7100 Overview of Voluntary Actions and Enforcement Actions

September 2019

 

Voluntary Actions

Voluntary actions are actions initiated by the operation. Voluntary actions include the following:

  • withdrawal of an application
  • temporary relocation
  • voluntary suspension
  • voluntary closure

 

Enforcement Actions

Enforcement actions are actions Licensing initiates to ensure the safety of children in care at operations subject to regulation.

Enforcement actions include the following:

Voluntary Enforcement Action Corrective Actions Monetary Actions Adverse Actions Judicial Actions
  • plan of action
  • evaluation (imposed before September 1, 2019)
  • probation
  • administrative penalty
  • civil penalty
  • denial of permit
  • revocation of permit
  • suspension of permit
  • adverse amendment to permit
  • temporary restraining orders
  • injunctions

Enforcement actions are neither punitive in nature nor required to be taken in any certain order. Licensing recommends or imposes enforcement actions based on the seriousness of the situation and on the operation’s compliance history. Licensing does not have to recommend or impose a less restrictive action if Licensing determines that a more restrictive action is more appropriate.

Texas Human Resources Code (HRC), Chapter 42, Subchapter D, Remedies (§§42.0705-42.079)

40 TAC §745.8511
26 TAC §745.8601; §745.8603 and §745.8607

 

7110 Circumstances That May Call for Enforcement Action

September 2019

 

Licensing may take an enforcement action under the circumstances listed below.

 

Abuse, Neglect, or Exploitation

Enforcement action may be taken if abuse, neglect, or exploitation has occurred at the operation.

 

Deficiencies

Enforcement action may be taken if the operation has:

  • a single serious deficiency or a pattern of deficiencies in meeting the minimum standards, administrative rules, or the Human Resources Code, Chapter 42; or
  • several deficiencies that create an endangering situation.

 

Evaluation, Probation, or Suspension

Enforcement action may be taken if the operation fails to:

  • meet the terms and conditions of evaluation or probation; or
  • comply with minimum standards, licensing laws, or administrative rules after the suspension period has ended.

 

Emergency Closure

Enforcement action may be taken if there is substantial risk of immediate harm to the health and safety of children in care. The operation is immediately closed (immediate enforcement, emergency closure and injunction).

 

Background Check

Enforcement action may be taken if issues are identified by a Central Registry background check or a criminal history check.

When a listed home permit is automatically suspended or revoked because the listed family home failed to submit a 24-month background check by the due date, that does not constitute adverse action; accordingly, the home does not get due process with respect to an automatic suspension or revocation.

 

Necessary Changes

Enforcement action may be taken if the permit holder fails to timely report necessary changes to Licensing.

 

Change of Location

Enforcement action may be taken if:

  • the permit holder of a registered or listed home fails to notify Licensing staff within 15 days about a change in location; or
  • a child-placing agency fails to give Licensing staff timely notification about a move.

See 3800 Change of an Operation’s Location.

 

Problems with an Application

Enforcement action may be taken if, during the application process:

  • a registered or licensed child day care applicant provides information that shows a deficiency in meeting the minimum standards; or
  • an operation gives false information or false statements.

 

False Records

Enforcement action may be taken if an operation has falsified or permitted to be falsified records or materials required by Licensing.

 

Conditions on the Permit

Enforcement action may be taken if an operation fails to comply with the limits, restrictions, or conditions placed on the permit.

 

Refusal of an Inspection or Investigation

Enforcement action may be taken if someone at the operation refuses, prevents, or delays an inspection or investigation.

 

Applicant with a History in Another State

Enforcement action may be taken if an applicant:

  • has a permit for a child care operation revoked in another state; or
  • is barred from operating a child care operation in another state for reasons similar to those that would cause Licensing to take adverse action.

 

Applicant with a History with Another Texas State Agency

Enforcement action may be taken if an applicant has had a permit revoked, suspended, or terminated by another Texas state agency.

 

Public Notice and Hearing Requirements (residential child care only)

Enforcement action may be taken if an applicant or permit holder fails to comply with the requirements of a public notice or hearing, or the results of the hearing indicate that the community and/or children in care will be adversely impacted as outlined in 40 TAC §745.279.

 

Revoked or Relinquished Permit

Enforcement action may be taken if an applicant, who previously held a permit, applies for a permit to operate a child care operation within five years after:

  • Licensing revoked the applicant’s permit to operate a child care operation; or
  • the applicant voluntarily closed a child care operation or relinquished a permit after receiving notice that Licensing:
    • intended to take adverse action against the permit; or
    • was taking adverse action against the permit.

Retaliation

Enforcement action may be taken if a child care operation discharges or retaliates against an employee, client, resident, or other person because the person or someone on behalf of the person files a complaint, presents a grievance, or otherwise provides, in good faith, information relating to the misuse of restraint or seclusion at the operation.

 

Human Resources Code

Enforcement action may be taken for:

  • a reason set forth in Human Resources Code, §42.078; or
  • a failure to pay an administrative penalty under Human Resources Code, §42.078.

 

Controlling Person

Enforcement action may be taken if:

  1. an operation fails to submit information to Licensing within two days of a change in controlling persons;
  2. a designated controlling person applies for a permit before the due process for the designation is completed;
  3. a sustained controlling person applies for a permit or is listed on the application for a permit within five years of the designation being sustained;
  4. a person who has been denied a permit for a substantive reason applies for a permit within five years of the denial being sustained; or
  5. a person who is associated with an operation whose permit has been denied or revoked by another HHSC agency for a substantive reason applies for a permit.

 

Conditions on an Individual

Enforcement action may be taken if an operation fails to follow conditions or restrictions placed on a person’s presence at an operation.

Texas Human Resources Code §42.048

26 TAC §745.279; §745.431; §745.433; §745.435(d); §745.8605 and §745.8607

 

7120 Notifying an Operation When Licensing Takes Enforcement Action

March 2017

 

Procedure

The inspector notifies all of the following persons when Licensing recommends or imposes an enforcement action against an operation:

  1. The person in charge of the operation
  2. The permit holder
  3. The applicant or designee
  4. The head of the governing body
  5. Each controlling person

See Appendix 3000: Notifying the Operation.

 

7200 Handling Immediate Danger to Children

September 28, 2018

 

Procedure

During an inspection or investigation, staff may discover conditions in a regulated or unregulated operation that pose a threat of immediate danger to children because of violations of the minimum standards, administrative rules or statutes.

If this occurs, the inspector or investigator consults with the supervisor, program administrator, or district director to determine whether it is necessary to take one or more of the following actions:

  1. Request assistance from the Department of Family and Protective Services.
  2. Request assistance from fire, health, or law enforcement officials.
  3. Remain at the operation until parents or managing conservators arrive or the dangerous situation is corrected.
  4. Request that the permit holder or person in charge notify parents or managing conservators of the situation. If that person fails to do so, notify the parents or managing conservators.
  5. Request that the supervisor report the situation to the appropriate CCL director. The director contacts the legal division and action is taken.
  6. Remove the child or children from a residential operation if there is a substantial risk of harm and if the removal is approved by a CCL director.

See also:

Appendix 7000-1: Factors to Consider for Enforcement Actions

7637 Emergency Suspension and Closure

7740 Injunctive Relief

 

7210 Immediate Danger in a State-Operated Facility

March 2017

 

If conditions are found that pose an immediate threat or danger to children in care in a state-operated operation because of violations of minimum standards, administrative rules, or statutes, the appropriate CCL director notifies the associate commissioner of Licensing, who then notifies the commissioner.

The commissioner may notify the governor at his or her discretion.

 

7300 Voluntary Actions of the Operation

 

 

7310 Withdrawal of an Application

September 2015

 

An operation may voluntarily withdraw an application for a permit.

See 3230 Withdrawal of an Application for a Permit.

 

7320 Temporary Relocation

December 2009

 

An operation may relocate temporarily for a period of up to 90 days due to damage or renovation to the building, which makes it temporarily unsuitable for child care.

The operation must notify Licensing immediately when it moves to a new location.

40 TAC §§745.8511; 745.8517

Procedure

A licensed operation must obtain fire, sanitation, and gas pipe pressure test inspections of the temporary location before or as soon as possible after the relocation.

The inspector must inspect the operation before or as soon as possible after the relocation to ensure that no risk to children exists.

The physical plant (space, restrooms, playground) should comply with minimum standard rules.

The inspector may use discretion in approving arrangements that do not comply. Factors to consider when deciding whether to approve include:

  • the anticipated length of stay at the temporary location;
  • the degree of deviation from minimum standards; and
  • the risk to children considering the activities offered by the operation.

The inspector documents the relocation in CLASS.

 

7330 Voluntary Suspension

September 28, 2018

 

An operation may request a voluntary suspension of its permit when:

  1. changes or repairs must be made to the operation;
  2. enrollment is too low to operate, or no children are in care;
  3. the owner or caregiver is ill;
  4. the owner or caregiver takes an extended leave of absence; or
  5. the owner or caregiver have other personal reasons that necessitate a change.

During the voluntary suspension period, an operation must:

  • continue to pay all standard fees; and
  • apply to renew the permit if the permit is due for renewal during the voluntary suspension period.

Texas Human Resources Code §42.071

40 TAC §§745.8519; 745.8521; 745.8527;

 

7331 Assessing and Granting a Request for Voluntary Suspension

September 28, 2018

 

To assess a request for a voluntary suspension, Licensing staff must receive a written request from the operation that includes the following information:

  1. The proposed dates for when the suspension will begin and end;
  2. The reason for the request;
  3. Plans for resuming operation; and
  4. A statement about how the permit holder will meet the minimum standard rules at the end of the suspension period.

Child care centers, before and after-school programs, school-age programs, licensed child care homes, and registered child care homes may request to have a permit suspended for a maximum of 90 days.

Residential child care operations may request to have a full permit suspended for a maximum of two years.

A voluntary suspension may not be granted if the operation is under:

  1. involuntary suspension;
  2. automatic suspension;
  3. probation; or
  4. revocation proceedings.

40 TAC §§745.8519; 745.8521; 745.8523; 745.8525

Procedure

When the inspector receives a request for voluntary suspension, he or she may grant, deny, or add conditions to the request.

To determine whether to grant a voluntary suspension, the inspector:

  1. confirms that the operation is not undergoing involuntary suspension, automatic suspension, probation, or revocation proceedings;
  2. evaluates the operation’s compliance history;
  3. determines the reason for the voluntary suspension and the length of the operation plans to be closed is appropriate; and
  4. confirms that no children will be in care during the voluntary suspension period.

 

7332 Documenting the Voluntary Suspension

March 2017

 

Procedure

If the inspector grants the voluntary suspension with or without conditions, the inspector:

  1. changes the Operating Status on the Operation main page in CLASS to No;
  2. checks the Do Not Display On Public Website box on the Operation main page;
  3. competes the Provider Voluntary Suspension page in CLASS; and
  4. sends the Voluntary Suspension Approval Letter Form 2865, located on the Provider Voluntary Suspension page in CLASS to the operation, notifying the operation of the decision to grant the suspension and the expectation that the permit holder return the permit to the inspector.

If conditions are added to the voluntary suspension request, the inspector sends notice of the conditions with the Voluntary Suspension Approval Letter, Form 2865. The inspector documents the conditions in the Corrective Action Plan section of the Provider Voluntary Suspension page in CLASS.

 

7333 Denying the Voluntary Suspension

September 28, 2018

 

If Licensing denies the request for a voluntary suspension, the operation may request an administrative review of the action.

40 TAC §745.8525

Procedure

If the inspector determines the request should be denied, the inspector notifies the owner of the operation by drafting notice of the denial on HHSC letterhead on the Corrective/Adverse action page in CLASS. The letter must include the reason for the denial and information about the permit holder's right to an administrative review.

The inspector documents the denial in a chronology for the operation in CLASS.

 

7334 Ending the Voluntary Suspension

September 28, 2018

 

An operation must have Licensing's permission to reopen after a voluntary suspension. To request permission to reopen, the operation must notify Licensing no later than 15 days before they resume operating.

The inspector may approve an operation’s request to reopen upon determining that the operation is in compliance with applicable minimum standards.

If the inspector determines the operation poses a risk to children in care, Licensing may impose adverse action to address the concerns.

If the operation does not reopen or voluntarily close by the end of the voluntary suspension period, the operation's permit is revoked. The operation has the right to request an administrative review on the revocation.

40 TAC §§ 745.8529; 745.8531

Procedure

If the Licensing inspector does not hear from the operation at least 15 days before the end of the suspension period, the inspector:

  1. contacts the permit holder to notify him or her that the voluntary suspension period is ending;
  2. informs the permit holder that Licensing must receive notification of and approve the request to resume operation;
  3. informs the permit holder that he or she may voluntarily close; and
  4. informs the permit holder that if Licensing is not notified of the plans to reopen or to voluntarily close, the permit will be revoked.

Reopening the Operation

If the operation notifies Licensing that it wants to resume operating, the inspector conducts an inspection before reopening the operation. 

In order for the operation to reopen, the inspector must:

  1. address any concerns with applicable minimum standard violations observed during the inspection;
  2. change the Operating Status to Yes on the Operation main page in CLASS;
  3. uncheck the Do Not Display on Public Website box in CLASS;
  4. enter a chronology of any discussion held with the owner to verify compliance with minimum standards;
  5. enter the results of the voluntary action plan on the Voluntary Suspension page in CLASS; and
  6. return the permit to the operation.

If the inspector determines that the operation poses a risk to children at the end of the voluntary suspension period, the inspector consults with the supervisor and takes the appropriate action depending on risk to children.

If the Operation Requests to Voluntarily Close

If the operation notifies Licensing that it wants to voluntarily close, the inspector follows up to close the operation. See 7340 Voluntary Closure.

If the Operation Fails to Reopen or Respond By the End of the Suspension Period

If the operation does not reopen or does not voluntarily close by the end of the suspension period, Licensing staff contact the HHSC Legal department and the Director of Child Day Care or the Director of Residential Child Care, as appropriate, to discuss revoking the permit.

If the decision is made to revoke the permit, Licensing staff:

  1. mail the operation a certified letter stating that:
    • its permit is no longer valid and that the operation must close, as required by Texas Administrative Code §745.8531, and
    • the owner of the operation has a right to request an administrative review and the right to appeal Licensing’s decision to revoke the permit;
  2. enter the following information on the Provide Voluntary Suspension Plan page in CLASS:
    • Closed in the Result of Suspension field;
    • the date of the decision to close the operation in the End Date field; and
    • the reason for closure in the Corrective Plan field;
  3. conduct an inspection to verify that the operation is not caring for children. If the operation is caring for children, Licensing staff follow procedures in 6530 Investigations of Illegal Operations; and
  4. document the operation’s closure in CLASS.

See:

7710 Administrative Reviews

7730 Due Process Hearings

 

7340 Voluntary Closure

July 2012

 

Licensing rules require that an operation notify the inspector before, if possible, or within 10 days after going out of business or closing. Fees are not refundable when an operation closes.

If an operation is closing for a period of time but plans to reopen, see 7330 Voluntary Suspension.

Texas Human Resources Code §42.071

40 TAC §745.8533

26 TAC §746.301

Procedure

When Licensing is notified that an operation is going to voluntarily close, the inspector takes the following steps:

  1. Changes the operating status to No and updates the Effective Date to reflect the Begin Date of the voluntary closure on the Operation Main page in CLASS.
  2. Enters the closure date in the Application/Closure page in CLASS.
  3. Enters the reason for closure in the Application/Closure page in CLASS.

 

7341 Documentation of an Operation That Has Closed

December 2009

 

Procedure

If the inspector learns that an operation has stopped or will stop operating and has no plans to reopen, he or she sends CLASS Form 2825 (Voluntary Suspension/Relocation/Closure Letter) to the operation to confirm that it is closing or has closed.

If unable to determine the actual date the operation closed, the inspector uses the date he or she learned of the closing.

 

7342 Voluntary Closure During an Investigation

September 28, 2018

 

An operation may close voluntarily:

  • during an investigation; or
  • while failing to maintain compliance with minimum standards.

However, an operation may not prevent Licensing from taking an enforcement action by voluntarily closing. Once an operation receives an intent to revoke letter, the monitoring inspector may follow through with the adverse action until it is final, regardless of whether the operation has closed.

40 TAC §745.8605(14)(B)

40 TAC §745.8515

 

7343 Notification of Investigation Findings When an Operation Closes Voluntarily

September 28, 2018

 

Procedure

As soon as the investigation is complete, or as soon as the operation closes, the inspector sends a letter to the permit holder stating the investigation findings and the circumstances leading to the closing.

Exception: If the inspector has already sent an intent to revoke letter to an operation an additional findings letter is not necessary.

 

7344 Licensing Response if the Operation Did Not Close

December 2009

 

Procedure

If the permit holder later tells the inspector that the operation did not close as planned, depending on the seriousness of the situation, the inspector may:

  • state that the circumstances will affect whether a permit will be issued in the future (see 3700 Denial of an Application for a Permit and Reapplying After Denial or Revocation); or
  • follow through with the adverse action process in spite of the closing (see 7630 Taking Adverse Action).

 

7350 Plan of Action

March 2017

 

A plan of action is a voluntary enforcement action that is a collaborative effort between Licensing and an operation. The goal is to develop a plan to reduce risk and help improve the operation’s compliance with Licensing statutes, administrative rules, and minimum standards.

Because a plan of action is voluntary, an operation may decline to develop and follow a plan. If this occurs, Licensing may impose a more restrictive enforcement action if Licensing staff determines that risk cannot be mitigated without a plan and the operation meets the criteria for another enforcement action.

The time frame for a plan of action is six months.

Because a plan of action is a voluntary action, it is not eligible for an administrative review.

40 TAC §§745.8611; 745.8613; 745.8631(1) and 745.8633(c)

 

7351 Criteria for Recommending a Plan of Action

March 2017

 

An operation is eligible to participate in a plan of action if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists and Licensing determines the operation meets all of the following criteria:

  1. demonstrates the ability to identify risk;
  2. accepts responsibility for correcting deficiencies;
  3. has the ability to make corrections;
  4. has a history of making corrections to maintain compliance, if applicable;
  5. will be able to mitigate risk by following the plan of action; and
  6. has not participated in a voluntary plan of action during the previous 12 months for similar issues.

If the permit holder operates multiple operations, Licensing staff may consider the criteria listed above for each operation the permit holder operates when determining the operation’s eligibility to participate in a plan of action.

In determining whether a plan of action is the most appropriate enforcement action for an operation, Licensing staff should consult Appendix 7000-1: Factors to Consider for Enforcement Actions.

40 TAC §§745.8605; 745.8607; and 745.8633

 

7352 Staffing and Initiating a Plan of Action

September 2019

 

Procedure

The inspector must discuss the recommendation to initiate a plan of action with the supervisor and obtain supervisory approval before recommending a plan of action to the operation. Licensing staff documents the supervisor's approval in a Chronology in CLASS.

After receiving approval from the supervisor, the inspector:

  1. prepares the operation’s compliance history report;
  2. completes Section I of Form 7277 Child Care Licensing Plan of Action; and
  3. attaches Form 7277 to the operation’s compliance history.

The inspector then contacts the operation to schedule a meeting to:

  1. discuss the identified compliance issues with the operation;
  2. explain the purpose of the plan of action and the process for developing the plan;
  3. explain the benefits of participating in a plan of action; and
  4. ask the operation if they agree to complete a plan of action.

The meeting is held either in person or via telephone. During the meeting, Licensing staff provide the operation a copy of Form 7277 Child Care Licensing Plan of Action with the compliance history report attached. If the meeting is conducted by phone, the inspector ensures that the permit holder receives a copy of the plan before the phone conference.

The inspector documents a summary of the conversation with the operation in a CLASS Chronology.

 

7352.1 If the Operation Agrees to Participate in a Plan of Action

March 2017

 

Procedure

If the operation agrees to complete a plan of action, the inspector takes the following actions:

  • explains to the operation’s permit holder, director, or administrator that they must complete Section II of Form 7277 Child Care Licensing Plan of Action and return to Licensing within 10 days of receipt; and
  • explains to the operation’s permit holder, director, or administrator that licensing staff and the operation will discuss and must agree to action items the operation documents in Section II of Form 7277 before the plan can be implemented.

 

7352.2 If the Operation Does Not Agree to Participate in a Plan of Action

September 28, 2018

 

Procedure

If the operation does not agree to complete a plan of action, the inspector:

  • discusses with the Licensing supervisor, program administrator, or district director whether Licensing should impose a more restrictive enforcement action; and
  • notifies the operation, in writing on HHSC letterhead, of the outcome of the discussion.

 

7353 Meeting with an Operation to Review a Plan of Action

March 2017

 

Licensing staff schedule a meeting, in person or via telephone, with the operation’s permit holder, designee, director or administrator to:

  • review Section II of Form 7277 Child Care Licensing Plan of Action; and
  • ensure that the operation’s proposed plan addresses the deficiencies and will mitigate risk to children.

