CHAPTER 42. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES

State Codes and Statutes

Statutes > Texas > Human-resources-code > Title-2-department-of-human-services-and-department-of-protective-and-regulatory-services > Chapter-42-regulation-of-certain-facilities-homes-and-agencies-that-provide-child-care-services

HUMAN RESOURCES CODE

TITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF

PROTECTIVE AND REGULATORY SERVICES

SUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD

WELFARE AND PROTECTIVE SERVICES

CHAPTER 42. REGULATION OF CERTAIN FACILITIES, HOMES, AND AGENCIES

THAT PROVIDE CHILD-CARE SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 42.001. PURPOSE. The purpose of this chapter is to protect

the health, safety, and well-being of the children of the state

who reside in child-care facilities by establishing statewide

minimum standards for their safety and protection and by

regulating the facilities through a licensing program. It is the

policy of the state to ensure the protection of all children

under care in child-care facilities and to encourage and assist

in the improvement of child-care programs. It is also the intent

of the legislature that freedom of religion of all citizens is

inviolate. With respect to a school or child-care facility

sponsored by a religious organization, nothing in this chapter

gives a governmental agency authority to regulate, control,

supervise, or in any way be involved in the:

(1) form, manner, or content of religious instruction, ministry,

teaching, or the curriculum offered by the school or facility;

(2) ability of the school or facility to select and supervise

qualified personnel, and otherwise control the terms of

employment, including the right to employ individuals who share

the religious views of the school or facility;

(3) internal self-governance and autonomy of the school or

facility; or

(4) religious environment of the school or facility, such as

symbols, art, icons, and scripture.

Acts 1979, 66th Leg., p. 2358, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 664, Sec. 2,

eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, Sec. 2, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 218, Sec. 1, eff. Sept.

1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 27, eff. September 1, 2007.

Sec. 42.002. DEFINITIONS. In this chapter:

(1) "Child" means a person under 18 years of age.

(2) "Division" means the division designated by the department

to carry out the provisions of this chapter.

(3) "Child-care facility" means a facility licensed, certified,

or registered by the department 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 or part of the 24-hour

day, whether or not the facility is operated for profit or

charges for the services it offers.

(4) "General residential operation" means a child-care facility

that provides care for more than 12 children for 24 hours a day,

including facilities known as children's homes, halfway houses,

residential treatment centers, emergency shelters, and

therapeutic camps.

(5) "Foster group home" means a child-care facility that

provides care for 7 to 12 children for 24 hours a day.

(6) "Foster home" means a child-care facility that provides care

for not more than six children for 24 hours a day.

(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

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 seven or more 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.

(9) "Family home" means a home that provides regular care in the

caretaker's own residence for not more than six children under 14

years of age, excluding children who are related to the

caretaker, and that provides care after school hours for not more

than six additional elementary school children, but the total

number of children, including children who are related to the

caretaker, does not exceed 12 at any given time. The term does

not include a home that provides care exclusively for any number

of children who are related to the caretaker.

(10) "Agency foster group home" means a facility that provides

care for seven to 12 children for 24 hours a day, is used only by

a licensed child-placing agency, and meets department standards.

(11) "Agency foster home" means a facility that provides care

for not more than six children for 24 hours a day, is used only

by a licensed child-placing agency, and meets department

standards.

(12) "Child-placing agency" means a person, including an

organization, other than the natural parents or guardian of a

child who plans for the placement of or places a child in a

child-care facility, agency foster home, agency foster group

home, or adoptive home.

(13) "Facilities" includes child-care facilities and

child-placing agencies.

(14) "State of Texas" or "state" does not include political

subdivisions of the state.

(15) "Religious organization" means a church, synagogue, or

other religious institution whose purpose is to support and serve

the propagation of truly held religious beliefs.

(16) "Children who are related to the caretaker" means children

who are the children, grandchildren, siblings,

great-grandchildren, first cousins, nieces, or nephews of the

caretaker, whether by affinity or consanguinity or as the result

of a relationship created by court decree.

(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 consecutive weeks; or

(B) four hours a day for 40 or more days in a period of 12

months.

(18) "Controlling person" means a person who, either alone or in

connection with others, has the ability to directly or indirectly

influence or direct the management, expenditures, or policies of

a residential child-care facility.

(19) "Residential child-care facility" means a facility licensed

or certified by the department that operates for all of the

24-hour day. The term includes general residential operations,

child-placing agencies, foster group homes, foster homes, agency

foster group homes, and agency foster homes.

Text of subdivision as added by Acts 2009, 81st Leg., R.S., Ch.

