10100 Overview of Background Checks

February 2019

 

The Health and Human Services Commission (HHSC) conducts background checks to determine whether a person’s presence at the child-care operation complies with federal and state law, administrative rules, and minimum standards in order to protect the health and safety of children.

42 U.S.C. §671(a)(20)

42 U.S.C. §9857 and 45 C.F.R. Part 98

40 TAC Chapter 745, Subchapter F

Texas Human Resources Code §§42.056, 42.159, 42.206

26 TAC §§744.901(7); 744.1103(1); 746.901(7);746.1105(1); 747.207(6); 747.901(6); 747.905(3); 747.1007(4); 747.1207(4); 748.105(6); 748.363(9); 748.505(b)(1); 748.725; 749.105(5); 749.307(a)(2)(A) and (B); 749.553(9); 749.605(b)(1); 749.2447(7); 749.2473(c); 749.2653(a)(2); 749.3623(5); 750.105(4)

 

10110 Overview of Staff Responsibilities for Background Checks

February 2019

 

Background check responsibilities are shared within Child Care Licensing between the Centralized Background Check Unit (CBCU) inspectors and monitoring inspectors. The following chart outlines the roles and responsibilities.

CBCU Inspectors Monitoring Inspectors
  1. Communicating with providers and persons who are the subjects of background checks to:
    1. answer questions related to decisions and actions taken on background checks;
    2. troubleshoot problems with submitting background checks online; and
    3. respond to any other inquiry related to background checks, including the process for submitting a fingerprint check or a risk evaluation.
  2. Notifying the monitoring inspector when:
    1. urgent background check issues involve serious risk to children; and
    2. the Legal Division approves or denies an emergency release of a Central Registry match.
  3. Notifying operations of a person’s eligibility to be present at an operation.
  4. Responding to any reported fingerprint issues related to the DPS fingerprinting service.
  5. Researching results of background checks and risk evaluations.
  6. Processing risk evaluations and reviews of risk evaluations, including gathering all required documentation and forwarding that on to the appropriate staff for a final decision
  7. Consulting with the Legal Division regarding a Central Registry match that is not sustained to determine whether the person is an immediate risk.
  8. Researching possible Central Registry matches.
  9. Offering and tracking a due process hearing request for a Child Protective Services or Adult Protective Services finding and notifying Legal when the hearing request is received.
  10. Sustaining perpetrators in IMPACT and making appropriate updates in CLASS when a due process hearing for a CPS or APS finding is waived.
  11. Ensuring that matches are handled according to the Child Care Licensing Policy and Procedures Handbook.
  12. Requesting desk reviews and tracking when they are due.
  13. Notifying the monitoring inspector any time it is determined a provider is not meeting background check requirements.
  1. Answering questions related to background check rules or policy.
  2. Evaluating compliance with background check rules, including:
    1. verifying that background checks are being completed within the required time frames for anyone required to have a background check;
    2. ensuring that persons who are ineligible to be present at the operation are not present at the operation while children are in care;
    3. following up with the operation on any background check for a person who is ineligible to be present at the operation with a Pending or Active Employment Status in CLASS.
    4. evaluating that the operation is adhering to any conditions placed on a person’s presence at the operation during an inspection.
  3. Informing the CBCU staff about actions taken that may affect pending background checks, including the intent to deny or revoke the permit.
  4. Assisting the CBCU as needed when questions arise about background checks processed for child care operations.

 

10120 Persons for Whom Operations Must Submit Requests for Background Checks

February 2019

 

Owners

Each operation (other than temporary shelter programs and small employer-based programs) must submit a request for a background check for each owner of the operation, including:

  1. A sole proprietor;
  2. Each partner in a partnership; or
  3. Each board member or officer of a governing body who is involved in the everyday management of the operation, including participating in the development of policies or submitting background check requests for the operation.

Current and Prospective Employees

Each operation must submit a request for a background check for each current and prospective employee, including:

  1. All directors and administrators; and
  2. Substitute employees, unless the organization that contracts with the operation to provide the substitute employee:
    1. has already submitted a request for a background check on the substitute employee through the Centralized Background Check Unit within the last five years; and
    2. the operation has a copy of the results indicating that the person has a background check determination that allows the substitute to be present at the operation.

Current and Prospective Foster Parents

A child-placing agency must submit a request for a background check for each current or prospective foster parent.

Prospective Adoptive Parents

A child-placing agency must submit a request for a background check for each prospective adoptive parent seeking to adopt through the child-placing agency.

Each Person 14 Years or Older

Each operation must submit a request for a background check for each person (other than a client in care) who is 14 years old or older, including a contract employee, self-employed person, or volunteer, who:

  1. is counted in child-to-caregiver ratio in accordance with the relevant minimum standards, except as noted below for a parent or volunteer described in 10130 Persons for Whom Operations Do Not Submit Requests for Background Checks;
  2. has unsupervised access to children who are in care at the operation;
  3. provides direct care or supervision to children in care;
  4. resides in the operation;
  5. will reside in a prospective adoptive home; or
  6. will regularly or frequently be present at an operation or prospective adoptive home while children are in care.

Licensed Administrators

Each prospective or current licensed administrator must submit a request for a background check with the initial application and every five years thereafter.

Texas Human Resources Code §§42.056; 42.159; 42.206

40 TAC §§745.601; 745.605; 745.8933; 745.8934; 745.8993

 

10130 Persons for Whom Operations Do Not Submit Requests for Background Checks

February 2019

 

Clients in Care

Operations do not submit requests for background checks for clients in care as defined under 40 TAC §745.601(3); §745.605(b)(1).

Parent/Volunteer

Operations do not submit requests for background checks for a parent or volunteer who only supplements the child-caregiver ratio for a water activity.

For day care operations, operations do not submit requests for background checks for:

  • parents or volunteers who only supplement the child-caregiver ratio for a field trip; and
  • parents who are present at the operation solely because they are visiting their child, which may include dropping off or picking up their child, eating lunch with their child, visiting or observing their child, or consoling their child.

26 TAC §§744.1701, 744.1913, 746.1801(b), 746.2115, 747.1901(b), 747.2015, 748.3763, 749.3139

40 TAC §§745.601(15)(C); 745.605(b)(2)

Professionals

Operations do not submit requests for background checks for a professional who is licensed or is required to have a background check to meet compliance with another governmental entity’s requirements, if:

  1. the operation does not employ or have a contract with the professional;
  2. the professional is present at the operation in an official capacity only; and
  3. for day care operations, the operation receives written parental consent before the operation allows the professional to have unsupervised access to a child in care.

40 TAC §745.605(b)(3)

For the definition of the word professional, see Definitions of Terms.

Controlling Persons

Operations do not submit requests for background checks for controlling persons, such as a board member of a corporation or association that owns or governs the operation, unless the controlling person also fulfills a role outlined in 10120 Persons for Whom Operations Must Submit Requests for Background Checks.

40 TAC §745.605(b)(4)

Visitors to Foster Homes

A child-placing agency does not submit requests for background checks for:

  1. A child unrelated to a foster parent who visits the foster home, unless:
    1. the child is responsible for the care of foster children; or
    2. there is reason to believe that the child has a criminal history or has previously abused or neglected a child.
  2. An adult unrelated to a foster parent who visits the foster home, unless:
    1. the adult has unsupervised access to children in care; or
    2. there is reason to believe that the adult has a criminal history or has previously abused or neglected a child.

40 TAC §745.601(15)(B)

Persons Affiliated with Inactive Foster Homes

A child-placing agency does not submit requests for background checks for individuals in foster homes that are on inactive status.

If the child-placing agency takes a home off inactive status and the renewal background check for any individual is overdue, the child-placing agency must submit a request for a new background check before a child can be placed in the home.

40 TAC §749.2823; §749.2825

DFPS or HHS Employee or Volunteer

The operation does not have to submit a request for a background check for someone with responsibilities as a DFPS or Licensing employee or volunteer. The person will have a background check conducted by DFPS or HHSC as part of the person's application to become an employee or volunteer.

40 TAC §745.617(b)

 

10140 Types of Background Checks

February 2019

 

The six types of background checks HHSC conducts for individuals at child care operations are outlined in the following chart:

Type of Background Check Description
Central Registry Check A name-based search of the Central Registry of reported cases of child abuse and neglect in Texas.

The Central Registry is maintained by the Texas Department of Family and Protective Services (DFPS) and identifies people who have been found by DFPS to have abused, neglected, or exploited children under age 18 in Texas.

