission [department] before the
  expiration of the license under which a facility is operating.
         (c)  The commission [department] shall evaluate the
  application for renewal of a license to determine if all licensing
  requirements are met and whether the facility has been cited for
  repeated violations or has established a pattern of violations
  during the preceding two years. The evaluation may include a
  specified number of visits to the facility and must include a review
  of all required forms and records. If the commission determines the
  facility has repeated violations or an established pattern of
  violations, before the commission renews the license the
  commission may place restrictions, conditions, or additional
  requirements on the license to ensure the violations cease.
         (c-1)  The commission may not renew the license of a facility
  cited for a violation that is not corrected by the required
  compliance date unless the violation is pending an administrative
  review under commission rules or pending review as a contested case
  under Chapter 2001, Government Code.
         SECTION 6.  Section 42.052, Human Resources Code, is amended
  by amending Subsections (a), (b), (c), (d), (f), (i), (j), and (k)
  and adding Subsections (f-2) and (f-3) to read as follows:
         (a)  A state-operated child-care facility or child-placing
  agency must receive certification of approval from the commission 
  [department].  The certification of approval remains valid until
  the certification expires, is revoked, or is surrendered.
         (b)  To be certified, a facility must comply with the
  commission's [department's] rules and standards and any provisions
  of this chapter that apply to a licensed facility of the same
  category. The operator of a certified facility must display the
  certification in a prominent place at the facility.
         (c)  A family home that provides care for compensation for
  three or fewer children, excluding children who are related to the
  caretaker, shall list with the commission [department] if the home
  provides regular care in the caretaker's own residence. The home
  may register with the commission [department].
         (d)  A family home that provides care for four or more
  children, excluding children who are related to the caretaker,
  shall register with the commission [department]. A family home
  that provides care exclusively for any number of children who are
  related to the caretaker is not required to be listed or registered
  with the commission [department].
         (f)  To remain listed or registered with the commission 
  [department], a family home must comply with the commission's 
  [department's] rules and standards, if applicable, and any
  provision of this chapter that applies to a listed or registered
  family home.
         (f-2)  The commission shall evaluate an application for
  renewal of a facility certification or family home registration to
  determine if all requirements are met and whether the applicant has
  been cited for repeated violations or has established a pattern of
  violations during the preceding two years. The evaluation may
  include a specified number of visits to the facility or family home
  subject to this section and must include a review of all required
  forms and records. If the commission determines the facility or
  family home has repeated violations or an established pattern of
  violations, before the commission renews the certification or
  registration the commission may place restrictions, conditions, or
  additional requirements on the certification or registration to
  ensure the violations cease.
         (f-3)  The commission may not renew the certification or
  registration of a facility or family home cited for a violation that
  is not corrected by the required compliance date unless the
  violation is pending an administrative review under commission
  rules or pending review as a contested case under Chapter 2001,
  Government Code.
         (i)  The commission [department] shall provide to a listed
  family home a copy of the listing.  A listing must contain a
  provision that states:  "THIS HOME IS A LISTED FAMILY HOME.  IT IS
  NOT LICENSED OR REGISTERED WITH THE HEALTH AND HUMAN SERVICES
  COMMISSION [DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES].  IT HAS
  NOT BEEN INSPECTED AND WILL NOT BE INSPECTED."  The operator of a
  listed home is not required to display the listing in a prominent
  place at the home but shall make the listing available for
  examination.  The executive commissioner by rule shall provide for
  a sufficient period to allow operators of family homes to comply
  with the listing requirement of this section.
         (j)  The operator of a listed family home shall undergo
  initial and subsequent background and criminal history checks
  required under Section 42.056.  If the operator of a listed family
  home fails to submit the information required by Section 42.056 for
  a subsequent background and criminal history check, the commission 
  [department] shall automatically:
               (1)  suspend the home's listing until the required
  information is submitted; and
               (2)  revoke the home's listing if the required
  information is not submitted within six months after the date the
  automatic suspension begins.
         (k)  The commission [department] shall issue a listing or
  registration to a family home, as appropriate, in both English and
  Spanish when the most recent federal census shows that more than
  one-half of the population in a municipality or in a commissioners
  precinct in a county in which the family home is located is of
  Hispanic origin or Spanish-speaking.
         SECTION 7.  Section 42.063, Human Resources Code, is amended
  by amending Subsections (b), (d), and (g) and adding Subsections
  (b-1) and (b-2) to read as follows:
         (b)  A person licensed under this chapter shall report to the
  commission [department] each serious incident involving a child who
  receives services from the person, regardless of whether the
  department is the managing conservator of the child.