The meeting must take place within 10 days of receiving the completed Form 7277 Child Care Licensing Plan of Action from the operation. The inspector and supervisor must review the plan submitted by the operation before the meeting.

Procedure

During the plan of action meeting, Licensing staff:

  1. review the operation’s compliance history report and discuss areas of concern with the operation;
  2. review the operation’s plan to ensure the action items:
    • address the areas of concern identified in the operation’s compliance history;
    • reduce or eliminate the recurrence of deficiencies; and
    • mitigate risk to children caused by the deficiencies;
  3. explain to the provider how Licensing follows up on the implementation of the plan; and
  4. discuss the date the operation will implement the plan (the start date) and the date the plan will end (see 7357 Plan of Action Time Frames).

In the event the action items the operation outlined in the plan do not mitigate risk, the inspector:

  • explains to the operation how the plan fails to reduce risk and correct deficiencies; and
  • works with the operation to develop new action items that reduce risk and address the deficiencies.

 

7353.1 When Licensing and Operation Agree on a Proposed Plan of Action

March 2017

 

Procedure

Once Licensing and the operation have agreed to the plan of action, the permit holder or designee and the Licensing inspector and supervisor review and sign the completed Form 7277 Child Care Licensing Plan of Action.

Licensing staff places a hard copy of the plan of action in the case file.

At least 15 days prior to the start date of the plan, Licensing staff sends the permit holder notification that includes the plan’s start date, along with a signed copy of the plan.

Licensing staff documents the plan in CLASS (See 7354 Documenting the Plan of Action in CLASS).

 

7353.2 When Licensing and Operation Cannot Agree on a Proposed Plan of Action

March 2017

 

Procedure

If Licensing staff and the operation cannot agree on the proposed plan of action, the inspector consults with the supervisor, and, if needed, the program administrator and/or director, to determine whether Licensing should:

  1. implement the plan as written by the operation;
  2. collaborate further with the operation; or
  3. impose a more restrictive enforcement action.
    • Licensing staff documents the consultation and resulting recommendations in a CLASS Chronology.

40 TAC §745.8631(1), §745.8639

 

7354 Documenting the Plan of Action in CLASS

September 2019

 

Licensing staff document the plan of action in the CLASS Provider Plan of Action List located under the Monitoring tab as follows:

What to Document When to Document CLASS Field(s)
Planned Start Date Before plan of action begins Begin Date
Planned Completion Date Before plan of action begins End Date (must be 6 months from the Start Date)
List of deficiencies within the last 24 months that are the basis for recommending the plan (may or may not include all deficiencies cited within the past 24 months) Before plan of action begins
  • Basis for Plan of Action - Investigation
  • Basis for Plan of Action - Inspection
  • Basis for Plan of Action - Assessment
Operation’s action items Before plan of action begins Plan Summary
Whether implementation of the plan was successful After plan of action ends Status dropdown

 

7355 Starting a Plan of Action

March 2017

 

A plan of action starts 15 days from the date the operation was notified, in writing, of the plan unless the operation requests, in writing, to begin the plan earlier.

Procedure

If an operation requests to begin the plan of action early, the inspector:

  • documents the revised start date in the Begin Date field in the Provider Plan of Action List in CLASS; and
  • updates the end date in the End Date field in the Provider Plan of Action List in CLASS.

See 7354 Documenting a Plan of Action in CLASS

 

7356 Inspecting an Operation During a Plan of Action

September 2019

 

During a plan of action, Licensing staff conduct at least two unannounced inspections while children are in care to determine whether the operation has come into and maintained compliance with minimum standards, administrative rules and statutes.

Licensing staff may conduct additional inspections based on the compliance of the operation and risk to children determined during the required inspections.

Before the end of the plan of action, Licensing staff evaluate the operation’s compliance with the entire subchapter associated with each minimum standard listed in the Basis for Plan of Action section of the Provider Plan of Action List in CLASS.

26 TAC §745.8631(1)

 

Procedure

The inspector must conduct the inspections at appropriate intervals in order to be able to:

  • evaluate the operation’s progress in implementing the plan; and
  • determine whether the operation successfully completed the plan or a more restrictive action may be needed.

During each monitoring inspection, the inspector:

  1. evaluates the operation’s compliance with at least one subchapter of the minimum standards associated with the plan of action;
  2. evaluates the operation's compliance with one additional subchapter of the minimum standards to ensure overall compliance with the minimum standards;
  3. documents that the plan of action was evaluated during the inspection in the Narrative field on CLASS Form 2936;
  4. provides technical assistance in the areas where the operation is deficient; and
  5. completes all other tasks required during a monitoring inspection (See 4126 Monitoring Inspections).

The inspector may evaluate whether the operation is following the plan of action, but only cites a deficiency if the operation violates a minimum standard, administrative rule, or statute. If the operation is still deficient in the areas identified in the plan, the inspector reviews the specific action items in the plan related to the deficiencies with the permit holder or designee at the time of the inspection.

 

7357 Ending a Plan of Action

 

 

7357.1 Staffing Before a Plan of Action Ends

March 2017

 

Before a plan of action ends, the Licensing inspector meets with the Licensing supervisor at least once to review the operation’s compliance with minimum standards, administrative rules, and statutes. The inspector may conduct additional staffings with the supervisor as needed based on the operation’s progress and overall compliance.

Procedure

During each staffing, the Licensing inspector and supervisor review the operation’s progress on the plan of action and overall compliance with minimum standards. They also discuss whether:

  1. the plan remains appropriate;
  2. the plan should end early;
  3. additional inspections are needed; or
  4. a more restrictive enforcement action would be more appropriate.

Before ending the plan, the Licensing inspector and supervisor must discuss whether the plan of action has been successful.

The staffing and any recommendations are documented as a Chronology in CLASS.

 

7357.2 Plan of Action Time Frames and Ending a Plan of Action Early

March 2017

 

A plan of action lasts six months. Licensing may not extend a plan of action, but may end a plan of action early if Licensing determines that:

  • the operation has reduced risk and come into and maintained compliance with minimum standards, administrative rules, and statutes; or
  • the operation’s compliance has worsened and a more restrictive enforcement action is necessary.

40 TAC §745.8611, 745.8643

See 7357.3 Ending a Plan of Action When Compliance Has Been Established and Maintained and 7357.4 Modifying or Ending a Plan of Action When Compliance Has Not Been Established

 

7357.3 Ending a Plan of Action When Compliance Has Been Established and Maintained

September 28, 2018

 

Procedure

When the operation has come into and maintained compliance with all minimum standards, administrative rules, and statutes, the inspector sends a letter on HHSC letterhead to the operation stating that:

  1. compliance with the minimum standards, administrative rules, and law has been established;
  2. the plan of action has ended; and
  3. compliance with the minimum standards, administrative rules, the law, and any restrictions or conditions on the license or registration must be maintained.

The inspector also changes the Status from In Progress to Successful on the Plan of Action Details page in CLASS.

 

7357.4 Modifying or Ending a Plan of Action When Compliance Has Not Been Established

March 2017

 

If the operation’s compliance with minimum standards, administrative rules, and statute does not improve sufficiently to reduce risk at the operation as a result of the plan of action or the operation’s compliance worsens, the inspector may:

  • recommend additional action items, modify action items, and/or increase inspections; or
  • end the plan of action and impose a more restrictive enforcement action.

40 TAC §745.8643

Procedure

If the operation has not met compliance with minimum standards, administrative rules, and statute, Licensing staff:

  • reevaluates the plan to determine the appropriateness of its terms and:
    • recommends an amendment to the plan’s action items and/or increased inspections if the term of the plan of action is not expiring within the next 45 days; or
    • ends the plan and imposes a more serious enforcement action; and
  • notifies the operation, in writing, that the operation has not met compliance and Licensing is proceeding with the decided upon action.

When the plan ends, the inspector also completes the fields below on the Plan of Action Details page in CLASS as follows:

  • Status: Change from In Progress to Not Successful.
  • CLASS Chronology: Document an explanation for ending the plan and the date the plan actually ended.

 

7400 Corrective Action

September 2019

 

Corrective actions are enforcement actions Licensing initiates to ensure the safety of children in care of an operation that refuses to or is not eligible to participate in a voluntary plan of action, and adverse action is not necessary to mitigate risk. Corrective actions include the following:

  • evaluation (imposed before September 1, 2019); and
  • probation.

The time frame for evaluation is six months, and the time frame for probation is twelve months.

 

Provisional Clause Regarding Evaluation

Licensing does not impose an evaluation on an operation after August 31, 2019.

For an operation that begun evaluation before September 1, 2019, Licensing will continue to monitor the operation during the evaluation period according to the policies and procedures in this section.

Texas Human Resources Code §42.071(c)

26 TAC §§745.8603; 745.8607; 745.8611; 745.8633(c) and 745.8637

 

7410 Criteria for Imposing Corrective Action

 

 

7411 Criteria for Imposing Evaluation

September 2019

 

Licensing may not impose an evaluation on an operation after August 31, 2019.

Texas Human Resources Code §42.071(c)

 

7412 Criteria for Imposing Probation

September 2019

 

Licensing imposes probation on an operation when determining that the operation has repeatedly demonstrated the inability to make necessary corrections to address risk. Specifically, Licensing may impose probation on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists and upon determining that:

  1. the operation does not qualify for a less restrictive enforcement action;
  2. the operation has not demonstrated the ability to make the necessary changes to address risk, but expresses a willingness to comply and make corrections;
  3. the operation will be able to mitigate risk by complying with the conditions identified in the plan in addition to minimum standards; and
  4. a more restrictive enforcement action is not necessary to reduce risk.

See Appendix 7000-1: Factors to Consider for Enforcement Actions

Texas Human Resources Code §42.071(c)

26 TAC §§745.8601; 745.8605; 745.8607; and 745.8637

 

7420 Staffing a Corrective Action

September 2019

 

The inspector must obtain supervisory approval before imposing probation on the operation.

 

Procedure

Following a deficiency or other triggering event, the inspector discusses the reason for recommending probation with the supervisor and the program administrator or district director.

Upon receiving supervisory approval to impose probation, the inspector documents the plan and conditions in CLASS.

 

7421 Documenting the Corrective Action and Creating the Corrective Action Letter in CLASS

September 2019

 

Procedure

Before Licensing staff meet with the operation, Licensing staff document the probation on the Provider Corrective Action Plan page in CLASS as follows:

What to Document CLASS Field(s)
Planned Start Date Planned Begin Date
Planned Completion Date Planned End Date (must be 12 months from the planned start date for probation)
Planned method of follow-up, including inspection frequency Plan for Follow Up Narrative
List of deficiencies within the last 24 months that are the basis for recommending the corrective action (may or may not include all deficiencies cited within the past 24 months)
  • Basis for Corrective Action - Investigation
  • Basis for Corrective Action - Inspection
  • Basis for Corrective Action - Assessment
Conditions Condition Select

See 7422 Meeting with an Operation About a Corrective Action

 

 

7421.1 Considering the Conditions for a Corrective Action

March 2017

 

Evaluation and probation involve imposing conditions that go beyond minimum standards and basic permit requirements to help the operation improve compliance and reduce risk at the operation.

The inspector, in consultation with the supervisor, develops conditions that:

  • directly relate to the specific deficiencies which resulted in the action; and
  • are designed to correct the deficiencies, reduce risk to children, and ensure that the operation can come into and maintain compliance with the minimum standards, administrative rules, and statutes.

For an operation that is placed on probation, Licensing staff also add a condition that requires the operation to post Form 2999-E Probation Notice in a prominent place near all public entrances of the operation.

40 TAC §§745.8631(2), (3); 745.8641 and 745.8643

Procedure

The inspector discusses the conditions with the operation at the meeting to discuss the corrective action. See 7422 Meeting with an Operation About a Corrective Action.

When an operation is on corrective action, Licensing may amend conditions if it is determined the conditions do not protect children or improve the status of the compliance. See 7429.2 Modifying or Ending a Corrective Action When Compliance Has Not Been Established.

Licensing staff may add a condition to the permit for the duration of the corrective action if the operation’s compliance history supports that such a condition is warranted. Licensing staff may not add permanent conditions or restrictions to the permit as part of the corrective action. If Licensing wants to impose permanent conditions or restrictions on the permit, Licensing may impose an adverse amendment.

See:

3810 Circumstances That May Require Amending the Permit

7622 Criteria for Imposing an Adverse Amendment

 

7421.2 Documenting Supervisory Approval of a Corrective Action

March 2017

 

Procedure

Once Licensing staff have determined the conditions for the corrective action, the Licensing supervisor must review and approve the plan and conditions. The supervisor must document this approval by completing the following fields in the Supervisory Decision and Provider Acknowledgement box on the Provider Corrective Action Plan page in CLASS:

  • Supervisory Decision Date;
  • Supervisory Decision; and
  • Reason for Decision.

 

7421.3 Creating the Corrective Action Letter

March 2017

 

Procedure

Licensing staff prepare a draft Corrective Action Letter (Form 2885), on the Provider Corrective Action Plan page in the CLASS.

In the letter, Licensing staff specify:

  1. the basis for the corrective action;
  2. information about the corrective action;
  3. the deficiencies cited during the inspections and investigations that are the basis for the corrective action; and
  4. the conditions imposed to correct them.

 

7422 Meeting with an Operation About a Corrective Action

September 2019

 

Licensing staff schedule a meeting, in person or via telephone, with the operation’s permit holder, designee, director or administrator to:

  1. notify the operation about the probation;
  2. explain the reasons for the probation;
  3. discuss the conditions being imposed; and
  4. answer any questions the operation’s staff may have.

The meeting must take place at least 15 days before the probation period is scheduled to begin, to ensure that the operation has opportunity to request an administrative review.

Texas Human Resources Code §42.071(c)
26 TAC §745.8609

 

Procedure

During the meeting, Licensing staff provide the operation a copy of the Corrective Action Letter. If the meeting is conducted by phone, the inspector ensures that the permit holder receives copy of the plan before the phone conference.

 

7422.1 Required Participants When Meeting with an Operation About a Corrective Action

September 2019

 

Procedure

The inspector and the inspector’s supervisor must attend when meeting with an operation to discuss a probation period.

Directors and program administrators participate in the meeting if circumstances exist to warrant their involvement.

 

7422.2 Topics Covered When Meeting with an Operation About a Corrective Action

September 2019

 

Procedure

During the meeting held with an operation to discuss a probation period, the inspector discusses:

  1. the reason for the probation period, including the operation’s history of compliance with statutes, administrative rules, minimum standards and restrictions or conditions on the permit;
  2. the conditions of probation that the operation must meet to comply with the action;
  3. how Licensing follows up on the implementation of the action;
  4. projected begin and end dates of the action; and
  5. the possible consequences, including adverse action, if the correction is not made, the violation is repeated, and/or the conditions are not met.

26 TAC §§745.8631; 745.8639 and 745.8643

 

7422.3 Finalizing the Corrective Action Letter

September 2019

 

Procedure

At the end of a meeting held with an operation to discuss a probation period, the inspector gives the finalized Corrective Action Letter (CLASS Form 2885) to the operation’s representatives.

If more time is needed to finalize the letter, the inspector sends the final letter to the operation by certified and regular mail within five days after the meeting.

Licensing staff documents the date the Corrective Action Letter (CLASS Form 2885) was delivered or mailed to the operation in CLASS in the Acknowledgement Date field on the Provider Corrective Action Plan page.

 

7422.4 Documenting the Corrective Action Plan Meeting

March 2017

 

Procedure

The inspector documents the following, in CLASS, by selecting the Corrective/Adverse Action category when entering data in the Chronology:

  • The meeting’s attendees;
  • If conditions were amended as a result of the meeting; and
  • Any technical assistance provided.

 

7423 Requesting or Waiving the Right to an Administrative Review of a Corrective Action

September 2019

 

If an operation disagrees with the action or any of the conditions imposed as a part of the evaluation (imposed before September 1, 2019) or probation, the operation may request an administrative review within 15 days of receiving the finalized Corrective Action Letter.

The operation waives the right to request an administrative review of the evaluation or probation if:

  • The operation does not submit a request for an administrative review within the 15 days; or
  • The operation waives the administrative review, in writing, within the 15 days.

See 7710 Administrative Reviews

 

7424 Starting a Corrective Action

March 2017

 

A corrective action does not start until:

  • the operation waives the right to an administrative review; or
  • the person who conducted the administrative review upholds the corrective action.

If the operation waives the administrative review, in writing, before the 15 days to request the administrative review expire, Licensing may begin the action sooner the planned start date. 

Procedure

After the administrative review for the corrective action is waived or upheld, the inspector:

  • enters the Actual Begin Date field on the Provider Corrective Action page in CLASS; and
  • notifies the operation of the Actual Begin Date.

The Actual Begin Date cannot be earlier than the date the operation waives the right to administrative review or the date the administrative review is upheld. See 7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date.

 

7425 Inspecting an Operation During a Corrective Action

September 2019

 

Procedure

During an evaluation (imposed before September 1, 2019) or probation, Licensing staff conduct a monitoring inspection at all of the following times, unless there is good cause not to inspect within these times (such as when Licensing is conducting an investigation):

  • At least once within 21 days after the corrective action period begins; and
  • At least once per month during the duration of the corrective action period.

If there is good cause not to inspect within these times, the inspector requests approval from the supervisor and documents the reason for the variation in a Chronology in CLASS.

During each monitoring inspection, the inspector:

  1. Evaluates the operation’s compliance with:
    • the conditions imposed by the corrective action plan;
    • at least one subchapter associated with the minimum standards listed in the Basis for Corrective Action section of the Provider Corrective Action Plan page in CLASS; and
    • at least one additional subchapter of the minimum standards to ensure overall compliance with the minimum standards;
  2. Documents that the corrective action conditions were evaluated during the inspection in the Narrative field on CLASS Form 2936; and
  3. Completes all other tasks required during a monitoring inspection (See 4126 Monitoring Inspections).

If the operation is in violation of any condition or minimum standard, administrative rule, or statute associated with the action, the inspector:

  1. cites the operation;
  2. provides technical assistance in the area where the operation is deficient; and
  3. reviews the conditions related to the deficiencies with the permit holder or designee at the time of the inspection.

Before the end of the corrective action, Licensing staff evaluate the operation’s compliance with the entire subchapter associated with each minimum standard listed in the Basis for Corrective Action section of the Provider Corrective Action Plan page in CLASS.

 

7426 Conducting Surveillance During Corrective Action

 

March 2017

 

An inspector or supervisor may determine that surveillance is necessary to evaluate whether a program or caregiver is complying with minimum standards or conditions outlined in the corrective action plan. Valid reasons for surveillance include, but are not limited to determining whether an operation is:

  1. complying with transportation requirements;
  2. providing adequate supervision during outdoor activities; or
  3. providing care to more children than the permit allows.

Procedure

An inspector must receive supervisory approval to conduct surveillance. Upon receiving the necessary approval, the inspector may conduct surveillance at the location of the operation or at other locations where children in care are transported by the operation. The inspector should take photographs or video recordings, as necessary, during the course of the surveillance to support violations or a lack of violations. See 1400 State-Issued Equipment, Photographs, and Video.

All decisions regarding surveillance and all information obtained from conducting surveillance must be documented as a Chronology in CLASS.

 

7427 Staffings During Corrective Action

September 2019

 

During corrective action, the Licensing inspector meets with the Licensing supervisor to review the operation’s compliance with minimum standards, administrative rules, and statutes, and the conditions of the corrective action. These meetings take place at least:

  • twice if the corrective action is evaluation (imposed before September 1, 2019); and
  • four times if the corrective action is probation.

 

Procedure

During each staffing, the Licensing inspector and supervisor:

  • review the operation’s progress on the corrective action, including the operation’s overall compliance with the minimum standards, administrative rules, and statutes, and the conditions of the corrective action;
  • discuss whether the corrective action plan and conditions remain appropriate, including whether additional inspections are needed or a more serious enforcement action would be more appropriate; and
  • whether the corrective action has been successful.

Before ending a corrective action, the inspector must staff the decision with a supervisor and receive the supervisor’s approval to end the corrective action.

The staffing and any recommendations are documented as a Corrective/Adverse Action Chronology in CLASS.

26 TAC §745.8631

See 4152 Reviewing Restrictions, Conditions, Waivers, and Variances.

 

7428 Ending Corrective Action

September 2019

 

Licensing may not extend a corrective action, but may end a corrective action early with supervisory approval if the Licensing inspector determines:

  • that the operation has reduced risk and come into and maintained compliance with minimum standards, administrative rules, and statutes; or
  • the operation’s compliance does not improve and a more restrictive enforcement action is necessary.

