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7600 Adverse Actions

LPPH March 2017

Policy

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

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

DFPS Rules, 40 TAC §745.8649 §745.8875

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

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

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

DFPS Rules, 40 TAC §§745.8655 and 745.8609

HRC §42.072(e)

7610 Defining Adverse Action

LPPH March 2017

Policy

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

An adverse action is one of the following:

a.  Denial of an application (during application status)

b.  Denial of an application for issuance of a permit (during initial status)

c.  Denial of a request for amendment of a license, certificate, or registration

d.  Adverse amendment of the permit with conditions

e.  Involuntary suspension (this type of suspension is not the same as an automatic suspension that takes place when there is a failure to pay an annual fee)

f.  Revocation of an initial or non-expiring permit

DFPS Rules, 40 TAC §745.8649

7620 Criteria for Taking Adverse Action

LPPH March 2017

Policy

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

7621 Criteria for Imposing a Denial

LPPH March 2017

Policy

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

a.  a background check result makes an applicant ineligible for a permit, because either the result is ineligible for a risk evaluation or the Central Background Check Unit will not approve a risk evaluation;

b.  the operation does not demonstrate the ability to comply with minimum standards and other applicable laws during the initial permit period, if applicable;

c.  the results of a public hearing make an applicant ineligible for a permit;

d.  the operation presents an immediate threat to the health or safety of children; or

e.  the applicant is otherwise ineligible for a permit because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

DFPS Rules, 40 TAC §§745.8605; 745.8650

See:

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

3713 Compliance History Indicates Inability to Meet Minimum Standard Rules

5355.31 When to Deny or Revoke a Permit Based on Criminal History

7110 Circumstances that May Call for Enforcement Action

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

7622 Criteria for Imposing an Adverse Amendment

LPPH March 2017

Policy

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

a.  an amendment on the permit will mitigate any risks;

b.  the amendment is the most effective enforcement action for addressing risk at the operation; and

c.  the operation is capable of following the restrictions of the amendment.

DFPS Rules, 40 TAC §§745.8605; 745.8651

7623 Criteria for Imposing an Involuntary Suspension

LPPH March 2017

Policy

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

a.  the operation will pose a danger or threat of danger to the health or safety of children in the operation’s care until the issue is resolved;

b.  the operation cannot correct the issue while children are in care, but can do so during a specific period of time;

c.  the operation is capable of making the necessary corrections while the permit is suspended; and

d.  there are no additional concerns about the operation’s compliance history that would make revocation a more appropriate enforcement action for the health or safety of children.

DFPS Rules, 40 TAC §§745.8605; 745.8652

7624 Criteria for Imposing a Revocation

LPPH March 2017

Policy

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

a.  the operation is ineligible for corrective action;

b.  Licensing cannot address the risk at the operation by taking corrective action or another type of adverse action;

c.  A background check result or a finding of abuse or neglect makes the permit holder ineligible for a permit, either because the result is ineligible for a risk evaluation or the Central Background Check Unit informs will not approve a risk evaluation; or

d.  Revocation is otherwise necessary to address the issue described in 7110 Circumstances That May Call for Enforcement Action.

DFPS Rules, 40 TAC §§745.8605; 745.8654

7630 Taking Adverse Action

LPPH March 2017

Procedure

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

Determine the Appropriate Adverse Action

Licensing staff:

  •  uses Appendix 7000-1 as an aid in determining which action to recommend (see 7620 Criteria for Taking Adverse Action);

  •  discusses the recommendation of an adverse action and with the supervisor; and

  •  makes the recommendation to the program administrator or district director.

Notify the Permit Holder or Applicant About the Action

Licensing staff:

  •  notifies the permit holder or applicant about the intent to deny, revoke, suspend or amend a permit; and

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

See:

7710 Administrative Reviews

7631 Notice of Intent to Deny, Revoke, or Suspend

7632 Administrative Review for Adverse Action

Notify Controlling Persons About the Intent to Designate

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

  •  determines which controlling persons to designate; and

  •  notifies the controlling person about the intent to designate.

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

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

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

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

Documentation

Licensing staff documents all adverse action in the CLASS system.

Licensing staff generates all adverse action letters from CLASS.

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

Form 2880 Intent to Impose Adverse Action Letter

Form 2878 Decision to Impose Adverse Action Letter

Form 2895 Final Notice of Adverse Action Letter

7631 Notice of Intent to Deny, Revoke, or Suspend

LPPH December 2015

Policy

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

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

  •  notified the permit holder or applicant in person or by both regular and certified mail about the alleged deficiencies warranting action; and

  •  gave the permit holder or applicant an opportunity to retain the permit by showing compliance with Licensing statutes, administrative rules, and minimum standards.

Texas Government Code §2001.054

DFPS Rules, 40 TAC §745.8609

Procedure

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

  •  notify the permit holder or applicant about Licensing’s intent to deny, revoke, or suspend the permit; and

  •  explain the basis for that action.

7631.1 When Immediate Intervention Is Warranted at an Operation

LPPH December 2015

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

See 7740 Injunctive Relief.

7631.2 Creating the Notification of Intent Letter

LPPH December 2015

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

a.   Include a statement of intent to deny, revoke, or suspend the permit.

b.   Include references to the legal authority for the adverse action taken:

      The authority is Human Resources Code §42.072(a). The Licensing inspector includes additional legal authority as applicable and with direction from DFPS legal staff for adverse action because of matches found during a background check, matches found during a search for a controlling person, or for the denial of a residential license.

      For example, HRC §42.072(f) requires DFPS to revoke or deny an operation’s permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.

c.   Include specific details of the findings or basis for denial, revocation, or suspension, including:

1.   specific citation of statute, administrative rules, and minimum standards;

2.   dates of the deficiencies;

3.   description of each deficiency; and

4.   the name of the inspector who made the determination.

d.   Include information specific to the action taken. See:

      7631.21 Requirements if the Action Taken is Denial.

      7631.22 Requirements When the Operation is Already on Corrective Action or Suspension.

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

e.   Include information notifying the operation about their requirements, rights, and restrictions. See:

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

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

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

      7631.27 Notifying an Operation About Restrictions on Controlling Persons

f.    A statement that forms and letters from each inspection, investigation, or assessment used as a basis for the action are enclosed with the notice.

      The inspector prints and includes as enclosures copies of forms and letters from each of the inspections and investigations where deficiencies used as the basis for the adverse action are documented.

7631.21 Requirements if the Action Taken is Denial

LPPH March 2017

If the action taken is denial, Licensing staff:

  •  leaves the checkbox stating that DFPS has determined the operation poses a risk to the health and safety of children unchecked. This checkbox should only be used when the action taken is revocation or suspension; and

  •  includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the CLASS Form 2880 Intent to Impose Adverse Action letter.

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

LPPH December 2015

Corrective Action

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

  •  the date that the operation was placed on evaluation or probation; and

  •  a statement that the conditions were not met, if applicable.

Suspension

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

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

LPPH December 2015

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

a.   a statement explaining the risks, and that the operation must discontinue operating pending the outcome of a due process hearing, unless the permit holder obtains injunctive relief from a district court in the county in which the operation is located;

b.   specifies how the operation poses an immediate danger to a child’s safety or health, or both, with information included as outlined under TAC §745.751, for example:

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

Texas Human Resources Code, §42.072(e)

DFPS Rules, 40 TAC §745.8875

Procedure

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

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

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

LPPH December 2015

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

Statement 1

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

Statement 2

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

Statement 3

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

Statement 4

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

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

DFPS Rules, 40 TAC §§745.8655; 745.8879

The inspector follows up to ensure that the operation has:

  •  notified the parents; and

  •  sent the receipts to Licensing.

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

LPPH December 2015

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

  •  explains that the operation has a right to request an administrative review; and

  •  explains the procedures for requesting a review, including:

  •  whom to contact and where that person can be reached; and

  •  that an administrative review must be requested within 15 days after receipt of the letter.

DFPS Rules, 40 TAC §§745.8613; 745.8809-745.8817

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

LPPH December 2015

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

Texas Human Resources Code, §42.072(c)

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

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

7631.27 Notifying an Operation About Restrictions on Controlling Persons

LPPH December 2015

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

  •  are designated as controlling; and

  •  receive a letter offering an administrative review of that designation.

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

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

  •  obtain a permit to operate a child care operation; or

  •  serve as a controlling person.

Texas Human Resources Code, §42.072(g)

DFPS Rules, 40 TAC §745.8873

7631.3 Authorizing and Delivering the Intent to Impose Adverse Action Letter

LPPH March 2017

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

Licensing staff:

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

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

Licensing staff sends a copy of the letter to the:

a.  district director;

b.  Licensing attorney;

c.  supervisor; and

d.  residential contract manager (if applicable).

Day care licensing staff also notify:

  •  the local Child Care Services Program; and

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

DFPS Rules, 40 TAC §745.8657

7631.31 When The Operation Is Required to Close Immediately

LPPH December 2015

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

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

  •  dates that the letter was delivered to and received by the operation; and

  •  name of the person at the operation who received the notification.

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

a.   notifies the permit holder or applicant by telephone;

b.   sends the letter by email or fax; and

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

7632 Administrative Review for Adverse Action

LPPH September 2012

Policy

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

  •  has a right to request an administrative review, if he or she disagrees with an adverse action; and

  •  must request the review no later than 15 days after being notified about the right.

See:

7630 Taking Adverse Action

7710 Administrative Reviews

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

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

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

DFPS Rules, 40 TAC §§745.8613; 745.909(b)

7632.1 Adverse Action Is Overturned at an Administrative Review

LPPH September 2012

Procedure

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

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

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

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

LPPH September 2012

Procedure

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

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

The inspector initiates adverse action.