         (b-1)  A person licensed or registered under this chapter
  shall notify in accordance with commission rule a parent or
  guardian of a child in the care of the person of an incident of
  abuse, neglect, or exploitation of the child, injury of the child
  that requires treatment by a medical professional or
  hospitalization, or illness of the child that requires
  hospitalization.
         (b-2)  A person licensed or registered under this chapter
  shall notify in accordance with commission rule a parent or
  guardian of each child in the care of the person of a violation that
  constitutes abuse, neglect, or exploitation of a child. The
  commission shall prescribe the form for the notice required under
  this subsection and post the form on the commission's Internet
  website.
         (d)  An employee or volunteer of a general residential
  operation, child-placing agency, continuum-of-care residential
  operation, cottage home operation, or specialized child-care home
  shall report any serious incident directly to the commission
  [department] if the incident involves a child under the care of the
  operation, agency, or home.
         (g)  The commission [department] shall implement this
  section using existing appropriations.
         SECTION 8.  Sections 42.072(a), (b), (c), (e), (f), and (g),
  Human Resources Code, are amended to read as follows:
         (a)  The commission [department] may suspend, deny, revoke,
  or refuse to renew the license, listing, registration, or
  certification of approval of a facility or family home that does not
  comply with the requirements of this chapter, commission
  [department] standards and rules, or the specific terms of the
  license, listing, registration, or certification. The commission
  [department] may revoke the probation of a person whose license,
  listing, or registration is suspended if the person violates a term
  of the conditions of probation.
         (b)  If the commission [department] proposes to take an
  action under Subsection (a), the person is entitled to a hearing
  conducted by the State Office of Administrative Hearings.
  Proceedings for a disciplinary action are governed by the
  administrative procedure law, Chapter 2001, Government Code. An
  action under this section, including a revocation of a person's
  license, is a contested case as defined by Chapter 2001, Government
  Code, and is subject to judicial review under the substantial
  evidence rule in accordance with that chapter. Rules of practice
  adopted by the executive commissioner under Section 2001.004,
  Government Code, applicable to the proceedings for a disciplinary
  action may not conflict with rules adopted by the State Office of
  Administrative Hearings.
         (c)  The commission [department] may not issue or renew a
  license, listing, registration, or certification to a person whose
  license, listing, registration, or certification is revoked or not
  renewed or whose application for a license, listing, registration,
  or certification is denied for a substantive reason under this
  chapter before the fifth anniversary of the date on which the
  revocation takes effect by commission [department] or court order
  or the decision to deny the application is final.
         (e)  A person may continue to operate a facility or family
  home during an appeal of a [license, listing, or registration]
  revocation or refusal to renew a license, certification, or
  registration unless the operation of the facility or family home
  poses a risk to the health or safety of children.  The executive
  commissioner shall by rule establish the criteria for determining
  whether the operation of a facility or family home poses a risk to
  the health or safety of children.  The commission [department]
  shall notify the facility or family home of the criteria the
  commission [department] used to determine that the operation of the
  facility or family home 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 commission [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
  commission's [department'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 commission
  [department] action unless conferred by Chapter 2001, Government
  Code.
         (f)  The commission [department] shall deny an application
  or renewal for listing or registering a family home or shall revoke
  a family home's listing or registration if the results of a
  background or criminal history check conducted by the commission 
  [department] under Section 42.056 show that a person has been
  convicted of an offense under Title 5 or 6, Penal Code, or Chapter
  43, Penal Code.
         (g)  Notwithstanding Subsection (c), the commission 
  [department] may refuse to issue a license, listing, registration,
  or certification to:
               (1)  a person whose license, listing, registration, or
  certification for a facility or family home was revoked by the
  commission [department] or by court order;
               (2)  a person who was a controlling person of a facility
  or family home at the time conduct occurred that resulted in the
  revocation of the license, listing, registration, or certification
  of the facility or family home;
               (3)  a person who voluntarily closed a facility or
  family home or relinquished the person's license, listing,
  registration, or certification after:
                     (A)  the commission [department] took an action
  under Subsection (a) in relation to the facility, family home, or
  person; or
                     (B)  the person received notice that the
  commission [department] intended to take an action under Subsection
  (a) in relation to the facility, family home, or person; or
               (4)  a person who was a controlling person of a facility
  or family home at the time conduct occurred that resulted in the
  closure of the facility or family home or relinquishment of the
  license, listing, registration, or certification in the manner
  described by Subdivision (3).
