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2000 Handling Inquiries About the Licensing Process and Exemptions

2100 Providing Information About Licensing Processes

LPPH November 2010

Policy

Licensing staff provide information about the licensing process to:

  •  potential applicants and applicants for a child-care permit; and

  •  operations that hold child-care permits.

Trained volunteers may also provide the information.

Texas Human Resources Code §42.047

Procedure

If an applicant seeks a permit for a child-care operation that is already operating, Licensing staff:

a.  inform the applicant that he or she is operating in violation of Human Resources Code, Chapter 42;

b.  cite the appropriate section of the law; and

c.  update in the CLASS system the existing record for the illegal operation to maintain the operation number and history.

Texas Human Resources Code §§42.041; 42.052(a),(c),(d)

2200 Types of Child Care Permits and Multiple Operations

2210 Permits Required for Child Day Care

LPPH September 2012

Policy

The following table describes the permits required for each type of child day care operation regulated by DFPS on or after September 1, 2003. See also DFPS Rules, 40 TAC §745.37(2). For a definition of each type of operation, see 1141 Types of Child Day Care Operations.

Child Day Care Operations

Type of Permit

Listed family home

Listing

Registered child care home

Registration

Licensed child care home

License

Child care center

License

Small, employer-based child care

(A small, employer-based operation employs fewer than 100 full-time employees)

Compliance certificate

Temporary shelter child care program

Compliance certificate

Before- or after-school program

License

School-age program

License

2211 Child Day Care Homes Subject to Listing and Registration

LPPH November 2010

Policy

Homes that meet the following criteria are subject to regulation.

Type of Operation

Criteria for Regulation

Listed family home

A listed home is subject to regulation, if:

  •  the care is provided in the caregiver’s own residence;

  •  compensation is provided for the care;

  •  care is provided for three or fewer children, excluding children who are related to the caregiver;

  •  the children range in age from birth through 13 years; and

  •  care is provided for at least:

  •  four hours a day,

  •  three or more days a week, and

  •  more than nine consecutive weeks.

Registered child-care home

A registered child-care home is subject to regulation, if:

  •  the care is provided in the caregiver’s own residence;

  •  the care is provided for four or more children, excluding children who are related to the caregiver;

  •  the children range in age from birth through 13 years (the children do not have to be present at the same time); and

  •  care is provided for at least:

  •  four hours a day,

  •  three or more days a week, and

  •  more than nine consecutive weeks. 

2220 Permits Required for Residential Child Care

LPPH August 2012

The following table describes the permits required for each type of residential child care. See also DFPS Rules, 40 TAC §745.37(3).

For a definition of each type of operation, see 1142 Types of Residential Child Care.

Residential Child-Care Operations

Type of Permit

Foster family home (Independent)

License

Foster group home (Independent)

License

General residential operation

License

Child-placing agency (CPA)

License

CPA foster family home

Verification

(The CPA issues the verification and regulates its own foster family homes.)

CPA foster group home

Verification

(The CPA issues the verification and regulates its own foster group homes.)

CPA adoptive home

None

(The CPA approves an adoptive home by completing a home screening, but no specific type of permit is required. The CPA regulates its own adoptive homes.)

2230 Operating Multiple Day Care Services Under One Permit

2231 Other Services That May Be Offered Under One Day Care Permit

LPPH November 2010

An applicant or permit holder who operates a child-care center under a single permit may include other services under that permit, such as:

a.  a drop-in care center;

b.  a kindergarten;

c.  a nursery school; or

d.  a school.

2232 Requirements for Offering Multiple Services Under One Day Care Permit

LPPH November 2010

It is not necessary to obtain more than one permit for operations at the same location, if the operations have the same governing body.

In such cases, the operations’ programs must:

  •  be housed in separate areas of the location; and

  •  each operation must have a written plan explaining how caregivers from each operation supervise children if and when the operations share space.

When multiple types of operations at one location are subject to different sets of licensing rules, each operation must comply with the minimum standards appropriate for each type of operation.

See also:

2260 Operations That Are Not Contiguous

2330 Exempt Facilities That Operate at the Same Locations as Regulated Facilities

2240 Operating a Child Care Home and a Day Care Center at One Location Under Two Licenses

LPPH November 2010

For a single child day care operation to be granted one license to be a child-care home and another license to be a child-care center at the same location, all of the following must apply:

a.  Before September 1, 2003:

  •  the operation held one license to be a group daycare home and another license to be either a combination kindergarten-nursery school or a school for kindergarten and above, and

  •  both licenses remain valid.

b.  By August 31, 2003, the permit holder notified DFPS of the decision to operate both a licensed child-care home and a licensed child-care center at the same location.

c.  Each licensed operation pays the required fees.

d.  During the hours that the operation is a child-care home, it meets the minimum standards for child-care homes and during the hours that the operation is a child-care center, it meets the minimum standards for child-care centers.

e.  The licensed day-care home does not operate during the same hours as the licensed day-care center.

DFPS Rules, 40 TAC §745.379

An operation cannot be issued a permit for both a licensed child-care center and a licensed child-care home at the same location, unless the operation meets all of the conditions outlined directly above.

2241 Additional Issues Related to Operating a Child Care Home and a Day Care Center at One Location Under Two Licenses

LPPH November 2010

One Operation, One Unit

Only one registration or listing permit is issued for a child-care home that operates in a single living unit or home. If more than one person cares for children in a single living unit or home, the name on the listing or permit must be the name of the primary caregiver.

DFPS Rules, 40 TAC §745.371

Separate Operations, One Location

A permit cannot be issued to an operation for both a licensed child care center and a licensed child care home at the same location, unless the operation meets the following conditions:

  •  The two operations do not share the same space.

  •  If the playground space and other multi-use areas such as auditoriums are shared, they are not in use at the same time.

(Shared space is not counted when calculating capacity, unless an operation uses it for the majority of its operating hours.)

One Operation, One License or Registration

An operation cannot be issued both a license and a registration.