See:

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

7710 Administrative Reviews

7773 Providing a Due Process Hearing for a Designated Controlling Person

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

LPPH December 2015

Policy

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

DFPS Rules, 40 TAC §745.8609

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

In addition, the inspector must notify other DFPS entities and update the operation’s status in CLASS. See:

7633.2 Notifying DFPS and Other State Agencies

7633.3 Updating the Operation’s Status in CLASS

7633.1 Creating the Decision to Impose Adverse Action Letter

LPPH December 2015

Procedure

The decision letter must include:

a.   A statement that the permit holder or applicant either did not request an administrative review, or did request an administrative review but the decision to take adverse action was upheld.

b.   The date that the administrative review was held, if applicable.

c.   The name of the Licensing staff who conducted the review, if applicable.

d.   The legal authority for the adverse action.

      The legal authority is Human Resources Code §42.072(a).

      The inspector includes additional legal authority as applicable and with direction from DFPS legal staff for adverse action because of matches found:

  •  during a background check;

  •  during a search for a controlling person; or

  •  for the denial of a residential license.

      For example, HRC §42.072(f) requires Licensing to revoke or deny an operation’s permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.

e.   A statement that the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, was previously sent to the permit holder, explaining the basis for the action.

f.    If the action taken is denial, the inspector:

  •  leaves the checkbox stating that DFPS has determined the operation poses a risk to the health and safety of children unchecked; and

  •  includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the Decision to Impose Adverse Action letter.

g.   If appropriate, include a statement that the operation poses an immediate risk to the health or safety of children, and must discontinue operating immediately. See: 7633.11 Requirements if There is Immediate Risk to Children below.

h.   Information about the operation’s other requirements, rights, and restrictions. See:

7633.12 Right to Appeal

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

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

7633.15 Failure to Close the Operation

7633.16 Posting Requirements

7633.11 Requirements if There is Immediate Risk to Children

LPPH December 2015

Procedure

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

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

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

Texas Human Resources Code §42.072(e)

DFPS Rules, 40 TAC §745.8875

Procedure

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

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

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

  •  The dates that the letter was delivered to and received by the operation.

  •  The name of the person at the operation who received the notification.

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

a.   notifies the permit holder or applicant by telephone;

b.   sends the letter by email or fax; and

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

7633.12 Right to Appeal

LPPH December 2009

Procedure

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

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

Texas Human Resources Code §42.072(b)

DFPS Rules, 40 TAC §§745.8839-745.8841

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

DFPS Rules, 40 TAC §§745.8855; 745.8659

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

LPPH September 2012

Policy

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

Procedure

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

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

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

LPPH September 2012

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

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

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

  •  obtaining a permit to operate a child care operation; or

  •  becoming a controlling person.

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

7633.15 Failure to Close the Operation

LPPH December 2009

Procedure

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

7633.16 Posting Requirements

LPPH December 2009

Procedure

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

DFPS Rules, 40 TAC §745.8655

7633.2 Notifying DFPS and Other State Agencies

LPPH March 2017

Procedure

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

The residential care inspector must also notify the residential contract manager.

7633.3 Updating the Operation’s Status in CLASS

LPPH December 2015

Procedure

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

7634 Inspecting During the Suspension, Revocation, or Denial Process

LPPH March 2017

Policy

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

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

Procedure

Inspection procedures are described in 7731 Regulation During Appeal Process.

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

LPPH March 2017

Policy

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

  •  the opportunity to request a due process hearing has passed; or

  •  the decision is upheld at the due process.

Texas Human Resources Code §42.077(a)

DFPS Rules, 40 TAC §745.8659

Procedure

The district director or designee:

  •  sends a Final Adverse Action letter (CLASS Form 2895) to the permit holder or applicant by both regular and certified mail, with a return receipt requested; and

  •  updates the due process fields in CLASS to ensure that the revocation/suspension is reflected on the DFPS website.

See also:

7632 Administrative Review for Adverse Action

7711.4 Waiving the Right to Administrative Review

7716.1 Documenting the Outcome of an Administrative Review in CLASS

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

LPPH March 2017

Procedure

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

Statement 1: Decision Is Final

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

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

Statement 2: Operation Must Notify Parents or Managing Conservator

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

  •  mail a notice about the adverse action to the parents or managing conservator of each child enrolled; and

  •  send the notice by both certified and regular mail within five days of the date that the permit holder received notice about the denial, suspension, or revocation.

Texas Human Resources Code §42.077(d)

DFPS Rules, 40 TAC §745.8661

Statement 3: DFPS Will Notify the Public

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

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

Texas Human Resources Code §42.077(a)

DFPS Rules, 40 TAC §745.8659

Statement 4: Applicant Is Restricted From Reapplying

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

Texas Human Resources Code §42.072(c)

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

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

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

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

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

LPPH March 2017

Procedure

Notifying DFPS Staff and Other Entities

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

a.  Licensing attorney

b.  district director

c.  program administrator

d.  supervisor

e.  residential contract manager (when applicable)

f.  staff of the following (when applicable):

  •  the local child and adult food care program

  •  the local child care services program

Entering Data in HHSC’s Adverse Action System

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

a.  The applicant committed an act or omission that resulted in the physical or mental harm to an individual

b.  The applicant is a threat to the health, safety, or well-being of an individual

c.  The applicant engaged in the physical, mental, or financial exploitation of an individual

d.  The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the permit

DFPS Rules, 40 TAC §745.907

Texas Government Code §531.953

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

7636 Follow-Up to Suspension, Revocation, or Denial

LPPH March 2017

Procedure

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

  •  determine whether the operation is continuing to care for children; and

  •  obtain the license, registration, or listing if it has not been returned.

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

a.  documents the inspection type as Follow-up, if the inspector observes enough to confirm the operation is no longer caring for children;

b.  documents the inspection type as Attempted, if the inspector is not able to determine if the operation is continuing to care for children;

c.  documents the observations made during the inspection in a chronology (type Monitoring); and

d.  consults with the supervisor to determine the next course of action. 

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

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

7637 Emergency Suspension and Closure

LPPH August 2012

Policy

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

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

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

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

Texas Human Resources Code §42.073

DFPS Rules, 40 TAC §745.8877

Procedure

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

See:

7637.1 Completing the Order for Emergency Suspension and Closure

7637.2 Writing the Letter for Emergency Suspension and Closure

7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

7637.1 Completing the Order for Emergency Suspension and Closure

LPPH August 2012

Procedure

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

  •  the operation’s license, registration, or listing is suspended; and

  •  the operation is being closed for a period of no more than 30 days.

The order must contain the following:

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

Name: ________________________

Address: ______________________.

b.  The start date: This order is effective immediately upon receipt of it by the permit holder or the board chairperson.

c.  The end date: This order expires on (date) at midnight.

d.  The basis for the order: The Texas Department of Family and Protective Services has found that this child care operation poses an immediate threat to the health or safety or both of the children attending the operation. The reasons for the emergency order are attached as Exhibit A.

e.  The nature of the adverse action: The order must state that Licensing intends to take adverse action, in the form of revocation, against the operation. Licensing staff notify the permit holder in writing as soon as possible after the date of the emergency closure of the operation.

f.  A statement at the bottom of the order to be signed by the person who accepts the order, showing receipt:

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

7637.2 Writing the Letter for Emergency Suspension and Closure

LPPH March 2017

Procedure

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

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

a.  The reasons for the closure, including how the operation poses an immediate threat

b.  A statement requiring the operation to notify parents, guardians, or managing conservators about the following:

  •  That it is necessary to pick up their children immediately. Parents whose children are in day care operations must pick up their children within four hours of notification or by the end of the workday, whichever is longer. Parents whose children are in residential care operations must pick their children up as soon as possible.

  •  That the operation will send a follow-up letter to parents using certified mail within five days of the effective date of the closure. Copies of the return receipts must be given to Licensing within five days of receipt by the operation

c.  The date the closure becomes effective

d.  A statement explaining that a revocation of the permit is being prepared and that DFPS will send the operation a letter listing the reasons for the intent to revoke and offering an administrative review of the decision to revoke

e.  A statement explaining that the inspector may be required to inspect the operation periodically during the 30-day closure to determine that there are no children in care that would require the operation to be subject to regulation.

7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

LPPH August 2012

Procedure

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

  •  the operation’s director or administrator; or

  •  the operation’s owner or board chairperson.

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

  •  on a copy of the letter; and

  •  on the emergency suspension order.

For Child Day Care

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

The parents are notified:

  •  by the operation; or

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

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

a.  why the operation is being closed;

b.  that the closure is for 30 days from the effective date; and

c.  that parents must arrange to pick up their children within four hours, or by the end of the workday, whichever is longer.

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

  •  notifies law enforcement; and

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

For Residential Care

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

If the child was placed by a state agency, such as DFPS (CPS), the Department of Aging and Disability Services (DADS), or the Department of State Health Services (DSHS), the inspector notifies that agency.

7637.4 Complete an Affidavit

LPPH December 2009

Procedure

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

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

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

7637.5 Implementation of Revocation

LPPH December 2009

Procedure

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

7637.6 The Operation’s Notification Requirements

LPPH December 2009

Procedure

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

7637.7 Update Operating Status

LPPH March 2017

Procedure

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

7638 Follow-Up to Emergency Suspension and Closure

LPPH March 2017

Procedure

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

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

LPPH September 2012

Policy

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

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

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

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

Texas Human Resources Code §42.072(e)

DFPS Rules, 40 TAC §§745.8613; 745.8835; 745.8837; 745.8681; 745.8877

Procedures

Administrative Review

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

DFPS Rules, 40 TAC §§745.8801; 745.8803

Release Hearing

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

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

Due Process Hearing

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

  •  an adverse action of denial, revocation, suspension; or

  •  an adverse amendment to a license certificate, registration, listing, or compliance certificate.

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

Texas Human Resources Code §42.078

DFPS Rules, 40 TAC Chapter 745, Subchapter M, §745.8803

Combination Hearing

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

  •  A due process hearing for an adverse action and a release hearing.

      This may be done when an adverse action is being taken against an operation and the operation is the designated perpetrator of abuse or neglect, and the same set of facts apply to both actions; or

  •  A due process hearing for a revocation and a due process hearing for a controlling person.

