<<Previous Page

Next Page>>

7000 Voluntary Actions and Enforcement Actions

7100 Overview of Voluntary Actions and Enforcement Actions

LPPH March 2017

Policy

Voluntary Actions

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

a.   withdrawal of an application

b.   temporary relocation

c.   voluntary suspension

d.   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

  •  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 not meant to be punitive in nature and are not 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)

DFPS Rules, 40 TAC §745.8511; §745.8601; §745.8603 and §745.8607

7110 Circumstances That May Call for Enforcement Action

LPPH March 2017

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

Abuse or Neglect

Enforcement action may be taken if abuse or neglect 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.

Adverse action is not taken and due process is not available 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.

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 3920 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:

a.  an operation fails to submit information to Licensing within two days of a change in controlling persons;

b.  a designated controlling person applies for a permit before the due process for the designation is completed;

c.  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;

d.  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

e.  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

DFPS Rules, 40 TAC §745.279; §745.431; §745.433; §745.435(d); §745.8605 and §745.8607

7120 Notifying an Operation When Licensing Takes Enforcement Action

LPPH March 2017

Procedure

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

a.  The person in charge of the operation

b.  The permit holder

c.  The applicant or designee

d.  The head of the governing body

e.  Each controlling person

See Appendix 3000-2: Notifying the Operation.

7200 Handling Immediate Danger to Children

LPPH March 2017

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:

a.  Request assistance from Child Protective Services.

b.  Request assistance from fire, health, or law enforcement officials.

c.  Remain at the operation until parents or managing conservators arrive or the dangerous situation is corrected.

d.  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.

e.  Request that the supervisor report the situation to the appropriate CCL director. The director contacts the legal division and action is taken.

f.  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

LPPH March 2017

Policy

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 assistant 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

LPPH September 2015

Policy

An operation may voluntarily withdraw an application for a permit.

See 3230 Withdrawal of an Application for a Permit.

7320 Temporary Relocation

LPPH December 2009

Policy

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.

DFPS Rules, 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 standard rules; and

  ·  the risk to children considering the activities offered by the operation.

The inspector documents the relocation in CLASS.

7330 Voluntary Suspension

LPPH March 2015

Policy

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

a. changes or repairs must be made to the operation;

b. enrollment is too low to operate, or no children are in care;

c. the owner or caregiver is ill;

d. the owner or caregiver takes an extended leave of absence; or

e. the owner or caregiver have other personal reasons that necessitate a change.

An operation must continue to pay all standard fees during the voluntary suspension period.

Texas Human Resources Code §42.071

DFPS Rules, 40 TAC §§745.8519;745.8527;

7331 Assessing and Granting a Request for Voluntary Suspension

LPPH March 2017

Policy

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

a.  The proposed dates for when the suspension will begin and end

b.  The reason for the request

c.  Plans for resuming operation; and

d.  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 non-expiring permit suspended for a maximum of two years.

A voluntary suspension may not be granted while for a permit if the operation is under:

a.  involuntary suspension;

b.  automatic suspension;

c.  probation; or

d.  revocation proceedings.

DFPS Rules, 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:

a.  confirms that the operation is not undergoing involuntary suspension, automatic suspension, probation, or revocation proceedings;

b.  evaluates the operation’s compliance history;

c.  determines the reason for the voluntary suspension and the length of the operation plans to be closed is appropriate; and

d.  confirms that no children will be in care during the voluntary suspension period.

7332 Documenting the Voluntary Suspension

LPPH March 2017

Procedure

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

a.  changes the Operating Status on the Operation main page in CLASS to No;

b.  checks the Do Not Display On Public Website box on the Operation main page;

c.  competes the Provider Voluntary Suspension page in CLASS; and

d.  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 to 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

LPPH March 2015

Policy

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

DFPS Rule, 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 FPS 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

LPPH March 2015

Policy

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, the department 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.

DFPS Rules, 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:

a. contacts the permit holder to notify him or her that the voluntary suspension period is ending;

b. informs the permit holder that Licensing must receive notification of and approve the request to resume operation;

c. informs the permit holder that he or she may voluntarily close; and

d. 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:

a. address any concerns with applicable minimum standard violations observed during the inspection;

b. change the Operating Status to Yes on the Operation main page in CLASS;

c. uncheck the Do Not Display on Public Website box in CLASS;

d. enter a chronology of any discussion held with the owner to verify compliance with minimum standard rules;

e. enter the results of the voluntary action plan on the Voluntary Suspension page in CLASS; and

f. 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 staffs the situation (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 DFPS Legal division 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:

a. 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;

b. navigate to the Provide Voluntary Suspension Plan page in CLASS to:

  •   complete the Result of Suspension field,

  •   complete the End Date field, and

  •   document the reason for closure in the Corrective Plan field;

c. 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 6560 Investigations of Illegal Operations With No Allegations of Abuse or Neglect; and

d. document the operation’s closure in CLASS.