Name-based Texas criminal history check A name-based search of the Texas Department of Public Safety (DPS) database of arrests for alleged crimes committed in Texas and the Texas sex offender registry.
Fingerprint-based criminal history check A fingerprint-based search of both the DPS database of arrests for crimes committed in Texas and the Federal Bureau of Investigation (FBI) database of arrests for crimes committed anywhere within the United States and U.S. territories. It also includes a search of the DPS database of the Texas sex offender registry and the FBI database of the national sex offender registry.
Out-of-state child abuse and neglect registry check A name-based search of another state’s or territory’s database of persons who have been found to have abused or neglected a child.
Out-of-state criminal history check A search of another state’s or territory’s database of arrests for crimes committed in that state or territory using the person’s name or fingerprints.
Out-of-state sex offender registry check A name-based search of another state’s or territory’s sex offender registry.

40 TAC §745.607

 

10150 Types of Background Checks Required

February 2019

 

The types of background checks a person requires depends on:

  1. The type of operation submitting the request for a background check;
  2. The person’s role at the operation; and
  3. Whether the person has lived out of state in the five years prior to the background check request.

 

10151 Central Registry Check

February 2019

 

Each person for whom an operation is required to submit a request for a background check must have a Central Registry check.

See 10120 Persons for Whom the Operation is Required to Submit Requests for Background Checks.

40 TAC §745.609

 

10152 Fingerprint-Based or Name-Based Criminal History Checks

February 2019

 

Each person required to have a background check must have either a fingerprint-based criminal history check or a name-based criminal history check as outlined in the chart below:

Type of Operation Role at Operation Type of Criminal History Check
  • Licensed operations;
  • Verified foster homes;
  • Approved adoptive homes;
  • Registered child care homes; and
  • Listed family homes (except for listed homes that only provide care to related children).
All roles, except for frequent and regular visitors

 

Frequent and regular visitors

 

Fingerprint-based

 

Name-based, except the person requires a fingerprint-based check if the person:
  1. has resided outside of Texas during the five years prior to the request; or
  2. has suspected criminal history in another state.
  • Listed homes that only provide care to related children;
  • Temporary shelter care operations; and
  • Small-employer based operations
All roles Name-based, except the person requires a fingerprint-based check if the person:
  1. has resided outside of Texas during the five years prior to the request; or
  2. has suspected criminal history in another state.
  • Child-Placing Agency; and
  • General Residential Operations
Licensed Administrators Fingerprint-based

 

Additionally, a person who is present at the operation only to observe or complete a skills practicum as part of a college or high-school course requirement and is supervised by a qualified caregiver at all times will only need a name-based Texas criminal history check.

See:

10120 Persons for Whom the Operation Must Submit Requests for Background Checks

10140 Types of Background Checks

40 TAC §745.611; §745.615

 

10153 Out-of-State Checks

February 2019

 

Some persons who are required to have a background check and are associated with a licensed, registered, or listed operation must also have out-of-state checks as outlined in the chart below:

If the Operation Type is a… And the person… Is an out-of-state criminal history check required? Is an out-of-state child abuse and neglect registry check required? Is an out-of-state sex offender registry check required?
  • Child care center;
  • School-age or before or after-school program;
  • Licensed child care home;
  • Registered child care home; or
  • Listed family home (except for a listed home that only provide care to related children);
  • has resided outside of Texas during the past five years
  • has suspected criminal history or child abuse neglect history in another state; or
  • is suspected to be a registered sex offender in another state;
Yes, unless the state where the person resided during the preceding five-year period participates in the FBI's National Fingerprint File (NFF) program. Yes Yes
  • General residential operation;
  • Child-placing agency;
  • Verified foster home; or
  • Approved adoptive home
  • has resided outside of Texas during the past five years;
  • has suspected criminal history or child abuse neglect history in another state; or
  • is suspected to be a registered sex offender in another state;
No Yes Yes

 

The out-of-state criminal history check for persons who reside outside of Texas, but are employed at a regulated operation in Texas, must be a fingerprint-based check in the person’s state of residence.

Out-of-state checks are not required for persons associated with:

  1. Listed homes that only provide care to related children;
  2. Temporary shelter care operations; and
  3. Small-employer based operations

40 TAC §745.613

 

10160 When Background Checks Must Be Submitted

February 2019

 

All child care providers are required to submit initial and renewal background checks for a person required to have a background check, as specified in 10130 Persons for Whom Operations Must Submit Requests for Background Checks.

An initial background check is the first background check an operation submits for a person.

A renewal background check is a subsequent background check an operation submits for a person who has had an initial background check at the same operation, if the person continues to be associated with the operation.

40 TAC §745.601; §745.621

 

10170 Submitting Background Check Requests

February 2019

 

Background check requests must be submitted in the following ways:

If the Operation Type is … Then the Operation's method of Submission is …
  • Licensed operations; and
  • Registered child care homes.
  • Online via the provider's Child Care Licensing Account
  • Listed homes;
  • Temporary shelter care operations; and
  • Small employee-based operations
  • Online via the provider's Child Care Licensing Account; or
  • By sending in a signed Form 2971 Child Care Licensing Request for Background Check to the Centralized Background Check Unit.

40 TAC §745.617

 

10171 Receiving Form 2971 Child Care Licensing Request for Background Check

February 2019

 

Procedure

Licensed and Registered Child Care Operations

If a monitoring or Centralized Background Check Unit (CBCU) staff receive Form 2971 Child Care Licensing Request for Background Check from a licensed operation or registered child care home, the staff contacts the operation and instructs the operation to submit the background check through the provider’s online Child Care Licensing Account.

Listed Family Homes, Temporary Shelter Care Operations, and Small Employer-Based Operations

If a monitoring staff receives Form 2971 Child Care Licensing Request for Background Check from a listed family home, temporary shelter child care operation, or small employer-based operation, the monitoring staff scans the Form 2971 and emails the scanned copy to CBCUBackgroundChecks@hhsc.state.tx.us within 3 calendar days of receiving the form.

 

10172 Requiring Identifying Information

February 2019

 

Procedure

When the Centralized Background Check Unit (CBCU) staff receive Form 2971 Child Care Licensing Request for Background Check from a listed home, temporary shelter care operation, or a small employer-based operation, the staff must ensure that operator of the child care operation provides certain identifying information for the person who is the subject of the background check in order for the CBCU to conduct the background check. This information includes the following:

  1. Name (last, first, middle), including any maiden or married names or aliases;
  2. Date of birth;
  3. Sex;
  4. Social Security number (SSN), if one exists;
  5. Current and previous addresses in Texas;
  6. Driver’s license (DL) or a state-issued identification (SID) card number, if the subject has one;
  7. Ethnicity and race;
  8. Any addresses where a person has lived outside the state of Texas any time during the five years preceding the date of the request for a background check;
  9. Email address for the person, if available; and
  10. Role at the operation, including:
    1. title and job duties;
    2. whether the person will be supervised by a caregiver counted in the child/caregiver ratio; and
    3. the ages of the children the person will be caring for.

The staff contacts the operation if any of the required identifying information is missing from Form 2971.

40 TAC §745.619

Exception if the Subject does not have a SSN, DL, or SID

If the subject does not have aa Social Security number, driver’s license number, or state-issued identification card number, then the operation may provide any of the following if the person has it:

  1. Canadian Social Insurance number,
  2. Military identification card number,
  3. Passport number, or
  4. Permanent Resident Card identification number.

 

10173 Verifying Information

February 2019

 

Procedure

When the Centralized Background Check Unit staff receive Form 2971 Child Care Licensing Request for Background Check, staff must confirm that the operator of the listed family home, temporary child care operation, or small employer-based operation has signed the form indicating that he or she has verified the information submitted is correct. The submission of an online request is considered the same as a signature.

 

10180 Initiating Background Checks

February 2019

 

Procedure

Upon receiving Form 2971 Child Care Licensing Request for Background Check from a listed family home, temporary shelter child care operation, and a small employer-based operation and following procedures in 10172 Requiring Identifying Information, and 10173 Verifying Information, the Centralized Background Check Unit staff uses the information on the form to initiate a background check in CLASS.

 

10190 When an Operation May Allow a Person to be Present at the Operation

February 2019

 

An operation must always receive notification from the Centralized Background Check Unit that a person’s background check determination makes the person eligible to be present at the operation, with or without conditions, before the operation may allow the person to be present at the operation.

The operation may allow a person to be present at the operation before receiving the person’s background check determination for the sole purpose of attending orientation or pre-service training as long as the person does not have contact with children in care.

40 TAC §745.601; §745.635; §745.641

 

10191 Types of Eligibility Determinations

February 2019

 

There are four possible determinations regarding a background check submission:

Eligibility Determination Description Valid Period
Eligible The person may be present at the operation. This determination is valid until the next renewal period (two or five years), unless the Centralized Background Check Unit (CBCU) receives new or additional information that changes the determination.
Ineligible The person may not be present at the operation This determination is permanent unless you receive an updated determination from the CBCU.
Provisional The person may be present at an operation but under specific conditions the CBCU placed on the person’s presence at the operation. This determination is time-limited and will be updated to one of the other eligibility determinations once the background check has been completed (e.g., out-of-state checks have been completed; a risk evaluation determination has been made; or due process of a Central Registry finding has been resolved).
Eligible with Conditions The person may be present at an operation but under specific conditions the CBCU placed on the person’s presence at the operation. This determination is valid until the next renewal period (two or five years), unless the CBCU receives new or additional information that changes the determination.