     This may be done when an operation’s permit is being revoked and those designated as controlling request due process hearings, if the judge decides to combine the hearings. If so, the SOAH judge decides how to handle the designation of the controlling persons at the time of the revocation hearing.

Injunctive Release

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

See:

7740 Injunctive Relief

7733 Suit Filed

7760 Settlement of Legal Case

Hearing Requested by Controlling Person

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

A controlling person against whom Licensing recommends imposing an administrative penalty may also request a due process hearing. Licensing assesses penalties against controlling persons at residential operations only.

DFPS Rules, 40 TAC Chapter 745, Subchapter M

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

Texas Government Code, Chapter 2001

DFPS Rules, 40 TAC §§745.8851; 745.909

7710 Administrative Reviews

LPPH December 2013

Policy

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

DFPS Rules 40 TAC §§745.8801; 745.8803

7711 The Right to an Administrative Review

LPPH March 2017

Policy

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

a.  The governing body, director, or designee of an operation that is entitled to request an administrative review

b.  A person that Licensing has determined is an immediate threat or danger to the health or safety of children

c.  A designated perpetrator of abuse, neglect, or exploitation against a child in care

d.  The holder of an administrator’s license regarding the review of an enforcement action concerning that license

e.  An individual whom Licensing intends to designate as a controlling person

DFPS Rules 40 TAC §§745.8805; 745.8807

If a minor is designated as a perpetrator of abuse or neglect, the minor’s parent has the right to request an administrative review on behalf of the minor.

DFPS Rules 40 TAC §745.21

7711.1 When An Operation Is Entitled to an Administrative Review

LPPH March 2017

Policy

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

a.  Licensing does not agree that the operation is exempt from DFPS regulation.

b.  Licensing denies the operation’s request for a waiver or variance from a minimum standard.

c.  Licensing cites the operation for a deficiency, and the operation does not agree that a deficiency was committed.

d.  Licensing takes enforcement action against an operation, unless the enforcement action was voluntary or initially implemented through a court order.

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

Human Resources Code §42.073

DFPS Rules 40 TAC §745.8805

7711.2 When An Individual Is Entitled to an Administrative Review

LPPH March 2017

Policy

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

a.  Licensing determines that the individual is an immediate threat or danger to the health and safety of children in a child care operation.

b.  Licensing designates the individual as a perpetrator of abuse, neglect, or exploitation.

c.  Licensing takes enforcement action against the individual’s administrator’s license.

d.  Licensing intends to designate the individual as a controlling person.

If a minor is designated as a perpetrator of abuse or neglect, the minor’s parent has the right to request an administrative review on behalf of the minor.

DFPS Rules 40 TAC §§745.8805, 745.8807

7711.3 Explaining the Right to an Administrative Review

LPPH December 2013

Policy

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

Procedure

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

a.   leaving a printed copy of the completed CLASS form 2936 Child Care Facility Inspection with the person in charge during the exit conference; or

b.   sending the specific notification letter in the CLASS system that is appropriate for the particular decision or action by both regular and certified mail to the individual or the governing body, director, or designee of the operation. If the individual is a minor designated as a perpetrator of abuse or neglect, Licensing staff also sends the CLASS Form 2894 Abuse or Neglect Findings Letter to the Perpetrator by both regular and certified mail to the minor’s parent, guardian, or managing conservator.

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

a.   must be submitted to Licensing in writing, either by letter or by using Form 2940 Administrative Review Request;

b.   must include the information outlined in 7713 Receiving a Request for an Administrative Review; and

c.   must be received by Licensing no later than 15 days after the individual or operation received notice about Licensing’s decision or action.

DFPS Rule 40 TAC §§745.8806; 745.8809

Documenting in CLASS

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

See:

6632 Notification to the Alleged Perpetrator of Abuse, Neglect, or Exploitation Findings

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

7711.4 Waiving the Right to an Administrative Review

LPPH December 2013

Policy

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

  •  the individual or operation does not dispute the Licensing decision or action; or

  •  the individual or operation would like to expedite the decision or action Licensing is seeking to take.

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

DFPS Rules, 40 TAC §745.8817

Procedure

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

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

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

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

Documenting in CLASS

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

a.   changes the status of the administrative review in the CLASS system from Pending to Waived, if there was no additional information requested or from Requested to Waived, if additional information had been requested (see 7713.22 When a Request or an Administrative Review is Incomplete);

b.   files a written request to expedite the decision or action in the investigation or operation’s record and documents the request in the Chronology field in CLASS, if applicable; and

c.   documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date, if applicable (see 7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date).

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

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

  •  enters a date in the decision date field in CLASS.

7712 Roles for Conducting an Administrative Review

LPPH March 2017

Policy

Routine Violations

A supervisor plans and conducts administrative reviews of routine violations.

Routine violations:

  •  are identified during inspections or investigations; and

  •  do not involve abuse or neglect.

All Other Decisions and Actions

For all other Licensing decisions and actions (including reviews related to findings of abuse or neglect), the administrative review is conducted by the relevant:

a.  division administrator;

b.  district director;

c.  program specialist; or

d.  designee.

The reviewer:

  •  must not have been involved in making, taking, or staffing the decision or action; and

  •  must be from a different unit or region where the decision or action was made.

DFPS Rules 40 TAC §745.8813

7713 Receiving a Request for an Administrative Review

LPPH December 2013

Policy

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

a.   is addressed to the Licensing contact person designated on the notice;

b.   includes a signed Form 2940 Administrative Review Request or a signed letter granting authorization to an attorney to represent the operation or individual, if applicable;

c.   is received by the due date; and

d.   is complete.

DFPS Rules 40 TAC §§745.8806; 745.8809

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

LPPH June 2016

Policy

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

DFPS Rules 40 TAC §745.8806

When determining the due date for an administrative review request, Licensing allows 3 days for the individual or permit holder to receive notice about the Licensing decision or action through the mail, unless Licensing staff provided notification of the inspection results at the time of the inspection. This is in addition to the 15 day time frame.

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

Procedure

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

If the notification letter was mailed, the reviewer:

  •  adds three calendar days to that mail date to estimate the date that the individual or permit holder is presumed to have received the notification letter by regular mail;

  •  adds 15 calendar days to that date of presumed receipt for the request; and

  •  identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

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

  •  adds 15 calendar days to that date; and

  •  identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

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

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

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

LPPH November 2011

Procedure

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

See:

7714 Initiating Contact With the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

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

LPPH December 2013

Procedure

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

7713.2 Determining Whether a Request for an Administrative Review Is Complete

LPPH November 2011

Policy

A request for an administrative review is complete if it:

a.   describes the specific decision or action in dispute;

b.   indicates why the decision or action is being disputed; and

c.   includes documentation that supports the requestor’s position, such as photographs, diagrams, or written and signed statements.

DFPS Rules 40 TAC §745.8809

Procedure

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

a.   A description of the specific decision or action in dispute

b.   The reason the decision or action is being disputed

c.   Any documentation that supports the requestor’s position, such as photographs, diagrams, or written and signed statements

7713.21 When a Request for an Administrative Review Is Complete

LPPH November 2011

Procedure

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

  •  updates the information about the administrative review in the Due Process field of the Standards Detail Page in the CLASS system, as explained below; and

  •  contacts the individual or permit holder to schedule the administrative review. (See 7714 Initiating Contact With the Requestor of an Administrative Review.)

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

a.   changes the status of the administrative review from Pending to Requested;

b.   enters the date that the request for an administrative review was received; and

c.   enters the name of the person assigned to conduct the administrative review.

Documenting Complete Requests From Designated Perpetrators

In addition to the steps listed directly above, if the individual requesting the administrative review is designated as a perpetrator of abuse or neglect and the reviewer determines that the request is complete and was received by Licensing within the specified time frame, the reviewer also:

  •  creates an Administrative Review stage in the IMPACT system; and

  •  enters the date the request was received.

7713.22 When a Request for an Administrative Review Is Incomplete

LPPH November 2011

Procedure

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

a.   completes Form 2809 Information Required for Administrative Review Letter:

  •  explaining the missing information that must be submitted to Licensing, and

  •  noting that the missing information must be submitted to Licensing within five days;

b.   mails the completed Form 2809 to the individual or permit holder;

c.   files a copy of the letter in the hard copy record for the individual or permit holder; and

d.   updates the details about the administrative review in the Due Process field of the Standards Detail page in the CLASS system.

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

a.   changes the status from Pending to Requested;

b.   enters the date that the request for an administrative review was received;

c.   enters the name of the person assigned to conduct the administrative review; and

d.   enters the following information in the Narrative box:

1.   the date that Form 2809 Information Required for Administrative Review Letter was mailed,

2.   the information needed in order for the request to be considered complete, and

3.   the date that the information is due back to Licensing.

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

LPPH November 2011

Procedure

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

a.   determines the date that Licensing mailed Form 2809 Information Required for Administrative Review Letter to the individual or permit holder explaining the need to send Licensing additional information;

b.   adds three calendar days to that mail date to determine the date that the individual or permit holder is presumed to receive the letter;

c.   adds five calendar days to the date of presumed receipt; and

d.   identifies the first date after that time period that is not a Saturday, Sunday, or legal holiday.

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

LPPH November 2011

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

See:

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

7714 Initiating Contact With the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

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

LPPH November 2011

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

a.   notifies the requestor that the request is late (see 7717 Notifying a Requestor About the Outcome of an Administrative Review);

b.   changes the status of the administrative review in the CLASS system from Requested to Waived; and

c.   documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date (see 7713.23 Determining Whether the Information Missing From a Request for an Administrative Review Is Received by the Due Date).

7714 Initiating Contact With the Requestor of an Administrative Review

LPPH April 2011

Policy

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

  •  acknowledge receipt of the request; and

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

DFPS Rules 40 TAC §745.8815

Procedure

A reviewer may make this contact with a requestor by:

  •  sending an e-mail, letter, or fax, or

  •  making a phone call or visit.