46, Sec. 1

(20) "Children's product" means a product that is designed or

intended to be used by a child under 13 years of age or used by a

caregiver during the care of a child under 13 years of age. The

term does not include:

(A) an item that is not designed or intended to be used solely

or primarily by a child under 13 years of age or in the care of a

child under 13 years of age;

(B) a medication, a drug, food, or another item that is intended

to be ingested; or

Text of subdivision as added by Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 2

(20) "Before-school or after-school program" means a child-care

facility that provides care before or after, or 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.

(21) "School-age program" means a child-care facility that

provides supervision, along with recreation or skills instruction

or training, and may provide transportation, before or after the

customary school day, for at least two hours a day, three days a

week, to children attending prekindergarten through grade six. A

school-age program may also operate during school holidays, the

summer period, or any other time when school is not in session.

Acts 1979, 66th Leg., p. 2359, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759,

Sec. 1, eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052, Sec.

4.01, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 984, Sec. 1,

eff. June 15, 1989; Acts 1997, 75th Leg., ch. 1022, Sec. 23, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, Sec. 3, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1217, Sec. 1, eff. Sept. 1,

1997; Acts 2001, 77th Leg., ch. 218, Sec. 2, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.90, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch.

46, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 2, eff. September 1, 2009.

Sec. 42.003. REFERENCE TO CHILD-CARE INSTITUTION. A reference

in law to a "child-care institution" means a general residential

operation.

Added by Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 3, eff. September 1, 2009.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 42.021. DIVISION DESIGNATED. (a) The department may

designate a division within the department to carry out

responsibilities the department may delegate or assign under this

chapter. The department shall ensure the independence of the

division from the child protective services division.

(b) The commissioner shall appoint as director of a division

designated under Subsection (a) a person who meets the

qualifications set by the executive commissioner. The

commissioner shall ensure the director's independence from the

child protective services division and may not terminate the

director without the approval of the executive commissioner.

training for the personnel to carry out the provisions of this

chapter.

(d) The commissioner may divide the state into regions for the

purpose of administering this chapter.

Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 76, Sec.

8.020, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, Sec.

4, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.91, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 28, eff. September 1, 2007.

Sec. 42.0211. SAFETY SPECIALISTS, RISK ANALYSTS, AND PERFORMANCE

MANAGEMENT. (a) The division shall employ at least one

specially trained investigation safety specialist, whose duties

include the duty to:

(1) review and evaluate the intake of reports that include

allegations associated with a higher risk of harm to the child;

and

(2) consult with the assigned investigator to provide

specialized guidance and resources to assist the investigation.

(b) The division shall employ at least one risk analyst, whose

duties include the duty to:

(1) identify facilities, including child-placing agencies, whose

compliance histories indicate the potential for a higher risk of

harm to children in the care of the facility;

(2) review the monitoring and inspection reports for any

facilities described by Subdivision (1) to assess the quality of

the investigation or monitoring; and

(3) identify any additional monitoring or enforcement action

that may be appropriate to ensure the safety of a child in the

care of the facility.

duties that include:

(1) conducting quality assurance reviews of randomly selected

monitoring and investigative reports to ensure compliance with

all relevant laws, rules, and agency policies; and

(2) making recommendations to improve the quality and

consistency of monitoring and investigations.

Added by Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 29(a), eff. September 1, 2007.

Sec. 42.0221. COMMITTEE ON LICENSING STANDARDS. (a) The

committee on licensing standards is composed of seven members

appointed by the governor as follows:

(1) one member who operates a residential child-care facility

licensed by the department;

(2) one member who operates a child-placing agency licensed by

the department;

(3) one member who operates a licensed child-care facility that

provides care for children for less than 24 hours a day;

(4) one member who is a parent, guardian, or custodian of a

child who uses a facility licensed by the department;

(5) one member who is an expert in the field of child care and

child development; and

(6) two members employed by the department who work with

facilities licensed by the department.

(b) Members of the committee serve two-year terms, with the

terms of three or four members, as appropriate, expiring February

1 of each year.

serve as the presiding officer.

(d) The committee shall meet twice a year at the call of the

presiding officer.

(e) The committee shall review and analyze the information

provided by the department and committee members and shall make

recommendations for policy and statutory changes relating to

licensing standards and facility inspections. The review and

analysis by the committee shall include the analysis of:

(1) the deaths of children who are in substitute care, including

reports and findings of child fatality review teams under

Subchapter F, Chapter 264, Family Code;

(2) the types of licensing violations for each weighted risk and

region;

(3) the details of administrative reviews and appeals; and

(4) the type of technical assistance provided and the

qualifications of those providing technical assistance.

(f) The committee shall report its findings and recommendations

to the department and the legislature not later than December 1

of each year.