See:

7427 Staffings During Corrective Action

7428.1 Ending a Corrective Action When Compliance Has Been Established

7428.2 Modifying or Ending a Corrective Action When Compliance Has Not Been Established

26 TAC §§745.8611(b) and 745.8643

 

7428.1 Ending a Corrective Action When Compliance Has Been Established

 

September 2019

 

Procedure

If the operation has come into and maintained compliance with minimum standards associated with the corrective action and all other minimum standards, administrative rules, and statutes, the inspector sends a letter on HHSC letterhead to the operation stating that:

  • compliance with the minimum standard rules, the law, and conditions has been established;
  • the corrective action period has ended; and
  • compliance with the minimum standards, administrative rules, and statutes, and any restrictions or conditions on the permit must be maintained.

On the Provider Corrective Action Plan page in CLASS the inspector:

  • selects the appropriate selection from the Result of Corrective Action drop-down menu; and
  • enters the end date in the Actual End Date field.

Licensing staff follow this process whether the plan ends early or on time.

See 7427 Staffings During Corrective Action

 

7428.2 Modifying or Ending a Corrective Action When Compliance Has Not Been Established

September 2019

 

Procedure

During the course of the corrective action, if the operation’s compliance with minimum standards, administrative rules, the law, and conditions of the corrective action plan have NOT improved sufficiently to reduce risk at the operation, Licensing staff:

  1. reevaluates the plan to determine the appropriateness of the terms and conditions and:
    • recommends an amendment to the conditions and/or increased inspections if the term of the corrective action is not expiring within the next 45 days; or
    • imposes a more restrictive enforcement action, including adverse action; and
  2. notifies the operation, in writing, that compliance has not been met and Licensing is proceeding with the decided upon action.

If ending the plan, the inspector also completes the following fields on the Provider Corrective Action Plan page in CLASS as shown below. The inspector:

  • selects the appropriate selection from the Result of Corrective Action drop-down menu; and
  • enters the end date in the Actual End Date field.

See 7427 Staffings During Corrective Action

 

7428.3 Following Up After Ending a Corrective Action

September 2019

 

Procedure

Within six months of the date a corrective action ends, the inspector conducts a monitoring inspection to ensure the operation is in compliance with minimum standards and rules.

 

7500 Administrative Penalties

 

 

 

7510 Legal Basis to Impose Administrative Penalties

August 2015

 

Administrative penalties are fines that Licensing may impose against an operation or a controlling person with the intent of reducing the risk of harm to children in care. Administrative penalties are not imposed for clerical errors.

Administrative penalties may be imposed against:

  1. any licensed operation, registered or listed family home, including those exempt from paying annual fees;
  2. controlling persons; and
  3. a child placing agency’s main office for violations cited at the operation’s branch offices.

Texas Human Resources Code §42.078(a)

40 TAC §745.8603

 

7511 Imposing an Administrative Penalty Before Taking a Corrective Action

August 2015

 

Licensing may impose a fine before taking non-monetary corrective action. This is done only when an operation or controlling person has violated high risk minimum standards or rules. These rules include, but are not limited to, standards and rules related to supervision, safety hazards, and background checks.

Texas Human Resources Code §42.078(a-2)

Also see:

7521 A Single High Risk Violation

7522 Repeated High Risk Violations

 

7512 Imposing an Administrative Penalty After Taking a Corrective Action

August 2015

 

Licensing must take a non-monetary corrective action before imposing a fine against an operation or a controlling person in situations in which the operation:

  1. violates a term of a permit issued under HRC Chapter 42, or a rule or order adopted under that chapter;
  2. makes a statement about a material fact that the operation or person knows or should know is false:
    • on an application for the issuance of a permit or an attachment to the application, or
    • in response to a matter under investigation;
  3. refuses to allow an inspector to inspect:
    • a book, record, or file required to be maintained by the operation, or
    • any part of the premises of the operation;
  4. purposefully interferes with the work of an inspector or the enforcement of HRC Chapter 42;
  5. fails to pay a penalty assessed under HRC Chapter 42 on or before the date the penalty is due, as determined under HRC §42.078;
  6. commits repeated deficiencies that present low to medium risk to children; or
  7. fails to comply with any evaluation or probation plan after time limits for correction have expired.

Texas Human Resources Code §42.078(a)(1)-(5)

40 TAC §§745.8603, 745.8605, 745.8711, 745.8715

 

7520 Assessing the Need for an Administrative Penalty

March 2017

 

To determine whether an administrative penalty should be recommended, staff consider the following:

  1. whether corrective action is more appropriate (see 7400 Corrective Action);
  2. whether the operation or controlling person has made any effort to come into compliance;
  3. whether an operation has been cited for the same violation within the past six months;
  4. whether it has been documented that the operation has been advised in writing that another violation of the high risk minimum standard or rule previously cited could result in an administrative penalty; and
  5. the level of risk posed to children in care because of the violation.

 

7521 A Single High Risk Violation

September 2019

 

Licensing staff recommend an administrative penalty when an operation or controlling person has a single violation of certain high risk statutes, minimum standards, or administrative rules for the following requirements:

  1. knowingly allowing a person to be present at the operation before receiving notification from the CBCU that the person’s eligibility determination is Eligible, Provisional or Eligible with Conditions;
  2. knowingly allowing a person to be present in the operation after receiving notification from the CBCU that the person’s eligibility determination is Ineligible;
  3. violating a condition or restriction that the CBCU has placed on a person’s presence at the operation; or
  4. other high risk violations identified in the following documents located on the CCL SharePoint site:
    • Citing and Recommending Administrative Penalties for Single High Risk Violations (Immediate Enforcement); and
    • Providing Technical Assistance for Statute and Minimum Standard Deficiencies Associated With Administrative Penalties.

26 TAC §§745.635, 745.637, 745.641, 745.661, 745.667, 745.669, 745.671, 745.8713

 

7522 Repeated High Risk Violations

August 2015

 

Procedure

Licensing staff consider imposing an administrative penalty when an operation or a controlling person has repeated violations of the same high risk minimum standard or administrative rule during any six month period.

 

7522.1 Repeated Violations of Background Check Requirements

August 2015

 

Procedure

Licensing staff consider imposing an administrative penalty when an operation or controlling person has demonstrated a pattern of noncompliance (two or more violations during any six month period) with the following background check requirements:

  • timely submission of an initial background check; or
  • timely submission of a renewal background check.

40 TAC §§745.601, 745.625, 745.8713

Administrative penalties are not imposed for repeated violations of these background check requirements if:

  • the violation involves a regular or frequent visitor, if the operation has not been previously informed that the person needed a background check; and
  • the violation is for an overdue background checks in listed family homes when automatic suspension is appropriate.

Also see

7810 Automatic Suspensions

Protocol for Citing and Recommended Administrative Penalties for Repeated Violations (Progressive Enforcement)

 

7530 Recommending the Administrative Penalty

 

 

7531 When to Recommend the Administrative Penalty

August 2015

 

Licensing staff must submit the recommendation to impose an administrative penalty to the legal division as soon as possible, but no later than 30 days after the operation or controlling person was notified of the violation.

Also see:

7532 How to Document the Recommendation to Impose the Administrative Penalty

 

7531.1 When the Violation is Corrected at the Time of the Inspection

June 2016

 

Procedure

If the operation corrects the deficiency at the time of the inspection, the inspector recommends the administrative penalty as early as the same day the deficiency was cited, or as soon as possible following the inspection. This ensures that there is a complete record of the operation’s history of deficiencies in CLASS. See 4161.21 Documentation of the Findings Evaluated From the Inspection.

If the inspector learns of a deficiency during the inspection, and the operation has corrected the deficiency before the inspection and is in compliance at the time of the inspection, the inspector may cite the operation for the deficiency, but does not recommend an administrative penalty.

For example, if an employee was due for a background check in June and Licensing staff inspect in September and see that the check was not run until August, it is clear that though the background check was late the operation had already corrected it.

 

7531.2 When the Violation is Not Corrected During the Inspection

August 2015

 

Procedure

If the violation is not corrected during the inspection, the operation or controlling person is responsible for notifying Licensing when the violation has been corrected.

Staff wait to recommend the administrative penalty until the operation or controlling person notifies Licensing that compliance is met.

If the operation or controlling person does not notify Licensing that compliance has been met within 15 days of being notified of the violation, the inspector:

  1. processes a penalty on the existing violation;
  2. recites the minimum standard or administrative rule in violation, if applicable; and
  3. considers recommending a separate administrative penalty for the new violation.

 

7532 How to Document the Recommendation to Impose the Administrative Penalty

August 2015

 

A recommendation to impose an administrative penalty must be completed and submitted to the supervisor within three days of creating the administrative penalty in CLASS.

An administrative penalty is created when the inspector identifies and saves violations on the Administrative Penalty Standards List page. At this point, a unique administrative penalty number is created.

Procedure

The inspector completes the Administrative Penalty Details page and Administrative Penalty Standard Details page in CLASS by:

  1. selecting whether to send the recommendation letter to the permit holder, designee, or controlling person;
  2. searching for and selecting each violation resulting in the administrative penalty;
  3. entering the fields required to calculate the recommended penalty amount to be imposed for each violation (see 7532.1 Determining the Maximum Daily Penalty Amount); and
  4. documenting any additional information regarding the penalty in the Narrative box specific to that particular violation. Information may include an employee’s name or date of hire, or any other pertinent information as to why a penalty should be imposed for violation identified.

After the inspector identifies each violation the administrative penalty should be imposed for, the inspector submits the recommendation to the supervisor for review and approval by selecting the Recommendation Ready for Supervisor Approval check box and saving the Administrative Penalty Details page in CLASS.

 

7532.1 Determining the Maximum Daily Penalty Amount

August 2015

 

The maximum daily amount Licensing may impose for each day a violation continues or occurs is set in statute and is based on the type and capacity of the operation.

Licensing staff may recommend imposing 25%, 50%, 75%, or 100% of the maximum daily amount based on the:

  1. seriousness of the violation,
  2. history of previous violations,
  3. efforts the operation or controlling person has taken to correct the violation;
  4. amount necessary to deter future violations; and
  5. extent to which the violation causes harm to property or the environment

Texas Human Resources Code §42.078(b)(1) and (2); and (c)(1) and (2)

Procedure

The inspector enters the recommended percentage of the maximum daily amount in the Recommended Penalty Amount for Violation field on the Administrative Penalty Standard Details page for each violation associated with the penalty.

 

7532.11 Determining the Operation’s Capacity

August 2015

 

For operations other than child placing agencies, the maximum penalty amount is based on the capacity listed on the operation’s permit.

For children placing agencies, the maximum daily penalty amount is based on the number of children in care at the time of the violation.

Texas Human Resources Code §42.078(b)

Procedure

If the administrative penalty is being imposed on an operation other than a child placing agency, the operation’s capacity will automatically display on the Administrative Penalty Standard Details page in CLASS.

If the administrative penalty is being imposed on a child placing agency, the inspector enters the operation’s capacity in the Capacity field on the Recommended Penalty Amount section of the Administrative Penalty Standard Details page in CLASS.

 

7532.12 Determining the Number of Days to Impose an Administrative Penalty

August 2015

 

Procedure

To determine the number of days to impose the penalty, the inspector enters the following information in the Recommended Penalty Amount for Violation fields on the Administrative Penalty Standard Details page:

  1. the date the operation was notified of the violation in the Begin Date field;
  2. the date the operation was given to comply with the minimum standard or rule in the Comply by Date field;
  3. the date the operation came into compliance in the Corrected Date field:
    1. if the violation is corrected at the time of the recommendation, the inspector uses the date the operation notified Licensing of the correction;
    2. if the violation has not been corrected 15 days after the operation was notified of the violation the inspector enters a date equal to 15 days from the Begin Date; and
  4. the number of days excluded, which is the number of days the operation was not providing care for children between the Begin Date and the Compliance Date, in the Number of Excluded Days field.

 

7532.13 Submitting the Recommendation to the Supervisor

August 2015

 

Procedure

When the inspector has entered all information to be considered with the administrative penalty, the inspector submits the recommendation to the supervisor by checking the Recommendation Ready for Supervisor Approval check box on the Administrative Penalty Details page.

 

7533 Supervisor and Legal Review of the Recommendation to Impose an Administrative Penalty

August 2015

 

From the date the inspector submits the recommendation to impose the administrative penalty for review, the supervisor has five days to edit, approve, and submit the request to the legal department for review.

The supervisor processes the recommendation to impose the administrative penalty even if an administrative review is requested on violations identified in the penalty.

The supervisor must obtain approval from legal before sending the recommendation to impose the administrative penalty to the operation or controlling person.

Procedure

In order to approve the recommendation to impose an administrative penalty, the supervisor reviews the recommendation to determine:

  1. whether an administrative penalty is warranted for each identified violation;
  2. that the maximum daily amount to be imposed for each violation is consistent with policy;
  3. that the number of days the penalty is imposed is correct; and
  4. whether the appropriate technical assistance was provided at the time of the original citation.

If the administrative penalty totals more than $500, the supervisor must submit the recommendation for approval to the Director or designee of Child Day Care or Residential Child Care before the recommendation is sent to the legal department for review.

Also see:

4161.2 Documenting Inspection Results on CLASS Form 2936

 

7533.1 Supervisor Agrees with the Recommendation

December 2015

 

Procedure

If the supervisor agrees with the recommendation, the supervisor:

  1. makes any necessary edits to the initial recommendation, or requests the inspector make the edits;
  2. selects the Supervisor Approved check box on the Administrative Penalty Details page;
  3. saves a draft of the Notice of Recommendation for Administrative Penalty CLASS Form 2994; and
  4. sends a copy of the Notice of Recommendation for Administrative Penalty CLASS Form 2994 to the legal mailbox, along with a copy of each inspection, assessment, or investigation form in which a violation identified in the administrative penalty was cited.

 

7533.2 Legal Agrees with the Recommendation

August 2015

 

If legal approves the recommendation to impose an administrative penalty, the supervisor sends the notice to the licensed operation, registered or listed home, or controlling person.

Also see:

7534 Sending Notification of the Recommendation to Impose an Administrative Penalty

 

7533.3 Supervisor or Legal Disagree with the Recommendation

August 2015

 

Procedure

If the supervisor determines that an administrative penalty is not necessary or appropriate, the supervisor completes the Administrative Penalty Final Result section on the Administrative Penalty Details page in CLASS by:

  • selecting Stopped from the Final Result field; and
  • documenting the reason the penalty was not approved in the Final Result Narrative field.

 

7534 Sending Notification of the Recommendation to Impose an Administrative Penalty

August 2015

 

From the date the supervisor sends the recommendation to impose an administrative penalty to the legal department, Licensing has six days to notify the operation or controlling person of the recommendation.

Procedure

If the legal department approves the recommendation to impose an administrative penalty, the supervisor takes the following steps on the Administrative Penalty Details page:

  1. makes any requested edits to the recommendation;
  2. finalizes the Notice of Recommendation for Administrative Penalty CLASS Form 2994; and
  3. sends the recommendation to impose the penalty via regular and certified mail, and includes copies of relevant inspection and investigation forms supporting the decision.

Also see:

7540 Issuing the Order to Pay an Administrative Penalty

7550 Due Process Rights for Administrative Penalties

 

7535 Reviewing the Status of Administrative Reviews for Minimum Standard or Rule Violations Identified in the Administrative Penalty

August 2015

 

Before notifying the operation or controlling person about the recommendation to impose an administrative penalty, the supervisor reviews the administrative review status for each violation identified in the administrative penalty to determine whether:

  1. the penalty should be stopped;
  2. a different amount should be imposed; or
  3. the recommendation can be sent as drafted.

Also see:

7535.1 Actions to Take if Any, But Not All, Violations Identified in the Administrative Penalty are Overturned During the Administrative Review

7535.2 Actions to Take if All Violations Identified in the Administrative Review are Overturned During the Administrative Review

 

7535.1 Actions to Take if Any, But Not All, Violations Identified in the Administrative Penalty are Overturned During the Administrative Review

September 28, 2018

 

Procedure

If the Administrative Review status for any, but not all of the violations identified in the administrative penalty are set to Overturned and the Notice of Recommendation for Administrative Penalty CLASS Form 2994 has not been sent to the operation or controlling person, the supervisor reviews and makes any needed edits the recommendation to impose the administrative penalty.

If the Administrative Review status for any, but not all of the violations identified in the administrative penalty are set to Overturned and the Notice of Recommendation for Administrative Penalty CLASS Form 2994 has already been sent to the operation or controlling person, the supervisor:

  • requests a data fix to remove to Overturned violation;
  • sends notification to the operation or controlling person on HHSC Letterhead if the outcome of the administrative review significantly alters the initial recommendation, including the amount of the penalty; and
  • gives the operation or controlling person another opportunity to accept the updated penalty if the operation previously requested a due process hearing.

 

7535.2 Actions to Take if All Violations Identified in the Administrative Penalty are Overturned During the Administrative Review

September 28, 2018

 

Procedure

If the Administrative Review status for all violations identified in the administrative penalty are set to Overturned, the supervisor:

  1. selects Stopped from the Final Result field on the Administrative Details page in CLASS and enters a reason for the penalty being stopped; and
  2. if the Notice of Recommendation for Administrative Penalty CLASS Form 2994 has already been sent to the operation sends notification to the operation or controlling person that the decision to recommend an administrative penalty was stopped by sending notice using HHSC Letterhead.

 

7540 Issuing the Order to Pay an Administrative Penalty

 

 

7541 When to Send the Order to Pay the Administrative Penalty

August 2015

 

The operation or controlling person has 30 days to either accept the administrative penalty or request a due process hearing.

Procedure

The supervisor waits 30 days after the operation or controlling person receives the Notice of Recommendation for Administrative Penalty CLASS Form 2994 to issue an order to pay an administrative penalty.

The supervisor sends the notice to the operation only after:

  1. the due process for each violation identified in the administrative penalty is complete;
  2. the Administrative Review status for at least one of the violations is set to Waived or Upheld; and
  3. the operation or controlling person:
    1. provides written notice accepting the penalty;
    2. fails to respond with written notice within the specified time frame after receiving the recommendation to impose a penalty; or
    3. requests a due process hearing to contest the penalty and the decision to impose the penalty is upheld during the due process hearing and judicial review.

Also see:

7535.1 Actions to Take if Any, But Not All, Violation Identified in the Administrative Penalty are Overturned During the Administrative Review

7535.2 Actions to Take if All Violations Identified in the Administrative Penalty are Overturned During the Administrative Review

7550 Due Process Rights for Administrative Penalties

 

7542 Processing the Order to Pay the Administrative Penalty

December 2015

 

Procedure

A supervisor does not need legal to review or approve the order to impose the administrative penalty unless significant edits or changes were made to the original recommendation to impose the administrative penalty.

To issue the order to pay an administrative penalty, the supervisor updates the Administrative Penalty Details page in CLASS by:

  1. changing the Due Process Hearing status to Waived and entering the Acceptance Letter Received date, if the operation or controlling person sent written notice accepting the penalty;
  2. changing the Due Process Hearing status to Upheld if a State Office Administrative Hearing was conducted and the decision to uphold the administrative penalty is upheld;
  3. creating and finalizing the Administrative Penalty Order CLASS Form 2995; and
  4. sending the Administrative Penalty Order CLASS Form 2995 and the Administrative Fee CLASS Form 2993 to the operation or controlling person.

If the operation or controlling person fails to respond within 30 days of receiving the Notice of Recommendation to Impose an Administrative Penalty, CLASS Form 2994, the supervisor leaves the Acceptance Date field blank and follows steps c and d above. A date is only entered in the Acceptance Date field if the operation or controlling person sent written notice formally accepting the penalty.

The supervisor monitors for payment of the administrative penalty in CLASS.

Also see:

7535.1 Actions to Take if Any, But Not All, Violations Identified in the Administrative Penalty are Overturned During the Administrative Review

7561 When Administrative Penalties Remain Unpaid

 

7550 Due Process Rights for Administrative Penalties

August 2015

 

Licensing must receive a request for a due process hearing in writing, including by email or fax, within 30 days of the date that the operation or controlling person received the Notice of Recommendation for Administrative Penalty CLASS Form 2994.

When determining the due date for a request for a due process hearing, Licensing allows time for the operation or controlling person to receive notice about the recommendation through the mail.

The operation or controlling person waives the right to a due process hearing and the supervisor may process the order to impose the penalty if the operation or controlling person:

  • does not accept the penalty or request a due process hearing for the administrative penalty within 30 days of receiving the notice; or
  • sends the request for a hearing late enough that it is received after the due date.

40 TAC §745.8839

 

7551 Determining Whether a Request for a Due Process Hearing Meets the Due Date

August 2015

 

Procedure

To determine whether the request for a due process hearing for the administrative penalty is received by the due date, staff:

  1. determines the date that Licensing mailed a notification letter to the operation or controlling person explaining the right to a due process hearing;
  2. adds three calendar days to that mail date to estimate the date that the operation or controlling person is presumed to have received the notification letter by regular mail;
  3. adds 30 calendar days to that date of presumed receipt for the request; and
  4. identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

If the operation or controlling person is eligible for a due process hearing, the supervisor does not send the order to pay the penalty. The supervisor makes the following edits to the Due Process section on the Administrative Penalty Details Page in CLASS:

  • changes the Hearing Status from Pending to Requested; and
  • enters the date the request was received in the Date Hearing Requested field.