See:

7710 Administrative Reviews

7730 Due Process Hearings

7340 Voluntary Closure

LPPH July 2012

Policy

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

DFPS Rules, 40 TAC §§745.8533; 746.301

Procedure

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

a.   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

b.   Enters the closure date in the Application/Closure page in CLASS

c.   Enters the reason for closure in the Application/Closure page in CLASS

7341 Documentation of an Operation That Has Closed

LPPH 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

LPPH December 2009

Policy

An operation may close voluntarily:

  ·  during an investigation;

  ·  while failing to maintain compliance with minimum standards; or

  ·  while subject to action leading to corrective or adverse action.

      Exception for residential operations: Once a residential operation receives an intent to revoke letter, the inspector must follow through with the adverse action until it is final.

DFPS Rules, 40 TAC §745.8605(14)(B)

DFPS Rule, 40 TAC §745.8515

7343 Notification of Investigation Findings When an Operation Closes Voluntarily

LPPH December 2009

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 for residential operations: If the inspector has already sent an intent to revoke letter to a residential operation an additional findings letter is not necessary.

7344 Licensing Response if the Operation Did Not Close

LPPH 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

LPPH March 2017

Policy

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 timeframe 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.

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

7351 Criteria for Recommending a Plan of Action

LPPH 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:

a.  demonstrates the ability to identify risk;

b.  accepts responsibility for correcting deficiencies;

c.  has the ability to make corrections;

d.  has a history of making corrections to maintain compliance, if applicable;

e.  will be able to mitigate risk by following the plan of action; and

f.  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.

DFPS Rule, 40 TAC §§745.8605; 745.8607; and 745.8633

7352 Staffing and Initiating a Plan of Action

LPPH March 2017

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. The supervisor documents the approval in a Chronology in CLASS.

After receiving approval from the supervisor, the inspector:

  •  prepares the operation’s compliance history report and completes Section I of Form 7277 Plan of Action; and

  •  attaches Form 7277 to the operation’s compliance history.

The inspector then contacts the operation, in person or via telephone, to:

a.  discuss the identified compliance issues with the operation;

b.  explain the purpose of the plan of action and the process for developing the plan;

c.  explain the benefits of participating in a plan of action; and

d.  ask the operation if they agree to complete a plan of action.

During the meeting, Licensing staff provide the operation a copy of Form 7277 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

LPPH 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 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

LPPH March 2017

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 DFPS letterhead, of the outcome of the discussion.

7353 Meeting With an Operation To Review a Plan of Action

LPPH March 2017

Policy

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; 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 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:

a.  review the operation’s compliance history report and discuss areas of concern with the operation;

b.  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;

c.  explain to the provider how Licensing follows up on the implementation of the plan; and

d.  discuss the date the operation will implement the plan (the start date) and the date the plan will end (see 7357 Plan of Action Timeframes).

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

LPPH 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 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

LPPH 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:

a.  implement the plan as written by the operation;

b.  collaborate further with the operation; or

c.  impose a more restrictive enforcement action.

Licensing staff documents the consultation and resulting recommendations in a CLASS Chronology.

DFPS Rules, 40 TAC §745.8631(1), §745.8639

7354 Documenting the Plan of Action in CLASS

LPPH March 2017

Licensing staff document the plan of action in the CLASS system 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)

Reason for action

Before plan of action begins

Comments

List of deficiencies that are the basis for recommending the plan

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

LPPH March 2017

Policy

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

LPPH March 2017

Policy

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.

DFPS Rule, 40 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:

a.  evaluates an operation’s compliance with the sections of the minimum standards associated with the plan of action;

b.  documents that the plan of action was evaluated during the inspection in the Narrative field on CLASS Form 2936;

c.  provides technical assistance in the areas where the operation is deficient; and

d.  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

LPPH March 2017

Policy

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:

a.  the plan remains appropriate;

b.  the plan should end early;

c.  additional inspections are needed; or

d.  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 Timeframes and Ending a Plan of Action Early

LPPH March 2017

Policy

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.

DFPS Rules, 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

 LPPH March 2017

Procedure

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

a.  compliance with the minimum standards, administrative rules, and law has been established;

b.  the plan of action has ended; and

c.  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

LPPH March 2017

Policy

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.