See:

10700 Determining Compliance with Background Check Requirements

40 TAC §745.601; §745.629

 

10192 Types of Employment Status

August 2019

 

Procedure

There are three possible employment status options for a person for whom the operation has submitted a request for a background check:

Employment Status Description May the Person be Present?
Pending This employment status applies to a person that the Centralized Background Check Unit (CBCU):
  • has not yet determined the eligibility determination; or
  • has determined is ineligible to be present at the operation, but the operation has not yet inactivated the person from the Person List.

No, if the request is for an initial background check.

Yes, if the person's Pending status is due to a renewal background check submission and the previous submission shows an eligibility determination of Eligible, Provisional or Eligible with Conditions.

Active This employment status applies to a person:
  • who is associated with the operation; and
  • that the CBCU has determined is eligible to be present at the operation, either with or without conditions.
Yes, but the operation may have to adhere to certain conditions placed on the person’s presence.
Inactive This employment status applies to a person for whom the operation has indicated is no longer associated with the operation. No

 

10200 Conducting DFPS Central Registry Searches

February 2019

 

 

10210 Central Registry Searches

February 2019

 

The Central Registry is a DFPS database of persons who have been found by an investigations division within DFPS to have abused or neglected a child. The DFPS Central Registry is made up of the following individuals (IMPACT codes are shown in parentheses):

  1. Designated perpetrator (DP);
  2. Designated both (DB), meaning both victim and perpetrator;
  3. Sustained perpetrator (SP) in a Child Protective Services (CPS) or Child Care Investigations (CCI) abuse or neglect investigation;
  4. Sustained both (SB) in a CPS or CCI abuse or neglect investigation; and
  5. DP or SP in a Provider investigations (PI) investigation with a disposition of Confirmed and in which the victim was a child.

Texas Human Resources Code §§42.0445; 42.056; 42.159; 42.206

40 TAC 745, Subchapter F, Background Checks

 

10220 How Central Registry Matches are Determined

February 2019

 

Procedure

Once the Central Registry check for a person is initiated, the Centralized Background Check Unit (CBCU) staff assigned to the background check will receive notice in CLASS that contains all possible DFPS Central Registry matches for the person. The CBCU staff compares the information in the possible DFPS Central Registry matches to the following information to determine whether the person at the operation has a history of abuse or neglect:

  1. The names of the possible matches and the name of the person who is the subject of the background check;
  2. The Social Security number (SSN) of the possible matches and the SSN of the person who is the subject of the background check; and
  3. The date of birth (DOB) of the possible matches and the DOB of the person who is the subject of the background check.

 

10221 Completed or Closed Investigations

February 2019

 

Procedure

For completed or closed investigations, the Centralized Background Check Unit (CBCU) compares the identifying information of the person who is the subject of a background check to the identifying information for all of the possible matches. If the CBCU determines that the person in question is in all likelihood a DP, DB, or SP in an abuse or neglect investigation involving a child victim, then the CBCU staff reviews the abuse or neglect investigation in IMPACT and in CLASS, if the investigation is a Licensing investigation.

 

10222 Open Investigations

February 2019

 

Procedure

For persons who are identified as a principal in an open DFPS investigation involving an allegation of sexual abuse, physical abuse, or a child fatality, the Centralized Background Check Unit (CBCU) reviews the information available in IMPACT and speaks to the DFPS investigator to assess whether the person’s presence at an operation presents an immediate threat or danger to the health or safety of children. For all allegations, the CBCU staff follow up in IMPACT or with the DFPS investigator until the conclusion of the investigation to determine the outcome.

If a person at the operation becomes a DP, DB, or SP, then the CBCU staff review the abuse or neglect investigation in IMPACT and in CLASS, if the investigation is a Licensing investigation.

 

10230 Actions While Reviewing an Abuse or Neglect Investigation

February 2019

 

Procedure

The Centralized Background Check Unit (CBCU) staff check the IMPACT purge date. If the case is eligible for purge, the CBCU staff clear the Central Registry finding. If the case is not eligible for purge, the CBCU staff proceed with processing the Central Registry match by taking the following steps:

  1. Verify that the person listed in the Central Registry is the same person who is at the child care operation.
  2. Determine whether the information may serve as a basis for action and notify the monitoring inspector, if needed. See 10240 Acting on Abuse and Neglect Findings in a DFPS Central Registry for more information.

 

10240 Acting on Abuse or Neglect Findings in the DFPS Central Registry

February 2019

 

Procedure

For any person at the operation who has a Central Registry match, the Centralized Background Check Unit (CBCU) staff must evaluate whether to restrict a person’s presence at the operation.

If the finding has not been sustained, the CBCU determines whether the person’s presence at the operation presents an immediate threat or danger to the health and safety of children.

If the finding has been sustained, the CBCU determines whether the person is eligible for a risk evaluation, and, if so, if the person is eligible to be present at the operation pending the outcome of the risk evaluation.

40 TAC §745.671

 

10250 Handling Unsustained Central Registry Findings

February 2019

 

Procedure

The Centralized Background Check Unit (CBCU) staff review the investigation to obtain information needed to assess the risk to children in care and to determine whether:

  • the child abuse or neglect finding is from the Child Protective Services or Adult Protective Services division of the Department of Family and Protective Services before April 16, 1999;
  • the designated perpetrator has been notified of the findings;
  • the person’s risk to children has already been assessed;
  • an emergency release determination has already been made; or
  • a due process hearing has been offered.

The DFPS investigator, not the CBCU, handles due process notifications for unsustained findings resulting from a Child Care Investigations (CCI) investigation. In addition, the DFPS investigator assesses risk and makes the request for an emergency release if an immediate threat or danger is discovered at the operation that was the subject of the CCI investigation.

See:

3312 Conducting Background Checks

10253 Assessing Risk for an Emergency Release

10254 Emergency Release of Findings Based on Immediate Risk.

 

10251 DFPS Findings Before April 16, 1999

February 2019

 

Procedure

The Centralized Background Check Unit (CBCU) uses Form 7280 Request for Information Regarding a Licensing Central Registry Match to request that DFPS conduct a desk review of a child abuse or neglect finding that was made by the DFPS, Child Protective Services or Adult Protective Services division before April 16, 1999.

In some instances, DFPS staff may choose to offer an Administrative Review of Investigation Findings (ARIF) to a designated perpetrator (DP) instead of conducting a desk review.

The DFPS designated contact person proceeds with the desk review or ARIF of the investigation to determine whether the preponderance of evidence standard is met.

If Then
The preponderance of evidence standard is not met. Once DFPS notifies the CBCU that the finding was overturned, the CBCU clears the Central Registry match in CLASS.
The preponderance of evidence standard is met. Once DFPS notifies the CBCU that the preponderance of evidence is met, the CBCU staff completes the steps as outlined in 10252 DFPS Findings After April 16, 1999.

 

10252 DFPS Findings After April 16, 1999

February 2019

 

Procedure

For DFPS child abuse and neglect findings made on or after April 16, 1999, including the findings made by the Child Protective Services division, the Adult Protective Services division, or the Child Care Investigations division, the Centralized Background Check Unit (CBCU) staff follow procedures under 10253 Assessing Risk for an Emergency Release if the CBCU determines the investigation is not eligible for purge.

 

10253 Assessing Risk for an Emergency Release

February 2019

 

The Centralized Background Check Unit (CBCU) inspector assesses the risk to determine whether the designated perpetrator’s (DP’s) presence creates an immediate threat or danger to the health or safety of children.

The CBCU uses the following factors to determine the person who is the subject of a background check is an immediate threat to the health or safety of children:

  1. Nature and severity of the incident
  2. Circumstances surrounding the incident
  3. Seriousness of any injury to a child
  4. Length of time since the incident occurred
  5. Whether there has been repeated abuse and neglect
  6. Compliance history of the operation
  7. Current regulatory status of the operation
  8. Role of the person in the incident
  9. Current position, role, and responsibilities of the person
  10. Degree or immediacy of the threat or danger

40 TAC §745.751

Procedure

Requesting an Emergency Release as a Result of Background Check

When the CBCU inspector determines that the person who is the subject of the background check presents an immediate threat or danger to the health or safety of children, the CBCU inspector or manager:

  • emails Form 2878 Request for Emergency Release to the Licensing Legal Services Mailbox and copies the monitoring inspector and supervisor; and
  • if the request for an emergency release is approved by Legal Services, completes the steps in 10254 Emergency Release of Findings Based on Immediate Risk, 10255 Notifying the Designated Perpetrator, and 10256 Due Process Hearing Actions.