 

7552 Processing the Outcome of a Due Process Hearing for an Administrative Penalty

 

 

7552.1 Due Process Hearing Upholds the Decision to Impose the Administrative Penalty

August 2015

 

Procedure

If the decision to impose an administrative penalty is upheld after the due process hearing, the supervisor makes the following updates to the Due Process section on the Administrative Penalty Details page in CLASS:

  1. changes the Hearing Status field from Requested to Upheld;
  2. enters the date of the hearing; and
  3. enters the date the decision was sent to the operation or controlling person.

If the amount of the administrative penalty is reduced as a result of the due process hearing, the supervisor completes the Penalty Amount Reduced Section on the Administrative Penalty Details page in CLASS.

The supervisor monitors for payment or a request for a judicial review before sending the Administrative Penalty Order CLASS Form 2995.

Also see:

7540 Issuing the Order to Pay an Administrative Penalty

7553 The Right to Request a Judicial Review of an Administrative Penalty

7560 Payment and Nonpayment of Administrative Penalties

 

7552.2 Due Process Hearing Overturns the Decision to Impose the Administrative Penalty

August 2015

 

Procedure

If the decision to impose the administrative penalty is overturned after the due process hearing, the supervisor updates the Due Process section and selects Stopped option in the Final Results section on the Administrative Penalty Details page in CLASS.

 

7553 The Right to Request a Judicial Review of an Administrative Penalty

August 2015

 

Following a due process hearing, an operation or controlling person has 30 days from receiving the results to:

  • pay the penalty amount ordered; or
  • file a petition for a judicial review.

The operation or controlling person may also take both actions at the same time: paying the penalty amount ordered and filing a petition for a judicial review.

Texas Human Resources Code §42.078(k)(1)-(3)

 

7553.1 If the Right to a Judicial Review is Waived

August 2015

 

Procedure

If the operation or controlling person does not request a judicial review or fails to make the request within the required time frame, the supervisor updates the petition status field on the Administrative Penalty Details page and sends the order to pay the penalty.

Also see:

7540 Issuing the Order to pay an Administrative Penalty

 

7553.2 If a Judicial Review is Requested

August 2015

 

Procedure

If the operation or controlling person requests a judicial review within the required time frame, the supervisor changes the Petition Status from Pending to Requested on the Administrative Penalty Details page in CLASS.

The supervisor will receive an email notification from the legal docket clerk about the outcome of the judicial review.

 

7553.21 Documenting the Outcome of the Judicial Review

August 2015

 

Procedure

If a decision is upheld or if the judge orders a new penalty amount imposed, the supervisor takes the following actions on the Administrative Penalty Details page in CLASS:

  1. changes the Petition Status from Requested to Upheld; and
  2. indicates if the penalty amount is reduced by completing the Penalty Amount Reduced and Reduced Penalty Amount fields; and
  3. monitors for payment.

Also see:

7561 Documenting Payment of Administrative Penalties

If the decision to impose the administrative penalty is overturned, the supervisor takes the following actions on the Administrative Penalties Details page in CLASS:

  1. changes the Petition Status in the Due Process section from Requested to Overturned;
  2. reviews the Penalty Amount section to determine whether a refund should be issued;  and
  3. selects Stopped from the Final Result field.

 

7560 Payment and Nonpayment of Administrative Penalties

August 2015

 

The operation or controlling person must pay the administrative penalty within 30 days after:

  1. the order to pay the administrative penalty is received by the operation or controlling person;
  2. an administrative law judge’s order to pay the administrative penalty becomes final, unless a judicial review is requested.
  3. a judge conducts a judicial review and upholds the decision to impose the administrative penalty.

Licensing staff do not accept payment for the administrative penalty at the local office.

 

7561 When Administrative Penalties Remain Unpaid

November 2017

 

If the operation or controlling person does not pay the penalty amount as ordered by the due date, Licensing staff may:

  • impose another enforcement action against the operation or controlling person; or
  • refer the matter to the Office of Attorney General for collection, if the amount owed is greater than or equal to $2500.

40 TAC §745.8605

 

7561.1 Nonpayment Due to Insufficient Funds

August 2015

 

Procedure

If a payment is returned due to insufficient funds, the supervisor or inspector must follow up with the operation or controlling person within seven days of being notified of the nonpayment.

Also see

5261 How to Verify and Follow Up on Insufficient Funds (NSF).

 

7561.2 Nonpayment of Administrative Penalties for Reasons Other than Insufficient Funds

August 2015

 

Procedure

If the operation or controlling person fails pay the entire penalty within the required time frame, the supervisor and inspector meet and consider the following:

  1. the amount of the penalty not paid;
  2. steps the operation or controlling person has taken to correct the problem which led to the violation; and
  3. the compliance history of the operation.

The supervisor and inspector consult with Legal to determine the next steps. If the decision is to impose corrective or adverse action, the supervisor selects Corrective or Adverse Action Recommended on the Final Results section on the Administrative Details page in CLASS.

The supervisor consults with the legal department before making the decision to refer nonpayment of an administrative penalty to the Office of Attorney General.

 

7561.3 Closing an Unpaid Administrative Penalty

August 2015

 

Procedure

The supervisor considers closing an administrative penalty imposed against an operation with the results of Operation Closed if the operation has closed since the penalty was imposed or with the results of No Further Action if the following criteria are met:

  1. there have been no repeated violations of similar minimum standards for which the penalty was imposed within the previous year;
  2. the penalty is over a year old;
  3. the penalty amount is for less than $100;
  4. there have been no other administrative penalties recommended in the previous year;
  5. the penalty is not pending due process; and
  6. the district director or designee has approved closing the penalty.

 

7600 Adverse Actions

March 2017

 

Licensing may deny, suspend, revoke, or impose conditions on the permit (adverse amendment) of an operation that does not comply with the law, administrative rules, minimum standards, or the specific terms of the permit.

Texas Human Resources Code §42.072(a), (e)

40 TAC §745.8649 §745.8875

Pending the appeal of a decision to deny the permit, an operation may not operate.

Pending the appeal of the decision to revoke the operation’s permit, an operation may continue to operate, unless Licensing determines health or safety concerns exist that requires the operation to stop operating. In this case, the operation may only continue to operate pending appeal of the revocation if a judge grants injunctive relief allowing the operation to remain open.

The inspector or supervisor consults with a Licensing attorney before notifying the permit holder of an adverse action.

40 TAC §§745.8655 and 745.8609

HRC §42.072(e)

 

7610 Defining Adverse Action

September 28, 2018

 

Adverse action is taken when deficiencies pose a risk that endangers the health and safety of children, or there are indications of a continued failure to comply with the rules or law.

An adverse action is one of the following:

  1. Denial of an application (during application status)
  2. Denial of an application for issuance of a permit (during initial status)
  3. Denial of a request for amendment of a license, certificate, or registration
  4. Adverse amendment of the permit with conditions
  5. Involuntary suspension (this type of suspension is not the same as an automatic suspension that takes place when there is a failure to pay an annual fee)
  6. Revocation of an initial or full permit

40 TAC §745.8649

 

7620 Criteria for Taking Adverse Action

March 2017

 

Licensing imposes adverse action upon determining that the operation not operate or must cease operating or that a permanent restriction or condition to the operation’s permit is necessary because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

 

7621 Criteria for Imposing a Denial

March 2017

 

Licensing may deny an applicant a permit for an issue identified in 7110 Circumstances That May Call for Enforcement Action upon determining that:

  1. a background check result makes an applicant ineligible for a permit, because either the result is ineligible for a risk evaluation or the Central Background Check Unit will not approve a risk evaluation;
  2. the operation does not demonstrate the ability to comply with minimum standards and other applicable laws during the initial permit period, if applicable;
  3. the results of a public hearing make an applicant ineligible for a permit;
  4. the operation presents an immediate threat to the health or safety of children; or
  5. the applicant is otherwise ineligible for a permit because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

40 TAC §§745.8605; 745.8650

See:

3710 Denial Because of Failure to Comply With Minimum Standard Rules, Administrative Rules, or Law

3713 Compliance History Indicates Inability to Meet Minimum Standard Rules

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

7110 Circumstances that May Call for Enforcement Action

Appendix 7000-1: Factors to Consider for Enforcement Actions.

 

7622 Criteria for Imposing an Adverse Amendment

March 2017

 

Licensing may impose an adverse amendment on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists, and Licensing determines the following criteria are met:

  1. an amendment on the permit will mitigate any risks;
  2. the amendment is the most effective enforcement action for addressing risk at the operation; and
  3. the operation is capable of following the restrictions of the amendment.

40 TAC §§745.8605; 745.8651

 

7623 Criteria for Imposing an Involuntary Suspension

March 2017

 

Licensing may impose an involuntary suspension on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists, and upon determining that:

  1. the operation will pose a danger or threat of danger to the health or safety of children in the operation’s care until the issue is resolved;
  2. the operation cannot correct the issue while children are in care, but can do so during a specific period of time;
  3. the operation is capable of making the necessary corrections while the permit is suspended; and
  4. there are no additional concerns about the operation’s compliance history that would make revocation a more appropriate enforcement action for the health or safety of children.

40 TAC §§745.8605; 745.8652

 

7624 Criteria for Imposing a Revocation

March 2017

 

Licensing may revoke an operation’s permit if an issue described in 7110 Circumstances That May Call for Enforcement Action exists, and upon determining that:

  1. the operation is ineligible for corrective action;
  2. Licensing cannot address the risk at the operation by taking corrective action or another type of adverse action;
  3. A background check result or a finding of abuse or neglect makes the permit holder ineligible for a permit, either because the result is ineligible for a risk evaluation or the Central Background Check Unit informs will not approve a risk evaluation; or
  4. Revocation is otherwise necessary to address the issue described in 7110 Circumstances That May Call for Enforcement Action.

40 TAC §§745.8605; 745.8654

 

7630 Taking Adverse Action

March 2017

 

Procedure

When imposing an adverse action, the inspector does as follows:

Determine the Appropriate Adverse Action

Licensing staff:

  • uses Appendix 7000-1 as an aid in determining which action to recommend (see 7620 Criteria for Taking Adverse Action);
  • discusses the recommendation of an adverse action and with the supervisor; and
  • makes the recommendation to the program administrator or district director.

Notify the Permit Holder or Applicant About the Action

Licensing staff:

  • notifies the permit holder or applicant about the intent to deny, revoke, suspend or amend a permit; and
  • explains in the notification that the permit holder or applicant has the right to request an administrative review within 15 days after the permit holder receives the letter of intent to deny, revoke, suspend, or amend a permit.

See:

7710 Administrative Reviews

7631 Notice of Intent to Deny, Revoke, or Suspend

7632 Administrative Review for Adverse Action

 

Notify Controlling Persons About the Intent to Designate

If the action being taken is a revocation, Licensing staff:

  • determines which controlling persons to designate; and
  • notifies the controlling person about the intent to designate.

See 7770 Administrative Review and Due Process Hearing for a Designated Controlling Person.

Notify the Permit Holder or Applicant About the Results of an Administrative Review

If the permit holder or applicant requests an administrative review, Licensing staff notifies him or her about the decision to deny, revoke, suspend, or amend the permit after the administrative review is completed. See 7632 Administrative Review for Adverse Action.

If the permit holder or applicant appeals the Licensing decision, Licensing staff notifies him or her about the final decision to deny, revoke, suspend, or amend the permit after the opportunity to appeal has been exhausted. See 7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit.

 

Documentation

Licensing staff documents all adverse action in CLASS.

Licensing staff generates all adverse action letters from CLASS.

The forms available in CLASS under the Corrective/Adverse Action tab in CLASS include:

Form 2880 Intent to Impose Adverse Action Letter

Form 2878 Decision to Impose Adverse Action Letter

Form 2895 Final Notice of Adverse Action Letter

 

7631 Notice of Intent to Deny, Revoke, or Suspend

September 28, 2018

 

The inspector consults with the legal department before notifying an operation or home about the intent to deny, revoke, or suspend.

No denial, revocation, or suspension is effective unless Licensing:

  • notified the permit holder or applicant in person or by both regular and certified mail about the alleged deficiencies warranting action; and
  • gave the permit holder or applicant an opportunity to retain the permit by showing compliance with Licensing statutes, administrative rules, and minimum standards.

Texas Government Code §2001.054

40 TAC §745.8609

Procedure

The inspector sends the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, to the permit holder or applicant to:

  • notify the permit holder or applicant about Licensing’s intent to deny, revoke, or suspend the permit; and
  • explain the basis for that action.

 

7631.1 When Immediate Intervention Is Warranted at an Operation

December 2015

 

If circumstances at the operation are determined to be so extreme that immediate intervention is warranted, the inspector may make a referral for legal action (injunctive relief) simultaneously with the mailing of the notification letter (CLASS Form 2880 Intent to Impose Adverse Action).

See 7740 Injunctive Relief.

 

7631.2 Creating the Notification of Intent Letter

September 28, 2018

 

When preparing the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, the inspector must:

  1. Include a statement of intent to deny, revoke, or suspend the permit.
  2. Include references to the legal authority for the adverse action taken:
    The authority is Human Resources Code §42.072(a). The Licensing inspector includes additional legal authority as applicable and with direction from the legal department for adverse action because of matches found during a background check, matches found during a search for a controlling person, or for the denial of a residential license.
    For example, HRC §42.072(f) requires Licensing to revoke or deny an operation’s permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.
  3. Include specific details of the findings or basis for denial, revocation, or suspension, including:
    1. specific citation of statute, administrative rules, and minimum standards;
    2. dates of the deficiencies;
    3. description of each deficiency; and
    4. the name of the inspector who made the determination.
  4. Include information specific to the action taken. See:
    7631.21 Requirements if the Action Taken is Denial.
    7631.22 Requirements When the Operation is Already on Corrective Action or Suspension.
    7631.23 Requirements if the Action Taken is Revocation or Suspension and There is Risk to the Health or Safety of Children.
  5. Include information notifying the operation about their requirements, rights, and restrictions. See:
    7631.24 Notifying an Operation About the Requirements For Informing the Public About an Adverse Action
    7631.25 Notifying an Operation About the Right to Request an Administrative Review
    7631.26 Notifying an Operation About the Restrictions on Reapplying for a Permit
    7631.27 Notifying an Operation About Restrictions on Controlling Persons
  6. A statement that forms and letters from each inspection, investigation, or assessment used as a basis for the action are enclosed with the notice.
    The inspector prints and includes as enclosures copies of forms and letters from each of the inspections and investigations where deficiencies used as the basis for the adverse action are documented.

 

7631.21 Requirements if the Action Taken is Denial

September 28, 2018

 

If the action taken is denial, Licensing staff:

  • leaves the check box stating that HHSC has determined the operation poses a risk to the health and safety of children unchecked. This check box should only be used when the action taken is revocation or suspension; and
  • includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the CLASS Form 2880 Intent to Impose Adverse Action letter.

 

7631.22 Requirements When the Operation Has Been on Corrective Action or Suspension

December 2015

 

Corrective Action

If the operation had been on corrective action, the inspector must include both of the following in the notification letter (CLASS Form 2880 Intent to Impose Adverse Action):

  • the date that the operation was placed on evaluation or probation; and
  • a statement that the conditions were not met, if applicable.

Suspension

If the operation had been on suspension, the notification must explain the corrections needed before the license or registration can be reinstated.

 

7631.23 Requirements if the Action Taken is Revocation or Suspension and There is Risk to the Health or Safety of Children

December 2015

 

If Licensing intends to revoke an operation’s permit and determines that the operation poses an immediate risk to the health or safety of children, the inspector must also include the following information on CLASS Form 2880, Intent to Impose Adverse Action letter:

  1. a statement explaining the risks, and that the operation must discontinue operating pending the outcome of a due process hearing, unless the permit holder obtains injunctive relief from a district court in the county in which the operation is located;
  2. specifies how the operation poses an immediate danger to a child’s safety or health, or both, with information included as outlined under 40 TAC §745.751, for example:
    Your operation poses an immediate risk to the health or safety of children for several reasons: First, you have failed to meet the standards for supervision during eight inspections; second, two staff members were recently found to have neglected a child, and the child suffered substantial physical injuries because of the neglect; and third, the operation has failed to comply with minimum standard §___.___ eight times.

Texas Human Resources Code, §42.072(e)

40 TAC §745.8875

Procedure

If the operation poses an immediate threat to the health or safety of children, the inspector provides immediate notification to the operation. See 7631.3 Authorizing and Delivering the Intent to Impose Adverse Action Letter.

The district director or designee changes the operation’s main page in CLASS by selecting the check box Do not display on public/provider website.

 

7631.24 Notifying an Operation About the Requirements For Informing the Public About an Adverse Action

December 2015

 

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the inspector must include statements explaining the following.

Statement 1

Within five days of receiving the notification letter, the operation must notify the public about the adverse action by sending a copy of the adverse action letter by certified mail to each parent or managing conservator (one copy for each child currently enrolled in the operation).

Statement 2

The operation must post the adverse action in a prominent place near each public entrance, as required by 40 TAC §745.8873, §745.8655.

Statement 3

The operation must notify persons seeking to enroll a child that Licensing is seeking to deny, suspend, or revoke the permit.

Statement 4

The operation must give the inspector a copy of each return receipt (the green card) within five days after receiving return receipts generated by the letters operation staff sent by certified mail.

Texas Human Resources Code, §42.077(d-1)

40 TAC §§745.8655; 745.8879

The inspector follows up to ensure that the operation has:

  • notified the parents; and
  • sent the receipts to Licensing.

 

7631.25 Notifying an Operation About the Right to Request an Administrative Review

December 2015

 

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the inspector must include a statement that:

  • explains that the operation has a right to request an administrative review; and
  • explains the procedures for requesting a review, including:
  • whom to contact and where that person can be reached; and
  • that an administrative review must be requested within 15 days after receipt of the letter.

40 TAC §§745.8613; 745.8809-745.8817

 

7631.26 Notifying an Operation About the Restrictions on Reapplying for a Permit

December 2015

 

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the inspector must include a statement that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Texas Human Resources Code, §42.072(c)

If the inspector denies a permit and the denial of the permit is upheld, the inspector applies a five-year restriction on reapplying.

If a sustained controlling person reapplies for a permit within five years from the date that the applicant was sustained, the inspector does not apply an additional five-year restriction. Applying within five years is not considered a substantial enough violation to warrant an additional five-year restriction.

 

7631.27 Notifying an Operation About Restrictions on Controlling Persons

December 2015

 

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the inspector must include a statement that when Licensing revokes a child care permit, controlling persons associated with the operation:

  • are designated as controlling; and
  • receive a letter offering an administrative review of that designation.

The inspector includes that a person’s designation as a controlling person is sustained when the revocation and the due process for a designated controlling person are final.

For five years after the designation is sustained, a sustained controlling person cannot:

  • obtain a permit to operate a child care operation; or
  • serve as a controlling person.

Texas Human Resources Code, §42.072(g)

40 TAC §745.8873

 

7631.3 Authorizing and Delivering the Intent to Impose Adverse Action Letter

September 28, 2018

 

The notification letter CLASS Form 2880 Intent to Impose Adverse Action, must be signed by the district director or designee.

Licensing staff:delivers the letter to the permit holder or applicant personally or by courier and obtains a signed receipt; or

  • sends the letter by both regular and certified mail, with a return receipt requested.

Licensing staff sends a copy of the letter to the:

  1. district director;
  2. Licensing attorney;
  3. supervisor; and
  4. DFPS residential contract manager (if applicable).

Day care licensing staff also notify:

  • the local Child Care Services Program; and
  • the Child and Adult Care Food Program (CACFP), if applicable.

40 TAC §745.8657

 

7631.31 When The Operation is Required to Close Immediately

December 2015

 

If the operation poses an immediate threat to the health or safety of children, the inspector is responsible for providing immediate notification to the operation by delivering the letter to the permit holder or applicant personally.

If the inspector personally delivers the letter, the inspector documents the following in CLASS by selecting the Corrective/Adverse Action category when entering data in the Chronology:

  • dates that the letter was delivered to and received by the operation; and
  • name of the person at the operation who received the notification.

If the operation is located at a distance where the inspector is not able to immediately hand deliver the letter, the inspector:

  1. notifies the permit holder or applicant by telephone;
  2. sends the letter by email or fax; and
  3. sends the letter by both regular and certified mail, with a return receipt requested.

 

7632 Administrative Review for Adverse Action

September 2012

 

The inspector must inform a permit holder or applicant that the permit holder or applicant:

  • has a right to request an administrative review, if he or she disagrees with an adverse action; and
  • must request the review no later than 15 days after being notified about the right.

See:

7630 Taking Adverse Action

7710 Administrative Reviews

If the permit holder or applicant does not request an administrative review within 15 days after the notification, the action is implemented as planned.

The permit holder or applicant may file a written waiver of administrative review so that the action may begin before the 15 days expires.