Added by Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 30, eff. September 1, 2007.

Sec. 42.023. ANNUAL REPORT. (a) The department shall prepare

an annual written report regarding the department's activities

under this chapter.

(b) The annual report shall include:

(1) a report by regions of applications for licensure or

certification, of initial licenses issued, denied, or revoked, of

licenses issued, denied, suspended or revoked, of emergency

closures and injunctions, and of the compliance of state-operated

agencies, if such agencies exist, with certification

requirements;

(2) a summary of the training programs required by the

department and their effectiveness;

(3) a summary of training and other professional development

opportunities offered to facilities' staffs;

(4) a report of new administrative procedures, of the number of

staff and staff changes, and of plans for the coming year; and

(5) a report of trends in licensing violations on a statewide

and regional basis and the department's plans to address those

trends through the provision of technical assistance.

citizen on request.

Acts 1979, 66th Leg., p. 2360, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 18, Sec. 2,

eff. April 3, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 8.022,

eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1063, Sec. 6, eff.

Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.92, eff. September 1, 2005.

Sec. 42.024. ADMINISTRATIVE PROCEDURE. Chapter 2001, Government

Code applies to all procedures under this chapter except where it

is contrary to or inconsistent with the provisions of this

chapter.

Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 76, Sec.

5.95(49), eff. Sept. 1, 1995.

SUBCHAPTER C. REGULATION OF CERTAIN FACILITIES, HOMES, AND

AGENCIES

Sec. 42.041. REQUIRED LICENSE. (a) No person may operate a

child-care facility or child-placing agency without a license

issued by the department.

(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;

(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) 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 and above,

a before-school or after-school program operated directly by an

accredited educational facility, or a before-school or

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 or after-school program operated

under the contract;

(8) an educational facility that operates solely for educational

purposes for prekindergarten 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;

(11) 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 in one or more of the following: prekindergarten 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;

(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:

(A) in which a child receives direct instruction in a single

skill, talent, ability, expertise, or proficiency;

(B) that does not provide services or offerings that are not

directly related to the single talent, ability, expertise, or

proficiency;

program is a child-care facility, day-care center, or licensed

before-school or after-school program or that the program offers

child-care services;

(D) that informs the parent or guardian:

(i) that the program is not licensed by the state; and

(ii) about the physical risks a child may face while

participating in the program; and

(E) that conducts background checks for all program employees

and volunteers who work with children in the program using

information that is obtained from the Department of Public

Safety;

(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;

a child-care facility, day-care center, or licensed before-school

or after-school program or that the program offers child-care

services;

(D) informs parents that the program is not licensed by the

state;

(E) is organized as a nonprofit organization or is located on

the premises of a participant's residence;

(F) does not accept any remuneration other than a nominal annual

membership fee;

(G) does not solicit donations as compensation or payment for

any good or service provided as part of the program; and

(H) conducts background checks for all program employees and

volunteers who work with children in the program using

information that is obtained from the Department of Public

Safety;

(20) 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 the caretaker:

(A) had a prior relationship with the child or sibling group or

other family members of the child or sibling group;

(B) does not care for more than one unrelated child or sibling

group;

care of the child or sibling group; and

(D) has a written agreement with the parent to care for the

child or sibling group;

(21) 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 department is the managing conservator of the child or

sibling group;

(B) the department placed the child or sibling group in the

caretaker's home; and

relationship with the child or sibling group before the child or

sibling group was placed with the caretaker; or

(22) 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 the child is in the United

States on a time-limited visa under the sponsorship of the

caretaker or of a sponsoring organization.

(b-1) Repealed by Acts 2009, 81st Leg., R.S., Ch. 720, Sec.

19(1), eff. September 1, 2009.

facilities may be issued to a general residential operation that

operates noncontiguous facilities that are across the street

from, in the same city block as, or on the same property as one

another and that are demonstrably a single operation as indicated

by patterns of staffing, finance, administrative supervision, and

programs.

(d) A facility exempt from the provisions of Subsection (a) of

this section that desires to receive or participate in federal or

state funding shall be required to comply with all other

provisions of this chapter and with all regulations promulgated

under this chapter.

(e) The exemptions provided by Subsection (b) of this section do

not affect the authority of local, regional, or state health

department officials, the state fire marshal, or local fire

prevention officials to inspect child-care facilities.

Acts 1979, 66th Leg., p. 2361, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 2812, ch. 759,

Sec. 2, 3, eff. Aug. 31, 1981; Acts 1987, 70th Leg., ch. 1052,

Sec. 4.03, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 1115,

Sec. 2, eff. June 19, 1987; Acts 1995, 74th Leg., ch. 262, Sec.

54, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. 847, Sec. 1,

eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 7.46,

eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 664, Sec. 3, 4,

eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, Sec. 7, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, Sec. 2, eff. Sept.

1, 1997; Acts 2001, 77th Leg., ch. 218, Sec. 3, eff. Sept. 1,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.93(a), eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

263, Sec. 25, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1037, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1414, Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 4, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 5, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 19(1), eff. September 1, 2009.

Sec. 42.042. RULES AND STANDARDS. (a) The department shall

make rules to carry out the provisions of this chapter.

(b) The department shall conduct a comprehensive review of all

rules and standards at least every six years. For purposes of

this subsection, the six-year period begins on the latest of the

date of:

(1) the conclusion of the review of the rules and standards;

(2) a decision by the department not to revise the rules and

standards;

(3) a decision by the board not to revise the rules and

standards; or

(4) board action adopting new standards.

receiving and recording complaints. The executive commissioner

shall adopt rules regarding the receipt of anonymous complaints

made regarding child-care facilities and family homes to limit

the number of anonymous complaints investigated by the

department.

(d) The department shall provide standard forms for applications

and inspection reports.

(e) The department shall promulgate minimum standards that apply

to licensed child-care facilities and to registered family homes

covered by this chapter and that will:

(1) promote the health, safety, and welfare of children

attending a facility or registered family home;

(2) promote safe, comfortable, and healthy physical facilities

and registered family homes for children;

(3) ensure adequate supervision of children by capable,

qualified, and healthy personnel;

(4) ensure adequate and healthy food service where food service

is offered;

(5) prohibit racial discrimination by child-care facilities and

registered family homes;

(6) require procedures for parental and guardian consultation in

the formulation of children's educational and therapeutic

programs; and

(7) prevent the breakdown of foster care and adoptive placement.

(e-1) The department may not prohibit possession of lawfully

permitted firearms and ammunition in a foster home of any type,

including a foster group home, a foster home, an agency foster

group home, and an agency foster home. Minimum standards may be

adopted under this section relating to safety and proper storage

of firearms and ammunition, including standards requiring

firearms and ammunition to be stored separately in locked

locations.

(f) In promulgating minimum standards for the provision of

child-care services, the department shall recognize the various

categories of services, including services for specialized care,

the various categories of children and their particular needs,

and the differences in the organization and operation of

child-care facilities and general residential operations.

Standards for general residential operations must require an

intake study before a child is placed in an operation. The

intake study may be conducted at a community mental health and

mental retardation center.

(g) In promulgating minimum standards the department may

recognize and treat differently the types of services provided by

the following:

(1) registered family homes;

(2) child-care facilities, including general residential

operations, foster group homes, foster homes, group day-care

homes, and day-care centers;

(3) child-placing agencies;

(4) agency foster homes;

(5) agency foster group homes;

(6) before-school or after-school programs; and

(7) school-age programs.

(g-1) In determining and enforcing minimum standards for a

school-age program, the department shall consider commonly

accepted training methods for the development of a skill, talent,

ability, expertise, or proficiency that are implemented with the

consent of the parent or guardian of the participant and that are

fundamental to the core purpose of the program.

(g-2) The executive commissioner shall adopt specific rules and

minimum standards, including standards relating to background

check information, for a child-care facility that is located in a

temporary shelter, including a family violence shelter or

homeless shelter, in which an adult, accompanied by a child

related to the adult or a child for whom the adult is the

managing conservator, may temporarily reside and that provides

care for less than 24 hours a day for a child accompanying an

adult temporarily residing in the shelter while the adult is not

present at the shelter. In adopting the rules and minimum

standards under this subsection, the executive commissioner

shall:

(1) consider the special circumstances and needs of families

that seek temporary shelter;

(2) consider the role of the shelter in assisting and supporting

families in crisis; and

(3) distinguish between a child-care facility that provides care

only for children temporarily residing in the shelter and a

child-care facility that also provides care for children who are

not temporarily residing in the shelter.

(h) The department shall promulgate minimum standards for

child-placing agencies.

(h-1) The executive commissioner shall adopt rules governing:

(1) the placement and care of children by a child-placing

agency, as necessary to ensure the health and safety of those

children;

(2) the verification and monitoring of agency foster homes,

agency foster group homes, and adoptive homes by a child-placing

agency; and

(3) if appropriate, child-placing agency staffing levels, office

locations, and administration.