Risk Does Not Justify an Emergency Release

If the CBCU inspector, manager, or Licensing attorney determines that the designated perpetrator’s (DP’s) presence at the operation does not constitute an immediate threat or danger to the health or safety of children, the CBCU inspector:

  1. documents in CLASS that an emergency release was either not appropriate or not approved in the Information Specific to this Result narrative box;
  2. selects the Finding Determination of MSV – Open Investigation or Pending Due Process;
  3. selects Yes in the Can Be Present field;
  4. finalizes the Match Determination; and
  5. completes the steps in 10255 Notifying the Designated Perpetrator and 10256 Due Process Hearing Actions.

 

10254 Emergency Release of Findings Based on Immediate Risk

February 2019

 

Procedure

If the Centralized Background Check Unit (CBCU) and the Licensing attorney determine in 10253 Assessing Risk for an Emergency Release that the designated perpetrator’s (DP’s) presence at the operation is an immediate threat or danger to the health or safety of children, then the CBCU inspector takes the following steps, as appropriate:

  1. Documents information relating to the emergency release of the findings in the Information Specific to This Result section.
  2. Selects the Finding Determination of MSV-Barred.
  3. Finalizes the Match Determination in CLASS
  4. Notifies the DP of the DP’s right to a due process hearing by sending the Central Registry Match Letter to Perpetrator. See 7720 Hearings Concerning Child Abuse or Neglect Findings for more information. If the DP is a minor, the notification must be sent to the parent or guardian.
  5. If the DP (or DP’s parent if the DP is a minor) does not request a due process hearing in a timely manner, follows steps in 10256.1 Actions Taken When No Due Process Hearing Is Requested.
  6. If the DP (or DP’s parent if the DP is a minor) requests a due process hearing, then follows steps in 10256.2 Actions Taken When a Due Process Hearing is Requested.

 

10255 Notifying the Designated Perpetrator

February 2019

 

Notifying the Designated Perpetrator (DP) of a DFPS Child Care Investigation

For DFPS Child Care Investigations (CCI), the Centralized Background Check Unit (CBCU) staff review the Investigation Perpetrator Details page in CLASS to determine whether the DP has been notified of the right to a due process hearing. If the DP has not been previously notified, then the CBCU alerts the appropriate CCI investigator or other CCI investigative staff, who will then send out the appropriate notification.

Notifying the DP of a DFPS CPS or APS Investigation

For DFPS Child Protective Services (CPS) or Adult Protective Services (APS) investigations, the CBCU staff review the documentation in CLASS to determine whether the DP has been previously notified of the right to a due process hearing. If the DP has not received notification of the right to a hearing, then the CBCU sends a letter to notify the DP of the right to a due process hearing. If the DP is a minor, the notification must be sent to the parent or guardian.

 

10256 Due Process Hearing Actions

February 2019

 

 

10256.1 Actions Taken When No Due Process Hearing is Requested

February 2019

 

Procedure

DFPS Child Protective Services and Adult Protective Services Findings

If the designated perpetrator (DP) does not request a due process hearing within the time frame, then the finding is sustained, and the Centralized Background Check Unit (CBCU) staff:

  • change the person’s role from DP to sustained perpetrator (SP) in IMPACT; and
  • follow the policies and procedures in 10260 Handling Sustained Central Registry Findings.

Exception: If the DP is a minor, the CBCU staff do not change the minor’s role, because a minor’s role is only changed if there is actually a hearing that upheld the DFPS finding (not a default hearing, where the finding was upheld because the minor did not appear).

DFPS Child Care Investigations (CCI) Findings

The CCI staff send out the notice DP and are responsible for changing the DP’s role.

 

10256.2 Actions Taken When a Due Process Hearing is Requested

February 2019

 

Procedure

DFPS Child Protective Services or Adult Protective Services Findings

If the designated perpetrator (DP) (or DP’s parent if the DP is a minor) requests a due process hearing, the Centralized Background Check Unit (CBCU) sends copies of the following items to the Docket Clerk for Child Care Licensing in the HHSC Legal Services Division, Enforcement Department:

  1. The letter to notify the DP (or DP’s parent, if the DP is a minor) of the right to a due process hearing;
  2. The DP’s (or DP’s parent’s if the DP is a minor) letter requesting a due process hearing;
  3. The envelope in which the request for a hearing arrived; and
  4. Any emergency release documentation.

DFPS Child Care Investigations Findings

The CCI staff send out the notice DP and are responsible for sending the appropriate documents to Child Care Licensing in the HHSC Legal Services Division, Enforcement Department.

 

10256.3 Role of the Legal Division in Due Process Hearings and Related Actions

February 2019

 

Procedure

The docket clerk for Child Care Licensing in the HHSC Legal Services Division, Enforcement Department must determine whether a timely request for a due process hearing has been received.

The docket clerk prepares records for cases that are assigned to an attorney for Child Care Licensing in the HHSC Legal Services Division, Enforcement Department.

The attorney prepares and presents each case. Preparation for the hearing includes gathering and analyzing relevant evidence and identifying and preparing witnesses. Preparing may also include resolving discovery and the handling of any open records requests. Presentation at hearings includes making legal arguments and examining witnesses.

 

10256.4 When the Finding is Sustained in the Due Process Hearing

February 2019

 

Procedure

If the finding is upheld in the due process hearing, it is a sustained finding. Child Care Licensing in the HHSC Legal Services Division, Enforcement Department (Legal), the Centralized Background Check Unit (CBCU) and DFPS then take the following actions:

  1. Legal sends a copy of the State Office of Administrative Hearings (SOAH) decision and order to the appropriate persons, which may include the CBCU and DFPS, as appropriate.
  2. Legal requests that the role of the perpetrator be changed to a sustained finding in IMPACT.
  3. Legal sends the DFPS contact person a copy of the SOAH decision and order, to be filed in the DFPS case record.

 

10256.5 When the Finding is Overturned in the Due Process Hearing

February 2019

 

Procedure

If the finding is overturned in the due process hearing, Child Care Licensing in the HHSC Legal Services Division, Enforcement Department (Legal), the Centralized Background Check Unit (CBCU) and DFPS, as appropriate, then take the following actions:

  1. Legal sends a copy of SOAH’s decision and order to the program that conducted the investigation so the finding of abuse or neglect can be removed from the Central Registry and the program can file the decision and order in the DFPS case record;
  2. Legal requests that the role of the perpetrator be changed in IMPACT by creating an Administrative Review (ARI) stage in IMPACT and changing the disposition of the allegation to Ruled Out or Unable to Determine, as appropriate; and
  3. Legal sends a memo to the CBCU representative that explains the SOAH decision and order and what actions should be taken in the matter.

 

10260 Handling Sustained Central Registry Findings

February 2019

 

Procedure

After determining the case is ineligible for purge, the Centralized Background Check Unit inspector determines whether the person who is the sustained perpetrator is eligible for a risk evaluation and is eligible to be present at the operation pending the outcome of the risk evaluation, if applicable, by using the chart in 10261 Evaluating Central Registry Findings.

 

10261 Evaluating Central Registry Findings

February 2019

 

The Centralized Background Check Unit (CBCU) uses the following chart to determine whether the person who is the subject of the background check is eligible to be present at the operation and whether to give the person the opportunity to request a risk evaluation. See 10400 Risk Evaluation of Criminal History or Findings of Child Abuse or Neglect.

Type of Central Registry Finding for Child Abuse or Neglect Is the Person Eligible for a Risk Evaluation? May a Person Be Present at the Operation Pending the Completion of a Risk Evaluation?
Sustained DFPS finding for physical abuse. No, this person is permanently barred from being present at a child care operation while children are in care.* Not applicable, because this person is not eligible for a risk evaluation.**
Sustained DFPS finding for sexual abuse. No, this person is permanently barred from being present at a child care operation while children are in care. Not applicable, because this person is not eligible for a risk evaluation.
Sustained DFPS finding for labor trafficking. No, this person is permanently barred from being present at a child care operation while children are in care. Not applicable, because this person is not eligible for a risk evaluation.
Sustained DFPS finding for sex trafficking. No, this person is permanently barred from being present at a child care operation while children are in care. Not applicable, because this person is not eligible for a risk evaluation.
Sustained DFPS finding for emotional abuse. Yes Yes, if:
  1. the person continued to work at the operation pending the outcome of due process for the designated finding because the CBCU had not determined the person’s presence at the same operation was an immediate threat or danger to the health or safety of children; or
  2. the CBCU previously approved a risk evaluation for the same finding, the more recent check does not reveal new information about the finding, and the circumstances of the person’s contact with children at the operation are the same as when the CBCU approved the risk evaluation.
Sustained DFPS finding for neglect (including abandonment, neglectful supervision, physical neglect, medical neglect, and refusal to accept parental responsibility). Yes Yes, if:
  1. the person continued to work at the operation pending the outcome of due process for the designated finding because the CBCU had not determined the person’s presence at the same operation was an immediate threat or danger to the health or safety of children; or
  2. the CBCU previously approved a risk evaluation for the same finding, the more recent check does not reveal new information about the finding, and the circumstances of the person’s contact with children at the operation are the same as when the CBCU approved the risk evaluation.
Any DFPS finding that has not been sustained, and the CBCU has determined the presence of the person in a child care operation is not an immediate threat or danger to the health or safety of children. Yes, if a sustained finding would not bar the person from being present at the operation.
No, if a sustained finding would bar the person from being present at the operation.
If eligible for a risk evaluation, then the person may be present at the operation pending the outcome of the risk evaluation:
  1. if the person continued to work at the operation pending the outcome of due process for the designated finding because the CBCU determined the person’s presence was not an immediate threat or danger to the health or safety of children; or
  2. if the CBCU previously approved for the person to be present at the operation without conditions for the same finding, the more recent check does not reveal new information about the finding, and the circumstances of the person’s contact with children at the operation are the same as when the CBCU previously approved for the person to be present.