The administrative review for the revocation of a permit or certificate may be combined with the administrative reviews for designated controlling persons. Licensing may combine the reviews or may hold each review separately.

40 TAC §§745.8613; 745.909(b)

 

7632.1 Adverse Action is Overturned at an Administrative Review

September 28, 2018

 

Procedure

If the permit holder or applicant shows compliance and the person conducting the administrative review overturns the adverse action, the person conducting the administrative review mails a letter on HHSC Letterhead (CLASS Form 2834a), advising the permit holder or applicant about the decision.

The inspector sends the letter within 15 days following the administrative review.

For the procedures on providing due process for a person designated as controlling as a result of a revocation, see 7773.1 Adverse Action Overturned or Stopped.

 

7632.2 Adverse Action is Upheld at an Administrative Review or No Administrative Review is Requested

September 2012

 

Procedure

If an administrative review is not requested, or if compliance was not shown during the administrative review, the inspector notifies the permit holder or applicant by sending a decision letter (CLASS Form 2878 Decision to Impose Adverse Action).

The inspector sends the letter within 15 days following the administrative review or within 15 days of the administrative review being waived.

The inspector initiates adverse action.

See:

7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit

7710 Administrative Reviews

7773 Providing a Due Process Hearing for a Designated Controlling Person

 

7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit

September 28, 2018

 

If, after the opportunity for administrative review, Licensing decides to deny, revoke, or suspend an application or permit, the district director or a designee sends a certified letter to the permit holder or applicant to notify the permit holder or applicant about the decision.

40 TAC §745.8609

The inspector notifies the permit holder or applicant about the decision to deny, revoke, or suspend by sending a decision letter, CLASS Form 2878 Decision to Impose Adverse Action by both regular and certified mail.

In addition, the inspector must notify other state agencies, if applicable, and update the operation’s status in CLASS. See:

7633.2 Notifying Other State Agencies

7633.3 Updating the Operation’s Status in CLASS

 

7633.1 Creating the Decision to Impose Adverse Action Letter

September 28, 2018

 

Procedure

The decision letter must include:

  1. A statement that the permit holder or applicant either did not request an administrative review, or did request an administrative review but the decision to take adverse action was upheld.
  2. The date that the administrative review was held, if applicable.
  3. The name of the Licensing staff who conducted the review, if applicable.
  4. The legal authority for the adverse action.
    The legal authority is Human Resources Code §42.072(a).
    The inspector includes additional legal authority as applicable and with direction from the legal department for adverse action because of matches found:
    • during a background check;
    • during a search for a controlling person; or
    • for the denial of a residential license.
    For example, HRC §42.072(f) requires Licensing to revoke or deny an operation’s permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.
  5. A statement that the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, was previously sent to the permit holder, explaining the basis for the action.
  6. If the action taken is denial, the inspector:
    • leaves the check box stating that HHSC has determined the operation poses a risk to the health and safety of children unchecked; and
    • includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the Decision to Impose Adverse Action letter.
  7. If appropriate, include a statement that the operation poses an immediate risk to the health or safety of children, and must discontinue operating immediately. See: 7633.11 Requirements if There is Immediate Risk to Children below.
  8. Information about the operation’s other requirements, rights, and restrictions.

See:

7633.12 Right to Appeal
7633.13 Notifying an Applicant Who Is Denied or Revoked About the Restrictions on Reapplying
7633.14 Notifying an Operation About a Controlling Person’s Right to Request a Hearing
7633.15 Failure to Close the Operation
7633.16 Posting Requirements

 

7633.11 Requirements if There is Immediate Risk to Children

December 2015

 

Procedure

If appropriate, the letter must include a statement that the operation poses an immediate risk to the health or safety of children. The inspector includes a statement that because of these risks, the operation must discontinue operating immediately unless the permit holder obtains injunctive relief from a district court in Travis County or the county in which the operation is located.

The inspector must specify how the operation poses an immediate danger to the safety or health of children, or both, in the text box provided in the CLASS letter by including information as outlined under 40 TAC §745.751. For example:

Your operation poses an immediate risk to the health and/or safety of children for several reasons. First, you have failed to meet the standards for supervision during eight inspections. Second, two staff members were recently found to have neglected a child, and the child suffered substantial physical injuries because of the neglect. Third, the operation has failed to comply with standard §__.___ eight times.

Texas Human Resources Code §42.072(e)

40 TAC §745.8875

Procedure

The district director or designee changes the operation’s main page in CLASS by selecting the check box Do not display on public/provider website to reflect that the operation must not be posted.

If the operation poses an immediate threat to the health or safety of children, the inspector is responsible for providing immediate notification to the operation by delivering the letter to the permit holder or applicant personally.

If the inspector personally delivers the letter, the inspector documents the following in CLASS by selecting the Corrective/Adverse Action category when entering data in the Chronology:

  • The dates that the letter was delivered to and received by the operation.
  • The name of the person at the operation who received the notification.

If the operation is located at a distance where the inspector is not able to immediately hand-deliver the letter, the inspector:

  1. notifies the permit holder or applicant by telephone;
  2. sends the letter by email or fax; and
  3. sends the letter by both regular and certified mail, with a return receipt requested.

 

7633.12 Right to Appeal

September 28, 2018

 

Procedure

The letter must include a statement informing the permit holder or applicant that to appeal the decision, a written request for an appeal must be submitted to the docket clerk, HHSC Legal Services, Mail Code Y-956, P.O. Box 149030, Austin, Texas 78714-9030 within 30 days after receiving the decision for revocation, suspension, or denial letter.

The permit holder or applicant must state in the letter the reasons the permit should not be denied, revoked or suspended. Include a statement that a copy of the request must be sent to the inspector who sent the notice letter.

Texas Human Resources Code §42.072(b)

40 TAC §§745.8839-745.8841

The letter must include a statement that if the permit holder or applicant does not request an appeal, the denial or revocation is final 30 days after the letter is received, and to return the permit to Licensing within the 30 day time frame. When the adverse action is final, the inspector will publish notice of the action in the local newspaper, or on the Child Care Licensing page of the public website.

40 TAC §§745.8855; 745.8659

 

7633.13 Notifying an Applicant Who is Denied or Revoked About the Restrictions on Reapplying

September 2012

 

When the inspector notifies a permit holder or applicant that Licensing is taking action to revoke or deny the permit holder’s or applicant’s child care permit, staff must also provide written notification about the applicable restrictions on reapplying for a permit.

Procedure

The inspector includes a statement in the decision letter (CLASS Form 2878 Decision to Impose Adverse Action Letter), that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

If an inspector denies an applicant a permit because the applicant applies within five years from the date that the applicant was sustained as a controlling person, the inspector does not apply an additional five-year restriction because applying within five years is not considered a substantial violation to warrant it.

 

7633.14 Notifying an Operation About a Controlling Person’s Right to Request a Hearing

September 2012

 

When revoking a permit, the inspector includes in the notification letter (CLASS Form 2880 Intent to Impose Adverse Action) a statement that each designated controlling person will be notified about the ability to request a due process hearing.

A person’s designation as a controlling person is sustained when the revocation and the due process for a designated controlling person are final.

If the revocation of a person’s permit or designation as a controlling person is sustained by Licensing, the person is restricted for five years from:

  • obtaining a permit to operate a child care operation; or
  • becoming a controlling person.

Texas Human Resources Code, §§42.072(c); 42.062; 42.072(g)

 

7633.15 Failure to Close the Operation

December 2009

 

Procedure

The letter must state that if an operation fails to close after receiving notice to discontinue operating, legal action may result.

 

7633.16 Posting Requirements

December 2009

 

Procedure

The letter must include the requirement to post the notice of the adverse action in one or more prominent places near each public entrance as soon as the permit holder receives it.

40 TAC §745.8655

 

7633.2 Notifying Other State Agencies

September 28, 2018

 

Procedure

The inspector sends copies of the decision to suspend, revoke, or deny letter to the appropriate Licensing attorney, district director, supervisor, Child Care Services Program staff, and Child and Adult Food Care Program (CACFP) staff, if applicable.

The residential care inspector must also notify the DFPS residential contract manager, if applicable.

 

7633.3 Updating the Operation’s Status in CLASS

December 2015

 

Procedure

When Licensing suspends or revokes an operation’s permit, the inspector changes the operating status to No and updates the Effective Date to reflect the Begin Date of the suspension or revocation on the Operation Main page in CLASS.

 

7634 Inspecting During the Suspension, Revocation, or Denial Process

March 2017

 

Licensing staff consults with district director, director of day care field operations or director of residential child care field operations, as appropriate, and the Licensing attorney to determine a plan for inspecting during the revocation, suspension, or denial process.

The purpose of inspecting during this process is to ensure the safety of children. Because the operation still has children in care during this time, Licensing continues to have monitoring responsibility.

Procedure

Inspection procedures are described in 7731 Regulation During Appeal Process.

 

7635 Sending an Operation Final Notice of Suspension, Revocation, or Denial

March 2017

 

The district director notifies the applicant or permit holder that the decision to revoke, suspend, or deny the permit is final when:

  • the opportunity to request a due process hearing has passed; or
  • the decision is upheld at the due process.

Texas Human Resources Code §42.077(a)

40 TAC §745.8659

Procedure

The district director or designee:

  • sends a Final Adverse Action letter (CLASS Form 2895) to the permit holder or applicant by both regular and certified mail, with a return receipt requested; and
  • updates the due process fields in CLASS to ensure that the revocation/suspension is reflected on the website.

See also:

7632 Administrative Review for Adverse Action

7711.4 Waiving the Right to Administrative Review

7716.1 Documenting the Outcome of an Administrative Review in CLASS

 

7635.1 Statements Required in the Notice of Final Adverse Action (CLASS Form 2895)

September 28, 2018

 

Procedure

When an inspector sends a final notice of adverse action to a permit holder or applicant, as required in 7635 Sending an Operation Final Notice of Suspension, Revocation, or Denial, the inspector includes the following statements in the notice.

Statement 1: Decision is Final

The final notice must include a statement that the decision to revoke, suspend, or deny is final according to the requirements in Human Resources Code, Section 42.072.

In the case of revocation or suspension, the operation must return the permit, if the operation is still operating when it is notified.

Statement 2: Operation Must Notify Parents or Managing Conservator

If the final notice is being sent to a permit holder who is operating, the final notice must include a statement requiring the permit holder to:

  • mail a notice about the adverse action to the parents or managing conservator of each child enrolled; and
  • send the notice by both certified and regular mail within five days of the date that the permit holder received notice about the denial, suspension, or revocation.

Texas Human Resources Code §42.077(d)

40 TAC §745.8661

Statement 3: HHSC Will Notify the Public

The final notice from HHSC to the permit holder or applicant must also explain that notice about the adverse action will be published by HHSC on the public CCL website. See 7635.2 Additional Actions to Be Taken by Licensing Staff  When Adverse Action Is Final.

In the case of a denial, Licensing publishes the notice only if the permit holder was previously operating. Notification will also be sent to any state and federal programs and agencies, as appropriate.

Texas Human Resources Code §42.077(a)

40 TAC §745.8659

Statement 4: Applicant is Restricted from Reapplying

The final notice must contain a statement that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Texas Human Resources Code §42.072(c)

If an applicant applies for a permit within five years from the date that the applicant was sustained as a controlling person, the inspector does not apply an additional five-year restriction because applying within five years is not considered a substantial violation.

Statement 5: Operating Without a Permit Will Result in Legal Action

The final notice must note that beginning or continuing operation without a permit is a violation of the law and will result in legal action.

For a state-operated operation, legal action may not be taken. The inspector notifies the relevant state agency to explain that HHSC will notify the state administrative authority.

 

7635.2 Additional Actions Taken by Licensing Staff When Adverse Action Is Final

Sepember 28, 2018

 

Procedure

Notifying HHSC Staff and Other Entities

Licensing staff sends copies of the Final Adverse Action notice (CLASS Form 2895) to the following Licensing staff responsible for the operation:

  1. Licensing attorney
  2. district director
  3. program administrator
  4. supervisor
  5. DFPS residential contract manager (when applicable)
  6. staff of the following (when applicable):
    • the local child and adult food care program
    •  the local child care services program

Entering Data in HHSC’s Adverse Action System

Once a denial or revocation is final, the designated user of the HHSC Adverse Action Record Sharing (AARS) system enters information about the operation and the operation’s controlling persons if the denial or revocation is for one of the following reasons:

  1. The applicant committed an act or omission that resulted in the physical or mental harm to an individual.
  2. The applicant is a threat to the health, safety, or well-being of an individual.
  3. The applicant engaged in the physical, mental, or financial exploitation of an individual.
  4. The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the permit.

Rules, 40 TAC §745.907

Texas Government Code §531.953

See 7774 Documenting in the AARS When the Denial or Revocation of a Permit Is Final or the Role of Controlling Person Is Sustained.

 

7636 Follow-Up to Suspension, Revocation, or Denial

September 28, 2018

 

Procedure

Within two weeks after the final notice of revocation, suspension, or denial is mailed, the inspector conducts a follow-up inspection to:

  • determine whether the operation is continuing to care for children; and
  • obtain the license, registration, or listing if it has not been returned.

If no one is present at the operation, the inspector:

  1. documents the inspection type as Follow-up, if the inspector observes enough to confirm the operation is no longer caring for children;
  2. documents the inspection type as Attempted, if the inspector is not able to determine if the operation is continuing to care for children;
  3. documents the observations made during the inspection in a chronology (type Monitoring); and
  4. consults with the supervisor to determine the next course of action.

If the operation continues to operate, the inspector informs the supervisor, who notifies the district director. The director notifies the legal department and requests legal action against the operation (see 7740 Injunctive Relief).

If the revocation, suspension, or denial involves a state-operated operation, the director notifies the associate commissioner of Licensing (see 2280 State-Operated Facilities Exempt From Licensure).

 

7637 Emergency Suspension and Closure

August 2012

 

The inspector initiates the emergency suspension and closure of an operation when there is an immediate risk to the health or safety of children cared for or residing at the operation. The inspector, in consultation with a Licensing attorney, may choose to seek injunctive relief rather than using emergency suspension and closure. This may occur at any time in the regulatory process. See 7740 Injunctive Relief.

The decision to suspend and order immediate closure is made by the director.

The inspector discusses the decision to suspend and order immediate closure with the Licensing attorney before implementation.

The inspector documents the action in the CLASS, in the chronology.

Texas Human Resources Code §42.073

40 TAC §745.8877

Procedure

After consulting with legal staff, the inspector carries out the process for emergency suspension and closure, as described in Licensing policy.

See:

7637.1 Completing the Order for Emergency Suspension and Closure

7637.2 Writing the Letter for Emergency Suspension and Closure

7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

 

7637.1 Completing the Order for Emergency Suspension and Closure

September 28, 2018

 

Procedure

Licensing staff use Form 2931 Emergency Suspension and Closure Order (to notify an operation that:

  • the operation’s license, registration, or listing is suspended; and
  • the operation is being closed for a period of no more than 30 days.

The order must contain the following:

  1. The intent: Please be advised that pursuant to §42.073 of the Texas Human Resources Code (copy attached), the child care operation named below is immediately closed and its permit, license, registration, or listing suspended for a period of 10 calendar days for child care or 30 calendar days.

Name: ________________________

Address: ______________________.

  1. The start date: This order is effective immediately upon receipt of it by the permit holder or the board chairperson.
  2. The end date: This order expires on (date) at midnight.
  3. The basis for the order: The Texas Health and Human Services Commission has found that this child care operation poses an immediate threat to the health or safety or both of the children attending the operation. The reasons for the emergency order are attached as Exhibit A.
  4. The nature of the adverse action: The order must state that Licensing intends to take adverse action, in the form of revocation, against the operation. Licensing staff notify the permit holder in writing as soon as possible after the date of the emergency closure of the operation.
  5. A statement at the bottom of the order to be signed by the person who accepts the order, showing receipt:

I hereby acknowledge the receipt of this order on the _____ day of ___________, 20__.

 

7637.2 Writing the Letter for Emergency Suspension and Closure

September 28, 2018

 

Procedure

Before sending Form 2931 Emergency Suspension and Closure Order to an operation as notification that the operation is being closed for 30 days, the inspector prepares a cover letter to attach to the order.

The letter must be printed on HHSC letterhead and include the following details:

  1. The reasons for the closure, including how the operation poses an immediate threat.
  2. A statement requiring the operation to notify parents, guardians, or managing conservators about the following:
    • That it is necessary to pick up their children immediately. Parents whose children are in day care operations must pick up their children within four hours of notification or by the end of the workday, whichever is longer. Parents whose children are in residential care operations must pick their children up as soon as possible.
    • That the operation will send a follow-up letter to parents using certified mail within five days of the effective date of the closure. Copies of the return receipts must be given to Licensing within five days of receipt by the operation.
  3. The date the closure becomes effective.
  4. A statement explaining that a revocation of the permit is being prepared and that HHSC will send the operation a letter listing the reasons for the intent to revoke and offering an administrative review of the decision to revoke.
  5. A statement explaining that the inspector may be required to inspect the operation periodically during the 30-day closure to determine that there are no children in care that would require the operation to be subject to regulation.

 

7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

September 28, 2018

 

Procedure

The inspector hand-delivers the emergency suspension and closure order and the letter of deficiencies to either:

  • the operation’s director or administrator; or
  • the operation’s owner or board chairperson.

The inspector must obtain an acknowledgment of receipt by requiring signatures:

  • on a copy of the letter; and
  • on the emergency suspension order.

For Child Day Care

The inspector ensures that all parents of the children enrolled are notified immediately about the closure.

The parents are notified:

  • by the operation; or
  • by the inspector who delivers the closure notice, while the inspector is at the operation.

When notifying the parents, the operation or the inspector must explain:

  1. why the operation is being closed;
  2. that the closure is for 30 days from the effective date; and
  3. that parents must arrange to pick up their children within four hours, or by the end of the workday, whichever is longer.

If parents cannot be reached or cannot pick up their children within either four hours or the end of the workday, the inspector:

  • notifies law enforcement; and
  • contacts the regional office of Child Protective Services that serves the area in which the operation is located and asks CPS staff to take custody of the children and arrange for their removal.

For Residential Care

The parents, guardian, or managing conservator of the child must make other arrangements for the child’s care.

If the child was placed by a state agency, such as DFPS (CPS), another department of HHSC or the Department of State Health Services (DSHS), the inspector notifies that agency.

 

7637.4 Complete an Affidavit

December 2009

 

Procedure

The inspector with personal knowledge of events that warranted the order for emergency suspension and closure completes Form 2883 Affidavit for Licensing Representative for Emergency Suspension and Closure.

The affidavit must specify that the operation poses a threat to the health or safety (or both) of children. The affidavit must state the facts that make the immediate action necessary and must be written in consultation with a Licensing attorney. The affidavit must also state that other adverse action, in the form of revocation, will be implemented as soon as possible from the date on which the permit holder received the written notice.

The inspector sends copies of the affidavit, the order, and the letter to the associate commissioner of Licensing and the state office Licensing attorney.

 

7637.5 Implementation of Revocation

December 2009

 

Procedure

Adverse action, in the form of revocation, must be implemented no later than five days from the date on which the permit holder received the written notice.

 

7637.6 The Operation’s Notification Requirements

December 2009

 

Procedure

The inspector ensures that a follow-up letter is sent, certified mail, by the operation to the parents or guardians of the children enrolled at the operation to inform each child's parents or guardians of the action. The notification must be mailed within five days of the effective date of the emergency suspension and closure. The operation must give Licensing copies of the return receipts within five days of receipt by the operation.

 

7637.7 Update Operating Status

March 2017

 

Procedure

Licensing staff change the operating status to No and update the Effective Date to reflect the Begin Date of the emergency suspension or emergency closure on the Operation Main page in CLASS.

 

7638 Follow-Up to Emergency Suspension and Closure

March 2017

 

Procedure

The inspector establishes a schedule to inspect for compliance with an order for closure as immediate enforcement. The inspector informs the supervisor if the operation continues to operate. The supervisor notifies the district director, who will discuss the need for legal action with the state office Licensing attorney.

 

7700 Legal Actions When an Operation Disagrees with the Actions of an Inspector

September 28, 2018

 

If an operation disagrees with certain actions taken by the inspector, the operation may request an administrative review.

If an adverse action is taken or an administrative penalty is imposed, an operation may request a hearing before an administrative law judge (ALJ) from the State Office of Administrative Hearings (SOAH).

The inspector may request injunctive relief, including restraining orders and civil penalties when necessary to protect children.

An operation may seek injunctive relief from the district court in Travis County or from the county in which the operation is located. See 7733 Suit Filed.

Texas Human Resources Code §42.072(e)

40 TAC §§745.8613; 745.8835; 745.8837; 745.8681; 745.8877

Procedure

Administrative Review

An administrative review is a review conducted by a supervisor or other designated Licensing staff when an operation disagrees with certain decisions or action made by the inspector. See 7710 Administrative Reviews.