2250 Operating More Than One Licensed Child-Care Home

LPPH November 2010

Policy

A permit holder may operate more than one licensed child-care home only when all of the following apply:

a.  The permit holder was licensed to operate two or more group day-care homes before September 1, 2003.

b.  The licenses remain valid.

c.  The homes operate out of separate locations. (The homes may operate out of the two sides of a duplex, if they operate as separate entities; that is, with the children using the playground at different times and with no routine mixing of children or staff; that is, the children and staff of one operation must be affiliated with only one operation, not both.)

d.  The permit holder maintains totally separate operations (2251 Defining What Qualifies a Child Care Home as Separate).

Procedure

Licensed child-care homes that operate from the same location may work together at times; for example, when taking the children from both homes on a field trip.

If staff determine that two child-care homes are mixing their populations, staff cite each home for violating the conditions of its permit because it is caring for more than 12 children. (The standards for licensed child-care homes and their directors limit care to 12 or fewer children.)

The cited operation must then decide whether to:

  •  operate as a child day care center, meeting child day-care standards; or

  •  adhere to the restrictions required when operating separately licensed child-care homes.

Each home must have its own director.

DFPS Rules, 40 TAC §745.373

2251 Defining What Qualifies a Child Care Home as Separate

LPPH November 2010

To be considered separate, an operation must meet the following criteria:

a.  The children are not moved back and forth between the licensed child-care homes.

b.  The children attend the operation in which they are enrolled.

c.  All records maintained at the operation, including staff records, enrollment records, and emergency records.

d.  The director is the director of only one child-care home.

2260 Operations That Are Not Contiguous

LPPH November 2010

Policy

Licensing may issue a single permit to the governing body of a child day-care operation or residential child-care operation that has multiple buildings that are not contiguous, as long as:

  •  the buildings are near each other and demonstrate a single operation; and

  •  the permit lists the names and addresses of the appropriate operations.

2261 Child Day Care Operations That Are Not Contiguous

LPPH November 2010

A single permit may be issued to a child day-care operation that has buildings that are not contiguous, as long as the buildings are located nearby.

For the purposes of this policy, nearby means that the buildings are:

a.  next to each other, on the same property;

b.  across the street from each other; or

c.  on the same city block.

The operations must demonstrate a single operation as indicated by patterns of staffing, finance, administrative supervision, and programs.

2262 Residential Care Operations That Are Not Contiguous

LPPH November 2010

A single permit may be issued to a residential child-care operation that has buildings that are not contiguous, if the buildings are located nearby.

For the purposes of this policy, nearby means that the buildings are:

a.  next to each other, on the same property;

b.  across the street from each other;

c.  on the same city block; or

The operation can continue to operate in noncontiguous buildings that were approved before September 1, 2005, under the definition of nearby that was used at that time, if the license is still valid.

If the operation wishes to add a noncontiguous building, the building must meet the current definition of nearby.

Operations that are not contiguous must demonstrate that they each operate the same type of program, regardless of when a license was issued.

2262.1 Defining Multiple Residential Care Operations as the Same Operation

LPPH November 2010

Residential care programs are considered the same, if they operate under the same:

a.  policies;

b.  procedures;

c.  hiring practices; and

d.  financial systems.

Texas Human Resources Code §42.041(c)

DFPS Rules, 40 TAC §§745.385; 745.201

2263 Evaluating Child-Placing Services

LPPH November 2010

Policy

A program that brings birth mothers and prospective adoptive parents together but does not arrange the adoption is not considered to be making plans for a placement and is not subject to Licensing’s regulation, as long as the program:

  •  does not receive compensation for its services; and

  •  does not conduct child-placement activities, such as home studies.

Licensure by another state agency to provide medical care does not exempt a facility from the need to be regulated by DFPS as a child-placing agency, if child-placing activities are being conducted.

A child-placing agency located in Texas that provides only international adoptions is subject to Licensing’s regulation in order to place a child with a family living in Texas.

2270 Residential Child-Care Operations That Also Provide Child Day Care

LPPH November 2010

Policy

All foster homes that provide child day care require a child day care permit. This includes independent foster homes and foster homes regulated by child-placing agencies (CPA).

Licensing’s child day care staff regulate such foster homes in the same way that they regulate a child day care operation.

The following conditions must be met before a foster home may provide both foster care and day care:

a.  The home is approved by the DFPS Residential Child-Care Licensing Division and the DFPS Child Day Care Division.

b.  The home cares for no more than six children, including any biological and adopted children of the caregiver’s who live in the foster home, any children or adults receiving foster or respite child care, and children for whom the family provides child day care.

c.  The home meets the requirements for a child day care permit, including having paid all necessary fees.

d.  The home meets the requirements in TAC §749.2493 and §745.375.

DFPS Rules, 40 TAC §§749.2551; 749.2553

2271 General Residential Operations That Also Provide Child Day Care

LPPH November 2010

All general residential operations (GRO) that provide child day care require a child day care permit. (A GRO provides child care for 13 or more children or young adults. For more information on GROs, see the entry general residential operation under Definitions of Terms.)

Licensing’s child day care staff regulate child day care programs at GROs in the same way that they regulate any child day care operation.

The following conditions must be met before a GRO may provide both residential child care and child day care:

a.  The GRO’s plan to provide day care is approved by the DFPS Residential Child-Care Division and the DFPS Child Day Care Division of Licensing.

b.  The GRO does not treat children who have emotional disorders.

c.  The GRO provides day care services separately from residential services.

d.  The GRO hires separate administrative employees and caregivers for each program.

e.  The GRO meets the requirements for a child day care permit, including having paid all necessary fees.

f.  The GRO meets the requirements for a general residential operation, as stated in 40 TAC §748.111.

2272 Extended Child Day Care

LPPH November 2010

Policy

A registered or licensed child day-care operation may offer 24-hour care, but the permit must be approved to care for children during both the day and night, and even then, a child may be in care for:

  •  no more than 16 hours within a 24-hour period; and

  •  no more than three consecutive 16-hour stays, with a maximum of six 16-hour stays a month.

