Bill Text: TX SB781 | 2019-2020 | 86th Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to the regulation of child-care facilities.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2019-06-02 - Effective on 9/1/19 [SB781 Detail]

Download: Texas-2019-SB781-Comm_Sub.html

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By: Kolkhorst S.B. No. 781
(Leman)

A BILL TO BE ENTITLED
AN ACT
relating to the regulation of child-care facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 40, Human Resources Code,
is amended by adding Section 40.043 to read as follows:
Sec. 40.043. CHILD SAFETY AND RUNAWAY PREVENTION
PROCEDURES. The commissioner by rule shall establish the
department's strategy to:
(1) develop trauma-informed protocols for reducing
the number of incidents in which a child in the conservatorship of
the department runs away from a residential treatment center; and
(2) balance measures aimed at protecting child safety
with federal and state requirements related to normalcy and
decision making under the reasonable and prudent parent standard
prescribed by 42 U.S.C. Section 675 and Sections 264.001 and
264.125, Family Code.
SECTION 2. Subchapter C, Chapter 40, Human Resources Code,
is amended by adding Section 40.0582 to read as follows:
Sec. 40.0582. QUALITY CONTRACTING FRAMEWORK. (a) The
department shall monitor and coordinate with general residential
operations providing treatment services to children or young adults
with emotional disorders to maintain and improve the quality of
residential child-care services purchased by the department.
(b) In implementing the requirements of Subsection (a), the
department shall consider any information the department
determines relevant to assess the ability of a contractor or
potential contractor to provide quality residential child-care
services, including:
(1) the strength of the operational plan and all
required components of the operational plan described by Section
42.252;
(2) the regulatory history of the contractor; and
(3) the history of the contractor on satisfying the
performance measures developed under Section 40.058.
SECTION 3. Subchapter C, Chapter 40, Human Resources Code,
is amended by adding Section 40.080 to read as follows:
Sec. 40.080. STRATEGIC PLAN TO IMPLEMENT FEDERAL LAW
REGARDING SPECIFIED SETTINGS FOR PLACEMENT OF FOSTER CHILDREN.
(a) The department shall develop a strategic plan regarding the
placement of children in settings eligible for federal financial
participation under the requirements of the federal Family First
Prevention Services Act (Title VII, Div. E, Pub. L. No. 115-123).
(b) The strategic plan required under this section must:
(1) assess any available evidence regarding the impact
of accreditation on qualitative performance of accredited
providers;
(2) assess a potential structure and any funding
requirements necessary to incentivize providers to become
accredited;
(3) study any available evidence regarding the
qualitative outcomes in qualified residential treatment providers,
as defined in the federal Family First Prevention Services Act
(Title VII, Div. E, Pub. L. No. 115-123);
(4) assess the fiscal implications to this state of
developing settings that meet the federal definition of qualified
residential treatment providers and all associated requirements;
and
(5) make any appropriate recommendations related to
implementation of the requirements for qualified residential
treatment providers.
SECTION 4. Section 42.0421(g), Human Resources Code, is
amended to read as follows:
(g) A person described by Subsection (f)(6) may provide
training under this section only if the commission [department] has
not taken an action under Section 42.071, 42.072, or 42.078[, other
than an evaluation,] against the license, listing, or registration
of the person or the home or center for which the person is a
provider or director during the two-year period preceding the date
on which the person provides the training.
SECTION 5. Section 42.0462, Human Resources Code, is
amended to read as follows:
Sec. 42.0462. WAIVER OF NOTICE AND HEARING REQUIREMENTS.
(a) Subject to Subsection (b), to [To] protect the safety and
well-being of residents and employees of a general residential
operation that provides comprehensive residential services to
children who are victims of trafficking, the commission
[department] shall waive the notice and hearing requirements
imposed under Section 42.0461 for an applicant who submits to the
commission [department] an application to provide trafficking
victim services at the applicant's general residential operation.
(b) This section does not apply to an applicant who submits
an application for a license for a general residential operation
that provides services to children or young adults with emotional
disorders.
SECTION 6. Section 42.0704, Human Resources Code, is
amended to read as follows:
Sec. 42.0704. ENFORCEMENT POLICY. (a) The executive
commissioner by rule shall adopt a general enforcement policy that
describes the commission's [department's] approach to enforcement
of this chapter.
(b) The enforcement policy must:
(1) summarize the commission's [department's] general
expectations in enforcing this chapter;
(2) include the methodology required by Subsection
(c); and
(3) describe the commission's [department's] plan for
strengthening its enforcement efforts and for making objective
regulatory decisions.
(c) As part of the enforcement policy, the commission
[department] shall develop and implement a methodology for
determining the appropriate disciplinary action to take against a
person who violates this chapter or a commission [department] rule.