DFPS Rules, 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

LPPH March 2017

Policy

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; and

  •  probation

In deciding which type of corrective action to recommend, Licensing staff:

  •  consider the operation’s risk factors; and

  •  determine the operation’s eligibility to participate in each type of corrective action.

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

Texas Human Resources Code §42.071(c), (e)

DFPS Rules, 40 TAC §§745.8603; 745.8607; 745.8611; 745.8633(c) and 745.8635

7410 Criteria for Imposing Corrective Action

7411 Criteria for Imposing Evaluation

LPPH March 2017

Licensing imposes evaluation on an operation if a circumstance exists that is described in 7110 Circumstances That May Call for Enforcement Action, and the operation meets one of the following criteria:

a.  the operation refuses to participate in a plan of action;

b.  the operation failed  to resolve its deficiencies associated with a plan of action;

c.  the operation has not completed evaluation for a similar pattern of deficiencies within the past 12 months; or

d.  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), (e)

DFPS Rules, 40 TAC §§745.8601; 745.8605; 745.8607; and 745.8635

7412 Criteria for Imposing Probation

LPPH March 2017

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:

a.  the operation does not qualify for a less restrictive enforcement action;

b.  the operation has not demonstrated the ability to make the necessary changes to address risk, but expresses a willingness to comply and make corrections;

c.  the operation will be able to mitigate risk by complying with the conditions identified in the plan in addition to minimum standards; and

d.  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), (e)

DFPS Rules, 40 TAC §§745.8601; 745.8605; 745.8607; and 745.8637

7420 Staffing a Corrective Action

LPPH March 2017

Policy

The inspector must obtain supervisory approval before imposing a corrective action with the operation.

Procedure

Following a deficiency or other triggering event, the inspector discusses the reason for recommending an evaluation or probation with the supervisor or, if necessary, the program administrator or district director,

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

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

LPPH March 2017

Procedure

Before Licensing staff meet with the operation, Licensing staff document the corrective action on the Provider Corrective Action Plan page as follows:

What to Document

CLASS Field(s)

Planned Start Date

Planned Begin Date

Planned Completion Date

Planned End Date (must be 6 months from the planned start date for evaluation and 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 that are the basis for recommending the plan

  •  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

LPPH March 2017

Policy

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.

DFPS Rules, 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

LPPH 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

LPPH March 2017

Procedure

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

In the letter, Licensing staff specify:

a.  the basis for the corrective action;

b.  information about the corrective action;

c.  the deficiencies cited during the inspections and investigations that are the basis for the corrective action; and

d.  the conditions imposed to correct them.

7422 Meeting With an Operation About a Corrective Action

LPPH March 2017

Policy

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

a.  notify the operation about the corrective action;

b.  explain the reasons for the corrective action;

c.  discuss the conditions being imposed; and

d.  answer any questions the operation’s staff may have.

The meeting must take place at least 15 days before the evaluation or 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)

DFPS Rules, 40 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

LPPH March 2017

Procedure

The inspector and the inspector’s supervisor must attend when meeting with an operation to discuss an evaluation or 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

LPPH March 2017

Procedure

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

a.  the reason for the evaluation or probation period, including  the operation’s history of compliance with statutes, administrative rules, minimum standards and restrictions or conditions on the permit;

b.  the conditions of evaluation or probation that the operation must meet to comply with the action;

c.  how Licensing follows up on the implementation of the action;

d.  projected begin and end dates of the action; and

e.  the possible consequences, including adverse action, if the correction is not made, the violation is repeated, and/or the conditions are not met.

DFPS Rules, 40 TAC §§745.8631; 745.8639 and 745.8643

7422.3 Finalizing the Corrective Action Letter

LPPH March 2017

Procedure

At the end of a meeting held with an operation to discuss an evaluation or 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

LPPH 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

LPPH March 2017

Policy

If an operation disagrees with the action or any of the conditions imposed as a part of the evaluation 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

LPPH March 2017

Policy

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 the CLASS system; 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

LPPH March 2017

Procedure

During an evaluation 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 actionperiod.

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:

a.  evaluates:

  •  an operation’s compliance with the conditions imposed by the corrective action plan, and

  •  the section (or sections) of the minimum standards that relate to those conditions.

      One additional subchapter may be evaluated as needed to ensure overall compliance with the minimum standards;

b.  documents in the Narrative field on CLASS From 2936 that each condition of the corrective action was evaluated during the inspection; and

c.  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:

  •  cites the operation;

  •  provides technical assistance in the area where the operation is deficient; and

  •  reviews the conditions related to the deficiencies with the permit holder or designee at the time of the inspection.

