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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

7712.1 Roles and Responsibilities of Child Care Investigations and Child Care Licensing Following a Request for Administrative Review

CCI October 2020

CCI and the Child Care Licensing (CCL) division of Texas Health and Human Services may both conduct an administrative review related to the findings of a CCI investigation:

  • CCI conducts an Administrative Review of Investigation Findings (ARIF) when evaluating whether an individual was made a designated perpetrator of abuse, neglect, or exploitation appropriately according to CCI policy, rule, and statute.
  • CCL conducts an administrative review when evaluating whether a regulatory citation was issued appropriately according to CCL policy, rule, and statute.

CCI and CCL communicate with one another when making decisions regarding abuse, neglect, or exploitation findings to ensure decisions are appropriately consistent:

  • If CCI overturns a finding of abuse, neglect, or exploitation as the result of an ARIF, the CCI staff who completed the review notifies the operation’s CCL representative and CCL supervisor of the change in investigation findings.
  • If CCL considers overturning an operation’s citation related to a CCI finding of abuse, neglect, or exploitation, CCL staff consults with the Complex Investigations Division administrator.

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.

7717 Notifying a Requestor About the Outcome of an Administrative Review

CCI September 2020

Within 30 days after conducting an administrative review, the reviewer prepares and sends written notification stating the outcome to the person who requested the review or the person’s designee.

If the requestor did not participate in the administrative review, the reviewer sends written notification explaining the reasons for the outcome within 60 days from the date the review was scheduled.

DFPS Rules 40 TAC §707.823

7717.1 Notifying an Individual of the Outcome of the Administrative Review

CCI September 2020

The reviewer offers a due process hearing to a person designated as a perpetrator of abuse, neglect, or exploitation of a child in the care of an operation, if the finding is upheld by the administrative review.

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

  • CLASS Form 2886B Administrative Review: Decision Overturned – Letter to Perpetrator or CLASS Form 2886 Decision Letter to Perpetrator, if an adult was designated as a perpetrator of abuse, neglect, or exploitation.
  • Form 2880 SOAH Letter to Minor, if a minor was designated as a perpetrator of abuse, neglect, or exploitation and the administrative review upheld the finding. The reviewer also sends this letter to the minor’s parent.

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

If Some Designated Perpetrators Have Waived the Administrative Review

Investigations with multiple designated perpetrators may result in some, but not all, designated perpetrators waiving the administrative review.

When an administrative review is requested, the reviewer evaluates the investigation documentation to determine whether the findings are supported for all designated perpetrators, regardless of whether they have requested or waived the administrative review.

7717.2 Notifying a Residential Care Operation When the Administrative Review Overturns or Changes the Investigation Finding

CCI September 2020

When the reviewer determines that a finding of abuse, neglect, or exploitation from an investigation that occurred in a residential care operation is overturned or changed, the operation is notified of the revised investigation finding.

CCI administrative staff notify the residential care operation in writing of the revised investigation finding and add documentation to CLASS and IMPACT accordingly (see 6631 Notifying the Residential Care Operation of the Results of an Investigation).

7717.3 Notifying Child Care Licensing When the Administrative Review Overturns or Changes the Investigation Finding

CCI October 2020

When the reviewer overturns or changes a finding of abuse, neglect, or exploitation, the reviewer notifies CCL of the decision within one business day of notifying the requestor. See 7712.1 Roles and Responsibilities of Child Care Investigations and Child Care Licensing Following a Request for Administrative Review.

After a change in finding, the reviewer does the following:

  • Notifies CCL by contacting the CCL representative and supervisor for the operation where the investigation occurred.
  • Provides the CCL representative and supervisor a copy of the decision notification sent to the requestor of the administrative review.

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

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

7723.3 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 When the Finding Is Sustained).

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

7724 Documenting the Results of the Due Process Hearing

CCI September 2020

The administrative law judge conducts the due process hearing and finalizes an order of the outcome of the hearing within time frames established by the following:

The Child Care Licensing legal division of Texas Health and Human Services notifies the appropriate CCI program administrator, supervisor, and designated state office staff or designee of the outcome of a due process hearing for child abuse, neglect, or exploitation.

The outcome is documented in the official records of the investigation, including IMPACT, CLASS, and the external case file.

DFPS Rules, 40 TAC §707.853; DFPS Rules, 40 TAC §707.857

7724.1 Overturning or Changing a Finding of Abuse, Neglect, or Exploitation

CCI September 2020

If the administrative law judge overturns or changes a finding of child abuse, neglect, or exploitation, CCI staff document the outcome by completing all of the following:

  1. Choosing FPS Position Changed from the Result drop-down menu, changing the Reason to Believe finding to Ruled Out or Unable to Determine, as appropriate, on the allegation list, and documenting the outcome, in detail, in the Narrative field of the Administrative Review/Appeal stage in IMPACT.
  2. Uploading a copy of the administrative law judge’s order to OneCase in IMPACT.
  3. Changing the status of the hearing from Requested to Overturned in CLASS.
  4. Documenting the outcome, in detail, in the Due Process Documentation field in CLASS.
  5. Entering the date of notification in both CLASS and IMPACT.