DFPS Rules, 40 TAC §745.383

Special activities, such as overnight slumber parties held once a month or less at a licensed, certified, or registered child day-care operation are not cited as a violation of the hours and days approved on Form 2910 Child Daycare Licensing Application (for licensed and certified operations) or Form 2919e Request for a Registration Permit, but the operation must continue to meet standards during overnight parties.

DFPS Rules, 40 TAC §745.381

2280 State-Operated Facilities Exempt From Licensure

LPPH November 2010

Policy

A child-care operation run by a State of Texas agency must be certified by Licensing. (Facilities operated by Texas cities, counties, or other municipalities are not state-operated.)

Examples of state-run child-care operations that must be certified include:

a.  laboratory schools in state universities;

b.  residential operations at state schools (state schools are state-run residential facilities for people with developmental disabilities); and

c.  the DFPS Child Protective Services Division.

To be certified, an operation must comply with the laws, rules, and standards that apply to licensed operations. The certificate must be displayed in a prominent place at the operation. The certificate remains valid until revoked or surrendered.

Certain state-run operations are exempt from regulation by Licensing. See 2340 Operations Not Regulated by DFPS Because They Are Regulated by Other Governmental Entities.

Texas Human Resources Code §§42.041; 42.052

DFPS Rules, 40 TAC §745.39

Procedure

If a state-run operation inquires about certification, Licensing staff inform the person inquiring that:

  •  as part of the application, the operation must submit documentation to substantiate that it is operated by a State of Texas agency; and

  •  the operation must follow the same procedures followed for an inquiry regarding a license.

Licensing staff regulate an operation that has a certificate in the same manner that staff regulate an operation that has a license.

See 7210 Immediate Danger in a State-Operated Facility.

2300 Determining Whether a Program Is Subject To or Exempt From Regulation

LPPH March 2014

Policy

A program is not subject to regulation if it is not a type of child care operation that is subject to DFPS regulation. Such a program does not have to meet the requirements of a specific exemption under Texas Human Resources Code (HRC) §42.041(b).

An exempt program would be subject to regulation if it did not meet the requirements of a specific exemption under Texas Human Resources Code (HRC) §42.041(b).

A program that is exempt from DFPS regulation or is otherwise not subject to DFPS regulation may operate legally without:

  •  receiving a permit (license, certification, registration, or listing) from Licensing; or

  •  complying with the statutes, rules, or standards that govern regulated child care in Texas.

The following programs are exempt from licensure and certification based on the Texas Human Resources Code §42.041(b)(2) and DFPS Rules, Texas Administrative Code §§745.115, 745.117, 745.119, and 745.129:

a.   Operations that are regulated by other governmental entities

b.   Operations of limited duration

c.   Certain educational facilities and programs

d.   Certain miscellaneous programs

An exempt program must inform Licensing when it no longer meets any criterion for the exemption. DFPS may seek injunctive action, civil penalties, or both against a person who:

  •  knowingly fails to meet the requirements of an exemption and engages in activities that require a license or registration from DFPS; or

  •  fails to inform Licensing about a change in the status of a program that would require the program to be licensed or registered.

Texas Human Resources Code §42.075

Moreover, a person may be prosecuted for a Class B misdemeanor for operating a child care operation without the appropriate permit from DFPS.

Texas Human Resources Code §42.076

2310 Determining Whether A Program Is Subject To Regulation

LPPH March 2014

Policy

Licensing staff may become aware of a program that is explicitly exempt from or otherwise not subject to DFPS regulation when:

  •  a report of an illegal operation is being investigated; or

  •  a program submits an exemption determination form.

Licensing staff must first determine whether the program meets the statutory definition of a type of operation that is subject to DFPS regulation.

If the Licensing staff determines that the program may be an operation that is subject to regulation, he or she informs the program that it must submit:

  •  an application for a permit; or

  •  the appropriate exemption determination form.

Texas Human Resources Code §§42.002(3)(9)(16)(17), 42.151(1) and 42.201(3)

DFPS Rules, 40 TAC §§745.111, 745.113

2311 Determining Whether a Program Is Subject to Regulation During an Investigation of an Illegal Operation

LPPH March 2014

Procedure

When investigating a potential illegal operation, Licensing staff must determine whether the program is subject to regulation. Licensing staff may take the following steps to help determine whether the program is subject to regulation:

a.   Request that the program complete and return the appropriate exemption determination form and any supporting documentation (this is a request only, since the program is not required to comply).

b.   If the program submits the exemption determination form:

  •  evaluate the information, and

  •  consult with the Licensing supervisor or the designated regional subject matter expert to determine whether the program is subject to regulation or if additional information is needed to make a decision.

c.   If the program does not submit the exemption determination form:

  •  obtain as much information as possible from the program, and

  •  consult with the Licensing supervisor or the designated regional subject matter expert to determine whether the program is subject to regulation or if additional information is needed to make a decision.

If the Program Is Not Subject to Regulation

After investigating a program as a potential illegal operation and determining that it is not subject to regulation, staff:

  •  notifies the program that it is not subject to regulation by sending the Investigation Letter (CLASS Form 2896) located on the Investigation Main page (see 6567 Procedures When an Illegal Operation Is Determined to Be Not Subject to Regulation); and

  •  enters a Closure Date and selects Not Subject To Regulation from the Closure Reason dropdown menu on the Illegal Operation main page.

If the Program May Be Subject to Regulation

If Licensing staff determines the program may be subject to regulation, and the program wants to claim an exemption, see 2320 Determining Whether a Program Is Exempt From Regulation.

If the program wants to apply for a permit, see 3130 The Application Process.