40 TAC §§745.8801; 745.8803

Release Hearing

An individual may request a release hearing held by the SOAH, when the individual has been notified that he or she will be listed in the DFPS Central Registry as a perpetrator of abuse, neglect, or exploitation of a child. See 7720 Hearings Concerning Child Abuse, Neglect, or Exploitation Findings.

40 TAC Chapter 745, Subchapter M, §745.8805a(1)-(3)

Due Process Hearing

A due process hearing is a hearing held by the SOAH at an operation’s request if the operation has had:

  • an adverse action of denial, revocation, suspension; or
  • an adverse amendment to a license certificate, registration, listing, or compliance certificate.

A due process hearing may also be held by SOAH at the request of an operation’s governing body, director, or designee, if a recommendation of an administrative penalty is made against the operation. See 7730 Due Process Hearings, and 7500 Administrative Penalties.

Texas Human Resources Code §42.078

40 TAC Chapter 745, Subchapter M, §745.8803

Combination Hearing

A combination hearing is a single hearing held by SOAH combining either of the following:

  • A due process hearing for an adverse action and a release hearing. This may be done when an adverse action is being taken against an operation and the operation is the designated perpetrator of abuse, neglect, or exploitation, and the same set of facts apply to both actions; or
  • A due process hearing for a revocation and a due process hearing for a controlling person. This may be done when an operation’s permit is being revoked and those designated as controlling request due process hearings, if the judge decides to combine the hearings. If so, the SOAH judge decides how to handle the designation of the controlling persons at the time of the revocation hearing.

Injunctive Release

An injunction is a legal action by district court. Licensing may seek an injunction enjoining a permit holder from operating. A permit holder may seek injunctive relief from Licensing to continue operating.

See:

7740 Injunctive Relief

7733 Suit Filed

7760 Settlement of Legal Case

Hearing Requested by Controlling Person

A person designated by Licensing as controlling may request a due process hearing conducted by SOAH.

A controlling person against whom Licensing recommends imposing an administrative penalty may also request a due process hearing.

40 TAC Chapter 745, Subchapter M

Texas Human Resources Code §§42.074; 42.072(e); 42.078

Texas Government Code, Chapter 2001

40 TAC §§745.8851; 745.909

 

7710 Administrative Reviews

December 2013

 

Licensing staff conduct administrative reviews to determine whether a decision made by Licensing or an action taken by Licensing was appropriate, according to the applicable licensing statutes, administrative rules, or minimum standards when a permit holder or individual disputes the action or decision.

40 TAC §§745.8801; 745.8803

 

7711 The Right to an Administrative Review

September 28, 2018

 

The following persons may request an administrative review of a decision or action by Licensing:

  1. The governing body, director, or designee of an operation that is entitled to request an administrative review
  2. A person that Licensing has determined is an immediate threat or danger to the health or safety of children
  3. The holder of an administrator’s license regarding the review of an enforcement action concerning that license
  4. An individual whom Licensing intends to designate as a controlling person

40 TAC §§745.8805; 745.8807

40 TAC §745.21

 

7711.1 When an Operation is Entitled to an Administrative Review

September 28, 2018

 

Specific situations in which an operation’s governing body, director, or designee is entitled to an administrative review, include the following:

  1. Licensing does not agree that the operation is exempt from HHSC regulation.
  2. Licensing denies the operation’s request for a waiver or variance from a minimum standard.
  3. Licensing cites the operation for a deficiency, and the operation does not agree that a deficiency was committed.
  4. Licensing takes enforcement action against an operation, unless the enforcement action was voluntary or initially implemented through a court order.

Emergency suspensions, emergency closures, plans of action, technical assistance, administrative penalties, automatic suspensions, and automatic revocations also are not subject to administrative reviews.

Human Resources Code §42.073

40 TAC §745.8805

 

7711.2 When an Individual is Entitled to an Administrative Review

September 28, 2018

 

Specific situations in which an individual is entitled to an administrative review include the following:

  1. Licensing determines that the individual is an immediate threat or danger to the health and safety of children in a child care operation.
  2. Licensing takes enforcement action against the individual’s administrator’s license.
  3. Licensing intends to designate the individual as a controlling person.

40 TAC §§745.8805, 745.8807

 

7711.3 Explaining the Right to an Administrative Review

September 28, 2018

 

Licensing staff advises the subject of a Licensing decision or action that he or she has a right to request an administrative review.

Procedure

To advise an individual or designee of the operation about his or her right to request an administrative review, Licensing staff explains verbally by discussing the decision or action with the individual or the governing body, director, or designee of the operation and provides written notice by:

  1. leaving a printed copy of the completed CLASS form 2936 Child Care Facility Inspection with the person in charge during the exit conference; or
  2. sending the specific notification letter in the CLASS system that is appropriate for the particular decision or action by both regular and certified mail to the individual or the governing body, director, or designee of the operation.

Licensing staff inform the individual or the governing body, director, or designee of the operation that the request for an administrative review:

  1. must be submitted to Licensing in writing, either by letter or by using Form 2940 Request for an Administrative Review;
  2. must include the information outlined in 7713 Receiving a Request for an Administrative Review; and
  3. must be received by Licensing no later than 15 days after the individual or operation received notice about Licensing’s decision or action.

40 TAC §§745.8806; 745.8809

Documenting in CLASS

Licensing staff enter the date that notification about the right to a review was sent in the appropriate due process field in CLASS.

See:

7713.1 Determining Whether a Request for a Review Meets the Due Date

 

7711.4 Waiving the Right to an Administrative Review

December 2013

 

An individual or operation may waive the right to an administrative review, if:

  • the individual or operation does not dispute the Licensing decision or action; or
  • the individual or operation would like to expedite the decision or action Licensing is seeking to take.

An individual or operation may expedite the Licensing decision or action by providing a written statement waiving the right to an administrative review.

40 TAC §745.8817

Procedure

To waive the right to an administrative review, the individual, or governing body, director, or designee of the operation submits a written statement to Licensing no later than 15 days after he or she received notice about the Licensing decision or action.

If the individual or governing body, director, or designee of the operation verbally notifies a Licensing staff person that he or she has decided to waive the right, the staff person informs the individual or designee that the decision must be submitted in writing.

The right to a review is automatically waived if the individual or designee does not submit a written request for an administrative review within the required time frame.

See 7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date.

Documenting in CLASS

For all types of actions or decisions, if the administrative review is waived, the Licensing staff person:

  1. changes the status of the administrative review in the CLASS from Pending to Waived, if there was no additional information requested or from Requested to Waived, if additional information had been requested (see 7713.22 When a Request or an Administrative Review is Incomplete);
  2. files a written request to expedite the decision or action in the investigation or operation’s record and documents the request in the Chronology field in CLASS, if applicable; and
  3. documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date, if applicable (see 7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date).

For actions or decisions involving adverse actions, the Licensing staff person:

  • drafts the appropriate letter notifying the individual or designee of the decision (see 7717 Notifying a Requestor About the Outcome of an Administrative Review); and
  • enters a date in the decision date field in CLASS.

 

7712 Roles for Conducting an Administrative Review

September 28, 2018

 

Violations

A supervisor plans and conducts administrative reviews of violations identified during inspections, assessments, and investigations.

All Other Decisions and Actions

For all other Licensing decisions and actions, the administrative review is conducted by the relevant:

  1. division administrator;
  2. district director;
  3. program specialist; or
  4. designee.

The reviewer:

  • must not have been involved in making, taking, or staffing the decision or action; and
  • must be from a different unit or region where the decision or action was made.

40 TAC §745.8813

 

7713 Receiving a Request for an Administrative Review

December 2013

 

Before conducting an administrative review, Licensing staff must determine that the request for an administrative review:

  1. is addressed to the Licensing contact person designated on the notice;
  2. includes a signed Form 2940 Request for an Administrative Review, or a signed letter granting authorization to an attorney to represent the operation or individual, if applicable;
  3. is received by the due date; and
  4. is complete.

40 TAC §§745.8806; 745.8809

 

7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date

June 2016

 

Licensing must receive a request for an administrative review in writing, including by email or fax, within 15 days of the date that the individual or permit holder received notice about the Licensing decision or action.

40 TAC §745.8806

When determining the due date for an administrative review request, Licensing allows three days for the individual or permit holder to receive notice about the Licensing decision or action through the mail, unless Licensing staff provided notification of the inspection results at the time of the inspection. This is in addition to the 15-day time frame.

If the request for an administrative review is within the specified time frame, Licensing honors the request and conducts the review. If the request is received after the due date, it is considered late and Licensing does not conduct an administrative review.

Procedure

To determine whether the request for an administrative review is received by the date it is due to Licensing, the reviewer determines whether Licensing left notification at the operation at the time of inspection or mailed a notification letter to the individual or permit holder explaining the right to an administrative review.

If the notification letter was mailed, the reviewer:

  • adds three calendar days to that mail date to estimate the date that the individual or permit holder is presumed to have received the notification letter by regular mail;
  • adds 15 calendar days to that date of presumed receipt for the request; and
  • identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

If notification was provided at the time of the inspection, the reviewer:

  • adds 15 calendar days to that date; and
  • identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

If the request is received within the time frame calculated by the reviewer, Licensing staff follow the procedures in 7713.11 When the Request for an Administrative Review Meets the Due Date.

If the request is received after the date calculated by the reviewer, Licensing staff follow the procedures in 7713.12 When the Request for an Administrative Review Does Not Meet the Due Date.

 

7713.11 When the Request for an Administrative Review Meets the Due Date

November 2011

 

Procedure

If the request for an administrative review is received within the calculated time frame, Licensing contacts the requestor to schedule and conduct the administrative review.

See:

7714 Initiating Contact with the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

 

7713.12 When the Request for an Administrative Review Does Not Meet the Due Date

December 2013

 

Procedure

If the request for an administrative review is not received within the calculated time frame, the reviewer documents information in CLASS as outlined in 7711.4 Waiving the Right to an Administrative Review.

 

7713.2 Determining Whether a Request for an Administrative Review is Complete

November 2011

 

A request for an administrative review is complete if it:

  1. describes the specific decision or action in dispute;
  2. indicates why the decision or action is being disputed; and
  3. includes documentation that supports the requestor’s position, such as photographs, diagrams, or written and signed statements.

40 TAC §745.8809

Procedure

After determining that a request for an administrative review was received within the specified time frame, the reviewer evaluates the request to determine whether it contains the following and is therefore complete:

  1. A description of the specific decision or action in dispute
  2. The reason the decision or action is being disputed
  3. Any documentation that supports the requestor’s position, such as photographs, diagrams, or written and signed statements

 

7713.21 When a Request for an Administrative Review is Complete

September 28, 2018

 

Procedure

If the reviewer determines that a request for an administrative review is complete and was received within the specified time frame, the reviewer:

  • updates the information about the administrative review in the Due Process field of the Standards Detail Page in the CLASS system, as explained below; and
  • contacts the individual or permit holder to schedule the administrative review. (See 7714 Initiating Contact with the Requestor of an Administrative Review.)

To update the Due Process field on the Standards Detail Page, the reviewer:

  1. changes the status of the administrative review from Pending to Requested;
  2. enters the date that the request for an administrative review was received; and
  3. enters the name of the person assigned to conduct the administrative review.

 

7713.22 When a Request for an Administrative Review is Incomplete

November 2011

 

Procedure

If a reviewer determines that Licensing received a request for an administrative review by the specified time frame but is incomplete, the reviewer:

  1. completes Form 2809 Information Required for Administrative Review Letter:
    • explaining the missing information that must be submitted to Licensing, and
    • noting that the missing information must be submitted to Licensing within five days;
  2. mails the completed Form 2809 to the individual or permit holder;
  3. files a copy of the letter in the hard copy record for the individual or permit holder; and
  4. updates the details about the administrative review in the Due Process field of the Standards Detail page in CLASS.

To update review details on the Standards Detail page, the reviewer:

  1. changes the status from Pending to Requested;
  2. enters the date that the request for an administrative review was received;
  3. enters the name of the person assigned to conduct the administrative review; and
  4. enters the following information in the Narrative box:
    1. the date that Form 2809 Information Required for Administrative Review Letter was mailed,
    2. the information needed in order for the request to be considered complete, and
    3. the date that the information is due back to Licensing.

 

7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date

November 2011

 

Procedure

To determine whether the Licensing received information that was missing from a request for an administrative review was received by the due date, the reviewer:

  1. determines the date that Licensing mailed Form 2809 Information Required for Administrative Review Letter to the individual or permit holder explaining the need to send Licensing additional information;
  2. adds three calendar days to that mail date to determine the date that the individual or permit holder is presumed to receive the letter;
  3. adds five calendar days to the date of presumed receipt; and
  4. identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

 

7713.24 When the Information Missing From a Request for an Administrative Review is Received by the Due Date

November 2011

 

If the information that was missing from a request for an administrative review is received by Licensing within the calculated time frame, the reviewer contacts the requestor to schedule and conduct the administrative review.

See:

7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date

7714 Initiating Contact with the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

 

7713.25 When the Information Missing From a Request for an Administrative Review is Not Received by the Due Date

September 28, 2018

 

If Licensing does not receive the information that was missing from a request for an administrative review within the required time frame, the reviewer:

  1. notifies the requestor that the request is late (see 7717 Notifying a Requestor About the Outcome of an Administrative Review);
  2. changes the status of the administrative review in CLASS from Requested to Waived; and
  3. documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date (see 7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date).

 

7714 Initiating Contact with the Requestor of an Administrative Review

April 2011

 

Within 10 days of receiving a request for an administrative review, the reviewer contacts the individual or permit holder to:

  • acknowledge receipt of the request; and
  • schedule a conference to be held within 30 days of the initial contact, unless additional time is necessary (see 7714.1 Scheduling an Administrative Review Conference).

40 TAC §745.8815

Procedure

A reviewer may make this contact with a requestor by:

  • sending an email, letter, or fax; or
  • making a phone call or visit.

Whatever the method used to make contact, the reviewer documents all attempts made.

If the requestor is not available, the reviewer leaves a voice mail message stating:

  • the reason for the call; and
  • the reviewer’s contact information.

 

7714.1 Scheduling an Administrative Review Conference

April 2011

 

When making initial contact with an individual or permit holder to acknowledge receipt of a request for an administrative review, the reviewer also schedules a date and time to conduct an administrative review conference.

The administrative review conference gives the requestor an opportunity to explain his or her dispute to the reviewer. See 7715 Conducting an Administrative Review Conference.

The administrative review conference must be scheduled within 30 days after the initial contact with the requestor, unless:

  1. additional time is necessary to comply with a request from the individual or permit holder to provide records related to the review;
  2. the requestor presents a written statement with a reason for delaying the conference, and Licensing determines that the reason constitutes good cause for a delay; or
  3. the requestor does not respond to Licensing’s attempts to schedule a conference, thereby waiving his or her right to a conference.

40 TAC §745.8815

If additional time is needed to comply with a records request, the 30-day time frame for completing the conference begins when the requestor obtains the records.

 

7714.2 Documenting the Initial Contact with the Requestor in CLASS

April 2011

 

Procedure

After contacting an individual or permit holder to acknowledge receipt of a request for an administrative review and schedule a conference, the reviewer documents the following details in the Due Process Documentation field, in CLASS:

  1. The date of the initial contact, including all attempted contacts
  2. The date scheduled for the administrative review conference, if applicable
  3. The date, reason, and outcome of a request for delaying the conference beyond the 30-day time frame, if applicable; and
  4. The date and reason the administrative review conference was waived, if applicable

 

7715 Conducting an Administrative Review Conference

September 28, 2018

 

The administrative review process includes a conference between the reviewer and the permit holder or individual who requested the review.

The conference provides the requestor with an opportunity to present to the reviewer relevant information and documentation to support his or her dispute. It also gives the reviewer an opportunity to ask the requestor questions about the case.

Procedure

The reviewer conducts the administrative review conference on the scheduled date. See 7714.1 Scheduling an Administrative Review Conference.

The duration of the conference depends on the details, questions, and information being discussed.

The reviewer usually holds the conference by phone, but may meet with the requestor at the operation instead; for instance, when conducting an administrative review related to enforcement action taken against an operation, the reviewer may choose to conduct the review face-to-face.

Documenting a Conference in CLASS

After conducting an administrative review conference, the reviewer documents in the CLASS system:

  1. the date of the conference;
  2. a brief summary of the discussion held during the conference; and
  3. any new information received. (Information received on paper is placed in the appropriate file).

 

7715.1 If the Requester Waives the Right to the Administrative Review Conference

 

Licensing staff consider the right to an administrative review conference waived when:

  • the requestor has not responded to attempts to schedule the conference, or
  • the requestor does not schedule the meeting within the 30 days of the initial contact, unless there is just cause for the delay.

40 TAC §745.8815

Procedure

If the reviewer determines that the right to the administrative review is waived, he or she still conducts an office review of the facts to make a determination regarding the final outcome of the administrative review request.

 

7716 Deciding the Outcome of an Administrative Review

September 28, 2018

 

After conducting an administrative review, the reviewer decides whether the Licensing decision or action being reviewed was appropriate under applicable licensing law, administrative rules, or minimum standard rules.

The final outcome of the review is that the Licensing decision or action is overturned, upheld, or amended.

40 TAC §§745.8801, 745.8815

Procedure

Following an administrative review conference with a requestor, the reviewer:

  • meets with the Licensing staff whose decision or action is being disputed; and
  • reviews the Licensing record and any documentation provided during the conference.

The reviewer may also inspect the operation, if necessary.

The reviewer determines the outcome of the administrative review by considering:

  1. whether documentation for the Licensing decision or action provides sufficient detail and clearly explains the reason for the decision or action;
  2. whether the decision or action was consistent with applicable laws and rules;
  3. whether the decision or action was reasonable;
  4. whether the evidence, including any additional evidence provided during the administrative review, supports the decision or action; and
  5. whether the decision or action was correct, including whether the Licensing staff cited the correct minimum standard, administrative rule, or law.

Overturning a Citation for an Abuse, Neglect, or Exploitation

If Licensing staff overturn a citation for the abuse, neglect, or exploitation citation made during a DFPS investigation, Licensing staff notify DFPS of the reason for the decision.

 

7716.1 Documenting the Outcome of an Administrative Review in CLASS

September 28, 2018

 

The reviewer documents the outcome in CLASS by:

  • changing the status of the administrative review from Requested to Overturned or Upheld;
  • clearly explaining the decision in the Due Process Documentation field;
  • entering a date in the Decision Date field; and
  • drafting a letter to notify the individual or designee of the operation of the decision (see 7717 Notifying a Requestor About the Outcome of an Administrative Review).

 

7716.2 Amending an Action or Decision as the Result of an Administrative Review

September 28, 2018

 

If the reviewer determines that the information provided during the review supports a change in the decision or action, the reviewer amends the Licensing decision or action.

Specifically, amending a decision or action may include:

  1. changing the conditions of a corrective action, waiver, or variance;
  2. editing the original documentation of a decision or action; or
  3. overturning the original citation of a minimum standard that was cited incorrectly and adding the citation of a minimum standard that is more appropriate.

The reviewer should discuss the decision to amend the Licensing decision or action with the requester during the administrative review meeting, and notify the requestor that there are no due process rights for the decision or action.

If it is not possible to discuss the decision to amend the Licensing decision or action during the administrative review meeting, the reviewer:

  1. calls the requestor to explain the action;
  2. allows the requester an opportunity to respond to the decision or action;
  3. informs the requester that there are no due process rights related to the decision or action; and
  4. sends the decision letter.

Documenting the Decision

The reviewer creates a supplemental Inspection CLASS Form 2936, investigation findings letter, or other appropriate form or letter displaying the amended decision or action, and follows the steps in 7716.1 Documenting the Outcome of an Administrative Review in CLASS. See 4165 Completing a Supplemental Inspection Form.

 

7717 Notifying a Requestor About the Outcome of an Administrative Review

December 2013

 

Within 21 days after conducting an administrative review, the reviewer prepares and sends written notification about the outcome to the individual or governing body, director, or designee of the operation who requested the review.

If the administrative review is waived by the appropriate person, the reviewer sends written notification explaining the outcome of the administrative review within 21 days of the date that the conference was waived.

Unless the individual or operation has the right to request a due process hearing to challenge the Licensing decision or action, it takes effect:

  1. on the date Licensing receives the individual or designee’s written statement waiving the right;
  2. on the date that the administrative review is automatically waived;
  3. when the decision or action is upheld; or
  4. when the decision or action is overturned.

40 TAC §745.8815

 

7717.1 Notifying an Operation of the Outcome of the Administrative Review

September 28, 2018

 

Licensing does not offer due process hearings when any of the following decisions or actions are upheld or waived:

  1. Licensing determines that the operation is not exempt from HHSC regulation.
  2. Licensing denies the operation’s request for a waiver or variance.
  3. Licensing cites the operation for a deficiency.
  4. Licensing imposes corrective action on an operation.

Licensing does offer the permit holder a due process hearing if the decision to impose adverse action is upheld or waived.