(i) Before adopting minimum standards, the department shall:

(1) convene a temporary work group to advise the department

regarding the proposed standards, composed of at least six

members who represent the diverse geographic regions of this

state, including:

(A) a department official designated by the commissioner to

facilitate the work group's activities;

(B) a person with demonstrated expertise or knowledge regarding

the different types and classifications of child-care facilities,

homes, agencies, or programs that will be covered by the proposed

standards;

types or classifications of child-care facilities, homes,

agencies, or programs that will be covered by the proposed

standards; and

(D) a representative of a nonprofit entity licensed under this

chapter; and

(2) 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 department.

(j) The department may waive compliance with a minimum standard

in a specific instance if it determines that the economic impact

of compliance is sufficiently great to make compliance

impractical.

(k) The department may not regulate or attempt to regulate or

control the content or method of any instruction or curriculum of

a school sponsored by a religious organization.

(l) In promulgating minimum standards for the regulation of

family homes that register with the department, the department

must address the minimum qualifications, education, and training

required of a person who operates a family home registered with

the department.

(m) In determining minimum standards relating to staff-to-child

ratios, group sizes, or square footage requirements applicable to

nonresidential child-care facilities that provide care for less

than 24 hours a day, the department shall, within available

appropriations, conduct a comprehensive cost-benefit analysis and

economic impact study that includes families and licensed

child-care providers.

(n) Not later than the 60th day before the date the board adopts

a revision to the minimum standards for child-care facilities,

the department shall present the revision to the appropriate

legislative oversight committees that have jurisdiction over

child-care facilities for review and comment.

(p) The department by rule shall prescribe minimum training

standards for an employee of a regulated child-care facility,

including the time required for completing the training. The

department may not require an employee to repeat required

training if the employee has completed the training within the

time prescribed by department rule. The department's local

offices shall make available at the local office locations a copy

of the rules regarding minimum training standards, information

enabling the owner or operator of a regulated facility to apply

for training funds from other agencies to lower facility costs,

and any other materials the department may develop to assist the

owner or operator or other entity in providing the training.

(q) Each residential child-care facility shall notify the

department and the appropriate local law enforcement agency

immediately on determining that a child is missing from the

facility.

(r) A residential child-care facility that provides emergency

services may temporarily exceed the facility's capacity for not

more than 48 hours to provide temporary care for a child in an

emergency. The facility shall notify the department within 24

hours of the placement that the facility temporarily exceeded the

facility's capacity.

Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, Sec.

4.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 920, Sec. 10,

eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 24, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1063, Sec. 7, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1121, Sec. 1, eff. June 19,

1997; Acts 1997, 75th Leg., ch. 1217, Sec. 3, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 1129, Sec. 1, eff. Sept. 1, 1999; Acts

2001, 77th Leg., ch. 218, Sec. 4, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.94(a), eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

526, Sec. 1, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

366, Sec. 1, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 31, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 6, eff. September 1, 2009.

Sec. 42.0421. MINIMUM TRAINING STANDARDS. (a) The minimum

training standards prescribed by the department under Section

42.042(p) for an employee of a day-care center or group day-care

home must include:

(1) eight hours of initial training for an employee of a

day-care center who has no previous training or employment

experience in a regulated child-care facility, to be completed

before the employee is given responsibility for a group of

children;

(2) 15 hours of annual training for each employee of a day-care

center or group day-care home, excluding the director, which must

include at least six hours of training in one or more of the

following areas:

(A) child growth and development;

(B) guidance and discipline;

(D) teacher-child interaction; and

(3) 20 hours of annual training for each director of a day-care

center or group day-care home, which must include at least six

hours of training in one or more of the following areas:

(A) child growth and development;

(B) guidance and discipline;

(D) teacher-child interaction.

(b) The minimum training standards prescribed by the department

under Section 42.042(p) must require an employee of a licensed

day-care center or group day-care home who provides care for

children younger than 24 months of age to receive special

training regarding the care of those children. The special

training must be included as a component of the initial training

required by Subsection (a)(1) and as a one-hour component of the

annual training required by Subsections (a)(2) and (a)(3). The

special training must include information on:

(1) recognizing and preventing shaken baby syndrome;

(2) preventing sudden infant death syndrome; and

(3) understanding early childhood brain development.

registered family home who provides care for a child younger than

24 months of age to complete one hour of annual training on:

(1) recognizing and preventing shaken baby syndrome;

(2) preventing sudden infant death syndrome; and

(3) understanding early childhood brain development.

(d) Section 42.042(m) does not apply to the minimum training

standards required by this section.

(e) In addition to other training required by this section, the

department by rule shall require an owner, operator, or employee

of a day-care center, group day-care home, registered family

home, child-care institution, foster group home, or agency foster

group home who transports a child under the care of the facility

whose chronological or developmental age is younger than nine

years of age to complete at least two hours of annual training on

transportation safety.