The methodology must:
(1) provide guidance on when to use each of the
available tools of enforcement, including technical assistance,
voluntary plans of action, [evaluation,] probation, suspension or
revocation of a license or registration, denial of a license or
registration, administrative penalties, and emergency suspension;
and
(2) [. The methodology must] allow the commission
[department] to consider the circumstances of a particular case,
including:
(A) the nature and seriousness of the violation,
including whether the violation involved the abuse or neglect of a
child or resulted in the death or near fatal injury of a child;
(B) any history of previous violations,
including a repetition or pattern of violations;[,] and
(C) any aggravating and mitigating factors[, in
determining the appropriate disciplinary action].
(d) The commission [department] shall make the methodology
described by Subsection (c) available to the public, including by
posting the methodology on the commission's [department's] Internet
website.
SECTION 7. Section 42.071, Human Resources Code, is amended
to read as follows:
Sec. 42.071. SUSPENSION[, EVALUATION,] OR PROBATION OF
LICENSE OR REGISTRATION. (a) The commission [department] may
suspend the license of a facility or the registration of a family
home that has temporarily ceased operation but has definite plans
for starting operations again within the time limits of the issued
license or registration.
(b) The commission [department] may suspend a facility's
license or a family home's registration for a definite period
rather than deny or revoke the license or registration if the
commission [department] finds repeated noncompliance with
standards that do not endanger the health and safety of children.
To qualify for license or registration suspension under this
subsection, a facility or family home must suspend its operations
and show that standards can be met within the suspension period.
(c) If the commission [department] finds a facility or
family home is in repeated noncompliance with standards that do not
endanger the health and safety of children, the commission
[department] may place [schedule] the facility or family home on
[for evaluation or] probation rather than suspend or revoke the
facility's license or the family home's registration. The
commission [department] shall provide notice to the facility or
family home of the [evaluation or] probation and of the items of
noncompliance not later than the 10th day before the [evaluation
or] probation period begins. [The department shall designate a
period of not less than 30 days during which the facility or family
home will remain under evaluation.] During the [evaluation or]
probation period, the facility or family home must correct the
items that were in noncompliance and report the corrections to the
commission [department] for approval.
(d) The commission [department] shall revoke the license of
a facility or the registration of a family home that does not comply
with standards at the end of a license or registration suspension.
(e) The commission [department] may suspend or revoke the
license of a facility or the registration of a family home that does
not correct items that were in noncompliance or that does not comply
with required standards within the applicable [evaluation or]
probation period.
SECTION 8. Section 42.072(c), Human Resources Code, is
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, or who in lieu of
disciplinary action voluntarily closed a facility or family home or
relinquished the person's license, listing, registration, or
certification before the fifth anniversary of the date on which:
(1) the revocation takes effect by department or court
order;
(2) [or] the decision to deny the application is
final;
(3) the facility or family home is closed; or
(4) the license, listing, registration, or
certification is relinquished.
SECTION 9. Section 42.078(a-1), Human Resources Code, is
amended to read as follows:
(a-1) Except as provided by Subsection (a-2), nonmonetary
administrative sanctions, including corrective action plans and[,]
probation[, and evaluation] periods, shall be imposed when
appropriate before administrative penalties.
SECTION 10. Chapter 42, Human Resources Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. REGULATION OF CERTAIN GENERAL RESIDENTIAL OPERATIONS
Sec. 42.251. APPLICABILITY. This subchapter applies only
to a general residential operation that:
(1) provides care for seven or more children or young
adults; and
(2) provides treatment services for children or young
adults with emotional disorders.
Sec. 42.252. PROPOSED OPERATIONAL PLAN; LICENSING
PROCEDURES. (a) In addition to the applicable requirements to
obtain a license under Subchapter C, a person applying for a license
to operate a general residential operation shall submit to the
commission a proposed operational plan.
(b) The executive commissioner shall adopt rules regarding:
(1) the information that must be included in the
operational plan;
(2) the commission's review of the operational plan;
and
(3) the basis of the commission's determination on
whether:
(A) the plan is complete or incomplete; and
(B) to deny or approve the plan.
(c) The operational plan must include:
(1) a community engagement plan to develop and, if
necessary, improve relations between the general residential
operation and the community in which the operation is located that
includes:
(A) a summary of any discussions the operation
had with:
(i) local law enforcement; and
(ii) local health, therapeutic, and
recreational resources available to support children at the
operation; and
(B) a summary of the opportunities the children
at the operation will have for social interaction in the community;
(2) an educational plan describing the applicant's
plan to provide for the educational needs of the children at the
general residential operation that:
(A) identifies whether the proposed operation
will provide for the public or private education of school-age
children at the operation;
(B) identifies whether the proposed operation
will provide for the education of school-age children through a
local school, off-site charter school, or on-site charter school;
(C) includes any discussions, plans, and
agreements with the local school district, private school, or local
charter school that will be providing education to the school-age
children at the operation; and
(D) if the children are to be enrolled in a public
school, includes either:
(i) a statement from the local independent
school district on the impact of the proposed child-care services
on the local school district; or
(ii) an explanation of the reasons the
operation was unable to obtain a statement described by
Subparagraph (i) and a discussion of other alternative educational
services that the operation could offer;
(3) a trauma-informed plan to address unauthorized
absences of children from the general residential operation; and
(4) the qualifications, background, and history,
including any compliance history, of each individual who is
proposed to be involved in:
(A) the management of the operation; and
(B) the educational leadership of the operation
if the operation will be using an on-site charter school.