DFPS Rules, 40 TAC §745.8631

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

7426 Conducting Surveillance During Corrective Action

LPPH March 2017

Policy

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:

a.  complying with transportation requirements;

b.  providing adequate supervision during outdoor activities; or

c.  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

LPPH March 2017

Policy

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; 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.

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

7428 Corrective Action Timeframes

LPPH March 2017

Policy

An evaluation lasts six months and probation lasts twelve months.

DFPS Rules, 40 TAC §§745.8611

7429 Ending Corrective Action

LPPH March 2017

Policy

Licensing may not extend a corrective action, but may end a corrective 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 does not improve and a more restrictive enforcement action is necessary.

See:

7429.1 Ending a Corrective Action When Compliance Has Been Established

7429.2 Modifying or Ending a Corrective Action When Compliance Has Not Been Established

DFPS Rules, 40 TAC §§745.8611(b) and 745.8643

7429.1 Ending a Corrective Action When Compliance Has Been Established

LPPH March 2017

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 DFPS 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.

7429.2 Modifying or Ending a Corrective Action When Compliance Has Not Been Established

LPPH March 2017

Procedure

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 as a result of the corrective action, Licensing staff:

a.  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

b.  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 dropdown menu; and

  •  enters the end date in the Actual End Date field.

7500 Administrative Penalties

7510 Legal Basis to Impose Administrative Penalties

LPPH August 2015

Policy

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:

a.   any licensed operation, registered or listed family home, including those exempt from paying annual fees;

b.   controlling persons; and

c.   a child placing agency’s main office for violations cited at the operation’s branch offices.

Texas Human Resources Code §42.078(a)

DFPS Rules, 40 TAC §745.8603

7511 Imposing an Administrative Penalty Before Taking a Corrective Action

LPPH August 2015

Policy

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

LPPH August 2015

Policy

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:

a.   violates a term of a permit issued under HRC Chapter 42, or a rule or order adopted under that chapter;

b.   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;

c.   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;

d.   purposefully interferes with the work of an inspector or the enforcement of HRC Chapter 42;

e.   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;

f.    commits repeated deficiencies that present low to medium risk to children; or

g.   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)

DFPS Rules, 40 TAC §§745.8603, 745.8605, 745.8711, 745.8715

7520 Assessing the Need for an Administrative Penalty

LPPH March 2017

Policy

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

a.  whether corrective action is more appropriate (see 7400 Corrective Action);

b.  whether the operation or controlling person has made any effort to come into compliance;

c.  whether an operation has been cited for the same violation within the past six months;

d.  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

e.  the level of risk posed to children in care because of the violation.

7521 A Single High Risk Violation

LPPH March 2017

Policy

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:

a.  knowingly allowing a person to be present in the operation before receiving the results of the person’s background check;

b.  knowingly allowing a person to be present in the operation after receiving the results of the person’s background check, if the results contain criminal history or central registry findings that preclude the person from being present in the operation;

c.  violating a condition or restriction placed by Licensing on a person’s presence at the operation as part of a pending or approved risk evaluation; or

d.  other high risk violations identified in:

Protocol for Citing and Recommending Administrative Penalties for Single High Risk Deficiencies; and

Protocol for Providing Technical Assistance for Statute and Minimum Standard Deficiencies Associated With Administrative Penalties

DFPS Rules, 40 TAC §§745.626, 745.651, 745.656, 745.657, 745.693, 745.701, 745.8713

7522 Repeated High Risk Violations

LPPH 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

LPPH 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.

DFPS Rules, 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

LPPH August 2015

Policy

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

LPPH 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

LPPH 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:

a.   processes a penalty on the existing violation;

b.   recites the minimum standard or administrative rule in violation, if applicable; and

c.   considers recommending a separate administrative penalty for the new violation.

7532 How to Document the Recommendation to Impose the Administrative Penalty

LPPH August 2015

Policy

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:

a.   selecting whether to send the recommendation letter to the permit holder, designee, or controlling person;

b.   searching for and selecting each violation resulting in the administrative penalty;

c.   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

d.   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 checkbox and saving the Administrative Penalty Details page in CLASS.

7532.1 Determining the Maximum Daily Penalty Amount

LPPH August 2015

Policy

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:

a.   seriousness of the violation,

b.   history of previous violations,

c.   efforts the operation or controlling person has taken to correct the violation;

d.   amount necessary to deter future violations; and

e.   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

LPPH August 2015

Policy

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

LPPH 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:

a.   the date the operation was notified of the violation in the Begin Date field;

b.   the date the operation was given to comply with the minimum standard or rule in the Comply by Date field;

c.   the date the operation came into compliance in the Corrected Date field:

i.    if the violation is corrected at the time of the recommendation, the inspector uses the date the operation notified Licensing of the correction;

ii.   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

d.   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

LPPH 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 checkbox on the Administrative Penalty Details page.