Added by Acts 1999, 76th Leg., ch. 1211, Sec. 1, eff. Jan. 1,

2000. Amended by Acts 2001, 77th Leg., ch. 169, Sec. 1, eff.

Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

748, Sec. 2, eff. September 1, 2009.

Sec. 42.0422. RESTRAINT AND SECLUSION. A person providing

services to a resident of a general residential operation,

including a state-operated facility that is a residential

treatment center or a general residential operation serving

children with mental retardation, shall comply with Chapter 322,

Health and Safety Code, and the rules adopted under that chapter.

Added by Acts 2005, 79th Leg., Ch.

698, Sec. 7, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 7, eff. September 1, 2009.

Sec. 42.0423. CHILDREN'S PRODUCT SAFETY FOR CERTAIN

NONRESIDENTIAL CHILD-CARE FACILITIES. (a) This section applies

only to a licensed day-care center, licensed group day-care home,

or registered family home.

(b) A children's product is presumed to be unsafe for purposes

of this section if it has been recalled for any reason by the

United States Consumer Product Safety Commission and the recall

has not been rescinded.

by the United States Consumer Product Safety Commission is not

presumed to be unsafe if the product has been remanufactured or

retrofitted so that the product is safe.

(d) The department shall include on its public Internet website

a link to the United States Consumer Product Safety Commission's

Internet website.

(e) A child-care facility subject to this section may not use an

unsafe children's product or have an unsafe children's product on

the premises of the child-care facility unless:

(1) the product is an antique or collectible children's product

and is not used by, or accessible to, any child in the child-care

facility; or

(2) the unsafe children's product is being retrofitted to make

it safe and the product is not used by, or accessible to, any

child in the child-care facility.

(f) The department shall notify a child-care facility subject to

this section of the provisions of this section in plain,

nontechnical language that will enable the child-care facility to

effectively inspect the children's products at the facility and

identify unsafe children's products. The department shall

provide the notice required by this subsection:

(1) during the department's pre-application interview for a

license, registration, or certification; and

(2) during an inspection.

(g) At least annually, each child-care facility subject to this

section shall certify in writing that the facility has reviewed

each of the bulletins and notices issued by the United States

Consumer Product Safety Commission regarding unsafe children's

products and that there are no unsafe products in the facility

except products described by Subsection (e). The facility shall

retain the certification form completed by each facility in the

facility's licensing file.

(h) The executive commissioner of the Health and Human Services

Commission shall adopt rules and forms necessary to implement

this section.

Added by Acts 2009, 81st Leg., R.S., Ch.

46, Sec. 2, eff. September 1, 2009.

Sec. 42.0425. ASSESSMENT SERVICES. (a) The department by rule

shall regulate assessment services provided by child-care

facilities or child-placing agencies. A child-care facility or

child-placing agency may not provide assessment services unless

specifically authorized by the department.

(b) The department by rule shall establish minimum standards for

assessment services. The standards must provide that

consideration is given to the individual needs of a child, the

appropriate place for provision of services, and the factors

listed in Section 42.042(e).

determination of the placement needs of a child who requires

substitute care.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 25, eff. Sept. 1,

1997.

Sec. 42.0426. TRAINING OF PERSONNEL. (a) A licensed facility

shall provide training for staff members in:

(1) the recognition of symptoms of child abuse, neglect, and

sexual molestation and the responsibility and procedure of

reporting suspected occurrences of child abuse, neglect, and

sexual molestation to the department or other appropriate entity;

(2) the application of first aid; and

(3) the prevention and spread of communicable diseases.

(b) A residential child-care facility shall implement a behavior

intervention program approved by the department for the benefit

of a child served by the facility who needs assistance in

managing the child's conduct. The program must include:

(1) behavior intervention instruction for staff members who work

directly with children served by the facility; and

(2) training for all employees regarding the risks associated

with the use of prone restraints.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 25, eff. Sept. 1,

1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.95, eff. September 1, 2005.

Sec. 42.0427. PARENTAL VISITATION. All areas of a licensed

facility must be accessible to a parent of a child who is

receiving care at the facility if the parent visits the child

during the facility's hours of operation.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 25, eff. Sept. 1,

1997.

Sec. 42.043. RULES FOR IMMUNIZATIONS. (a) The department shall

make rules for the immunization of children in facilities

regulated under this chapter.