         SECTION 9.  Section 42.078, Human Resources Code, is amended
  by amending Subsections (a), (a-2), (e), (f), (g), (h), (i), (m),
  (n), and (r) and adding Subsections (e-1) and (e-2) to read as
  follows:
         (a)  The commission [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 commission [department] may impose
  an administrative penalty against a facility or family home or a
  controlling person of a 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
  commission [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 commission [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-2)  The commission [department] may impose an
  administrative penalty without first imposing a nonmonetary
  administrative sanction for violating a minimum standard
  applicable to a facility or family home under this chapter that is
  determined by the commission [department] to be a high-risk
  standard, including standards for a violation constituting abuse,
  neglect, or exploitation of a child, background check standards,
  safety hazard standards, standards establishing times for
  reporting information to a parent or guardian or the commission,
  and supervision standards.
         (e)  If the commission [department] determines that a
  violation has occurred, the commission [department]  may issue a
  recommendation on the imposition of a penalty, including a
  recommendation on the amount of the penalty.
         (e-1)  Notwithstanding the amounts required by Subsections
  (b) and (c), the commission shall recommend the penalty for the
  following violations by a facility or family home to be assessed in
  the following amounts:
               (1)  $1,000 for a violation that constitutes abuse,
  neglect, or exploitation of a child;
               (2)  $500 for failure to report to a parent or guardian
  of a child or the commission within the time required by commission
  standards an injury of a child in the care of the facility or home
  that requires treatment by a medical professional or
  hospitalization or an illness of a child that requires
  hospitalization;
               (3)  $50 for failure to report to a parent or guardian
  of each child in the care of the facility or home within the time
  required by commission standards that the commission cited the
  facility or home for a violation:
                     (A)  that constitutes abuse, neglect, or
  exploitation of a child; or
                     (B)  of a safe sleeping standard; and
               (4)  $50 for failure to report to a parent or guardian
  of each child in the care of the facility or home within the time
  required by commission standards that the facility or home does not
  maintain liability insurance coverage.
         (e-2)  For purposes of Subsections (e-1)(3) and (4), the
  commission shall recommend a penalty of $50 for the initial
  violation and an additional penalty of $50 for each day the
  violation continues or occurs.
         (f)  Within 14 days after the date the recommendation is
  issued, the commission [department] shall give written notice of
  the recommendation to the person owning or operating the facility
  or family home or to the controlling person, if applicable.  The
  notice may be given by certified mail.  The notice must include a
  brief summary of the alleged violation and a statement of the amount
  of the recommended penalty and must inform the person that the
  person has a right to a hearing on the occurrence of the violation,
  the amount of the penalty, or both the occurrence of the violation
  and the amount of the penalty.
         (g)  Within 20 days after the date the person receives the
  notice, the person in writing may accept the determination and
  recommended penalty of the commission [department] or may make a
  written request for a hearing on the occurrence of the violation,
  the amount of the penalty, or both the occurrence of the violation
  and the amount of the penalty.
         (h)  If the person accepts the determination and recommended
  penalty of the commission [department] or fails to respond to the
  notice in a timely manner, the commission [department] shall issue
  an order and impose the recommended penalty.
         (i)  If the person requests a hearing, the commission 
  [department] shall set a hearing and give notice of the hearing to
  the person.  The hearing shall be held by an administrative law
  judge of the State Office of Administrative Hearings.  The
  administrative law judge shall make findings of fact and
  conclusions of law and issue a final decision finding that a
  violation has occurred and imposing a penalty or finding that no
  violation occurred.
         (m)  On receipt of a copy of an affidavit under Subsection
  (l)(2), the commission [department] may file with the court, within
  five days after the date the copy is received, a contest to the
  affidavit.  The court shall hold a hearing on the facts alleged in
  the affidavit as soon as practicable and shall stay the enforcement
  of the penalty on finding that the alleged facts are true.  The
  person who files an affidavit has the burden of proving that the
  person is financially unable to pay the amount of the penalty and to
  give a supersedeas bond.
         (n)  If the person does not pay the amount of the penalty and
  the enforcement of the penalty is not stayed, the commission 
  [department] may refer the matter to the attorney general for
  collection of the amount of the penalty.
         (r)  A penalty collected under this section shall be sent to
  the comptroller for deposit in the safety training account
  established under Section 42.04215 [general revenue fund].
         SECTION 10.  As soon as practicable after the effective date
  of this Act, the executive commissioner of the Health and Human
  Services Commission shall adopt the rules necessary to implement
  the changes in law made by this Act.
         SECTION 11.  This Act takes effect September 1, 2019.
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