40 TAC §745.8835

Procedure

To notify a designee of the operation about the outcome of an administrative review, the reviewer drafts and sends by both regular and certified mail one of the following letters:

  1. CLASS Form 2885 Corrective Action Letter to uphold the decision to impose corrective action. Form 2885 is also mailed if the operation waives the right to administrative review.
  2. CLASS Form 2878 Decision to Impose Adverse Action for a decision regarding an adverse action (see 7632.1 Adverse Action is Overturned at an Administrative Review or 7632.2 Adverse Action is Upheld at an Administrative Review or No Administrative Review is Requested).
  3. CLASS Form 2834a HHSC Letterhead, located on the page in CLASS where the action is documented, for all other types of reviews.

The reviewer includes a copy of supplemental forms or letters if changes were made under 7716.3 Amending a Decision or Action as a Result of an Administrative Review.

If CLASS Form 2834a HHSC Letterhead is used, the reviewer composes the notification letter as a direct response to the designee’s request for an administrative review and includes:

  1. the specific Licensing decision being disputed and reviewed;
  2. the date that the request was received, the date of conference, and the date of the final decision; and
  3. the outcome of the review.

 

7717.2 Notifying an Individual of the Outcome of the Administrative Review

September 28, 2018

 

Procedure

Licensing offers a due process hearing to an individual designated as a controlling person if the decision is upheld or waived.

To notify an individual about the outcome of an administrative review, the reviewer drafts and mails CLASS Form 2763 Controlling Person Administrative Review Decision Letter for an individual who was designated as a controlling person (see 7772.2 No Administrative Review Requested by the Controlling Person or 7772.3 Decision to Designate a Controlling Person Is Overturned or 7772.4 Decision to Designate a Controlling Person Is Upheld)

 

7720 Hearings Concerning Child Abuse, Neglect, or Exploitation Findings

September 28, 2018

 

A person has an opportunity to request a due process hearing when:

  • DFPS finds that the person abused, neglected, or exploited a child following in a child care operation, and the finding is upheld at the administrative review or the person waives the review; or
  • HHSC conducts a background check on the person and seeks to release that DFPS has designated the person as a perpetrator of child abuse, neglect, or exploitation.

The finding may also be the basis for an enforcement action for which the person may request a due process hearing. In that situation, the person will have a hearing related to the finding and the consequent enforcement action at the same time. An HHSC attorney will represent HHSC at the hearing related both to the finding and the enforcement action.

Procedure

If the finding of an investigation conducted by DFPS is to be the basis for a Licensing action, and that investigation finds that a person has abused, neglected, or exploited a child, Licensing may offer a release hearing if the following has occurred:

  • the investigating program has offered an Administrative Review of Investigation Findings (ARIF) and the person has waived the review either in writing or by failing to request the review within the required time period; or
  • the investigating program has held an ARIF and the program’s finding has been upheld.

 

7721 When a Minor Turns Eighteen

September 28, 2018

 

Licensing staff follow policy and procedures relating to adults who were designated as a perpetrator of abuse or neglect once a minor who was designated as a perpetrator of abuse or neglect:

  • turns 18 years old; and
  • has received notification of the opportunity to a due process hearing to challenge the finding.

 

7722 Sustaining a Perpetrator in IMPACT

September 28, 2018

 

CBCU staff sustain a perpetrator in the Information Management Protecting Adults and Children in Texas (IMPACT) if:

  • HHSC conducts a background check on a person who has a Child Protective Services or Adult Protective Services finding for the abuse or neglect of a child; and
  • the person does not make a timely request for a due process hearing to challenge the finding.

Procedure

CBCU staff sustains the perpetrator in the Administrative Review/Appeal stage in IMPACT by:

  1. choosing FPS Position Upheld from the Result drop-down menu;
  2. documenting the outcome, in detail, in the Narrative field;
  3. selecting the check box by the indicator for Change Role to Sustained Perpetrator; and
  4. entering the date the individual was notified of the decision.

See internal document, Process CR Checks for Licensing Job Aid, for additional details.

Exception

If the individual who is designated as a perpetrator of abuse or neglect is a minor and the due process hearing was waived, CBCU staff do not sustain the minor as a perpetrator in IMPACT.

 

7723 Emergency Release

September 28, 2018

 

Under certain circumstances, information about a designated perpetrator may be released before a release hearing is held. To do an emergency release, CBCU staff consults with a Licensing attorney before releasing information, and the attorney must agree with the release. An emergency release may be done when CBCU determines that the presence of the designated perpetrator constitutes an immediate threat or danger to the health, safety, or welfare of the children in the operation that requested the background check.

When the designated perpetrator is a permit holder, the information may be released for the purpose of justifying a request for appropriate judicial relief or for notifying parents of children in care, or both.

Procedure

CBCU staff notifies the designated perpetrator in writing of the following:

  • A statement of the abuse or neglect findings;
  • A statement that the findings will be released prior to the due process hearing;
  • That the finding may affect his or her employment in child care;
  • The perpetrator’s right to request a hearing;
  • The party to whom the written request for a hearing is addressed:
    Texas Health and Human Services Commission
    Docket Clerk, Legal Services, Mail Code Y-956
    P.O. Box 149030
    Austin TX 78714-9030
  • That the request must be postmarked within 30 days after the person receives this notice; and
  • That a copy of the request must be sent to the CBCU inspector or his or her supervisor.

 

7730 Due Process Hearings

September 28, 2018

 

The applicant or permit holder may request a due process hearing on a Licensing decision intended to:

  1. deny, revoke or suspend a permit;
  2. impose an administrative penalty (permit holder only); or
  3. place a new or additional restriction or condition on the permit after initial issuance (permit holder only).

Controlling Person

A person designated as controlling may request a due process hearing when due process rights are offered regarding the designation.

A controlling person may request a due process hearing when an administrative penalty is being imposed against the individual.

Licensed Administrator

A licensed administrator may request a due process hearing if HHSC decides to deny, revoke, or suspend the administrator’s license.

To request a due process hearing, the administrator:

  1. sends a letter to the following, within 30 days of receiving notice from HHSC about the option to appeal:
    • Texas Health and Human Services Commission
    • Docket Clerk, Legal Services, Mail Code Y-956
    • P.O. Box 149030
    • Austin TX 78714-9030;
  2. includes in the letter the reasons for wanting to appeal the action or decision.
  3. sends a copy of the letter to the inspector or supervisor.

40 TAC §§745.909; 745.8613; 745.8837; 745.8839; 745.8841

Waiver of Due Process Rights

Due process rights for a hearing are waived by the operation or individual, if the rights were not requested according to 40 TAC §745.8839 and §745.8841.

If due process rights are waived by not requesting a hearing according to the rules, the Licensing decision or action, or both, is effective the day after the date that the option to request a hearing expires, unless the due process hearing was offered due to the designation of a controlling person.

If the due process hearing was offered due to the designation of a controlling person, and the controlling person does not request a hearing, the Licensing decision is effective on:

  • the day after the date that the revocation is final and;
  • after the controlling person has waived his or her rights to a due process hearing.

40 TAC §745.907(b)

See also 7770 Administrative Review and Due Process Hearing Designated Controlling Person.

Expediting the Appeals Process

If an applicant or permit holder asks to expedite a Licensing decision or adverse action, or both, the inspector directs the applicant or permit holder to send Licensing a written waiver of the right to a due process hearing before the 30-day time frame has expired.

The Licensing decision or action is effective on the date that Licensing receives the written waiver.

40 TAC §745.8855

State Office of Administrative Hearings

If granted, the request for an appeal is forwarded by the docket clerk for the HHSC Legal Services Division who handles cases related to Licensing to the State Office of Administrative Hearings (SOAH).

Operating During the Appeal Process

An operation cannot continue to operate pending appeal of a denial.  An operation may continue to operate during the appeal of a revocation, unless HHSC has determined that the operation poses an immediate risk to the health or safety of children.  If HHSC informs the operation of such a determination, the operation cannot continue to operate pending appeal unless a district court in Travis County or in the county where the operation is located overrules HHSC’s determination of risk issues an injunction allowing the operation to stay open pending appeal.

Human Resources Code §42.072(e)

40 TAC §§745.8835; 745.8839; 745.8841; 745.8873; 745.8875

Appeals Process

When a permit holder or applicant requests an appeal of a Licensing decision or action, an administrative law judge (ALJ) is assigned to the case.

If the inspector believes that a permit holder or applicant has not filed an appeal in a timely manner:

  • the inspector notifies the Licensing attorney; and
  • the Licensing attorney files a motion to dismiss the case.

Once the hearing has been docketed, HHSC legal staff track time lines and arrange for discovery, amended notices, and so on, in accordance with the relevant law.

The inspector also may be asked to assist in presenting testimony or providing background information or evidence to be used at the hearing. See Appendix 7000-2: Guidelines for Preparing Records for SOAH Hearings and Tracking Hearings.

40 TAC §745.8843

Documentation

On the applicable due process page in CLASS, the inspector documents:

  • the status of the due process hearing; and
  • information on the hearing.

 

7731 Regulation During Appeal Process

September 28, 2018

 

Procedure

After a request for an appeal has been granted, the inspector:

  • confers with the Licensing attorney about monitoring the operation; and
  • establishes a schedule so that inspections continue (inspections may be unannounced).

After inspecting, the inspector sends a letter to the permit holder stating the concerns, the corrections required to address the concerns, and the time limits within which the corrections should be made. If appropriate, the inspector discusses with the permit holder the fact that corrections are needed or Licensing may pursue an injunction.

If hazards are noted or conditions in the operation warrant it, the director and the Licensing attorney confer to determine if a request for legal action is necessary.

The inspector continues to inspect the operation as long as the operation operates.

 

7732 When an Administrative Law Judge Issues a Final Decision on an Appeal

September 28, 2018

 

Procedure

When a final decision is issued on an appeal and the administrative law judge (ALJ) upholds the adverse action, the district director or designee sends the appellant the Final Adverse Action letter (CLASS Form 2895) as notification, if:

  • the appellant requested a rehearing and the request was denied; and
  • the appellant does not then file suit in a district court within 30 days after the decision.

The director or designee:

  • explains in the letter that the decision to deny, suspend, or revoke the permit is final according to the requirements in the Human Resources Code, Section 42.072; and
  • sends the letter to the appellant by both regular and certified mail, with a return receipt requested.

If the appellant has a permit but has not yet returned it to Licensing, the appellant must return it within five calendar days of receiving the letter.

In the case of a denial or revocation of a permit, the appellant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Operating without a permit is a violation of the law and results in legal action.

The Licensing director sends copies of the final letter to the associate commissioner of Licensing and the Licensing attorney.

See also 7635 Sending an Operation Final Notice of Suspension, Revocation, or Denial.

Follow Up

Within two weeks after the letter is sent to the operation, the inspector conducts a follow-up inspection to determine whether the operation is continuing to care for children and obtain the license, certification, registration, or listing if the operation has not returned it. See 7636 Follow-Up to Suspension, Revocation, or Denial.

 

7733 Suit Filed

September 28, 2018

 

If the appellant files suit in a district court, the person may continue to operate during the appeal of a revocation unless the revocation was based on the operation posing an immediate risk to the health or safety of children. An operation cannot operate pending the appeal of a denial.

The inspector notifies the appellant in the final denial or revocation letter:

  • of the violations of minimum standards that caused the denial or revocation; and
  • that the operation poses an immediate risk to the health or safety of children.

The operation may seek injunctive relief from a district court in Travis County or in the county in which the operation is located to allow operation during the pendency of a district court appeal of the revocation.

The court may grant injunctive relief allowing the operation to operate pending appeal of the revocation only if the court finds that the child care operation does not pose a health or safety risk to children.

A court granting injunctive relief under this section has no other jurisdiction over an appeal of final Licensing action unless conferred by Chapter 2001, Texas Government Code.

Texas Human Resources Code §42.072

Texas Government Code, Chapter 2001

40 TAC §§745.8877; 745.8879

 

7740 Injunctive Relief

December 2009

 

Injunctive relief may be requested to:

  • obtain a temporary restraining order; or
  • obtain a temporary or permanent injunction.

 

7741 Temporary Restraining Order

December 2009

 

Procedure

The Licensing attorney may request from the state attorney general a temporary restraining order, valid for 14 days, pending a temporary injunction hearing.

 

7742 Injunction

December 2009

 

The Licensing attorney may request an injunction from the state attorney general. It may be requested at any time if there is substantial risk of immediate harm to the health and safety of children in care, or an operation subject to regulation is operating illegally and has failed to submit an application.

Texas Human Resources Code §42.074

40 TAC §745.8681

Procedure

The inspector:

  • makes the decision to request the temporary restraining order (TRO) and injunction with the supervisor, director, and Licensing attorney;
  • completes a Form 2883 Affidavit as listed in 7637 Emergency Suspension and Closure; and
  • sends it to the Licensing attorney along with documentation necessary to show why the operation should cease operating immediately.

The Licensing attorney will ask the HHSC liaison with the Attorney General's Office to request an injunction from the Attorney General's Office.

 

7742.1 Following Up an Injunction

September 28, 2018

 

After an operation has been served an injunction, the inspector, with the concurrence of the attorney representing HHSC, develops a plan for follow-up.

Procedure

The inspector:

  • follows up to determine if the court order is being obeyed. If it is not, the inspector contacts a Licensing attorney; and
  • document violations of the court order and sends a copy to the state office Licensing attorney.

The Licensing attorney may file for contempt in district court, when appropriate, for violations of temporary restraining orders, injunctions, and appeals.

 

7750 Civil and Criminal Penalties

September 28, 2018

 

Civil and criminal penalties are considered in consultation with the Licensing attorney and the Office of the Attorney General.

The Human Resources Code, §42.075 (Civil Penalty), provides for civil penalties for any person who:

  • threatens serious harm to a child in an operation by violating laws, administrative rules, or licensing minimum standard rules;
  • violates a provision of the law, administrative rules, or licensing minimum standard rules three or more times within a 12 month period;
  • places a public advertisement for an unlicensed operation;
  • knowingly fails to meet or maintain any criterion of an exemption and engages in activities that require a license or registration; or
  • fails to inform the department of a change in status and knows the change in status requires the person to be licensed or registered.

The Human Resources Code, §42.076, provides for criminal penalties:

  • Section 42.076(a) states that a person who operates a child care operation or child placing agency without a license commits a Class B misdemeanor.
  • Section 42.076(b) states that a person who operates a family home without a required listing or registration commits a Class B misdemeanor.
  • Section 42.076(c) states that a person who places a public advertisement for an unlicensed facility or an unlisted or unregistered family home commits a Class C misdemeanor.

The Human Resources Code, §42.056 provides for civil penalties (a Class B misdemeanor) if:

  • the director, owner, or operator of a child care center knowingly:
    • fails to submit to Licensing information about a person for use in background checks, and
    • employs the person at the child care center or otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care; or
  • the director, owner, or operator of a day care center receives notice from Licensing that, based on the results of a person’s background check, the person may not be present at the child care center, and the director, owner, or operator knowingly:
    • employs the person at the child care center, or
    • otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care.

Human Resources Code §42.0761 provides for penalties (a Class B misdemeanor), when an owner or operator of a child care center knowingly operates the child care center:

  • without a director who meets the qualifications of a director; or
  • without the routine presence of a director during the child care center’s hours of operation.

Texas Human Resources Code §§42.056; 42.075; 42.076; 42.0761

 

7760 Settlement of Legal Case

September 28, 2018

 

After the attorney general has accepted a case, agreeing to represent Licensing, the attorney general may suggest a settlement.

If the attorney general contacts the state office HHSC litigation counsel suggesting proposed settlement terms, the litigation counsel consults with the district director before making a decision about the settlement of a legal case involving temporary restraining orders, injunctions, or appeals of Licensing decisions to district courts.

 

7770 Administrative Review and Due Process Hearing for a Designated Controlling Person

December 2012

 

Within seven days of notifying a permit holder about the intent to revoke the permit of a child care operation, the inspector designates the controlling persons whose actions contributed to the revocation of the operation’s permit. See 5400 Controlling Person.

The inspector may designate a person at an operation as controlling, regardless of whether the person’s name is submitted by the operation, if the person meets the definition of a controlling person.

40 TAC §745.905

Each person designated as controlling is offered an opportunity to review and appeal the designation through the following:

  • An administrative review conducted by Licensing staff
  • A due process hearing conducted by the State Office of Administrative Hearings (SOAH)

At Licensing’s discretion, the administrative review regarding the designation may be combined with the review regarding the revocation of the operation’s permit. In addition, the administrative law judge may combine SOAH hearings that involve issues related to the same decision.

40 TAC §745.909

A designated controlling person becomes a sustained controlling person when the revocation is final and:

  • when the person has waived due process rights regarding the designation; or
  • when the designation was upheld after exhausting due process rights.

40 TAC §745.907(b); 745.8855

 

7771 Choosing the Persons to Designate as Controlling

September 2012

 

After an inspector notifies a permit holder about the intent to revoke an operation’s permit, the inspector designates each controlling person who actively served as a controlling person when the events occurred that led to the revocation. The person may be designated, even if he or she is not actively serving as controlling person when the revocation is initiated.

40 TAC §745.905

Procedure

In the CLASS on the Designate Controlling Persons page, the inspector:

  1. evaluates the list of controlling persons who have actively been associated with the operation within the two years preceding the adverse action (including the controlling persons who are presently inactive);
    and
  2. designates the controlling person by selecting the check box in the Designated column;
    or
  3. selects the appropriate reason from the drop-down box in the Reason not Designated column.

Reasons Not to Designate a Controlling Person

The following chart explains when not to designate a controlling person:

Reason Not Designate is … when …
Not at Branch (CPA only) … the controlling person is associated with a branch of the CPA that is not involved in the events responsible for the revocation.
Not responsible for revocation events the controlling person is not involved in the events responsible for the revocation.

 

For example, the events leading to the revocation occurred only after a controlling person became inactive or before the controlling person became active.

 

7771.1 Notifying Persons About the Intent to Designate

September 28, 2018

 

Procedure

Within seven days of sending an intent to revoke letter (CLASS Form 2880 Intent to Impose Adverse Action) to a permit holder, the inspector sends a copy of the intent to revoke letter and CLASS Form 2762 Intent to Designate a Controlling Person, by both certified and regular mail, to each person who has been designated as a controlling person for the operation.

Content of the Letter

The Intent to Designate a Controlling Person letter includes the following information:

  1. The date that Licensing received information from the operation naming the person as a controlling person (or, if the person was not named as a controlling person by the operation, the date that Licensing decided to designate the person as controlling).
  2. A statement explaining the intent to revoke the operation’s permit, indicating the operation’s address, and explaining that a copy of the intent to revoke letter is enclosed.
  3. A statement explaining the intent to designate the person as controlling due to the intent to revoke the operation’s permit.
  4. The facts to support Licensing’s decision to designate the person, if Licensing intends to designate the person as controlling and the operation did not submit the person’s name to Licensing as a controlling person.
  5. A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062.
  6. A statement explaining the controlling person’s right to an administrative review and the procedures for requesting an administrative review, including the name of the person to whom a written request for an administrative review must be addressed.
  7. Notice of the right to request an administrative review within 15 days after receipt of the letter, if the person disagrees with the designation.
  8. A statement that the designation will be sustained when the revocation for the operation is final, and if:
    • the designated controlling person has waived due process rights regarding the designation; or
    • the designation for the controlling person is upheld after due process rights are exhausted.
  9. A statement explaining the consequences of being a sustained controlling person.
  10. The signature of the director of residential child care licensing, the district director, or his or her designee.

Enclosures

The inspector encloses:

  1. Form 2880 Intent to Impose Adverse Action letter;
  2. a link to the Human Resources Code, Chapter 42; and
  3. a copy of 40 TAC §§745.8809-745.8817.

Delivering the Letter

The inspector:

  • delivers the letter (Form 2880) to the controlling person either in person or by courier, and obtains a signed receipt; or
  • sends the letter by both regular and certified mail, with a return receipt requested.

The inspector also sends a copy of the letter to the:

  1. district director;
  2. Licensing attorney; and
  3. supervisor.

 

7772 Process of Providing an Administrative Review of the Designation as a Controlling Person

June 2015

 

The controlling person must be informed of the right to request an administrative review due to the designation (see 7710 Administrative Reviews).

The administrative review of the appropriateness of the designation for each controlling person may be:

  • combined with the operation’s administrative review regarding the intent to revoke its permit; or
  • held separately for each designated controlling person.

When held separately, the administrative review to revoke the operation's permit must be completed first, and the decision to revoke the operation's permit upheld before conducting the administrative review of the designation as controlling person for each person named.

40 TAC §745.909

 

7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement

September 28, 2018

 

Procedure

Adverse Action Is Overturned

If the person conducting the administrative review for the revocation overturns the decision to revoke the operation’s permit, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In CLASS, in the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page, the director or designee:

  1. selects Stop from the Action drop-down box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that the due process was stopped.