(b) The department shall require that each child at an

appropriate age have a test for tuberculosis and be immunized

against diphtheria, tetanus, poliomyelitis, mumps, rubella,

rubeola, invasive pneumococcal disease, and hepatitis A and

against any other communicable disease as recommended by the

Department of State Health Services. The immunization must be

effective on the date of first entry into the facility. However,

a child may be provisionally admitted if the required

immunizations have begun and are completed as rapidly as

medically feasible.

provisional admission of children to facilities regulated under

this chapter and may modify or delete any of the immunizations

listed in Subsection (b) of this section or require additional

immunizations as a requirement for admission to a facility.

(d) No immunization may be required for admission to a facility

regulated under this chapter if a person applying for a child's

admission submits one of the following affidavits:

(1) an affidavit signed by a licensed physician stating that the

immunization poses a significant risk to the health and

well-being of the child or a member of the child's family or

household; or

(2) an affidavit signed by the child's parent or guardian

stating that the applicant declines immunization for reasons of

conscience, including a religious belief.

(d-1) An affidavit submitted under Section (d)(2) must be on a

form described by Section 161.0041, Health and Safety Code, and

must be submitted not later than the 90th day after the date the

affidavit is notarized.

(e) Each regulated facility shall keep an individual

immunization record for each child admitted, and the records

shall be open for inspection by the department at all reasonable

times.

(f) The Texas Department of Health shall provide the

immunizations required by this section to children in areas where

there is no local provision of these services.

Acts 1979, 66th Leg., p. 2362, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1993, 73rd Leg., ch. 43, Sec. 5,

eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1063, Sec. 7, eff.

Sept. 1, 1997; Acts 2003, 78th Leg., ch. 198, Sec. 2.164, eff.

Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

563, Sec. 1, eff. September 1, 2005.

Sec. 42.0431. ENFORCEMENT OF SCREENING REQUIREMENTS RELATING TO

VISION, HEARING, AND OTHER SPECIAL SENSES AND COMMUNICATION

DISORDERS. (a) The department, after consultation with the

Texas Department of Health, shall adopt rules necessary to ensure

that children receiving care at a day-care center or group

day-care home licensed under this chapter are screened for

vision, hearing, and any other special senses or communication

disorders in compliance with rules adopted by the Texas Board of

Health under Section 36.004, Health and Safety Code.

(b) Each day-care center or group day-care home licensed under

this chapter shall maintain individual screening records for

children attending the facility who are required to be screened,

and the department may inspect those records at any reasonable

time. The department shall coordinate the monitoring inspections

in compliance with protocol agreements adopted between the

department and the Texas Department of Health pursuant to Section

42.0442.

eff. September 1, 2009.

Added by Acts 1999, 76th Leg., ch. 712, Sec. 1, eff. June 18,

1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 19(2), eff. September 1, 2009.

Sec. 42.044. INSPECTIONS. (a) An authorized representative of

the department may visit a facility regulated under this chapter

or a registered family home during operating hours to

investigate, inspect, and evaluate.

(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, Family Code. At least one of the annual visits must be

unannounced and all may be unannounced.

(b-1) At least one of the unannounced, annual inspections of a

residential child-care facility must be conducted by a team of at

least two residential child-care monitoring staff, and, if

feasible, members of the inspection team must be from different

residential child-care monitoring units.

(b-2) Except as otherwise provided by this subsection, during an

unannounced annual inspection of a day-care center, the

department shall meet with the director designated by the

day-care center as having daily, on-site responsibility for the

operation of the day-care center to assess whether the director

meets the qualifications of a director specified by this chapter

and department rules. If the director is not present during the

unannounced annual inspection, the department shall schedule a

subsequent meeting with the director for that purpose and shall

conduct that meeting at the day-care center.

this chapter or a registered family home when a complaint is

received. The representative of the department must notify the

operator of a registered family home or the director or

authorized representative of a regulated facility when a

complaint is being investigated and report in writing the results

of the investigation to the family home's operator or to the

regulated facility's director or the director's authorized

representative.

(d) The department may call on political subdivisions and

governmental agencies for assistance within their authorized

fields.

(e) In addition to the department's responsibility to

investigate an agency foster home or agency foster group home

under Subsection (c), the department shall:

(1) periodically conduct inspections of a random sample of

agency foster homes and agency foster group homes;

(2) investigate any report of a serious incident in an agency

foster home or agency foster group home that pertains to a child

under the age of six;

(3) investigate any alleged violation of a minimum standard by

an agency foster home or agency foster group home that poses a

high degree of risk to a child in the care of the home who is

under the age of six; and

(4) conduct at least one annual enforcement team conference for

each child-placing agency to thoroughly review the investigations

or inspections of the child-placing agency and all of its agency

homes to monitor and enforce compliance by a child-placing agency

with rules and standards established under Section 42.042.

(f) The department shall use an inspection checklist that

includes a list of all required items for inspection in

conducting a monitoring inspection under this section.