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

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

  •  the reason for the call; and

  •  the reviewer’s contact information.

7714.1 Scheduling an Administrative Review Conference

LPPH April 2011

Policy

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

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

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

a.   additional time is necessary to comply with a request from the individual or permit holder to provide records related to the review;

b.   the requestor presents a written statement with a reason for delaying the conference, and Licensing determines that the reason constitutes good cause for a delay; or

c.   the requestor does not respond to Licensing’s attempts to schedule a conference, thereby waiving his or her right to a conference.

DFPS Rules 40 TAC §745.8815

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

7714.2 Documenting the Initial Contact With the Requestor in CLASS

LPPH April 2011

Procedure

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

a.   The date of the initial contact, including all attempted contacts

b.   The date scheduled for the administrative review conference, if applicable

c.   The date, reason, and outcome of a request for delaying the conference beyond the 30-day time frame, if applicable

d.   The date and reason the administrative review conference was waived, if applicable

7715 Conducting an Administrative Review Conference

LPPH March 2017

Policy

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

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

Procedure

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

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

The reviewer usually holds the conference by phone, but may meet with the requestor at the operation instead; for instance, when conducting an administrative review related to enforcement action taken against an operation or when designating an individual as a perpetrator of abuse, neglect, or exploitation, the reviewer may choose to conduct the review face-to-face.

Documenting a Conference in CLASS

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

a.  the date of the conference;

b.  a brief summary of the discussion held during the conference; and

c.  any new information received. (Information received on paper is placed in the appropriate file).

In the case of individuals who have been designated as perpetrators of abuse, neglect, or exploitation, the reviewer enters the review date into the IMPACT system and documents the conference details in the Narrative field of the Administrative Review/Appeal stage.

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

Policy

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

  •  the requestor has not responded to attempts to schedule the conference, or

  •  the requestor does not schedule the meeting within the 30 days of the initial contact, unless there is just cause for the delay.

DFPS Rules 40 TAC §745.8815

Procedure

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

7716 Deciding the Outcome of an Administrative Review

LPPH April 2011

Policy

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

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

DFPS Rules 40 TAC §§745.8801, 745.8815

Procedure

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

  •  meets with the Licensing inspector or investigator whose decision or action is being disputed; and

  •  reviews the Licensing record and any documentation provided during the conference.

The reviewer may also inspect the operation, if necessary.

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

a.   whether documentation for the Licensing decision or action provides sufficient detail and clearly explains the reason for the decision or action;

b.   whether the decision or action was consistent with applicable laws and rules;

c.   whether the decision or action was reasonable;

d.   whether the evidence, including any additional evidence provided during the administrative review, supports the decision or action; and

e.   whether the decision or action was correct, including whether the investigator cited the correct minimum standard rule, administrative rule, or licensing law.

7716.1 Documenting the Outcome of an Administrative Review in CLASS

LPPH June 2016

The reviewer documents the outcome in the CLASS system by:

  •  changing the status of the administrative review from Requested to Overturned or Upheld;

  •  clearly explaining the decision in the Due Process Documentation field;

  •  entering a date in the Decision Date field; and

  •  drafting a letter to notify the individual or designee of the operation of the decision (see 7717 Notifying a Requestor About the Outcome of an Administrative Review).

Documenting the Administrative Review Status for an Abuse or Neglect Citation in CLASS

Licensing staff change the status of the administrative review for the abuse or neglect citation from Pending to Requested if:

  •  an individual who was designated as a perpetrator of abuse or neglect requests a review of the investigation finding; or

  •  a designee of the operation requests an administrative review of the citation for abuse or neglect.

The finding for an abuse or neglect citation must remain as Requested until the due process for all designated perpetrators is complete. Once the due process for all designated perpetrators is complete, licensing staff change the administrative review status for the abuse/neglect finding in CLASS from:

  •  Requested to Upheld if the abuse/neglect finding was upheld; or

  •  Requested to Overturned if the abuse or neglect finding was overturned.

If both the individual and the operation waive the right to an administrative review, Licensing staff change the status of the administrative review for the abuse or neglect citation from Pending to Waived.

7716.2 Documenting the Outcome of an Administrative Review in IMPACT for Decisions Involving Abuse or Neglect

LPPH December 2013

The reviewer documents the outcome in the Administrative Review/Appeal stage in the IMPACT system by:

a.   choosing FPS Position Changed or FPS Position Upheld from the Result drop-down menu;

b.   changing the Reason to Believe finding to Ruled Out or Unable to Determine on the allegation list if the decision is to overturn the decision; and

c.   documenting the outcome, in detail, in the Narrative field.

7716.3 Amending an Action or Decision as the Result of an Administrative Review

LPPH June 2015

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

Specifically, amending a decision or action may include:

a.   changing the conditions of a corrective action, waiver, or variance;

b.   editing the original documentation of a decision or action; or

c.   overturning the original citation of a minimum standard that was cited incorrectly and adding the citation of a minimum standard that is more appropriate.

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

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

a.   calls the requestor to explain the action;

b.   allows the requester an opportunity to respond to the decision or action;

c.   informs the requester that there are no due process rights related to the decision or action; and

d.   sends the decision letter.

Documenting the Decision

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

7717 Notifying a Requestor About the Outcome of an Administrative Review

LPPH December 2013

Policy

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

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

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

a.   on the date Licensing receives the individual or designee’s written statement waiving the right;

b.   on the date that the administrative review is automatically waived;

c.   when the decision or action is upheld; or

d.   when the decision or action is overturned.

DFPS Rules 40 TAC §745.8815

7717.1 Notifying an Operation of the Outcome of the Administrative Review

LPPH June 2015

Policy

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

a.   Licensing determines that the operation is not exempt from DFPS regulation.

b.   Licensing denies the operation’s request for a waiver or variance.

c.   Licensing cites the operation for a deficiency.

d.   Licensing imposes corrective action on an operation.

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

DFPS Rules 40 TAC §745.8835

Procedure

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

a.   CLASS Form 2885 Corrective Action Letter to uphold the decision to impose corrective action. Form 2885 is also mailed if the operation waives the right to administrative review.

b.   CLASS Form 2878 Decision to Impose Adverse Action for a decision regarding an adverse action (see 7632.1 Adverse Action is Overturned at an Administrative Review or 7632.2 Adverse Action Is Upheld at an Administrative Review or No Administrative Review Is Requested).

c.   CLASS Form 2834a DFPS Letterhead, located on the page in CLASS where the action is documented, for all other types of reviews.

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

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

a.   the specific Licensing decision being disputed and reviewed;

b.   the date that the request was received, the date of conference, and the date of the final decision; and

c.   the outcome of the review.

7717.2 Notifying an Individual of the Outcome of the Administrative Review

LPPH December 2013

Procedure

Licensing offers a due process hearing to any of the following individuals if the decision is upheld or waived:

  •  An individual designated as a perpetrator of abuse, neglect, or exploitation of a child in care

  •  An individual designated as a controlling person

To notify an individual about the outcome of an administrative review, the reviewer drafts and mails one of the following letters:

a.   CLASS Form 2886B Administrative Review: Decision Overturned – Letter to Perpetrator or CLASS Form 2886 Decision Letter to Perpetrator for an individual who was designated as a perpetrator of abuse, neglect, or exploitation (see 7723 Explaining the Offer of a Due Process Hearing to Someone whom Licensing Designated as a Perpetrator of Abuse or Neglect)

b.   Form 2880 SOAH Letter to Minor, located in the DFPS automated forms, to a minor who was designated as a perpetrator of abuse or neglect and the minor’s parent when the administrative review was upheld (see 7723 Explaining the Offer of a Due Process Hearing to Someone whom Licensing Designated as a Perpetrator of Abuse or Neglect)

c.   CLASS Form 2763 Controlling Person Administrative Review Decision Letter for an individual who was designated as a controlling person (see 7772.2 No Administrative Review Requested by the Controlling Person or 7772.3 Decision to Designate a Controlling Person Is Overturned or 7772.4 Decision to Designate a Controlling Person Is Upheld)

7720 Hearings Concerning Child Abuse or Neglect Findings

LPPH December 2013

Policy

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

  •  designates the person as a perpetrator of child abuse or neglect; or

  •  releases that APS or CPS designated the person as a perpetrator of child abuse or neglect.

7721 Due Process Hearings for Persons Investigated by Licensing

LPPH December 2013

Procedure

Licensing offers a hearing to a person who has been found to have abused or neglected a child in an operation.

Licensing offers the alleged perpetrator a due process hearing only after the finding is upheld at the administrative review or the alleged perpetrator, including a minor, waives the review.

DFPS Rules, 40 TAC §§745.8831; 745.8833

7722 Release Hearings for Persons Investigated by Other DFPS Divisions

LPPH December 2009

Procedure

If the finding of an investigation conducted by DFPS Child Protective Services (CPS) or Adult Protective Services (APS) is to be the basis for a Licensing action, and that investigation finds that a person has abused or neglected a child, Licensing may offer a release hearing if the following has occurred:

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

  •  the investigating program has held an ARIF and the program’s finding has been upheld.

In this case, Licensing will offer a release hearing at the same time the investigating program is offering an ARIF.

7723 Explaining the Offer of a Due Process Hearing to Someone Whom Licensing Designated as a Perpetrator of Abuse or Neglect

LPPH December 2013

Procedure

The investigator notifies the perpetrator in writing of the following:

a.   A statement of the abuse or neglect findings

b.   The decision whether the findings will be released prior to the due process hearing

c.   That the finding may affect his or her employment in child care

d.   The perpetrator’s right to request a hearing;

e.   The party to whom the written request for a hearing is addressed:

Docket Clerk

Legal Services, Mail Code Y-956

Texas Department of Family and Protective Services

P.O. Box 149030

Austin TX 78714-9030;

f.    That the request must be postmarked within 30 days after the person receives this notice

g.   The fact that a copy of the request must be sent to the investigator or his or her supervisor

7723.1 Additional Information for Permit Holders

LPPH March 2017

Procedure

If the designated perpetrator is a permit holder, add both of the following:

  •  That the finding may be the basis for enforcement action; or, if simultaneous to a notice of intent to revoke or deny, the details of the adverse action (Licensing may combine the release hearing with the appeal of the adverse action).