2312 Determining Whether a Program Is Subject to Regulation When Evaluating an Exemption Determination Form

LPPH March 2014

Procedure

If a review of an exemption determination form indicates that a program does not meet the statutory definition of a facility, family home, small employer based child care, or a temporary shelter, Licensing staff:

a.   notifies the program in writing that it is not subject to regulation by sending the Exemption Response letter (Form 2807) located on the DFPS automated forms system; and

b.   completes the Exemption Requests and Background Check Only Entities page as follows:

1.   enter the date the request was received in the Exemption Request Received field;

2.   enter the date a decision is made in the Action Date field;

3.   select Return from the Action drop down menu (Action Field);

4.   enter the date the operation was notified and the reason for the decision in the Action Reason narrative box;

5.   enter the date the exemption is closed in the Closure Date field) in CLASS on the Main page; and

6.   select Not Subject to Licensing Regulation from the Closure Reason field drop down menu.

If it is determined that the program meets the requirements to be exempt, Licensing staff follows the steps in 2323 Documenting Exemption Decisions In Class.

If it is determined that the program is not exempt and is subject to regulation, Licensing staff follows the steps in 2322.21 Program Is Not Exempt.

2320 Determining Whether a Program Is Exempt From Regulation

LPPH December 2014

Policy

A program may be exempt from regulation based on statute and administrative rule.

To make a determination about an exemption, Licensing requires the program to:

  •   determine the type of exemption to request;

  •   complete all sections of the form that is appropriate for the type of exemption being requested:

Form 2820 Educational Facility;

Form 2832 Single Skill Program During the School Year;

Form 2833 Single Skill Program During the Summer;

Form 2837 Governmental Entity;

Form 2838 Miscellaneous Entities;

Form 2839 Program of Limited Duration; and

  •   include any additional documentation that will verify eligibility for the exemption request.

See 2322 Processing the Exemption.

Texas Human Resources Code, §§42.041; 42.002(9)(16)(17), 42.052(c)(d)

DFPS Rules, 40 TAC §§745.115; 745.117, 745.119, 745.129, and 745.131

2321 Criteria Used to Determine If a Program is Exempt

LPPH March 2014

To determine whether a program is exempt from regulation, Licensing staff request that the program submit the appropriate exemption determination form (see 2320 Determining Whether a Program Is Exempt From Regulation for a list of these forms).

The exemption determination forms collect the following information:

a.   The purpose of the program

b.   The persons or group responsible for care

c.   The location of the facility

d.   The days and months that child care is planned or provided

e.   The hours that child care is planned or provided

f.    The ages of the children in care

g.   The projected duration of the child-care arrangement

h.   The child’s relationship to the child-care provider

i.    The number of children in care

j.    The use of space when a regulated program operates at the same location

k.   Details about the program’s activities and services that may meet the criteria for exemption from regulation

2322 Processing the Exemption

LPPH March 2014

Procedure

If a program claims to be exempt from regulation by Licensing, based on a specific exemption in Texas Administrative Code §§745.115; 745.117, 745.119, and 745.129, Licensing staff take the following steps:

a.   Require the person in charge of the program to complete and return the appropriate exemption determination form and any supporting documentation within 14 days of receiving the form from Licensing.

b.   Enter the exemption into CLASS on the Exemption Requests & Background Check Only Entities page.

c.   Evaluate the information received.

d.   Consult with the Licensing supervisor or the designated regional subject matter expert to determine whether additional information is needed to make a decision.

e.   Conduct an inspection of the operation, if necessary.

f.    Notify the person in charge of the program about Licensing’s decision regarding the exemption claim. Notification must be provided:

  •  within 21 days after Licensing staff receive all of the information necessary to make the determination; and

  •  in writing, by sending the appropriate Exemption Response letter located in the DFPS automated forms system.

DFPS Rules, 40 TAC §§745.131; 745.133

Exemptions for Educational Programs or Operations

A person who believes his or her educational program is exempt under the provisions of DFPS Rule §745.119(1),(2),(3) may contact Licensing to determine if an exemption form needs to be completed.

DFPS Rule §745.131

2322.1 Additional Requirements for Processing Exemptions for Educational Programs
2322.11 Actions Taken by the Accrediting Organization When an Educational Program Is Exempt

LPPH March 2014

When educational programs are exempt from regulation under §745.119(4), the accrediting organization sends the following to the designated regional subject matter expert:

a.   a completed Form 2820 Educational Facility Exemption Form, along with documentation that the accrediting organization has its own standards for health, safety, fire, and sanitation standards that are equal to those required for licensed operations or with documentation that the organization requires members to comply with state, county, or municipal health, safety, fire, and sanitation codes;

b.   a monitoring plan for review by Licensing designed to ensure that members comply with either the organization’s standards for health, safety, fire, and sanitation or the health, safety, and fire codes of the state, county, or municipality; and

c.   the names and addresses of the other educational programs or operations that are members of the accrediting organization. This list must be updated when new members are accredited or members cease to be accredited.

Also see 2371 Standard Educational Programs.

DFPS Rule, 40 TAC §745.127

2322.12 When to Inspect an Educational Program That Is Exempt

LPPH March 2014

If a person believes that his or her educational program or operation is exempt under DFPS Rule §745.119(1),(2),(3),(4), or (5), Licensing staff:

  •  follow procedures in 2322 Processing the Exemption; and

  •  inspect the educational facility, if necessary, to observe:

a.   activities,

b.   hours of operation,

c.   ages of the children in care; and

d.   grade clustering.

2322.2 Program Is Exempt

LPPH March 2014

Procedure

If Licensing staff determines that a program is exempt from DFPS regulation, Licensing staff notifies the operation and follows procedures in 2325 Closing an Exempt Program in CLASS.

2322.21 Program Is Not Exempt

LPPH March 2014

Procedure

If Licensing staff determines that a program is not exempt and subject to regulation, the program must take immediate steps to become regulated. 