Acts 1979, 66th Leg., p. 2363, ch. 842, art. 1, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 1063, Sec. 7,

eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 27, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1217, Sec. 4, eff. Sept.

1, 1997; Acts 2001, 77th Leg., ch. 218, Sec. 5, eff. Sept. 1,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.96, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 32(a), eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 8, eff. September 1, 2009.

Sec. 42.0441. INSPECTION RESULTS FOR CERTAIN NONRESIDENTIAL

CHILD-CARE FACILITIES. Immediately after completing a monitoring

inspection of a licensed day-care center, licensed group day-care

home, or registered family home under Section 42.044, the

authorized representative of the department shall review the

results of the monitoring inspection with a representative of the

facility and give the facility an opportunity to respond to the

inspection results.

Added by Acts 1997, 75th Leg., ch. 253, Sec. 1, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1022, Sec. 28, eff. Sept. 1,

1997.

Amended by:

Acts 2005, 79th Leg., Ch.

268, Sec. 1.97, eff. September 1, 2005.

Sec. 42.04411. INSPECTION RESULTS AND EXIT CONFERENCE FOR

RESIDENTIAL CHILD-CARE FACILITIES. (a) On completion of an

inspection of a residential child-care facility under Section

42.044, the inspector shall hold an exit conference with a

representative of the inspected facility. The inspector shall

provide to the representative a copy of the inspection checklist

used by the inspector.

(b) The inspector shall provide the representative an

opportunity to communicate regarding potential violations.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.98, eff. September 1, 2005.

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.

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.

Added by Acts 2009, 81st Leg., R.S., Ch.

720, Sec. 9, eff. September 1, 2009.

Sec. 42.0442. COORDINATION OF INSPECTIONS; ELIMINATION OF

DUPLICATIVE INSPECTIONS. (a) The department shall coordinate

monitoring inspections of licensed day-care centers, licensed

group day-care homes, and registered family homes performed by

another state agency to eliminate redundant inspections.

(b) The department shall form an interagency task force with the

Texas Department of Health, the Texas Department of Human

Services, and the Texas Workforce Commission to develop an

inspection protocol that will coordinate inspections by those

agencies. The protocol must assign the required items for

inspection by each agency and facilitate the sharing of

inspection data and compliance history.

checklist based on the inspection protocol developed under

Subsection (b). Each state agency that inspects a facility listed

in Subsection (a) shall use the inspection checklist in

performing an inspection. A state agency shall make a copy of the

completed inspection checklist available to the facility at the

facility's request to assist the facility in maintaining records.

(d) The department shall provide to facilities listed in

Subsection (a) information regarding inspections, including who

may inspect a facility and the purpose of each type of

inspection.

Added by Acts 1997, 75th Leg., ch. 253, Sec. 1, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1022, Sec. 28, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 169, Sec. 2, eff.

Sept. 1, 2001.

Text of section as added by Acts 1997, 75th Leg., ch. 253, Sec. 1

Sec. 42.0443. INSPECTION INFORMATION DATABASE. (a) If feasible

using available information systems, the department shall

establish a computerized database containing relevant inspection

information on licensed day-care centers, licensed group day-care

homes, and registered family homes from other state agencies and

political subdivisions of the state.

(b) The department shall make the data collected by the

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 department shall make the data directly available to the

Texas Department of Health, the Texas Department of Human

Services, and the Texas Workforce Commission through electronic

information systems. The department, the Texas Department of

Health, the Texas Department of Human 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.

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.

Added by Acts 1997, 75th Leg., ch. 253, Sec. 1, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1022, Sec. 28, eff. Sept. 1,

1997.

Text of section as added by Acts 2003, 78th Leg., ch. 709, Sec.

Sec. 42.0443. COORDINATION OF FIRE SAFETY AND SANITATION

INSPECTIONS. (a) The department may not inspect a licensed

day-care center, licensed group day-care home, or registered

family home for compliance with the department's fire safety or

sanitation standards if the facility, at the time of the

department's inspection, provides the department with

documentation relating to a current fire safety or sanitation

inspection, as applicable, performed by a political subdivision

of this state that indicates that the facility is in compliance

with the applicable standards of the political subdivision.

(b) If the documentation provided under Subsection (a) indicates

that the facility was required to take corrective action or that

the political subdivision imposed a restriction or condition on

the facility, the department shall determine whether the facility

took the required corrective action or complied with the

restriction or condition.

section for compliance with the department's fire safety or

sanitation standards if:

(1) the facility does not provide the documentation described by

Subsection (a); or

(2) the department determines that the facility did not take a

corrective action or compl

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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