  •  The requirement that the request must be postmarked within 30 days after the person receives this notice.

7723.2 Additional Information for Illegal Operations

LPPH December 2013

Procedure

For illegal operations (see Definitions of Terms), include:

a.   the requirements to be licensed, registered, or listed;

b.   that the finding might be the basis for denying the perpetrator a permit; and

c.   that the request must be postmarked within 30 days after the person receives this notice.

7723.3 Waiving the Right to a Due Process Hearing

LPPH December 2013

Policy

A perpetrator may waive the right to a due process hearing, if he or she:

  •  does not dispute the Licensing decision or action; or

  •  would like to expedite the action Licensing is seeking to take.

If the perpetrator decides to expedite the Licensing action, he or she may provide a written statement to Licensing, waiving the right to the due process hearing or fail to request one within the 30-day time period.

Procedure

To waive the right to a release hearing, an individual submits a written statement no later than 30 days after he or she received notice about the right to request a due process hearing.

If the perpetrator verbally notifies a Licensing staff person that he or she has decided to waive the right, the staff person informs him or her that the decision must be submitted in writing.

The right to a due process hearing is automatically waived if the individual does not submit a written statement requesting a hearing or a written statement waiving his or her right to a hearing within the required time frame, except if the individual is a minor. See 7724.41 Minor Does Not Request a Due Process Hearing.

DFPS Rules 40 TAC §745.8855

Sustain the Individual in IMPACT

If a perpetrator waives the hearing, the Licensing staff person sustains him or her as a perpetrator of abuse or neglect in IMPACT. See 7725 Sustaining a Perpetrator in IMPACT.

Documenting in CLASS

If a perpetrator waives the hearing, the Licensing staff person:

a.   changes the hearing status in the CLASS system from Pending to Waived;

b.   enters a date in the Final Notification Date field; and

c.   drafts a letter to notify the individual that the decision if final (see 7724.3 Notifying the Perpetrator About the Outcome of a Due Process Hearing).

See 7726 Documenting the Final Disposition for Abuse or Neglect Investigations in CLASS.

7724 Documenting the Results of the Due Process Hearing

LPPH March 2017

Procedure

The legal division notifies the appropriate Licensing district director or designee of the outcome of a due process hearing for child abuse or neglect. A licensing supervisor documents the results in Licensing’s official records of the investigation. This includes IMPACT, CLASS, and the paper files.

See 5331 Acting on Abuse and Neglect Findings in a DFPS Central Registry Report.

DFPS Rules, 40 TAC §§745.8843; 745.8849

See also:

Appendix 7000-2: Guidelines for Preparing Records for SOAH Hearings

7724.1 Overturning a Finding of Abuse or Neglect

LPPH December 2013

If the administrative law judge overturns a finding of child abuse or neglect, the assigned Licensing supervisor documents the outcome by:

a.   choosing FPS Position Changed from the Result drop-down menu, changing the Reason to Believe finding to Ruled Out on the allegation list, and documenting the outcome, in detail, in the Narrative field of the Administrative Review/Appeal stage in the IMPACT system;  

b.   changing the status of the hearing from Requested to Overturned in the CLASS system;

c.   clearly explaining the decision to overturn the decision in the Due Process Documentation field in the CLASS system; and

d.   entering the date of notification in both the CLASS and IMPACT systems.

See 7726 Documenting the Final Disposition for Abuse or Neglect Investigations in CLASS.

7724.2 Upholding a Finding of Abuse or Neglect

LPPH December 2013

If the administrative judge law upholds the finding of abuse or neglect, the assigned Licensing supervisor documents the outcome by:

a.   sustaining the individual in IMPACT (see 7725 Sustaining a Perpetrator in IMPACT);

b.   changing the status of the hearing from Requested to Upheld in the CLASS system;

c.   clearly explaining the decision to uphold the decision in the Due Process Documentation field in the CLASS system;

d.   entering the date of notification in both the CLASS and IMPACT systems; and

e.   drafting a letter notifying the individual that the decision is final (see 7724.3 Notifying the Perpetrator About the Outcome of a Due Process Hearing).

See 7726 Documenting the Final Disposition for Abuse or Neglect Investigations in CLASS.

7724.3 Notifying the Perpetrator About the Outcome of a Due Process Hearing

LPPH December 2013

Procedure

Within 35 days after the assigned Licensing supervisor receives notice that a finding is upheld following a waiver or hearing, the supervisor prepares and sends written notification to the perpetrator that the abuse or neglect finding has been officially sustained.

The supervisor drafts and mails one of the following letters by both regular and certified mail:

  •  CLASS Form 2889 Letter to Perpetrator SOAH Decision, if the release hearing was upheld

  •  CLASS Form 2886C Letter to Perpetrator Final No Appeal, if the individual waived his or her right to a release hearing

The supervisor also sends a copy of the letter to the parent, legal guardian, or managing conservator if the person who is the subject of the review is still a minor at the time of the due process hearing.

7724.4 Documentation and Notification of Due Process Hearings for Perpetrators Who Are Minors

LPPH December 2013

Procedure

If a minor who was designated as a perpetrator of abuse or neglect of a child in care and the minor or the minor’s parent, legal guardian, or managing conservator requested a release hearing, Licensing staff follow the steps outlined in 7724.1 Overturning a Finding of Abuse or Neglect or 7724.2 Upholding a Finding of Abuse or Neglect, depending on the results of the hearing.

Exception

If the finding was upheld at the due process hearing as a result of a default (that is, the minor did not appear at the hearing), Licensing staff do not sustain the minor as a perpetrator of abuse or neglect in the IMPACT system. In this instance, see 7724.41 Minor Does Not Request a Due Process Hearing.

7724.41 Minor Does Not Request a Due Process Hearing

LPPH December 2013

A minor does not have to request a hearing within 30 days of the original notification. If the request is not received within 30 days, Licensing:

  •  leaves the hearing request as Pending in CLASS; and

  •  leaves the minor’s role as Designated Perpetrator in IMPACT.

A minor may request a hearing at any time following notification and may only be sustained when a release hearing that did not result in a default (that is, the minor did not appear at the hearing) upheld Licensing’s decision. See 7724.42 When a Minor Turns Eighteen.

7724.42 When a Minor Turns Eighteen

LPPH December 2013

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

  •  turns 18 years old; and

  •  has received notification of the opportunity to a due process hearing to challenge the finding.

7725 Sustaining a Perpetrator in IMPACT

LPPH December 2013

Policy

If the finding is waived or upheld as a result of a due process hearing, the assigned Licensing supervisor sustains the individual as a perpetrator of abuse or neglect in the IMPACT system.

Procedure

The supervisor documents the outcome in the Administrative Review/Appeal stage in the IMPACT system by:

a.   choosing FPS Position Upheld from the Result drop-down menu;

b.   documenting the outcome, in detail, in the Narrative field;

c.   making changes to the Allegation List, if applicable;

d.   selecting the checkbox by the indicator for Change Role to Sustained Perpetrator; and

e.   entering the date the individual was notified of the decision.

Exception

If the individual who is designated as a perpetrator of abuse or neglect is a minor and the due process hearing was waived, see 7724.41 Minor Does Not Request a Due Process Hearing.

7726 Documenting the Final Disposition for Abuse or Neglect Investigations in CLASS

LPPH December 2013

Policy

If the original disposition is Reason to Believe, the investigation cannot be closed until the Final Disposition has been entered in CLASS. The final disposition must be entered after due process for all perpetrators associated with the investigation has been completed.

Procedure

Once due process has been completed, Licensing staff must:

  •  select the appropriate final disposition from the Final Disposition drop-down menu on the Investigation Conclusion page; and

  •  document the reason for the final disposition, including whether the due process hearing was waived, upheld, or overturned, and the date the decision became final in the Summary of Due Process narrative box.

See 7716.1 Documenting the Outcome of an Administrative Review in CLASS.

 

7727 Emergency Release

LPPH December 2013

Policy

Under certain circumstances, information about a designated perpetrator may be released before a release hearing is held. The investigator consults with a Licensing attorney before releasing information before a hearing. An emergency release may be done when:

  •  Licensing determines that the presence of the designated perpetrator constitutes an immediate threat or danger to the health, safety, or welfare of the children; or

  •  Licensing determines that the information is necessary to allow the operation to safeguard children’s health, safety, or welfare.

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

Procedure

The information may be released to the operation or home at the same time the individual is notified of the emergency release.

The investigator notifies the perpetrator in writing according to the procedures in 7720 Release Hearings. The notification letter must include notice that the findings are to be or have been released to the employer.

7730 Due Process Hearings

LPPH September 2012

Policy

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

a.   deny an application or permit or revoke or suspend a permit;

b.   impose an administrative penalty (permit holder only); or

c.   place a new or additional restriction or condition on the permit after initial issuance (permit holder only).

Controlling Person

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

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

Licensed Administrator

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

To request a due process hearing, the administrator:

a.   sends a letter to the following, within 30 days of receiving notice from DFPS about the option to appeal:

Docket Clerk

Legal Services, Mail Code Y-956

Texas Department of Family and Protective Services

P.O. Box 149030

Austin TX 78714-9030;

b.   includes in the letter the reasons for wanting to appeal the action or decision.

c.   sends a copy of the letter to the inspector or supervisor.

DFPS Rules, 40 TAC §§745.909; 745.8613; 745.8837; 745.8839; 745.8841

Waiver of Due Process Rights

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

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

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

  •  the day after the date that the revocation is final and;

  •  after the controlling person has waived his or her rights to a due process hearing.