Licensing staff:

  •  informs the operation in writingusing the Exemption Response letter located in the DFPS automated letters system that the program:

1.   is operating in violation of Texas Human Resources Code, §42.041 and §42.052,

2.   has 14 days from the date the letter is received to submit an application to become a regulated operation,

3.   will be operating illegally, if it does not submit the application within 14 days, and

4.   has a right to request an administrative review to dispute the decision; and

  •  completes the Exemption Requests and Background Check Only Entities page in CLASS as follows:

1.   enter the date a decision is made in the Action Date field;

2.   select Not Exempt from the Action drop down menu; and

3.   enter the date the operation was notified and the reason for the decision in the Action Reason narrative box.

When a program does not meet the requirements to be exempt from Licensing regulation and fails to take immediate steps to meet the requirements for becoming regulated, Licensing staff:

a.   informs the Licensing supervisor that the program knowingly failed to meet the requirements of an exemption and engaged in activities that require a license or registration from DFPS;

b.   documents the information in a Chronology (type Application);

c.   enters an intake for the operation that is operating illegally (See 6222 Assessing an Intake Report for Priority and 6251.2 Entering Reports of Illegal Operations); and

d.   leaves the exemption open in CLASS until the investigation is complete.

Licensing staff does not close the exemption in CLASS until the program meets the requirements for becoming regulated or meets the criteria to be exempt from Licensing regulation. See 2325 Closing an Exempt Program in CLASS.

2322.3 Program Disagrees That It Is Not Exempt

LPPH March 2014

A program that disagrees with Licensing’s decision that it must be regulated may request an administrative review. See 7710 Administrative Reviews.

2323 Documenting Exemption Decisions in CLASS

LPPH March 2014

Licensing staff document in the CLASS system all determinations made about an exemption status.

Staff use the Action Reason narrative box in CLASS:

  •  to provide details about the case; and

  •  to include information that is not clearly explained on the appropriate exemption determination form.

It is not appropriate to leave the Action Reason narrative box blank or enter a Texas Administrative Code rule number as a reference, instead of entering details.

2324 Documenting Supplements to an Exemption Decision

LPPH March 2014

Licensing staff document in a Chronology (type External Documentation) whether any of the following supplemental information is submitted along with the appropriate exemption determination form:

a.   A copy of the license issued by another government entity

b.   Accreditation documents

c.   Information about municipal ordinances that govern such programs

d.   Standards of care

e.   Informational and advertising materials

f.    Floor plan

g.   Shopping center or mall design plan

h.   State, county, or municipal health, safety, and fire codes

2325 Closing an Exempt Program in CLASS

LPPH March 2014

Exempt programs display like closed operations in CLASS. To close an exempt program in CLASS, Licensing staff complete the Exemption Requests and Background Check Only Entities page as follows:

a.   enter the date a decision is made in the Action Date field;

b.   select Exempt from the Action drop down menu;

c.   enter the date the operation was notified and the reason for the decision in the Action Reason narrative box;

d.   enter the date the exemption is closed in the Closure Date field; and

e.   select the appropriate exemption category from the Closure Reason drop down menu.

2330 When Exempt Programs Request Regulation

LPPH March 2014

Policy

Programs that meet the requirements to be exempt from Licensing regulation based on the statute, administrative rule, or both, may request a permit to be licensed, registered, or listed only if the program needs a permit to accept federal or state funding.

A program that accepts a permit under these circumstances must comply with all applicable provisions of the Texas Human Resources Code, Chapter 42, administrative rules, and minimum standards.

DFPS Rules, 40 TAC §§745.141; 745.143

See:

2350 Governmental Entities That Are Exempt from DFPS Regulation

2360 Programs of Limited Duration That Are Exempt From Licensure and Certification

2340 Exempt Programs That Operate in the Same Locations as Regulated Operations

LPPH March 2014

Policy

If a governing body runs an exempt program and an operation that is subject to DFPS regulation at the same location, they must be separate from each other.

To be considered separate, the programs must:

a.   be located in separate buildings, operated in separate areas of the same building, or operated in the same building at different times;

b.   use separate caregivers, or use caregivers who provide care for only one program at a time; and

c.   have a written plan that describes how the caregivers from each program supervise children when using shared spaces such as restrooms and indoor and outdoor activity areas at the same time.

If the programs cannot be kept separate, both are subject to regulation.

DFPS Rules, 40 TAC §745.139

Procedure

To ensure that an exempt program at the same location as one that is subject to regulation operates separately, Licensing staff request the person who operates the programs to submit documentation describing how the program complies with the requirement that the programs are kept separate.

After reviewing the information, if Licensing staff cannot determine whether the two programs operate separately, staff:

  •  discuss with their supervisor and the designated regional subject matter expert whether additional information is needed; and

  •  conduct an inspection at the programs, if necessary, to observe whether the program is in compliance with the requirements that the programs are kept separate.

Also see:

2322 Processing the Exemption

4127 Other Types of Inspections

2341 When an Exempt Educational Program Must Obtain a Permit

LPPH March 2014

An educational program that is exempt from regulation must obtain a permit for the portion of the program that:

a.   cares for children younger than the exemption allows;

b.   provides before- or after-school care for more hours than the exemption allows; or

c.   provides care outside the designated school year (see Appendix 2000-2: Determining Whether a Program or Operation is Regulated by Licensing – Questions and Answers, Items B.5 and B.6).

DFPS Rule, 40 TAC §§745.121; 745.123

2350 Governmental Entities That Are Exempt from DFPS Regulation

LPPH March 2014

Policy

The following types of programs are exempt from regulation by DFPS because they are regulated by other governmental entities:

  •  A program located on a federal installation

  •  State-operated correctional and treatment facilities

See:

2351 A Facility on a Federal Installation

2352 State-Operated Programs

2353 Municipal Programs

2351 A Facility on a Federal Installation

LPPH March 2014

A facility operated on a federal installation, including military bases or Indian reservations, is exempt from regulation by Licensing because a state agency has no jurisdiction or authority to regulate such facilities.

DFPS Rules, 40 TAC §745.115(1)

2352 State-Operated Programs

LPPH March 2014

Certain state-operated programs are exempt from regulation by Licensing. All other state-operated programs must be certified by Licensing.