If not eligible for a risk evaluation, then the person may not be present at the operation pending due process.

Any DFPS finding that has not been sustained, but the CBCU has determined the presence of the person in a child care operation is an immediate threat or danger to the health or safety of children. No, the person is temporarily barred from being present at a child care operation while children are in care. The removal from contact with children is not permanent until the finding is sustained. If SOAH overturns the finding, then the Central Registry finding is purged, and the person may be present at the child care operation. Not applicable, because the person is not eligible for a risk evaluation. The person must not be present at an operation while children are in care
A finding of abuse or neglect from another state or jurisdiction, regardless of whether the finding is sustained The person’s eligibility for a risk evaluation is the same as the relevant DFPS sustained finding noted in this chart. The person’s ability to be present at an operation while children are in care pending the outcome of a risk evaluation is the same as the relevant DFPS sustained finding noted in this chart.

 

Exceptions:

*A prospective foster or adoptive parent, or any person who is required to undergo a background check because of the foster or adoptive parent application, is eligible for a risk evaluation for a sustained finding for physical abuse if it has been more than five years since the finding and the prospective foster or adoptive parent is related to or has a significant longstanding relationship with the foster or adoptive child to be placed.

**Contact with children would be allowed if a risk evaluation is approved for a person meeting the criteria detailed in the exception above.

40 TAC §745.671; §745.751

 

10262 Abuse and Neglect Findings in Out-of-State Registries

February 2019

 

 

10262.1 Role of the Person Who is the Subject of the Background Check

February 2019

 

Procedure

The Centralized Background Check Unit (CBCU) will inform a person when the person requires an out-of-state child abuse and neglect registry check. The person who is the subject of the background check must:

  • request an out-of-state abuse and neglect history check from each state that they have lived in during the five-year period that preceded the background check submission; and
  • submit the results of the check to the CBCU.

40 TAC §745.613

 

10262.2 Evaluating Results from Out-of-State Abuse and Neglect Registries

February 2019

 

Procedure

The Centralized Background Check Unit evaluates an abuse and neglect finding from another state or territory’s registry, according to the most similar sustained DFPS abuse or neglect finding listed in the chart in 10261 Evaluating Central Registry Findings and follows the same procedures that apply to the most relevant DFPS finding.

40 TAC §745.671

 

10300 Conducting Criminal History Checks

February 2019

 

The Texas Department of Public Safety (DPS) sends Texas name-based criminal history results and Texas and FBI fingerprint-based criminal history results to CLASS for each person for whom a background check was submitted. If a match exists, the Centralized Background Check Unit inspector assigned to the operation receives a To-Do in CLASS notifying them of the match for review. If there are no matches identified for the person, the result for the criminal history will automatically be marked as “cleared” in CLASS.

Texas Human Resources Code §§42.056; 42.159; 42.206

40 TAC Chapter 745, Subchapter F, Background Checks

 

10310 Acting on the Results of a Criminal History Check

February 2019

 

 

10311 Determining Appropriate Actions Based on Criminal History

February 2019

 

Procedure

When notified that a person at an operation has a criminal history, the Centralized Background Check Unit (CBCU) uses the Criminal Convictions charts to determine whether the person’s criminal history contains criminal offenses that:

  1. affect whether a person may be present at an operation;
  2. are eligible for a risk evaluation; and
  3. if eligible for a risk evaluation, can be present at the operation pending the completion of the risk evaluation.

For any felony offense not specifically enumerated in the relevant Criminal Conviction charts, the person must have an approved risk evaluation before being present at the operation, if:

  • the person was convicted of the offense within the past 10 years; or
  • the person is on parole for the offense.

A substantially similar federal offense or offense in another state is treated the same as a similar offense in Texas.

40 TAC §745.661

 

Criminal Offenses that Result in Deferred Adjudication Community Supervision

Criminal offenses that result in deferred adjudication community supervision are considered as a criminal conviction as follows:

If: Then, deferred adjudication community supervision for an offense is:
The monitoring inspector is not in the process of issuing, denying, or revoking the person’s permit, A criminal conviction until the person successfully completes the terms of community supervision. Proof that a person has successfully completed the terms of community supervision is an order from the court that dismisses the proceedings and discharges the person.
The monitoring inspector is in the process of issuing, denying, or revoking the person’s permit, Always a criminal conviction with respect to Licensing’s decision to issue, deny, or revoke the permit. It does not matter if the person has successfully completed the terms of community supervision and the court has dismissed the proceedings and discharged the person.

40 TAC §745.663

 

A Person Required to Register as a Sex Offender

A person required to register as a sex offender in Texas or any other state or U.S. Territory may not be present at an operation while children are in care.

40 TAC §745.669

 

Criminal History Matches for Licensed Administrators

For licensed administrators, the CBCU also evaluates offenses related to financial crimes, including the following Penal Code offenses:

  1. Title 7 Offenses Against Property;
  2. Title 8 Offenses Against Administration; and
  3. Title 11 Organized Crime.

If the CBCU inspector determines that the administrator is ineligible to be an administrator, the CBCU inspector notifies the Licensing staff person at the CCL state office in Austin who handles the administrator licensing program, so that enforcement action may be taken against the administrator’s license.

40 TAC §745.775

 

10312 Handling Juvenile Offenses

February 2019

 

Procedure

In the legal system, juvenile adjudications of criminal offenses are civil adjudications and are not considered criminal convictions. The Centralized Background Check Unit (CBCU) sends an email to the Licensing Legal Services mailbox if the CBCU questions whether any juvenile history (arrests or adjudications) poses an immediate threat or danger to the health or safety of children in care of the operation.

All juvenile history is marked as “Not a Minimum Standard Violation” on the Texas-Name Based Background Check Results page or Fingerprint Background Check Results page unless Legal determines the juvenile history poses an immediate threat or danger to the health or safety of children.

40 TAC 745.601(4)

 

10320 Actions Taken for Arrests, Indictments or Criminal Complaints

February 2019

 

Procedure

If monitoring inspectors receive information from an operation that a person associated with the operation has either been arrested, indicted, or is the subject of an official criminal complaint accepted by a county or district attorney, the monitoring inspector reports this information to the CBCU immediately.

When CBCU receives criminal history information indicating that a person associated with the operation has either been arrested, indicted, or is the subject of an official criminal complaint accepted by a county or district attorney, the Centralized Background Check Unit (CBCU) determines whether that person may be present at an operation while children are in care.

The CBCU determines whether a person that has been arrested, indicted, or charged with a crime may not be present at an operation by determining if a conviction for the arrest, indicted, or charged offense would permanently or temporarily make the person ineligible to be present at the operation pending the outcome of a risk evaluation, or if the CBCU, in consultation with the Licensing attorney, determines that the person poses an immediate threat or danger to the health or safety of children. If the person is arrested, indicted, or charged with a crime and would be eligible for a risk evaluation if convicted, the CBCU may place conditions on the person’s presence at the operation while children are in care pending the resolution of the criminal matter.

See the charts on the public website for more information on what criminal offenses are eligible for a risk evaluation and whether presence at an operation may be allowed while children are in care during the risk evaluation process if there is a conviction.

The person may be present at the operation unless the CBCU notifies the operation that the subject is ineligible to be present at the operation.

26 TAC §§744.305(a)(4); 746.305(a)(4); 747.303(a)(4); 748.303(d)(6); 749.503(d)(6)

40 TAC §§745.631; 745.665; 745.667

 

10400 Risk Evaluation of Criminal History or Findings of Child Abuse or Neglect

February 2019

 

 

10410 Persons Who are Eligible or Ineligible for a Risk Evaluation

February 2019

 

The Centralized Background Check Unit (CBCU) will notify the person if the person’s:

  • criminal history contains criminal offenses that are eligible for a risk evaluation; or
  • Central Registry history is eligible for a risk evaluation.