DFPS Rules, 40 TAC §745.907(b)

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

Expediting the Appeals Process

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

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

DFPS Rules, 40 TAC §745.8855

State Office of Administrative Hearings

If granted, the request for an appeal is forwarded by the docket clerk for the DFPS Office of General Counsel to the State Office of Administrative Hearings (SOAH).

Operating During the Appeal Process

A permit holder may continue to operate during the appeal process, if the operation does not pose an immediate risk to the health or safety of children.

DFPS Rules, 40 TAC §§745.8835; 745.8839; 745.8841; 745.8873; 745.8875

The Appeals Process

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

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

  •  the inspector notifies the Licensing attorney for the DFPS state office; and

  •  the Licensing attorney files a motion to dismiss the case.

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

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

DFPS Rules, 40 TAC §745.8843

Documentation

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

  •  the status of the due process hearing; and

  •  information on the hearing.

7731 Regulation During Appeal Process

LPPH December 2009

Procedure

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

  ·  confers with the state office Licensing attorney about monitoring the operation;

  ·  establishes a schedule so that inspections continue (inspections may be unannounced); and

  ·  investigates any reports of abuse or neglect.

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

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

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

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

LPPH March 2017

Procedure

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

  •  the appellant requested a rehearing and the request was denied; and

  •  the appellant does not then file suit in a district court within 30 days after the decision.

The director, manager, or designee:

  •  explains in the letter that the decision to deny, suspend, or revoke the permit is final according to the requirements in the Human Resources Code, Section 42.072; and

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

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

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

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

The Licensing director sends copies of the final letter to the assistant commissioner of Licensing and the Licensing attorney in DFPS state office.

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

Follow Up

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

7733 Suit Filed

LPPH December 2009

Policy

If the appellant files suit in a district court the person may continue to operate during the appeal unless the revocation or denial was based on the operation posing an immediate risk to the health or safety of children.

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

  ·  of the violations of minimum standard rules that caused the denial or revocation; and

  ·  that the operation poses an immediate risk to the health or safety of children.

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

The court may grant injunctive relief against Licensing's action only if the court finds that the child care operation does not pose a health or safety risk to children.

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

Texas Human Resources Code §42.072

Texas Government Code, Chapter 2001

DFPS Rules, 40 TAC §§745.8877; 745.8879

7740 Injunctive Relief

LPPH December 2009

Policy

Injunctive relief may be requested to:

  ·  obtain a temporary restraining order; or

  ·  obtain a temporary or permanent injunction.

7741 Temporary Restraining Order

LPPH December 2009

Procedure

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

7742 Injunction

LPPH December 2009

Policy

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

Texas Human Resources Code §42.074

DFPS Rules, 40 TAC §745.8681

Procedure

The inspector:

  ·  makes the decision to request the temporary restraining order (TRO) and injunction with the supervisor, director, and Licensing attorney;

  ·  completes an affidavit as listed in 7637 Emergency Suspension and Closure; and

  ·  sends it to the Licensing attorney along with documentation necessary to show why the operation should cease operating immediately. Form 2883 Affidavit, is available on DFPS Automated Forms.

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

7742.1 Following Up an Injunction

LPPH December 2009

Policy

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

Procedure

The inspector:

  ·  follows up to determine if the court order is being obeyed. If it is not, the inspector contacts a Licensing attorney; and

  ·  document violations of the court order and sends a copy to the state office Licensing attorney.

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

7750 Civil and Criminal Penalties

LPPH March 2017

Policy

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

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

  •  threatens serious harm to a child in an operation by violating laws, administrative rules, or licensing minimum standard rules;

  •  violates a provision of the law, administrative rules, or licensing minimum standard rules three or more times within a 12 month period;

  •  places a public advertisement for an unlicensed operation;

  •  knowingly fails to meet or maintain any criterion of an exemption and engages in activities that require a license or registration; or

  •  fails to inform the department of a change in status and knows the change in status requires the person to be licensed or registered.

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

  •  Section 42.076(a) states that a person who operates a child care operation or child placing agency without a license commits a Class B misdemeanor.

  •  Section 42.076(b) states that a person who operates a family home without a required listing or registration commits a Class B misdemeanor.

  •  Section 42.076(c) states that a person who places a public advertisement for an unlicensed facility or an unlisted or unregistered family home commits a Class C misdemeanor.

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

  •  the director, owner, or operator of a child care center knowingly:

  •  fails to submit to Licensing information about a person for use in background checks, and

  •  employs the person at the child care center or otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care; or

  •  the director, owner, or operator of a day care center receives notice from Licensing that, based on the results of a person’s background check, the person may not be present at the child care center, and the director, owner, or operator knowingly:

  •  employs the person at the child care center, or

  •  otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care.

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

  •  without a director who meets the qualifications of a director; or

  •  without the routine presence of a director during the child care center’s hours of operation.

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

7760 Settlement of Legal Case

LPPH March 2017

Policy

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

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

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

LPPH December 2012

Policy

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

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

DFPS Rules, 40 TAC §745.905

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

  •  An administrative review conducted by Licensing staff

  •  A due process hearing conducted by the State Office of Administrative Hearings (SOAH)

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

DFPS Rules, 40 TAC §745.909

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

  •  when the person has waived due process rights regarding the designation; or

  •  when the designation was upheld after exhausting due process rights.

DFPS Rules, 40 TAC §745.907(b); 745.8855

7771 Choosing the Persons to Designate as Controlling

LPPH September 2012

Policy

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

DFPS Rules, 40 TAC §745.905

Procedure

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

a.   evaluates the list of controlling persons who have actively been associated with the operation within the two years preceding the adverse action (including the controlling persons who are presently inactive);

      and

b.   designates the controlling person by selecting the checkbox in the Designated column;

or

c.   selects the appropriate reason from the drop-down box in the Reason not Designated column.

Reasons Not to Designate a Controlling Person

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

Reason Not Designate Is …

when …

Not at Branch (CPA only) …

the controlling person is associated with a branch of the CPA that is not involved in the events responsible for the revocation.

Not responsible for revocation events

the controlling person is not involved in the events responsible for the revocation.

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

7771.1 Notifying Persons About the Intent to Designate

LPPH December 2012

Procedure

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

Content of the Letter

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

a.   The date that Licensing received information from the operation naming the person as a controlling person (or, if the person was not named as a controlling person by the operation, the date that Licensing decided to designate the person as controlling)

b.   A statement explaining the intent to revoke the operation’s permit, indicating the operation’s address, and explaining that a copy of the intent to revoke letter is enclosed

c.   A statement explaining the intent to designate the person as controlling due to the intent to revoke the operation’s permit

d.   The facts to support Licensing’s decision to designate the person, if Licensing intends to designate the person as controlling and the operation did not submit the person’s name to Licensing as a controlling person

e.   A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062

f.    A statement explaining the controlling person’s right to an administrative review and the procedures for requesting an administrative review, including the name of the person to whom a written request for an administrative review must be addressed

g.   Notice of the right to request an administrative review within 15 days after receipt of the letter, if the person disagrees with the designation

h.   A statement that the designation will be sustained when the revocation for the operation is final, and if:

  •  the designated controlling person has waived due process rights regarding the designation; or

  •  the designation for the controlling person is upheld after due process rights are exhausted

i.    A statement explaining the consequences of being a sustained controlling person

j.    The signature of the director of residential child care licensing, the district director, or his or her designee

Enclosures

The inspector encloses:

a.   Form 2880 Intent to Impose Adverse Action letter;

b.   a copy of the Human Resources Code, Chapter 42; and

c.   a copy of DFPS Rules, 40 TAC §§745.8809-745.8817.

Delivering the Letter

The inspector:

  •  delivers the letter (Form 2880) to the controlling person either in person or by courier, and obtains a signed receipt; or

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

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

a.   district manager;

b.   Licensing attorney; and

c.   supervisor.

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

LPPH June 2015

Policy

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

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

  •   combined with the operation’s administrative review regarding the intent to revoke its permit; or

  •   held separately for each designated controlling person.

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

DFPS Rules, 40 TAC §745.909

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

LPPH September 2012

Procedure

Adverse Action Is Overturned

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

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

a.   selects Stop from the Action drop-down box;

b.   enters the effective date in the Effective Stop Date field; and

c.   enters the reason that the due process was stopped.

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

Adverse Action Is Stopped

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Stop Adverse Action:

  •  the due process for each controlling person designated as a result of the revocation is automatically stopped; and

  •  CLASS automatically populates the fields under the Stop Controlling Person Designation Action and Reason section on the Controlling Person Designation Due Process page.

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Settlement, the district director or residential manager stops the due process for each controlling person designated as a result of the revocation.

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

a.   selects Settlement from the Action drop-down box;

b.   enters the effective date of the settlement in the Effective Stop Date field; and

c.   enters the reason for the settlement in the Reason narrative box, along with any conditions of the settlement relating to the controlling person.

Within 15 days of the revocation being stopped, the inspector sends Form 2766 Stop Due Process of a Controlling Person, located in the DFPS automated forms system, to each designated controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

7772.2 No Administrative Review Requested by a Controlling Person

LPPH September 2012

Procedure

If a designated controlling person does not request an administrative review within 15 days after receiving an intent to designate letter, the inspector takes the following actions in the CLASS system:

  •  Sets the CP Administrative Review field to Waived

  •  Sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the designated controlling person

If the designated controlling person does not request an administrative review, but the operation does request an administrative review due to the revocation of its permit, the inspector postpones sending the notice offering a due process hearing to the controlling person until the administrative review is completed and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped or Results in a Settlement.

See also:

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

7772.5 Notifying Person About Licensing’s Decision to Designate Controlling Person

7772.3 Decision to Designate a Controlling Person Is Overturned

LPPH September 2012

If the person conducting the administrative review overturns the decision to designate a controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision letter to the person by both certified and regular mail within 15 days of the administrative review. The purpose of the letter is to inform the person that the designation is overturned.