See:

2352.1 Correctional Facilities

2352.2 Treatment Facilities

2352.3 Youth Camps Licensed by DSHS

2352.4 Youth Camps Exempt from DSHS Licensing

2352.1 Correctional Facilities

LPPH March 2014

The following types of correctional facilities are exempt from regulation by Licensing:

a.   A juvenile detention facility certified under §261.405 of the Texas Family Code

b.   A juvenile correctional facility that provides services solely for the Texas Juvenile Justice Department

c.   Any other correctional facility for children that is operated or regulated by another state agency or by a political subdivision of the state

Texas Human Resources Code §42.041(b)(13)

Texas Family Code §261.405

DFPS Rules, 40 TAC §745.115(2)(A)(B)(C)

2352.2 Treatment Facilities

LPPH March 2014

The following types of facilities are exempt from regulation by Licensing:

  •  A treatment facility

  •  A structured treatment program that serves chemically dependent persons and is licensed by the Texas Department of State Health Services

DFPS Rules, 40 TAC §745.115(2)(D)

2352.3 Youth Camps Licensed by DSHS

LPPH March 2014

A youth camp licensed by the Texas Department of State Health Services (DSHS) is exempt from regulation by Licensing.

Exception

Operations licensed by DFPS that operate a summer camp must continue to operate under the DFPS license during the summer months. See Appendix 2000-2: Determining Whether a Program or Operation Is Regulated by Licensing – Questions and Answers, items A. 1-5.

Texas Human Resources Code §42.041(b)(5)

DFPS Rules, 40 TAC §745.115(2)(E)

2352.4 Youth Camps Exempt From DSHS Licensing

LPPH March 2014

A youth camp is exempt from regulation by DFPS if it is a youth camp that is exempt from licensure by the Texas Department of State Health Services (DSHS) under §141.0021, Health and Safety Code, because it:

  •  is operated by or on the campus of an institution of higher education or a private or independent institution of higher education, as those terms are defined in Education Code, §61.003; and

  •  is regularly inspected by at least one local governmental entity for compliance with health and safety standards.

DFPS Rules, 40 TAC §745.115(2)(F)

2353 Municipal Programs

LPPH March 2014

A youth camp is exempt from regulation by DFPS if it is a youth camp that is exempt from licensure by Texas Department of State Health Services (DSHS) under §141.0021, Health and Safety Code, because it is a recreation program for children ages 5 through 13 that is operated by a municipality and meets the following criteria:

a.   The standards of care for the program are annually adopted by ordinance after a public hearing.

b.   The standards of care must include staffing ratios and qualifications, facility health and safety standards, and monitoring and enforcement provisions.

c.   The standards of care are provided to the parents of each program participant.

d.   The parents of each program participant are informed that the program is not licensed by the state.

e.   The program is not advertised as child care.

Texas Human Resources Code §42.041(b)(14)

DFPS Rules, 40 TAC §745.115(3)

2360 Programs of Limited Duration That Are Exempt From DFPS Regulation

LPPH March 2014

Policy

Certain programs of limited duration are exempt from regulation by Licensing.

See:

2361 Program With Parents on the Premises

2362 Short-Term Programs

2363 Religious Programs

2364 Foreign Exchange or Sponsorship Program

2361 Program With Parents on the Premises

LPPH March 2014

Policy

A program with parents on the premises is exempt from regulation by Licensing, if all of the following are true:

a.   The program operates in association with a shopping center, business, religious organization, or other elective activity.

b.   The program does not advertise as a child care facility or day care center and informs parents that it is not licensed by the state.

c.   The parent or person responsible for the child attends or engages in the elective activity. (Part-time employees and contractors who conduct the activity may use the program as long as they meet the limits in (d) below. A caregiver for the program may use the program for the caregiver’s own child as long as the child remains with a caregiver.)

d.   The child is only in care:

  •  for up to four and one-half hours per day and for up to 12 hours a week; or

  •  for up to 15 hours per week, if care is provided so that a parent may attend an educational class provided by a nonprofit entity in a county of 800,000 or more and the county is adjacent to an international border.

      However, there are no time limits for the child of a caregiver at the program as long as the child is with the caregiver.

e.   The program’s caregivers are able to contact the parent or person responsible for the child at all times.

See Texas Human Resources Code §42.041(b)(3)

DFPS Rules, 40 TAC §745.117(1), §745.101(3)

Examples of Programs That Are Exempt

Examples of programs that are exempt are:

a.   Programs that are operated in connection with a religious organization and offer programs for children, such as classes for religious instruction

b.   Programs operated so that parents can attend a short-term class that lasts up to three hours for four or fewer days or evenings a week, for a few weeks (such as classes on parenting skills or English as a second language)

c.   Programs operated in a gym or health club, so that members can exercise. The caregiver of the program and part-time staff may use the program for their own children

Exceptions

Small Business Offering Child Care

A small business that offers child care services to its employees does not qualify for this exemption. Small businesses that provide care for children whose parents or guardians work in the same building where the child care is offered are subject to regulation as described in Texas Human Resources Code, Subchapter F, §42.151. Regulation of Employer-Based Day Care Facilities.

Temporary Shelter

A temporary shelter, such as a family violence or homeless shelter that offers child care services to its residents does not qualify for this exemption. Temporary shelters that provide care for children whose parent or guardian reside in the same building where the child care is offered are subject to regulation as described in Texas Human Resources Code, Subchapter G, §42.201 Regulation of Temporary Shelter Day Care Facilities.

2362 Short-Term Program

LPPH March 2014

Policy

A short-term program is exempt from regulation by Licensing, if:

  •  the program operates for fewer than three consecutive weeks and fewer than 40 days in 12-month period; and

  •  the program is not part of an operation subject to Licensing regulation.

DFPS Rules, 40 TAC §745.117(2)

2363 Religious Program

LPPH March 2014

Policy

A religious program is exempt from regulation by Licensing, if:

  •  the program offers religious instruction, such as Sunday school or weekly catechism; or

  •  the program lasts for two weeks or fewer.