Within 15 days of the revocation being overturned, the inspector sends CLASS Form 2766 Stop Due Process of a Controlling Person, to each designated controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

Adverse Action is Stopped

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Stop Adverse Action:

  • the due process for each controlling person designated as a result of the revocation is automatically stopped; and
  • CLASS automatically populates the fields under the Stop Controlling Person Designation Action and Reason section on the Controlling Person Designation Due Process page.

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Settlement, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In CLASS, in the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page, the director or designee:

  1. selects Settlement from the Action drop-down box;
  2. enters the effective date of the settlement in the Effective Stop Date field; and
  3. enters the reason for the settlement in the Reason narrative box, along with any conditions of the settlement relating to the controlling person.

Within 15 days of the revocation being stopped, the inspector sends CLASS Form 2766 Stop Due Process of a Controlling Person, to each designated controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

 

7772.2 No Administrative Review Requested by a Controlling Person

September 2012

 

Procedure

If a designated controlling person does not request an administrative review within 15 days after receiving an intent to designate letter, the inspector takes the following actions in the CLASS:

  • Sets the CP Administrative Review field to Waived
  • Sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the designated controlling person

If the designated controlling person does not request an administrative review, but the operation does request an administrative review due to the revocation of its permit, the inspector postpones sending the notice offering a due process hearing to the controlling person until the administrative review is completed and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped or Results in a Settlement.

See also:

7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date

7772.5 Notifying Person About Licensing’s Decision to Designate Controlling Person

 

7772.3 Decision to Designate a Controlling Person is Overturned

September 2012

 

If the person conducting the administrative review overturns the decision to designate a controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision letter to the person by both certified and regular mail within 15 days of the administrative review. The purpose of the letter is to inform the person that the designation is overturned.

If the operation requested an administrative review due to the revocation of its permit, the administrative review for the controlling person is postponed until the administrative review for the revocation is complete and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

 

7772.4 Decision to Designate a Controlling Person is Upheld

June 2015

 

Procedure

If the person conducting the administrative review upholds the decision to designate the controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the individual by both certified and regular mail within 15 days of the administrative review.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

Also see 7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person.

 

7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person

September 2012

 

Each person who continues to be designated as controlling after the administrative review or the offer of an administrative review receives a letter (CLASS Form 2763 Controlling Person Administrative Review Decision), offering a due process hearing. See 7730 Due Process Hearings.

The due process hearing may be:

  • combined with the operation’s hearing; or
  • held separately for each designated controlling person at the discretion of the judge, in the case of a hearing conducted by the State Office of Administrative Hearings (SOAH).

40 TAC §745.909

 

7772.51 Content of CLASS Form 2763 (Controlling Person Administrative Review Decision Letter)

September 2012

 

Procedure

The inspector notifies a designated controlling person about the right to a due process hearing, in writing, by sending the CLASS Form 2763 Controlling Person Administrative Review Decision Letter, with a return receipt requested, and includes the following information:

  1. A statement explaining that the person was informed in writing about Licensing’s intent to designate him or her as controlling, the reasons for the designation, and the offer of an administrative review.
    • The letters are enclosed along with a copy of the letter sent to the operation regarding Licensing’s decision to impose adverse action letter against the operation.
  2. A statement:
    • explaining that the person did not request an administrative review; or
    • acknowledging that the person requested an administrative review and explaining that the decision to designate the person as controlling was upheld. In this case, the inspector includes the date of the review and the name of the person who conducted the review.
  3. A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062.
  4. A statement informing the person about the right to a due process hearing and explaining that person’s request for a hearing must be postmarked within 30 days after the person receives the letter (see 7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person).
  5. The signature of the district director or his or her designee.

 

7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person

September 2012

 

When preparing to send CLASS Form 2763 Controlling Person Administrative Review Decision to a person designated as a controlling, the inspector must include a statement explaining that the person may appeal the decision by sending a written request for a due process hearing to:

Docket Clerk, Legal Services, Mail Code Y-956
Texas Health and Human Services Commission
P.O. Box 149030
Austin TX 78714-9030

The inspector instructs the person to:

  • state in the letter the reasons why the person should not be designated as controlling; and
  • request that a copy of the request for a due process hearing be sent to the inspector who sent the letter.

 

7772.53 Consequences of a Controlling Person Not Responding to a Letter About the Right to Appeal (CLASS Form 2763)

September 2012

 

Procedure

If the person designated as a controlling person does not submit a request for a due process hearing within 30 days of receiving CLASS Form 2763 Controlling Person Administrative Review Decision letter, the person waives his or her rights to a hearing, and the designation is sustained when the revocation of the operation’s permit is final.

A person who is a sustained controlling person:

  • cannot be issued a permit; and
  • cannot be a controlling person in a child care operation for a five year period.

 

7772.54 Enclosures When Instructing a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

September 28, 2018

 

Procedure

When instructing a person designated as controlling about the right to appeal, the district director or designee encloses with CLASS Form 2763 Controlling Person Administrative Review Decision letter:

  1. CLASS Form 2762 Intent to Designate Controlling Person;
  2. Form 2880 Intent to Impose Adverse Action Letter;
  3. Form 2878 Decision to Impose Adverse Action Letter;
  4. a link to Human Resources Code, Chapter 42;
  5. a copy of 40 TAC, §§745.8831-745.8855; and
  6. a copy of the Request for a Due Process Hearing Regarding a Controlling Person Designation form (the last page of Form 2763).

 

7772.55 Delivering the Letter Notifying a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

September 28, 2018

 

To notify a person about the right to appeal a designation of Controlling, the district director or designee:

  • delivers the decision letter (CLASS Form 2763 Controlling Person Admin Review Decision Letter) in person to the controlling person or sends it by courier, and obtains a signed receipt; or
  • sends the letter by both regular and certified mail to the controlling person, with a return receipt requested.

The district director sends a copy of the letter to the director, Licensing attorney, supervisor, and inspector responsible for the operation.

 

7773 Providing a Due Process Hearing for a Designated Controlling Person

September 2012

 

A designated controlling person must be informed about the right to request a due process hearing to contest the designation. See 7730 Due Process hearings.

The due process hearing for each controlling person may be:

  • combined with the operation’s due process hearing, regarding the decision to revoke its permit; or
  • held separately for each designated controlling person.

40 TAC §745.909

 

7773.1 Controlling Person Did Not Request a Due Process Hearing

September 28, 2018

 

Procedure

If the designated controlling person does not request a due process hearing within 30 days after receiving the Controlling Person Administrative Review Decision Letter, CLASS Form 2763, the inspector postpones sending the final notice to the controlling person until the due process hearing for the revocation is waived or upheld.

If the Due Process Hearing Overturns a Decision to Revoke

If a due process hearing overturns the decision to revoke an operation’s permit, the district director stops the due process for each controlling person designated as a result of the revocation.

In the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page in CLASS, the director or designee:

  1. selects Stop from the Action drop-down box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that due process was stopped.

Within 15 days of the revocation being overturned, the inspector sends CLASS Form Stop Due Process of a Controlling Person to the controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

If the Due Process Hearing for Adverse Action is Upheld or is Not Requested

If the permit holder waived the right to a due process hearing for the revocation of the operation’s permit, or if the due process hearing upholds the decision to revoke the operation’s permit, the inspector must do as follows within 15 days:

  • Change the CP Appeal Hearing (due process) field from Pending to Waived;
  • Send a final notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person.

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

 

7773.2 When a Controlling Person Requests a Due Process Hearing to Appeal the Designation

 

 

7773.21 Designation of Controlling is Upheld at a Due Process Hearing

September 28, 2018

 

Procedure

If a due process hearing conducted by the State Office of Administrative Hearings (SOAH) upholds a person’s designation as a controlling person, the district director, manager, or his or her designee takes the following steps in CLASS:

  • Changes the CP Appeal Hearing field from Requested to Upheld;
  • Sends CLASS Form 2764 Final Sustained Controlling Person to the controlling person with 30 days of receiving the court’s decision.

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

 

7773.22 Revocation is Upheld at a Due Process Hearing but the Designation of Controlling Person is Overturned

September 28, 2018

 

Procedure

If the controlling person requests a due process hearing and the due process hearing overturns the decision to sustain the designation of controlling person, the district director or his or her designee changes the CP Appeal Hearing field from Requested to Overturned in CLASS.

 

7773.23 Revocation and Designation are Both Overturned at a Due Process Hearing

September 28, 2018

 

Procedure

If the due process hearing overturns a decision to revoke an operation’s permit, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page in CLASS, the director or designee:

  1. selects Stop from the Action drop down-box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that due process was stopped.

 

7773.3 Final Notice to Sustain the Designation of Controlling Person

September 28, 2018

 

If Licensing’s findings are upheld for the designation of controlling person and the revocation is made final, the district director or designee, notifies the controlling person that the decision to designate the person as controlling is final when all administrative appeals and challenges have been exhausted.

A designated controlling person becomes a sustained controlling person when the revocation is final and:

  • the person has waived his or her right to due process regarding the designation; or
  • the designation is upheld after exhausting his or her due process rights.

40 TAC §§745.907; 745.8855

 

7773.31 Contents of the Letter to Notify a Controlling Person About a Sustained Designation (CLASS Form 2764)

September 28, 2018

 

Procedure

The district director, or his or her designee, notifies a person that the designation of controlling person has been sustained by sending CLASS Form 2764 Final Sustained Controlling Person to the person by both regular and certified mail, with a return receipt requested, and includes the following information:

  1. A statement explaining that the decision to sustain the person as controlling is final according to the Human Resources Code, §§42.072(g)(2) and 42.046.
  2. A statement explaining that:
    • the person did not request a due process hearing, the time for making such a request has expired, and the decision to revoke the operation’s permit is final (include the name and address of the operation); or
    • that the person was informed that Licensing’s decision to designate the person as controlling was upheld after a due process hearing, and the decision to revoke the license is final (include the name and address of the operation and the date that the person was informed).
  3. A statement explaining that a sustained controlling person cannot be issued a permit and cannot serve as a controlling person for a five-year period. The statement must also include the date that the person will no longer be prohibited.
  4. The signature of the district director or his or her designee.

 

7773.32 Delivering the Letter Notifying a Controlling Person About a Sustained Designation (CLASS Form 2764)

September 28, 2018

 

Procedure

To notify a person that the designation of controlling has been sustained, the district director or his or her designee:

  • delivers the notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person in person, or sends it by courier, and obtains a signed receipt; or
  • sends the letter by both regular and certified mail, with a return receipt requested.

The district director, or his or her designee, sends a copy of the letter to the director of Licensing, Licensing attorney, supervisor, and the inspector responsible for the operation.

 

7773.4 Reviewing the Status of a Sustained Controlling Person in CLASS

September 28, 2018

 

When a person is sustained as a controlling person as a result of a revocation of the operation’s permit, the person is no longer allowed to be a controlling person at any operation for five years.

40 TAC §745.907

Procedure

Each inspector responsible for an operation in which a sustained controlling person is actively associated follows up to ensure that the sustained controlling person is removed from their role immediately.

The inspector:

  • sends CLASS Form 2765, Match of an Ineligible Controlling Person, to the operation; and
  • follows up with the operation within 15 days of sending the notification to ensure that the sustained controlling person is removed.

If the operation fails to remove the sustained controlling person from the role of controlling person, the inspector follows the procedures in 5462 Notifying an Applicant or Permit Holder About an Ineligible Controlling Person.

 

7774 Documenting in the AARS When the Denial or Revocation of a Permit is Final or the Role of Controlling Person is Sustained

September 2012

 

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters an operation’s information into the AARS when:

  • the denial or revocation of an operation’s permit is final and is based on one of the following reasons:
    1. The applicant committed an act or omission that resulted in the physical or mental harm to an individual;
    2. The applicant is a threat to the health, safety, or well-being of an individual;
    3. The applicant engaged in the physical, mental, or financial exploitation of an individual; or
    4. The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the license; and
  • the designation of the permit holder’s role as a controlling person is sustained, if the operation’s permit was revoked.

40 TAC §745.907

Texas Government Code §531.953

 

7774.1 Entering Details About an Operation in the HHSC Record Sharing System

September 2012

 

Procedure

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters the following information about an operation when the criteria are met that are explained in 7774 Documenting in the AARS When the Denial or Revocation of a Permit is Final or the Role of Controlling Person is Sustained:

  1. Operation’s name
  2. Operation’s number
  3. Type of permit
  4. Operation type
  5. Operation’s address
  6. Action taken (that is, denial or revocation)
  7. Basis of the action (that is, the reason for the denial or revocation)
  8. Effective date of the action (that is, the date the denial or revocation became final)
  9. End date of the action (that is, five years from the date that the denial or revocation became final)
  10. Summary of the action taken

 

7774.2 Entering Information for the Controlling Persons

September 2012

 

Procedure

When an operation’s permit is denied, the designated user of the HHSC Adverse Action Record Sharing (AARS) system enters information for all controlling persons documented in CLASS for the operation.

When an operation’s permit is revoked, the designated user of AARS enters the information for all controlling persons whose designation is sustained.

The information entered for controlling persons by the designated user is as follows:

  1. First, middle, and last name
  2. Date of birth
  3. Driver license number and state, if known
  4. Address
  5. Status (Identified for denials and Sustained for revocations)

 

7800 Automatic Actions

 

 

7810 Automatic Suspensions

June 2015

 

The permit for a licensed operation or a registered or listed family home is automatically suspended if the annual permit fee is not paid by the due date.

An operation that is exempt from paying the annual fee is not subject to an automatic suspension for failure to pay the annual fee. See 5211 Exemptions from Fees.

The permit for a listed family home is also automatically suspended if the listed family home fails to submit the information required for a background check within 24 months of the date the last background check was conducted.

Automatic suspensions are not adverse actions and are not subject to an administrative review or due process hearing.

Texas Human Resources Code §§42.052(j)-(j-1); and 42.054

40 TAC §§745.503, 745.505(a)

 

7811 When to Process an Automatic Suspension

June 2015

 

Procedure

By the 10th day of the month, Licensing staff enter an automatic suspension in CLASS when a permit has been automatically suspended because:

  • the operation did not pay the annual permit fee by the last day of the previous month; or
  • the listed family home did not submit the information required for a background check by the due date in the BGC Reminder Letter.

7812 How to Process an Automatic Suspension

September 28, 2018

 

Procedure

To document the automatic suspension in CLASS, staff:

  1. update the Operation Main page by:
    1. changing the Operating Status to No;
    2. changing the Effective Date of the permit to reflect the date of the automatic suspension; and
    3. checking the Do not display on the public/provider website check box;
  2. complete the Provider Voluntary Suspension Plan page by:
    1. entering the date the automatic suspension began;
    2. describing the plan for the operation to come into compliance, including the date the automatic revocation is effective if the correction plan is not met; and
    3. selecting the reason for the automatic suspension;
  3. draft and save notification to the provider on HHSC letterhead on the Provider Voluntary Suspension Plan page using one of the following templates:
    1. Form 2741, Suspension Fee Letter, is used if the automatic suspension is due to failure to pay the annual permit fee;
    2. Form 2742 Auto-Suspension Letter-BGC (LH Only) is used if the automatic suspension is due to a listed family home’s failure to submit information required for subsequent background checks. When Form 2742 is saved to CLASS, Licensing staff save it with the name AutoSuspend-BGC
    3. Form 2743 Auto-Suspension Letter-BGC/Fees (LH Only) is used if the automatic suspension is due to a listed family home’s failure to submit information required for subsequent background checks, and failure to pay the annual listing fee. Staff save it with the name AutoSuspend-BGC/Fees; and
  4. mail the letter to the operation.

 

7813 Conducting Follow Up to Automatic Suspension

June 2015

 

If a licensed and registered operation's permit is automatically suspended, the inspector conducts a follow-up inspection within 15 days of sending notification to the operation that the permit has been automatically suspended. The purpose of the inspection is to verify the operation has stopped providing care to children.

 

7813.1 Operation or Home is Caring for Children

June 2015

 

Procedure

If the operation is caring for children after the permit has been automatically suspended, the inspector:

  1. informs the provider that the permit was automatically suspended for nonpayment of fees;
  2. explains that he or she is operating without a valid permit and provides technical assistance for how and where to send the fee payment;
  3. explains any child care subsidy program funding has been stopped as a result of the automatic suspension; and
  4. issues a citation for providing illegal child care.

 

7813.2 Operation or Home has Stopped Providing Care or is No Longer Operating

June 2015

 

If the operation is no longer caring for children in compliance with the automatic suspension letter, the inspector verifies fee payment before reinstating the permit.

If the caregiver informs the inspector that the operation has closed, the inspector follows procedure in 7340 Voluntary Closure to close the operation.

 

7814 Ending an Automatic Suspension

September 28, 2018

 

A permit that has been automatically suspended is reinstated once the permit holder has either paid the annual fee or submitted the required background check information before the end of the suspension period.

Procedure

To reinstate a permit, staff:

  1. a.   update the Operation main page in CLASS by:
    1. changing the Operating Status to Yes,
    2. updating the Effective Date to reflect the End Date of the automatic suspension, and
    3. unchecking the Do not display on public/provider website box;
  2. update the Provider Voluntary Suspension page in the CLASS page by:
    1. documenting how the operation came into compliance in the Correction Plan field,
    2. entering Auto-Suspension, Compliance Met in the Result of Suspension field, and
    3. entering the date the automatic suspension ends in the End Date field.
  3. complete Form 2744 Auto-Suspension End and saves the form on the Provider Voluntary Suspension Plan page in CLASS by:
    1. copying the text from Form 2744 Auto-Suspension End and pasting the information onto HHSC letterhead found on the Provider Voluntary Suspension Plan page in CLASS, and
    2. saving the letter with the appropriate name; and
  4. Mail the letter to the operation.

 

7820 Automatic Revocations

June 2015

 

The permit for a licensed operation, or a registered or listed family home, is automatically revoked if the annual permit fee is not paid within six months of the permit being automatically suspended.

The permit for a listed family home is automatically revoked if the home fails to submit the information required for a renewal background check within six months after the listing is automatically suspended.

Automatic revocations are not considered corrective or adverse actions and are not subject to an administrative review or a due process hearing.

If an operation's permit has been automatically revoked the permit holder may re-apply at any time.

Texas Human Resources Code §§42.052(j)-(j-1); and 42.054

Procedure

To process the automatic revocation of a permit in CLASS, staff:

  1. enter the date the automatic suspension ended in the End Date field;
  2. enter Auto-Revocation in the Result of Suspension field; and
  3. draft the notification using CLASS Form 2865e, 2825 Vol Suspension/Relocation/Clsr Letter found on the operation's Application/Closure page, selects the appropriate statement about automatic revocation, and mails notification to the operation.

If the operation is a listed family home, staff notifies the appropriate Licensing inspector that the permit has been automatically revoked and a follow-up inspection is needed.

 

7821 Conducting Follow-Up to an Automatic Revocation

June 2015

 

Within 15 days of sending notification that the permit has been automatically revoked, the inspector conducts a follow-up inspection to verify that the operation no longer cares for children.

A permit holder may not pay the overdue annual fee or submit overdue background check information at the time of the follow-up inspection. The permit holder must reapply for a permit.

 

7821.1 Operation or Home is Caring for Children

June 2015

 

Procedure

If the operation is caring for children after the permit has been automatically revoked, the inspector:

  1. informs the provider that the permit was automatically revoked and the reasons why;
  2. explains that there are no due process rights related to automatic revocation and that the permit holder may reapply for a new permit at any time;
  3. provides an application for a permit; and
  4. issues a citation for providing illegal child care.

If the permit holder does not submit a new application at the time of the follow-up inspection, the inspector enters a new illegal operation investigation to ensure the operation closes or becomes permitted. The inspector or staff assigned to the operation then closes the operation in CLASS.

If the operation submits an application at the time of an inspection, the inspector closes the operation that had the permit automatically revoked and creates a new operation in CLASS.

 

7822 Closing an Operation After an Automatic Revocation

June 2016

 

Procedure

If the permit has been automatically revoked, Licensing staff follow the procedures below to close the operation:

  1. An inspector conducts an inspection at the operation to verify that the operation is not caring for children. If the operation is caring for children, Licensing staff follow procedures in 6530 Investigations of Illegal Operations.
  2. Licensing staff close the operation in CLASS by entering the current date into the Closure Date field and using the appropriate closure reason, as outlined in the procedures below.

Closure Reasons for Automatic Revocations

Licensing staff select one of the following reasons on the Application/Closure page in CLASS to close an operation if the permit is automatically revoked:

  1. Auto-Revocation, Fees, if the automatic revocation is due to the operation’s failure to pay the annual fee;
  2. Auto-Revocation, Background Checks – LH, if the automatic revocation is due to a listed family home’s failure to submit the information required for a subsequent background check; or
  3. Auto-Revocation, BGCs/Fees – LH, if the automatic revocation is due to a listed family home’s failure to:
    • submit information required for subsequent background checks; and
    • pay the annual listing fee.