Daycare Accident Blog

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.

Fears | Nachawati Attorneys & Councelors
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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it has been recalled for any reason by the United States Consumer Product Safety Commission and the recall has not been rescinded.

(c)  A children’s product that has been recalled for any reason 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.

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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;

(C)  age-appropriate curriculum;  and

(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;

(C)  age-appropriate curriculum;  and

(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.

(c)  The department by rule shall require an operator of a 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.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
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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;

(C)  that does not advertise or otherwise represent that the 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;

(C)  does not advertise as or otherwise represent the program as 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;

(C)  does not receive compensation or solicit donations for the 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

(C)  the caretaker had a long-standing and significant relationship with the child or sibling group before the child or sibling group was placed with the caretaker; or

(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.

(c)  A single license that lists addresses and the appropriate 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.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
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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.

(c)  The governor shall designate a member of the committee to 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.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
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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

(C)  clothing.

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.

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Phone: (214)890-0711
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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.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
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