Texas Human Resources Code §42.041(b)(4)

DFPS Rules, 40 TAC §745.117(3)

Example: Vacation Bible school

2364 Foreign Exchange or Sponsorship Program

LPPH March 2014

Policy

A foreign exchange or sponsorship program is exempt from regulation by Licensing, if:

a.   an unrelated child or sibling group lives in the provider’s home;

b.   each child is in the United States on a time-limited visa; and

c.   each child is being sponsored by an organization or by the provider with whom they are living.

Texas Human Resources Code §42.041(b)(22)

DFPS Rules, 40 TAC §745.117(4)

2370 Educational Programs That Are Exempt From Regulation by DFPS

2371 Standard Educational Programs

LPPH March 2014

Certain accredited educational programs are exempt from regulation by Licensing, as identified in the table below.

Applying for or being in the process of accreditation does not constitute accreditation.

Educational Program or Operation

Conditions for Exemption

An accredited educational program or operation for grades prekindergarten and above is exempt from regulation by Licensing, if:

the educational program or operation:

  •  operates primarily for educational purposes;

  •  runs the educational program;

  •  serves children ages 3 to 5 (up to the child’s fifth birthday); and

  •  is accredited by the Texas Education Agency (TEA), the Southern Association of Colleges and Schools (SACS), or the Texas Private School Accreditation Commission (TEPSAC).

For educational facilities that also provide residential child care, see DFPS Rules §745.125 which addresses whether additional exemption criteria are required for such facilities.

For a list of accrediting organizations approved by TEPSAC see Appendix 2000-1: Organizations Whose Members May Qualify for Exemption.

For information concerning charter schools, see Appendix 2000-2: Determining Whether a Program or Operation Is Regulated by Licensing – Questions and Answers, Item B.

For information on collaborative programs, such as an independent school district (ISD) that operates a Head Start program or a program that combines Head Start and prekindergarten, see Appendix 2000-2, Item C.

Exception:

A child-care program operated by the school district for its employees (bus drivers, teachers, custodians, kitchen workers, and so on) is subject to licensure.

A before- or after-school child day care program that is operated by an accredited educational facility (grades prekindergarten and above) is exempt from regulation by Licensing, if the program:

  •  is specifically accredited by TEA, SACS, or TEPSAC;

  •  operates the child day care program; and

  •  serves children ages 3 to 5 (up to the child’s fifth birthday).

A before- or after-school child day care program that is operated by a contracted entity and is located in an accredited educational operation for grades prekindergarten and above is exempt from regulation by Licensing if it:

  •  is accredited by TEA, SACS, or TEPSAC;

  •  contracts with an entity to operate the before- or after-school child day care;

  •  serves children ages 3 to 5 (up to the child’s fifth birthday); and

  •  offers a curriculum for before- or after-care that has been approved by TEA, SACS, or TEPSAC.

Exception: An after-school program is not exempt from regulation by Licensing if it is operated by a contractor for a charter school. See Appendix 2000-2: Determining Whether a Program or Operation Is Regulated by Licensing – Questions and Answers, Item B.3.

Rationale: TEA does not approve the curricula for after-school programs offered at charter schools.

An educational program or operation that is a member of an organization that requires compliance with standards is exempt from regulation by Licensing, if it:

  •  serves children in prekindergarten through at least grade two;

  •  serves children ages 3 to 5 (up to the child’s fifth birthday);

  •  provides child day care no more than one hour before and one hour after the hours that are customary for schools in that community; and

  •  is a member of an organization that either:

  •  publishes health, safety, fire, and sanitation standards equal to those required by the state, county, or municipality, or

  •  follows the state, county, or municipal health, safety, and fire codes.

Also see 2322.11 Actions Taken by the Accrediting Organization When an Educational Program Is Exempt.

A private educational program or operation is exempt from regulation by Licensing, if it:

  •  serves children who are at least age 3 on September 1;

  •  offers no more than two hours of child day care, total, before or after the hours that are customary for schools in that community; and

  •  operates at least:

  •  a preschool,

  •  a prekindergarten class through grade three,

  •  grades 9 through 12, or

  •  the same pattern of grade clustering as found in the public elementary schools (grades one through six) in the local school district.

See:

Texas Human Resources Code §42.041(b)(7)(8)(9)(11)

DFPS Rule, 40 TAC §745.119

DFPS Rule, 40 TAC §745.125

2372 Additional Exemption Criteria for Educational Programs That Provide Residential Child Care

LPPH March 2014

An educational program that provides residential child care must meet all of the following additional criteria in order to be exempt from licensing:

  •  Parents retain primary responsibility for their child’s financial support, health problems, or serious personal problems.

  •  Residential child care is provided solely to facilitate the students’ participation in the educational program and must not exist apart from the educational aspect of the program.

Also see 2371 Standard Educational Programs.

DFPS Rule, 40 TAC §745.125

2380 Miscellaneous Programs Exempt From DFPS Regulation

LPPH March 2014

Policy

The following miscellaneous programs are exempt from regulation by Licensing.

Miscellaneous Programs

Conditions for Exemption

A neighborhood recreation program

A neighborhood recreation program is exempt from regulation by Licensing, if all of the following are true:

  •  The program provides activities designed for the recreation of children ages 5 through 13.

  •  The governing body of the program adopts standards for care. At a minimum, the standards must include staffing ratios, staff training, health and safety standards, and mechanisms for assessing and enforcing the program’s compliance with the standards for care.

  •  The program does not collect compensation for its services. Compensation is anything of value received from the parent in exchange for the care of the child. The program can accept only a nominal annual fee for membership.

  •  The program is organized as a nonprofit organization, or is located at the participant’s residence.

  •  The program informs each parent that it is not regulated by Licensing. The program must also establish a policy explaining how it informs parents that Licensing does not regulate the program. The policy may either be provided in writing or verbally. The program is not advertised or represented as a regulated operation.

  •  The program provides a process to receive and resolve complaints from parents.