If the operation requested an administrative review due to the revocation of its permit, the administrative review for the controlling person is postponed until the administrative review for the revocation is complete and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

7772.4 Decision to Designate a Controlling Person Is Upheld

LPPH June 2015

Procedure

If the person conducting the administrative review upholds the decision to designate the controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the individual by both certified and regular mail within 15 days of the administrative review.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

Also see 7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person.

7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person

LPPH September 2012

Policy

Each person who continues to be designated as controlling after the administrative review or the offer of an administrative review receives a letter (CLASS Form 2763 Controlling Person Administrative Review Decision), offering a due process hearing. See 7730 Due Process Hearings.

The due process hearing may be:

  •  combined with the operation’s hearing; or

  •  held separately for each designated controlling person at the discretion of the judge, in the case of a hearing conducted by the State Office of Administrative Hearings (SOAH).

DFPS Rules, 40 TAC §745.909

7772.51 Content of CLASS Form 2763 (Controlling Person Administrative Review Decision Letter)

LPPH September 2012

Procedure

The inspector notifies a designated controlling person about the right to a due process hearing, in writing, by sending the CLASS Form 2763 Controlling Person Administrative Review Decision Letter, with a return receipt requested, and includes the following information:

a.   A statement explaining that the person was informed in writing about Licensing’s intent to designate him or her as controlling, the reasons for the designation, and the offer of an administrative review.

      The letters are and enclosed along with a copy of the letter sent to the operation regarding Licensing’s decision to impose adverse action letter against the operation.

b.   A statement:

  •  explaining that the person did not request an administrative review; or

  •  acknowledging that the person requested an administrative review and explaining that the decision to designate the person as controlling was upheld. In this case, the inspector includes the date of the review and the name of the person who conducted the review.

c.   A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062

d.   A statement informing the person about the right to a due process hearing and explaining that person’s request for a hearing must be postmarked within 30 days after the person receives the letter (see 7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person).

e.   The signature of the district director or manager or his or her designee.

7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person

LPPH September 2012

When preparing to send CLASS Form 2763 Controlling Person Administrative Review Decision to a person designated as a controlling, the inspector must include a statement explaining that the person may appeal the decision by sending a written request for a due process hearing to:

Docket Clerk

Legal Services, Mail Code Y-956

Texas Department of Family and Protective Services

P.O. Box 149030

Austin TX 78714-9030;

The inspector instructs the person to:

  •  state in the letter the reasons why the person should not be designated as controlling; and

  •  request that a copy of the request for a due process hearing be sent to the inspector who sent the letter.

7772.53 Consequences of a Controlling Person Not Responding to a Letter About the Right to Appeal (CLASS Form 2763)

LPPH September 2012

Procedure

If the person designated as a controlling person does not submit a request for a due process hearing within 30 days of receiving CLASS Form 2763 Controlling Person Administrative Review Decision letter, the person waives his or her rights to a hearing, and the designation is sustained when the revocation of the operation’s permit is final.

A person who is a sustained controlling person:

  •  cannot be issued a permit; and

  •  cannot be a controlling person in a child care operation for a five year period.

7772.54 Enclosures When Instructing a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

LPPH September 2012

Procedure

When instructing a person designated as controlling about the right to appeal, the district director, manager, or designee, encloses with CLASS Form 2763 Controlling Person Administrative Review Decision letter:

a.   CLASS Form 2762 Intent to Designate Controlling Person;

b.   Form 2880 Intent to Impose Adverse Action Letter;

c.    Form 2878 Decision to Impose Adverse Action Letter;

d.   a copy of Human Resources Code, Chapter 42;

e.   a copy of DFPS Rules, 40 TAC, §§745.8831-745.8855; and

f.    a copy of the Request for a Due Process Hearing Regarding a Controlling Person Designation form (the last page of Form 2763).

7772.55 Delivering the Letter Notifying a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

LPPH September 2012

To notify a person about the right to appeal a designation of Controlling, the district director, manager or designee:

  •  delivers the decision letter (CLASS Form 2763 Controlling Person Admin Review Decision Letter) in person to the controlling person or sends it by courier, and obtains a signed receipt; or

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

The district director or manager sends a copy of the letter to the director, Licensing attorney, supervisor, and inspector responsible for the operation.

7773 Providing a Due Process Hearing for a Designated Controlling Person

LPPH September 2012

Policy

A designated controlling person must be informed about the right to request a due process hearing to contest the designation. See 7730 Due Process hearings.

The due process hearing for each controlling person may be:

  •  combined with the operation’s due process hearing, regarding the decision to revoke its permit; or

  •  held separately for each designated controlling person.

DFPS Rules, 40 TAC §745.909

7773.1 Controlling Person Did Not Request a Due Process Hearing

LPPH September 2012

Procedure

If the designated controlling person does not request a due process hearing within 30 days after receiving the Controlling Person Administrative Review Decision Letter, CLASS Form 2763, the inspector postpones sending the final notice to the controlling person until the due process hearing for the revocation is waived or upheld.

If the Due Process Hearing Overturns a Decision to Revoke

If a due process hearing overturns the decision to revoke an operation’s permit, the district director or residential manager stops the due process for each controlling person designated as a result of the revocation.

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

a.   selects Stop from the Action drop-down box;

b.   enters the effective date in the Effective Stop Date field; and

c.   enters the reason that due process was stopped.

Within 15 days of the revocation being overturned, the inspector sends Stop Due Process of a Controlling Person, Form 2766, located in the DFPS automated forms system, to the controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

If the Due Process Hearing for Adverse Action Is Upheld or Is Not Requested

If the permit holder waived the right to a due process hearing for the revocation of the operation’s permit, or if the due process hearing upholds the decision to revoke the operation’s permit, the inspector must do as follows within 15 days:

  •  Change the CP Appeal Hearing (due process) field from Pending to Waived

  •  Send a final notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

7773.2 When a Controlling Person Requests a Due Process Hearing to Appeal the Designation
7773.21 A Designation of Controlling Is Upheld at a Due Process Hearing

LPPH September 2012

Procedure

If a due process hearing conducted by the State Office of Administrative Hearings (SOAH) upholds a person’s designation as a controlling person, the district director, manager, or his or her designee takes the following steps in the CLASS system:

  •  Changes the CP Appeal Hearing field from Requested to Upheld

  •  Sends CLASS Form 2764 Final Sustained Controlling Person to the controlling person with 30 days of receiving the court’s decision.

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

7773.22 A Revocation Is Upheld at a Due Process Hearing but the Designation of Controlling Person Is Overturned

LPPH September 2012

Procedure

If the controlling person requests a due process hearing and the due process hearing overturns the decision to sustain the designation of controlling person, the district director, manager, or his or her designee changes the CP Appeal Hearing field from Requested to Overturned in the CLASS system.

7773.23 A Revocation and Designation Are Both Overturned at a Due Process Hearing

LPPH September 2012

Procedure

If the due process hearing overturns a decision to revoke an operation’s permit, the district director or residential manager stops the due process for each controlling person designated as a result of the revocation.

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

a.   selects Stop from the Action drop down box;

b.   enters the effective date in the Effective Stop Date field; and

c.   enters the reason that due process was stopped.

7773.3 Final Notice to Sustain the Designation of Controlling Person

LPPH September 2012

Policy

If Licensing’s findings are upheld for the designation of controlling person and the revocation is made final, the district director, manager or designee, notifies the controlling person that the decision to designate the person as controlling is final when all administrative appeals and challenges have been exhausted.

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

  •  the person has waived his or her right to due process regarding the designation; or

  •  the designation is upheld after exhausting his or her due process rights.

DFPS Rules, 40 TAC §§745.907; 745.8855

7773.31 The Contents of the Letter to Notify a Controlling Person About a Sustained Designation (CLASS Form 2764)

LPPH September 2012

Procedure

The district director, manager, or his or her designee, notifies a person that the designation of controlling person has been sustained by sending CLASS Form 2764 Final Sustained Controlling Person to the person by both regular and certified mail, with a return receipt requested, and includes the following information:

a.   A statement explaining that the decision to sustain the person as controlling is final according to the Human Resources Code, §§42.072(g)(2) and 42.046

b.   A statement explaining that:

  •  the person did not request a due process hearing, the time for making such a request has expired, and the decision to revoke the operation’s permit is final (include the name and address of the operation), or

  •  that the person was informed that Licensing’s decision to designate the person as controlling was upheld after a due process hearing, and the decision to revoke the license is final (include the name and address of the operation and the date that the person was informed); and

c.   A statement explaining that a sustained controlling person cannot be issued a permit and cannot serve as a controlling person for a five-year period. The statement must also include the date that the person will no longer be prohibited.

d.   The signature of the district director, manager, or his or her designee.

7773.32 Delivering the Letter Notifying a Controlling Person About a Sustained Designation (CLASS Form 2764)

LPPH September 2012

Procedure

To notify a person that the designation of controlling has been sustained, the district director, manager, or his or her designee:

  •  delivers the notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person in person, or sends it by courier, and obtains a signed receipt; or

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

The district director, manager, or his or her designee, sends a copy of the letter to the director of Licensing, Licensing attorney, supervisor, and the inspector responsible for the operation.

7773.4 Reviewing the Status of a Sustained Controlling Person in CLASS

LPPH September 2012

Policy

When a person is sustained as a controlling person as a result of a revocation of the operation’s permit, the person is no longer allowed to be a controlling person at any operation for five years. 

DFPS Rules, 40 TAC §745.907

Procedure

Each inspector responsible for an operation in which a sustained controlling person is actively associated follows up to ensure that the sustained controlling person is removed from their role immediately.

The inspector:

  •  sends Match of an Ineligible Controlling Person, Form 2765, located in the DFPS automated forms system, to the operation; and

  •  follows up with the operation within 15 days of sending the notification to ensure that the sustained controlling person is removed.

If the operation fails to remove the sustained controlling person from the role of controlling person, the inspector follows the procedures in 5425.2 Notifying an Operation About an Ineligible Controlling Person.

