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

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

Sponsorship: Partisan Bill (Republican 1)

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

Download: Texas-2019-HB4261-Introduced.html

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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.