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

LPPH August 2015

Policy

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 division 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:

a.   whether an administrative penalty is warranted for each identified violation;

b.   that the maximum daily amount to be imposed for each violation is consistent with policy;

c.   that the number of days the penalty is imposed is correct; and

d.   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

LPPH December 2015

Procedure

If the supervisor agrees with the recommendation, the supervisor:

  a.  makes any necessary edits to the initial recommendation, or requests the inspector make the edits;

  b.  selects the Supervisor Approved checkbox on the Administrative Penalty Details page;

  c.  saves a draft of the Notice of Recommendation for Administrative Penalty CLASS Form 2994; and

  d.  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

LPPH 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

LPPH 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

LPPH August 2015

Policy

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

Procedure

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

a.   makes any requested edits to the recommendation;

b.   finalizes the Notice of Recommendation for Administrative Penalty CLASS Form 2994; and

c.   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

LPPH August 2015

Policy

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:

a.   the penalty should be stopped;

b.   a different amount should be imposed; or

c.   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, Violation Identified in the Administrative Penalty is Overturned During the Administrative Review

LPPH August 2015

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 DFPS 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

LPPH August 2015

Procedure

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

a.   selects Stopped from the Final Result field on the Administrative Details page in CLASS and enters a reason for the penalty being stopped; and

b.   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 DFPS Letterhead.

7540 Issuing the Order to Pay an Administrative Penalty

7541 When to Send the Order to Pay the Administrative Penalty

LPPH August 2015

Policy

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:

a.   the due process for each violation identified in the administrative penalty is complete;

b.   the Administrative Review status for at least one of the violations is set to Waived or Upheld; and

c.   the operation or controlling person:

i.    provides written notice accepting the penalty;

ii.   fails to respond with written notice within the specified time frame after receiving the recommendation to impose a penalty; or

iii.   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 is 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

LPPH 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:

  a.  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;

  b.  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;

  c.  creating and finalizing the Administrative Penalty Order CLASS Form 2995; and

  d.  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, Violation Identified in the Administrative Penalty is Overturned During the Administrative Review

7561 When Administrative Penalties Remain Unpaid

7550 Due Process Rights for Administrative Penalties

LPPH August 2015

Policy

Licensing must receive a request for a due process hearing in writing, including by e-mail 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.

DFPS Rules, 40 TAC §745.8839

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

LPPH August 2015

Procedure

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

a.   determines the date that Licensing mailed a notification letter to the operation or controlling person explaining the right to a due process hearing;

b.   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;

c.   adds 30 calendar days to that date of presumed receipt for the request; and

d.   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

LPPH 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:

a.   changes the Hearing Status field from Requested to Upheld;

b.   enters the date of the hearing; and

c.   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

LPPH 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

LPPH August 2015

Policy

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

LPPH 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

LPPH 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

LPPH 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:

a.   changes the Petition Status from Requested to Upheld; and

b.   indicates if the penalty amount is reduced by completing the Penalty Amount Reduced and Reduced Penalty Amount fields; and

c.   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:

a.   changes the Petition Status in the Due Process section from Requested to Overturned;

b.   reviews the Penalty Amount section to determine whether a refund should be issued;  and

c.   selects Stopped from the Final Result field.

7560 Payment and Nonpayment of Administrative Penalties

LPPH August 2015

Policy

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

a.   the order to pay the administrative penalty is received by the operation or controlling person;

b.   an administrative law judge’s order to pay the administrative penalty becomes final, unless a judicial review is requested.

c.   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

LPPH November 2017

Policy

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.

DFPS Rules, 40 TAC §745.8605

7561.1 Nonpayment Due to Insufficient Funds

LPPH 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

LPPH 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:

a.   the amount of the penalty not paid;

b.   steps the operation or controlling person has taken to correct the problem which led to the violation; and

c.   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 Legal before making the decision to refer nonpayment of an administrative penalty to the Office of Attorney General.

7561.3 Closing an Unpaid Administrative Penalty

LPPH 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:

a.   there have been no repeated violations of similar minimum standards for which the penalty was imposed within the previous year;

b.   the penalty is over a year old;

c.   the penalty amount is for less than $100;

d.   there have been no other administrative penalties recommended in the previous year;

e.   the penalty is not pending due process; and

f.    the district director or designee has approved closing the penalty.

<<Previous Page

Next Page>>