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

LPPH September 2012

Policy

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters an operation’s information into the AARS when:

  •  the denial or revocation of an operation’s permit is final and is based on one of the following reasons:

a.   The applicant committed an act or omission that resulted in the physical or mental harm to an individual;

b.   The applicant is a threat to the health, safety, or well-being of an individual;

c.   The applicant engaged in the physical, mental, or financial exploitation of an individual; or

d.   The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the license; and

  •  the designation of the permit holder’s role as a controlling person is sustained, if the operation’s permit was revoked.

DFPS Rules, 40 TAC §745.907

Texas Government Code §531.953

7774.1 Entering Details About an Operation in the HHSC Record Sharing System

LPPH September 2012

Procedure

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters the following information about an operation when the criteria are met that are explained in 7774 Documenting in the AARS When the Denial or Revocation of a Permit Is Final or the Role of Controlling Person Is Sustained:

a.   Operation’s name

b.   Operation’s number;

c.   Type of permit

d.   Operation type

e.   Operation’s address

f.    The action taken (that is, denial or revocation)

g.   The basis of the action (that is, the reason for the denial or revocation)

h.   The effective date of the action (that is, the date the denial or revocation became final)

i.    The end date of the action (that is, five years from the date that the denial or revocation became final)

j.    Summary of the action taken

7774.2 Entering Information for the Controlling Persons

LPPH September 2012

Procedure

When an operation’s permit is denied, the designated user of the HHSC Adverse Action Record Sharing (AARS) system enters information for all controlling persons documented in CLASS for the operation.

When an operation’s permit is revoked, the designated user of AARS enters the information for all controlling persons whose designation is sustained.

The information entered for controlling persons by the designated user is as follows:

a.   First, middle, and last name

b.   Date of birth

c.   Driver’s license number and state, if known;

d.   Address

e.   Status (Identified for denials and Sustained for revocations)

7800 Automatic Actions

7810 Automatic Suspensions

LPPH June 2015

Policy

The permit for a licensed operation or a registered or listedfamily home is automatically suspended if the annual permit fee is not paid by the due date.

An operation that is exempt from paying the annual fee is not subject to an automatic suspension for failure to pay the annual fee. See 5211 Exemptions from Fees.

The permit for a listed family home is also automatically suspended if the listed family home fails to submit the information required for a background check within 24 months of the date the last background check was conducted.

Automatic suspensions are not adverse actions and are not subject to an administrative review or due process hearing.

Texas Human Resources Code §§42.052(j)-(j-1); and 42.054

DFPS Rules, 40 TAC §§745.503, 745.505(a)

7811 When to Process an Automatic Suspension

LPPH June 2015

Procedure

By the 10th day of the month, Licensing staff enter an automatic suspension in CLASS when a permit has been automatically suspended because:

  •   the operation did not pay the annual permit fee by the last day of the previous month; or

  •   the listed family home did not submit the information required for a background check by the due date in the BGC Reminder Letter

See 5390 Background Check Reminder Letter – Listed Family Homes Only.

7812 How to Process an Automatic Suspension

LPPH June 2015

Procedure

To document the automatic suspension in CLASS, staff:

a.   update the Operation Main page by:

i.    changing the Operating Status to No,

ii.    changing the Effective Date of the permit to reflect the date of the automatic suspension, and

iii.   checking the Do not display on the public/provider website check box;

b.   complete the Provider Voluntary Suspension Plan page by:

i.    entering the date the automatic suspension began,

ii.    describing the plan for the operation to come into compliance, including the date the automatic revocation is effective if the correction plan is not met, and

iii.   selecting the reason for the automatic suspension;

c.   draft and save notification to the provider on DFPS letterhead on the Provider Voluntary Suspension Plan page using one of the following templates located in the DFPS Automated Forms System:

i.    Form 2741 Auto-Suspension Letter-Fees is used if the automatic suspension is due to failure to pay the annual permit fee. When Form 2741 is saved to CLASS, Licensing staff save it with the name AutoSuspend-Fees

ii.    Form 2742 Auto-Suspension Letter-BGC (LH Only) is used if the automatic suspension is due to a listed family home’s failure to submit information required for subsequent background checks. When Form 2742 is saved to CLASS, Licensing staff save it with the name AutoSuspend-BGC

iii.   Form 2743 Auto-Suspension Letter-BGC/Fees (LH Only) is used if the automatic suspension is due to a listed family home’s failure to submit information required for subsequent background checks, and failure to pay the annual listing fee. Staff save it with the name AutoSuspend-BGC/Fees; and

d.   mail the letter to the operation.

7813 Conducting Follow Up to Automatic Suspension

LPPH June 2015

Policy

If a licensed and registered operation's permit is automatically suspended, the inspector conducts a follow up inspection within 15 days of sending notification to the operation that the permit has been automatically suspended. The purpose of the inspection is to verify the operation has stopped providing care to children.

7813.1 The Operation or Home is Caring for Children

LPPH June 2015

Procedure

If the operation is caring for children after the permit has been automatically suspended, the inspector:

a.   informs the provider that the permit was automatically suspended for nonpayment of fees;

b.   explains that he or she is operating without a valid permit and provides technical assistance for how and where to send the fee payment;

c.   explains any child care subsidy program funding has been stopped as a result of the automatic suspension; and

d.   issues a citation for providing illegal childcare.

7813.2 If the Operation or Home has Stopped Providing Care or is No Longer Operating

LPPH June 2015

If the operation is no longer caring for children in compliance with the automatic suspension letter, the inspector verifies fee payment before reinstating the permit.

If the caregiver informs the inspector that the operation has closed, the inspector follows procedure in 7340 Voluntary Closure to close the operation.

7814 Ending an Automatic Suspension

LPPH June 2015

Policy

A permit that has been automatically suspended is reinstated once the permit holder has either paid the annual fee or submitted the required background check information before the end of the suspension period.

Procedure

To reinstate a permit, staff:

a.   update the Operation main page in CLASS by:

i.    changing the Operating Status to Yes,

ii.    updating the Effective Date to reflect the End Date of the automatic suspension, and

iii.   unchecking the Do not display on public/provider website box;

b.   update the Provider Voluntary Suspension page in CLASS page by:

i.    documenting how the operation came into compliance in the Correction Plan field,

ii.    entering Auto-Suspension, Compliance Met in the Result of Suspension field, and

iii.   entering the date the automatic suspension ends in the End Date field.

c.   complete Form 2744 Auto-Suspension End located in the DFPS Automated Forms System and saves the form on the Provider Voluntary Suspension Plan page in the CLASS system by:

i.    copying the text from Form 2744 Auto-Suspension End and pasting the information onto DFPS letterhead found on the Provider Voluntary Suspension Plan page in CLASS, and

ii.    saving the letter with the appropriate name; and

d.   Mail the letter to the operation.

7820 Automatic Revocations

LPPH June 2015

Policy

The permit for alicensed operation, or a registered or listed family home, is automatically revoked if the annual permit fee is not paid within six months of the permit being automatically suspended.

The permit for a listed family home is automatically revoked if the home fails to submit the information required for a renewal background check within six months after the listing is automatically suspended.

Automatic revocations are not considered corrective or adverse actions and are not subject to an administrative review or a due process hearing.

If an operation's permit has been automatically revoked the permit holder may re-apply at any time.

Texas Human Resources Code §§42.052(j)-(j-1); and 42.054

Procedure

To process the automatic revocation of a permit in CLASS, staff:

a.   enter the date the automatic suspension ended in the End Date field;

b.   enter Auto-Revocation in the Result of Suspension field; and

c.   draft the notification using CLASS Form 2865e, 2825 Vol Suspension/Relocation/Clsr Letter found on the operation's Application/Closure page, selects the appropriate statement about automatic revocation, and mails notification to the operation.

If the operation is a listed family home, staff notifies the appropriate Licensing inspector that the permit has been automatically revoked and a follow-up inspection is needed.

7821 Conducting Follow-Up to an Automatic Revocation

LPPH June 2015

Policy

Within 15 days of sending notification that the permit has been automatically revoked, the inspector conducts a follow-up inspection to verify that the operation no longer cares for children.

A permit holder may not pay the overdue annual fee or submit overdue background check information at the time of the follow-up inspection. The permit holder must reapply for a permit.

7821.1 The Operation or Home is Caring for Children

LPPH June 2015

Procedure

If the operation is caring for children after the permit has been automatically revoked, the inspector:

a.   informs the provider that the permit was automatically revoked and the reasons why;

b.   explains that there are no due process rights related to automatic revocation and that the permit holder may reapply for a new permit at any time;

c.   provides an application for a permit; and

d.   issues a citation for providing illegal childcare.

If the permit holder does not submit a new application at the time of the follow-up inspection, the inspector enters a new illegal operation investigation to ensure the operation closes or becomes permitted. The inspector or staff assigned to the operation then closes the operation in CLASS.

If the operation submits an application at the time of an inspection, the inspector closes the operation that had the permit automatically revoked and creates a new operation in CLASS.

7822 Closing an Operation After an Automatic Revocation

LPPH June 2016

Procedure

If the permit has been automatically revoked, Licensing staff follow the procedures below to close the operation:

1.  An inspector conducts an inspection at the operation to verify that the operation is not caring for children. If the operation is caring for children, Licensing staff follow procedures in 6560 Investigations of Illegal Operations.

2.  Licensing staff close the operation in CLASS by entering the current date into the Closure Date field and using the appropriate closure reason, as outlined in the procedures below.

Closure Reasons for Automatic Revocations

Licensing staff select one of the following reasons on the Application/Closure page in CLASS to close an operation if the permit is automatically revoked:

a.  Auto-Revocation, Fees, if the automatic revocation is due to the operation’s failure to pay the annual fee;

b.  Auto-Revocation, Background Checks – LH, if the automatic revocation is due to a listed family home’s failure to submit the information required for a subsequent background check; or

c.  Auto-Revocation, BGCs/Fees – LH, if the automatic revocation is due to a listed family home’s failure to:

  •  submit information required for subsequent background checks; and

  •  pay the annual listing fee.

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