The CBCU will use the Criminal Convictions charts to determine which criminal offenses are eligible for a risk evaluation. The CBCU will use the chart at 10261 Evaluating Central Registry Findings to determine which central registry findings are eligible for a risk evaluation.

40 TAC §745.661; §745.671

 

10411 When a Risk Evaluation is Not Required

February 2019

 

A risk evaluation approved by the Criminal Background Check Unit (CBCU) for a criminal conviction or a sustained abuse or neglect finding does not expire and does not require a new risk evaluation, if:

  1. the CBCU previously approved a risk evaluation for the same abuse or neglect finding or criminal conviction at the operation;
  2. the more recent background check does not reveal a new abuse or neglect finding, criminal conviction, or arrest, indictment, or charge for another crime;
  3. the person’s role (as identified in the decision letter for the risk evaluation) and the circumstances of the person’s contact with children at the operation are the same as when the CBCU previously approved the risk evaluation; and
  4. the risk evaluation is still in effect (i.e., has not been rescinded by the CBCU).

 

Exception

Risk evaluations are temporary for:

  • a crime for which the subject of a background check has been arrested, indicted, are charged; or
  • a child abuse or neglect finding that is not sustained and CBCU has determined that the person’s presence at the operation is not an immediate threat to the health or safety of children.

This section does not apply to temporary risk evaluations. Once there is a final outcome to the alleged crime or child abuse or neglect finding, the CBCU will make a final decision on the risk evaluation, if one continues to be required.

40 TAC §745.697

 

10412 When a Risk Evaluation May Be Requested

February 2019

 

A person who is the subject of the background check is responsible for requesting a risk evaluation after the Centralized Background Check Unit provides written notice that the person is eligible for a risk evaluation for a criminal conviction, child abuse or neglect finding, or has been arrested, indicted, or charged with a crime. The person has 30 calendar days from the date the operation submitted the request for the background check to request a risk evaluation.

40 TAC §§745.681; 745.683; 745.685

 

10413 Exceptions for When a Person May Be Present at an Operation Pending the Completion of a Risk Evaluation

February 2019

 

See the chart in 10261 Evaluating Central Registry Findings for more information about when an individual who has a Central Registry match may be present at an operation while a risk evaluation is being considered.

See 10311 Determining Appropriate Actions Based on Criminal History for more information about when an individual with a criminal history match may be present while a risk evaluation is being considered.

40 TAC §745.661, §745.671

 

10414 Conditions Pending the Outcome of a Risk Evaluation

February 2019

 

If a person may be present at an operation pending the completion of a risk evaluation, the Centralized Background Check Unit may place conditions on a person’s presence at an operation in order to protect the health or safety of children.

40 TAC §745.631

 

10420 Information Required for Risk Evaluations

February 2019

 

 

10421 Information Required for Criminal History Matches

February 2019

 

Information Required for All Risk Evaluations for Criminal History

The Centralized Background Check Unit (CBCU) requires the person requesting a risk evaluation to submit the following information:

  1. A completed Form 2974 Request for Risk Evaluation Based on Past Criminal History or Child Abuse or Neglect Findings.
  2. A copy of the police report regarding the circumstances of the arrest.
  3. An official copy of the final record of judicial finding or conviction (signed by the judge and file stamped, if available).
  4. Age of the person at the time the crime was committed.
  5. A detailed, signed statement from the person regarding the nature and seriousness of the crime including:
    1. why the person was arrested, indicted, or charged with a crime;
    2. where the person was when arrested, indicted, or charged with a crime;
    3. who else was involved in the criminal incident;
    4. whether anyone was injured;
    5. the extent and nature of other arrests within the person’s past criminal history;
    6. what has changed for this person since the time of the arrest; and
    7. why the person does not feel that he or she poses a risk to children in care.
  6. Evidence of rehabilitative effort.
  7. The person’s work history over the past 10 years, including names of employers, dates of employment, and positions held.
  8. At least three reference letters from individuals who are not related to the person (such as professionals, employers, law enforcement) and who have knowledge about the person’s character and ability to work with children.
  9. If the person is presently on probation, a statement from the person’s probation officer regarding the status of the person’s probation.
  10. Any additional items requested by the CBCU manager to assist with the risk evaluation decision.

40 TAC §745.689

 

Additional Documentation Required if the Person is Associated with a Foster or Adoptive Home

If the person requesting a risk evaluation is associated with a prospective or current foster or adoptive home, then the CBCU will require the child-placing agency that submitted the background check for the person to submit the following information:

  1. the names and dates of birth of any foster or adoptive children who have been or are expected to be placed in the home (if known);
  2. a description of the foster or adoptive parent’s relationship to each child;
  3. a copy of a home assessment or home screening, if one has been completed; and
  4. a valid rationale from the child-placing agency’s owner, executive director, or some other similar position of authority explaining why the person does not pose a risk to the health or safety of children.

40 TAC §745.689

 

Additional Documentation Required if the Person Was Incarcerated

If the person requesting a risk evaluation was incarcerated, the CBCU requires the person to submit the following information:

  1. A copy of local, state, or federal release order;
  2. The date that the individual was released from incarceration; and
  3. The terms and conditions of parole, if applicable.

40 TAC §745.689

 

Additional Documentation Required if the Person Received a Probated Sentence, Including Deferred Adjudication Community Supervision

If the person requesting a risk evaluation was given a probated sentence (including deferred adjudication community supervision), the CBCU requires the person to submit the following information:

  1. Dates of the probation and details related to the terms and conditions of probation including documentation of whether or not the person successfully completed the terms of the probation;
  2. Proof that the person paid all court costs, supervision fees, and court-ordered restitution and fines; and
  3. If the person is presently on probation, a statement from the person’s probation officer regarding the status of the person’s probation.

40 TAC §745.689

 

10422 Information Required for Central Registry Matches

February 2019

 

Information Required for All Risk Evaluations for Central Registry Matches

The Centralized Background Check Unit (CBCU) requires the operation requesting a risk evaluation to submit the following documentary evidence regarding Central Registry findings for consideration in determining risk:

  1. A completed Form 2974 Request for Risk Evaluation Based on Past Criminal History or Child Abuse and Neglect Findings.
  2. Age of the person at the time of the abuse or neglect.
  3. The amount of time that has elapsed since the person’s last abuse or neglect finding.
  4. A detailed, signed statement from the person regarding the nature and seriousness of the abuse or neglect finding, including:
    1. The circumstances involved in the abuse or neglect incident and investigation;
    2. The extent and nature of the person’s past abuse or neglect history;
    3. What has changed for this person since the time of the abuse or neglect finding; and
    4. Why the person does not feel that he or she poses a risk to children in care.
  5. Evidence of rehabilitative effort.
  6. At least three reference letters from individuals who are not related to the person (such as professionals, employers, law enforcement) and who have knowledge about the person’s character and ability to work with children.
  7. The person’s work history over the past 10 years, including names of employers, dates of employment, and positions held.
  8. h. Any additional items requested by the CBCU manager to assist with the risk evaluation decision.

40 TAC §745.691

 

Additional Documentation Required if the Person is Associated with a Foster or Adoptive Home

If the person requesting a risk evaluation is associated with a prospective or current foster or adoptive home, then the CBCU will require the child-placing agency that submitted the background check for the person to submit the following information:

  1. the names and dates of birth of any foster or adoptive children who have been or are expected to be placed in the home (if known);
  2. a description of the foster or adoptive parents’ relationship to each child;
  3. a copy of a home assessment or home screening if one has been completed; and
  4. a valid rationale from the child-placing agency’s owner, executive director, or some other similar position of authority explaining why the person does not pose a risk to the health or safety of children.

40 TAC §745.691

 

10430 Requests for Risk Evaluations

February 2019

 

 

10431 Time Frames for Requesting and Completing Risk Evaluations

February 2019

 

The Centralized Background Check Unit manager or designee reviews the request for a risk evaluation and provides the person who is the subject of the background check and the operation that submitted the request for a background check with a written eligibility determination, including the final decision on the risk evaluation, within 45 calendar days from the date the operation submitted the background check.