  •  The program conducts criminal background checks on all employees and volunteers who work with the children. Background checks must include information from the Texas Department of Public Safety.

Rationale:

Neighborhood recreation programs that serve children who are 5 through 13 years old are not considered day care or after-school care. Day care and after-school care offer a specific type of service that parents depend on for child care.

Neighborhood recreation programs that do not meet all requirements to be exempt from regulation may meet the definition for school-age program. School-age programs are subject to Licensing regulation under Chapter 744.

See:

Texas Human Resources Code §42.002(21)

DFPS Rules, 40 TAC §745.129(1)

A single-skill program

A program that teaches a single skill, talent, ability, expertise, or proficiency is exempt from regulation by Licensing, if the program:

  •  offers direct instruction for one talent, ability, expertise, or proficiency;

  •  does not provide other services that are not directly related to the single skill, talent, ability, expertise, or proficiency;

  •  informs each parent that it is not regulated by Licensing; and

  •  does not advertise or represent as a regulated operation.

See DFPS Rules, 40 TAC §745.129(2).

Rationale: The program is operated or intended to be operated as a child-care program, school-age program, or a before-school or after-school program.

Single-skill programs that do not meet all requirements to be exempt from regulation may meet the definition for school-age program. School-age programs are subject to Licensing regulation under Chapter 744.

See:

Texas Human Resources Code §42.002(21)

A caregiver providing residential care

A caregiver is exempt from regulation by Licensing, if all of the following are true:

  •  The caregiver is caring for only one child or sibling group and is not related to the child or sibling group.

  •  The caregiver knows the child or sibling group, or the family of the child or sibling group, before providing care.

  •  The caregiver does not receive compensation or solicit donations for the care of the child or sibling group. Compensation is anything of value, beyond the child’s normal expenses, received by the caregiver from the parent in exchange for care of the child. Compensation does not include Medicaid, insurance, or other governmental benefits or assistance.

  •  The caregiver has a written agreement with the parent to care for the child or siblings.

See DFPS Rules, 40 TAC §745.129(3).

Emergency Shelter for Minors

An emergency shelter is exempt from regulation by Licensing, if all of the following are true:

  •  the shelter does not otherwise operate as a child care facility that must have a license from DFPS;

  •  the shelter provides shelter or care to the minor and the minor’s child or children, if any;

  •  the shelter provides care for the minor or the minor’s child or children only when there is an immediate danger to the physical health or safety of the minor or the minor’s child or children;

  •  the shelter does not provide care for more than 15 days, unless:

(1) the minor consents to shelter or care to be provided to the minor or the minor’s children and is:

(i) 16 years of age or older, resides separate and apart from the minor’s parent, and manages the minor’s own financial affairs; or

(ii) unmarried and is pregnant or is the parent of a child; or

(2) the minor has qualified for Temporary Assistance for Needy Families under Chapter 31, Texas Human Resources Code, and is on the waiting list for housing assistance; and

  •  the shelter is:

(1) currently under contract with a state or federal agency for the provision of shelter or care to children; or

(2) a family violence center that meets the requirements listed under Texas Human Resources Code §51.005(b)(3), as determined by the Health and Human Services Commission.

See DFPS Rules, 40 TAC §745.129(4).

A caregiver with whom DFPS has placed a child

The caregiver is exempt from regulation by Licensing, if all of the following are true:

  •  The caregiver has a longstanding and significant relationship with the child.

  •  DFPS is the managing conservator of the child.

See:

DFPS Rules, 40 TAC §745.129(5)

      Texas Family Code, Chapter 264 Relative and Other Designated Caregiver Placement Program, Subchapter I

A food distribution program

A food distribution program is exempt from regulation by Licensing, if all of the following are true:

  •  The program serves an evening meal to children who are 2 years old or older.

  •  The program is operated by a nonprofit food bank in a nonprofit, religious, or educational facility for not more than two hours a day on regular business days.

See:

DFPS Rules, 40 TAC §745.129(6)

Texas Human Resources Code §42.041(b)(16).

Emergency Shelter for Human Trafficking

An emergency shelter is exempt from regulation by Licensing, if the shelter:

  •  Does not otherwise operate as a child-care facility that is required to have a license from DFPS;

  •  Is operated by a nonprofit organization;

  •  Provides shelter and care for no more than 15 days to alleged victims of human trafficking as defined in Penal Code §20A.02, who are 13-17 years old; and

  •  Is located in a municipality with a population of at least 600,000 that is in a county on an international border; and:

(1) Is licensed by, or operates under an agreement with, a state or federal agency to provide shelter and care to children; or

(2) Is a family violence center that meets the requirements listed under Texas Human Resources Code §51.005(b)(3), as determined by the Health and Human Services Commission.

See DFPS Rules, 40 TAC §745.129(7).

2390 Other Operations Exempt from DFPS Regulation

2391 A Foster Home or Foster Group Home Regulated by a CPA

LPPH March 2014

A foster home or foster group home that is regulated by a child-placing agency (CPA) is exempt by law from regulation by Licensing.

The CPA verifies and monitors the home’s compliance with standards. See 2200 Types of Child Care Permits and Multiple Operations and its subitems.

Texas Human Resources Code, §42.041(b)(2)

2392 Certain State-Operated Facilities

LPPH March 2014

A state-operated facility is exempt by law from regulation by Licensing.

See:

2200 Types of Child Care Permits and Multiple Operations and its subitems

2280 State-Operated Facilities Exempt From Licensure

2350 Governmental Entities That Are Exempt from DFPS Regulation

Texas Human Resources Code, §42.041(b)(1)(6)

2393 Certain Annual Youth Camps

LPPH March 2014

An annual youth camp is exempt by law from regulation by Licensing, if the youth camp:

a.   is held in a municipality with a population of more than 1.5 million;

b.   operates for not more than three months; and

c.   has been operated for at least 10 years by a nonprofit organization that provides care for the homeless.

Texas Human Resources Code, §42.041(b)(15)

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