(d) A person applying for a license to operate a general
residential operation shall state in the application if the
proposed operation will provide services to children who are
victims of human trafficking but is not required to include this
information in the operational plan.
(e) The commission must approve the proposed general
residential operation's operational plan before:
(1) holding a hearing under Section 42.0461, if
applicable; or
(2) granting a license to operate a general
residential operation.
(f) In evaluating an application for a license to operate a
general residential operation, the commission may consider:
(1) evidence gathered through the application review
process;
(2) all parts of the operational plan described by
Subsection (c);
(3) evidence of community support for or opposition to
the proposed general residential operation, including any public
comment the executive commissioner receives relating to the
licensing of the proposed operation; and
(4) the impact statement from the school district
likely to be affected by the proposed general residential
operation, including information relating to any financial impact
on the district that may result from an increase in enrollment.
(g) The commission may deny an application for a license to
operate a general residential operation if the commission
determines that:
(1) the community has insufficient resources to
support children proposed to be served by the applicant;
(2) granting the license would significantly impact
the local school district and would adversely affect the children
proposed to be served by the applicant; or
(3) granting the license would have a significant
adverse impact on the community and would limit opportunities for
social interaction for the children proposed to be served by the
applicant.
Sec. 42.253. CONFIDENTIALITY OF INFORMATION RELATING TO
SERVICES FOR HUMAN TRAFFICKING VICTIMS. (a) If an applicant for a
license to operate a general residential operation will provide
services to victims of human trafficking, any information relating
to the provision of services for victims of human trafficking is
confidential and the commission may not disclose that information.
(b) If a hearing is required under Section 42.0461 for an
application for a license to operate a general residential
operation and the proposed operation will provide services to
victims of human trafficking, the applicant is not required to
disclose any information relating to the provision of services for
victims of human trafficking.
Sec. 42.254. DUTIES RELATING TO EDUCATION OF CHILDREN IN
GENERAL RESIDENTIAL OPERATION. (a) The commission shall
collaborate with the Texas Education Agency to determine best
practices for educational services in a general residential
operation, including the most effective educational plans and best
practices for implementing those plans.
(b) The department shall make available on the department's
Internet website information and training regarding
trauma-informed practices to assist school districts with training
district employees by increasing staff awareness of
trauma-informed care.
Sec. 42.255. HEARING BEFORE RENEWAL OF LICENSE. (a) On
request of the commissioners court of a county where a general
residential operation is located, the commission shall hold a
public hearing to obtain public comments regarding the renewal of
the operation's license.
(b) The commission shall adopt procedures that provide the
public with a reasonable opportunity to appear before the
commission and to speak on any issue related to renewal of the
general residential operation's license, including procedures
relating to the conduct of the hearing, the order of witnesses, and
the conduct of participants at the hearing.
SECTION 11. Not later than September 1, 2020, the
Department of Family and Protective Services shall submit the plan
required by Section 40.080, Human Resources Code, as added by this
Act, to the Senate Health and Human Services Committee, the Senate
Finance Committee, the House Committee on Human Services, the House
Committee on Public Health, and the House Appropriations Committee.
SECTION 12. As soon as practicable after the effective date
of this Act, the executive commissioner of the Health and Human
Services Commission and the commissioner of the Department of
Family and Protective Services shall adopt the rules necessary to
implement the changes in law made by this Act.
SECTION 13. (a) The changes in law made by this Act apply
only to an application for a license for a child-care facility
submitted on or after the effective date of this Act. An
application submitted before that date is governed by the law in
effect immediately before the effective date of this Act, and the
former law is continued in effect for that purpose.
(b) The changes in law made by this Act apply only to a
contract entered into by the Department of Family and Protective
Services on or after the effective date of this Act. A contract
entered into before that date is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
(c) The changes in law made by this Act apply only to a
disciplinary action initiated on or after the effective date of
this Act. A disciplinary action initiated before the effective
date of this Act is governed by the law in effect immediately before
the effective date of this Act, and the former law is continued in
effect for that purpose.
SECTION 14. The Department of Family and Protective
Services and the Health and Human Services Commission are required
to implement a provision of this Act only if the legislature
appropriates money specifically for that purpose. If the
legislature does not appropriate money specifically for that
purpose, the Department of Family and Protective Services and the
Health and Human Services Commission may, but are not required to,
implement a provision of this Act using other appropriations
available for that purpose.
SECTION 15. This Act takes effect September 1, 2019.