40 TAC §745.693

 

10440 Making a Risk Evaluation Decision

February 2019

 

When making a risk evaluation decision, the Centralized Background Check Unit considers the following for both criminal history and central registry findings:

  1. The contents of the risk evaluation packet as outlined in 10421 Information Required for Criminal History Matches or 10422 Information Required for Central Registry Matches, including whether the person who requested the risk evaluation failed to submit any information;
  2. The compliance history and regulatory status of the operation;
  3. The person’s intended or current roles and responsibilities that were included in the operation’s background check submission;
  4. The length of time that has elapsed since the criminal conviction, child abuse or neglect finding, or crime for which the person has been arrested, indicted, or charged;
  5. The nature and severity of the criminal conviction, child abuse or neglect finding, or crime for which the person has been arrested, indicted, or charged;
  6. The person’s role in the criminal conviction, child abuse or neglect finding, or crime for which the person has been arrested, indicted, or charged;
  7. Whether there is a pattern of any type of crime or abuse or neglect;
  8. Work history, references, and any evidence of rehabilitative effort over the past 10 years;
  9. Any federal requirements regarding criminal history and child abuse and neglect findings; and
  10. Any other relevant factor that enhances or mitigates the risk to the health or safety of children in the operation.

40 TAC §745.695

 

10450 Documenting Risk Evaluations

February 2019

 

Procedure

Risk evaluations are tracked in CLASS in the Risk Evaluation section of the Background Check Results pages.

 

10460 When a Risk Evaluation Expires

February 2019

 

An approved or conditionally approved risk evaluation will not expire unless:

  1. the person who is the subject of the check has been arrested, indicted, or charged with another crime or has an additional criminal conviction or child abuse or neglect finding;
  2. the person’s role at the operation, including the circumstances of the person’s contact with children, becomes different than when the Centralized Background Check Unit (CBCU) approved the risk evaluation;
  3. the person becomes employed at a different operation than when the CBCU approved the risk evaluation; or
  4. the CBCU amends or rescinds the risk evaluation in response to:
    1. a request for a review of the risk evaluation decision; or
    2. an operation not following conditions on a person’s presence at the operation;

If a risk evaluation expires due to new criminal or child abuse or neglect history, a different role at the operation, or employment at a different operation, the CBCU will conduct a new risk evaluation or reprocess the risk evaluation based on the new information.

 

Risk Evaluations for Pending Criminal Charges

An approved risk evaluation for a pending criminal charge is temporary pending the final outcome of the alleged crime. Once there is a final outcome, the CBCU will make a final decision on the risk evaluation, if one continues to be required.

40 TAC §745.697

 

10470 Obtaining a Risk Evaluation Prediction for Applicants for a Permit

February 2019

 

A monitoring inspector may request a risk evaluation prediction from the Centralized Background Check Unit (CBCU) for applicants who have unsustained Central Registry findings.

Procedure

A risk evaluation prediction is a process to determine whether a risk evaluation would likely be approved for a person who has an unsustained Central Registry finding that:

  • is pending a due process hearing;
  • has not resulted in an immediate risk determination; and
  • would be eligible for a risk evaluation if sustained.

To determine whether a risk evaluation would likely be approved for a person who has requested a due process hearing, the monitoring inspector emails the CBCU manager of the CBCU staff assigned to the operation to request a risk evaluation prediction.

The monitoring inspector includes in the request:

  • name, Social Security number, and date of birth of the person with the unsustained finding;
  • operation’s name and number;
  • person’s role (both in the investigation and at the operation);
  • a brief synopsis of the investigation and concerns, including the IMPACT investigation number;
  • whether the person is currently present at the operation;
  • whether a safety plan was implemented and if the person’s presence at the operation was precluded pending DFPS' completion of the investigation;
  • the status of due process; and
  • any information that DFPS or HHSC has communicated to the person regarding the unsustained finding.

The monitoring inspector provides any additional information to the CBCU upon request. Once the information has been provided, the following steps are taken as appropriate:

  1. The CBCU documents the risk evaluation prediction in CLASS, including whether the risk evaluation would likely be approved and if so, what conditions are recommended.
  2. The monitoring inspector coordinates with the Child Care Licensing attorney in the HHSC Legal Services Division, Enforcement Department (Legal) to determine if a permit can be denied (if applicable) and, if so, what information can be released to the applicant regarding the reason for the denial.
  3. The monitoring inspector subsequently notifies the CBCU on whether the permit will be denied, if applicable. If a permit will be denied, the monitoring inspector also notifies the CBCU of what information will be released to the applicant regarding the reason for the denial (see 7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit).

 

10500 Notification of Background Check Determination

February 2019

 

After receiving the results of a background check, the Centralized Background Check Unit sends the operation and the person who is the subject of the background check a written determination of the background check as soon as possible, but no later than 45 calendar days from the date the operation submitted the background check.

40 TAC §745.627

 

10510 Notification to the Operation

February 2019

 

The notice letter the Centralized Background Check Unit (CBCU) sends to the operation will include:

  1. a determination of whether the subject is Eligible, Ineligible, Eligible with Conditions, or Provisionally Eligible with Conditions to be present at the operation (see 10191 Types of Eligibility Determinations);
  2. any conditions the CBCU placed on the person’s presence at the operation, if applicable; and
  3. a list of each additional operation that has submitted a request a background check for the person and when the operation submitted the request.

40 TAC §745.633

 

10511 Additional Information Sent to a Child-Placing Agency

February 2019

 

For persons associated with a current or prospective foster or adoptive home, the notice letter the Centralized Background Check Unit (CBCU) sends to the child-placing agency will include this additional information:

  1. the types of background checks conducted;
  2. any criminal history obtained, if applicable;
  3. any sustained Central Registry findings, including out-of-state abuse or neglect findings, if applicable;
  4. any Central Registry finding that is not sustained, if applicable, and the CBCU has determined the person is ineligible to be present at the operation while the person’s due process is pending (the CBCU will follow up with another notification regarding the person’s ability to be present after due process has been exhausted); and
  5. whether the person is eligible to request a risk evaluation, if applicable, and whether the person may be present at the operation pending the outcome of the risk evaluation.

The operation must comply with the CBCU's conditions placed on the individual or Licensing may amend the conditions, rescind the risk evaluation decision, or take enforcement action.

40 TAC §745.633

Criminal Matches that are Not Convictions and May Not Be Shared with a Child-Placing Agency

Criminal matches with a disposition of Order of Nondisclosure or Expunged Record are not convictions. Since there is no conviction there is no minimum standards violation, and the CBCU may not share this information with a child-placing agency. A description of each of these dispositions is noted below:

  • Order of Nondisclosure – A court order exists that prohibits disclosure of any records relating to the underlying criminal allegations, arrest, and so on. The order can be granted only if the defendant has successfully completed deferred adjudication community supervision (sometimes known as probation) and has filed a request for nondisclosure with the court of jurisdiction.
  • Expunged Record – A person’s criminal history has been erased, and the person is legally entitled to deny that the arrest ever occurred (this is the same concept as an order of nondisclosure, except there was never any finding or admission of guilt to the crime involved).

 

10520 Notification to the Person Who is the Subject of the Background Check

February 2019

 

The notice letter the Centralized Background Check Unit (CBCU) sends to the person who is the subject of the background check will include the following information, as applicable:

  1. the types of background checks conducted;
  2. any criminal history;
  3. any sustained Central Registry finding;
  4. any Central Registry finding that is not sustained and instructions on requesting a State Office Administrative Hearing (SOAH) to dispute the finding;
  5. whether the person may request a risk evaluation, and whether the person may be present at the operation pending the risk evaluation;
  6. a determination of whether the person may be present at an operation;
  7. any conditions placed on the person’s presence at an operation;
  8. any additional information needed by the CBCU to complete the background check and when the information is due; and
  9. information on how to challenge the accuracy of the background check results and how to request a review of the background check determination.

40 TAC §745.639

 

10600 Handling Disputed Background Check Determinations

February 2019

 

The person who is the subject of the background check may request that the Centralized Background Check Unit (CBCU) review the background check determination if the person:

  1. disagrees with the determination; or
  2. has new information that was not available at the time the CBCU made the determination.

40 TAC §745.645

 

10610 When to Request a Review of the Background Check Determination

February 2019

 

A person who is the subject of the background check may request the Centralized Background Check Unit (CBCU) review the background check determination:

  1. within 30 calendar days from the date on the notice letter from the CBCU that informs the person of the determination; or
  2. anytime the person can provide new information that was not available at the time the CBCU made the determination.

40 TAC §745.645

 

10620 How to Request a Review of the Background Check Determination

February 2019

 

A person who is the subject of the background check may request the Centralized Background Check Unit (CBCU) review the background check determination by sending a written request to the CBCU inspector who made the determination, which must include:

  1. within 30 calendar days from the date on the notice letter from the CBCU that informs the person of the determination; or
  2. anytime the person can provide new information that was not available at the time the CBCU made the determination.
  3. the reason the person disagrees with the background check determination, if applicable; and
  4. any new information that was not available at the time the CBCU made the determination, if applicable.

Providing New Information Regarding a Provisional Background Check Determination

If a person has a provisional background check determination and has new information available regarding the finding that resulted in the determination, a request for a formal review is not necessary. The person may send the new information directly to the CBCU inspector who issued the provisional determination.

40 TAC §745.645

 

10630 Evaluating the Request to Review the Background Check Determination

February 2019

 

The Centralized Background Check Unit (CBCU) inspector has 30 calendar days to provide the person who requested the review of the background check determination with a written response. The CBCU may extend the 30-day time period for good cause.

While conducting the review, the CBCU inspector considers:

  1. any reason the person disagrees with the background check determination;
  2. any new information the person provided; and
  3. whether all background check rules in Chapter 745, Subchapter F were followed.

The CBCU inspector encourages the person disputing the background check determination to work directly with the agency providing the results to resolve the issues.

40 TAC §745.645

 

10631 Handling Disputed Criminal Histories

February 2019

 

Procedure

If a criminal history background check indicates that a person has committed a minimum standards violation, but the person disputes the accuracy of the criminal history, the Centralized Background Check Unit (CBCU) instructs the person to email the DPS Error Resolution Unit at error.resolution@dps.texas.gov to resolve the issue. The person may visit the DPS website for more information.

If the person believes that the criminal history results available to the CBCU contains an error or incomplete information, the CBCU inspector instructs the person to provide a copy of the official court record to confirm the correct charge and disposition.

40 TAC §745.643

 

10632 Handling Disputed Central Registry Findings

February 2019

 

Procedure

The Centralized Background Check Unit (CBCU) inspector works with the person who is the subject of a background check to determine the correct information if the person:

  • agrees that the Central Registry match is the person’s, but believes the finding is incorrect; or
  • disputes that the Central Registry match is the person’s.

If a person disputes a child abuse or neglect finding from another state, the CBCU inspector refers the person to Criminal Background Check Contact List for contact information for agencies that handle child abuse and neglect checks in states outside of Texas.

 

10640 Disputing the CBCU’s Review of the Background Check Determination

February 2019

 

If the person who is the subject of the background check requested a review of the background check determination and disagrees with the Centralized Background Check Unit’s (CBCU) review determination, the person may request that the director of the CBCU review the accuracy of the review determination. The CBCU director may conduct this review or assign the review to a designee that was not previously involved in the original or review determination. The CBCU director or designee’s decision is final.

40 TAC §745.645

 

10700 Determining Compliance with Background Check Requirements

February 2019

 

Procedure

During inspections and investigations, monitoring inspectors must determine if the operation is complying with all background check requirements, including:

  1. Submitting background checks for all persons required to have a background check according to the appropriate time frames;
  2. Ensuring that persons who are present at the operation have an eligibility determination of Eligible, Eligible with Conditions, or Provisionally Eligible with Conditions;
  3. Adhering to conditions placed on a person’s presence at an operation;
  4. Inactivating a person’s role or employment; and
  5. Validating the operation’s employee list.

 

10710 Evaluating an Operation’s Adherence to Submission and Eligibility Requirements

August 2019

 

When conducting an application, initial, or monitoring inspection, the monitoring inspector must ask the operation for a list of all persons at the operation that are required to have a background check. For child placing agencies, this list must include any foster or adoptive parents who have been verified since the last inspection, including household members ages 14 years and older. The monitoring inspector must then compare this list with the People List in CLASS or CLASSMate to determine whether the operation:

  1. failed to submit any names timely (including renewal checks);
  2. has allowed anyone with a Pending employment status to be present at the operation, unless:
    •  the person is present for the sole purpose of attending orientation or pre-service training and does not have contact with children in care; or
    • the person's Pending status is due to a renewal background check submission and the previous submission shows an eligibility determination of Eligible, Provisional or Eligible with Conditions; or
  3. has allowed anyone who is ineligible to be present at the operation.

Monitoring inspectors must follow the same process during an investigation inspection for principals and collaterals.

To determine whether to recommend an administrative penalty for failure to comply with a background check requirement, see Section 7520 Assessing the Need for an Administrative Penalty.

Also see:

4140 Preparing for Inspections

4150 Conducting Inspections

10120 Persons for Whom Operations Must Submit Requests for Background Checks

10160 When Background Checks Must Be Submitted

40 TAC §§745.621; 745.635; 745.641

 

10720 Evaluating an Operation’s Adherence to Conditions

February 2019

 

When conducting an application, initial, or monitoring inspection, the monitoring inspector must evaluate whether the operation is adhering to any conditions that the Centralized Background Check Unit placed on a person’s presence at the operation.

The monitoring inspector identifies each person on the operation’s People List in CLASS or CLASSMate that has conditions using the Conditions indicator (indicated by a ‘Yes’ in the Conditions? column for the person).

For each person with conditions, the monitoring inspector must view the specific conditions in CLASS or CLASSMate and evaluate whether the operation is adhering to those conditions.

Monitoring inspectors must follow the same process during an investigation inspection for principals and collaterals.

40 TAC §745.635(3)

 

10730 Inactivating a Person’s Role or Employment

February 2019

 

Operations must indicate when a person who is the subject of a background check is no longer associated with the operation. The operation must inactivate a person’s role or employment status within seven calendar days of when the person is no longer associated with the operation. This includes when:

  1. a person leaves employment or a volunteer role;
  2. a person moves out of the operation, if the person is no longer in a role that requires a background check;
  3. a prospective employee or volunteer was not hired; or
  4. a person is ineligible to be present at the operation.

If an operation has a Child Care Licensing account and is unable to access it, the Centralized Background Check Unit or monitoring inspector may assist by inactivating the person in CLASS.

40 TAC §745.651

 

10740 Validating the Employee List

February 2019

 

Operations must validate the operation’s current list of persons associated with the operation:

  1. once every year through their Child Care Licensing account for licensed and registered child care homes;
  2. once every year through their Child Care Licensing account or local Licensing office for listed family homes; or
  3. once every three months through their Child Care Licensing account for all other operations.

The Centralized Background Check Unit or monitoring inspector may assist operations that do not have access to their Child Care Licensing account by validating the People List in CLASS.

40 TAC §745.651

 

10750 Handling Court Orders

February 2019

 

Procedure

A court order may be in place that:

  1. requires a child to remain in a placement where a barred person lives or is present.
  2. waives one or more background check requirements, such as a fingerprint check or risk evaluation.

If a court order is in place, the following steps are taken:

  1. If the inspector for the Centralized Background Check Unit (CBCU) learns about the court order through the operation, the CBCU inspector informs the monitoring inspector, and vice versa.
  2. If the children are in DFPS conservatorship, the monitoring inspector contacts the caseworker or the caseworker’s supervisor to verify that a court order allowing the person to be present at the operation is in effect.
  3. The monitoring inspector informs the CBCU inspector, who then documents the information in CLASS, under the person’s Background Check Results History.
  4. The monitoring inspector informs the operation that the operation must obtain a written court order as soon as possible and forward a copy to the monitoring and the CBCU inspector. The monitoring inspector also informs the operation that it must keep the written order on file while it is in effect and the barred person is living or present in the operation while children are in care.
  5. Upon receiving a copy of the court order, the monitoring inspector places the copy of the order in the operation’s hard copy file.

 

10760 When to Deny or Revoke a Permit Based on Criminal History or Child Abuse or Neglect History

February 2019

 

Child Care Licensing must deny or revoke a permit when:

  • the applicant or permit holder has a criminal history or child abuse or neglect history that makes the person ineligible to be present at the operation while children are in care; or
  • the applicant’s or permit holder’s spouse or any other person is ineligible to be present at an operation and the applicant or permit holder refuses to or is unable to remove the person from the operation.

See 10261 Evaluating Central Registry Findings and 10311 Determining Appropriate Actions Based on Criminal History for more information about who is permanently ineligible to be present at a child care operation while children are in care.

Procedure

Child Care Licensing denies or revokes a permit if criminal history or child abuse or neglect history that would make any of the following persons ineligible to be present at an operation:

  1. applicant or permit holder; or
  2. household member, including a spouse, in the applicant’s or permit holder’s home whom the applicant or permit holder is either unable to or refuses to remove from the home.

A person is ineligible to be present in an operation if the person has criminal history or child abuse or neglect history that:

  1. is not eligible for a risk evaluation;
  2. is eligible for a risk evaluation, and the applicant, permit holder, spouse, or other person does not request a risk evaluation; or
  3. the risk evaluation is not approved.

See 10261 Evaluating Central Registry Findings and 10311 Determining Appropriate Actions Based on Criminal History for more information regarding who is eligible for a risk evaluation.

If the applicant or permit holder is a business entity, such as a corporation, there may be room for the person with the criminal history to leave the business entity without Licensing having to revoke or deny the permit. However, if the person with the criminal history remains in charge of the business entity, then Licensing takes adverse action against the permit. In such cases, the Licensing inspector seeks advice from the Legal Division.

Texas Human Resources Code §42.072(d),(f)

40 TAC §§745.631; 745.8605

See:

3711 Denial Because of Background Information

7621 Criteria for Imposing a Denial

7624 Criteria for Imposing a Revocation