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

7724.11 Notifying the Residential Care Operation About an Overturned or Changed Finding of Abuse, Neglect, or Exploitation

CCI September 2020

When the administrative law judge overturns or changes a finding of abuse, neglect, or exploitation that occurred in a residential care operation, the operation is notified of the revised investigation findings.

Within five days of being notified of the administrative law judge’s finalized order, CCI staff prepare and send written notification to the residential care operation of the revised results of the investigation and add documentation to CLASS and IMPACT accordingly (see 6631 Notifying the Residential Care Operation of the Results of an Investigation).

7724.2 Upholding a Finding of Abuse, Neglect, or Exploitation

CCI September 2020

If the administrative law judge upholds the finding of abuse, neglect, or exploitation, CCI staff document the outcome by completing all of the following:

  1. Sustaining the perpetrator in IMPACT (see 7725 Sustaining a Perpetrator in IMPACT).
  2. Changing the status of the hearing from Requested to Upheld in CLASS.
  3. Documenting the outcome, in detail, in the Due Process Documentation field in CLASS.
  4. Entering the date of notification in both CLASS and IMPACT.
  5. Drafting a letter notifying the perpetrator that the decision is final (see 7724.3 Notifying the Perpetrator About the Outcome of a Due Process Hearing When the Finding Is Sustained).

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

7724.3 Notifying the Perpetrator About the Outcome of a Due Process Hearing When the Finding Is Sustained

CCI September 2020

CCI staff prepare and send written notification to the perpetrator that the finding of abuse, neglect, or exploitation has been sustained.

CCI staff prepare and mail one of the following letters by both regular and certified mail:

  • CLASS Form 2889 Letter to Perpetrator SOAH Decision, if the finding was upheld in a due process hearing.
  • CLASS Form 2886C Letter to Perpetrator Final No Appeal, if the perpetrator waived his or her right to a due process hearing.

CCI staff also send a copy of the letter to the parent, legal guardian, or managing conservator if the perpetrator 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

CCI September 2020

If a minor was designated as a perpetrator of abuse, neglect, or exploitation of a child in care of an operation, and the minor or the minor’s parent, legal guardian, or managing conservator requested a due process hearing, CCI staff follow the steps outlined in 7724.1 Overturning or Changing a Finding of Abuse, Neglect, or Exploitation or 7724.2 Upholding a Finding of Abuse, Neglect, or Exploitation, 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), CCI staff do not sustain the minor as a perpetrator in IMPACT. In this instance, see 7724.41 Minor Does Not Request a Due Process Hearing.

7724.41 Minor Does Not Request a Due Process Hearing

CCI September 2020

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, CCI does both of the following:

  • Leaves the hearing request as Pending in CLASS.
  • Leaves the minor’s role as Designated Perpetrator in IMPACT.

A minor may request a hearing at any time after notification and may only be sustained when a due process hearing that did not result in a default (that is, the minor did not appear at the hearing) upheld the investigation finding. See 7724.42 When a Minor Turns Eighteen.

7724.42 When a Minor Turns Eighteen

CCI September 2020

CCI staff follow policy and procedures relating to adults who were designated as perpetrators of abuse, neglect, or exploitation, once a minor who was designated as a perpetrator meets both of the following criteria:

  • Has turned 18 years old.
  • Has received notification of the opportunity to have a due process hearing to challenge the finding.

7725 Sustaining a Perpetrator in IMPACT

CCI September 2020

If the finding is upheld as a result of a due process hearing or the perpetrator waives his or her right to a due process hearing, the designated CCI state office staff sustains the person as a perpetrator of abuse, neglect, or exploitation in IMPACT.

CCI staff document the outcome in the Administrative Review/Appeal stage in IMPACT by completing all of the following:

  1. Choosing FPS Position Upheld from the Result drop-down menu.
  2. Documenting the outcome, in detail, in the Narrative field.
  3. Making changes to the Allegation List, if applicable.
  4. Selecting the checkbox by the indicator for Change Role to Sustained Perpetrator.
  5. Entering the date the perpetrator was notified of the decision.
  6. Uploading a copy of the administrative law judge’s order to OneCase in IMPACT.

Exception

If the person who is designated as a perpetrator of abuse, neglect, or exploitation 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, Neglect, or Exploitation Investigations in CLASS

CCI September 2020

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.

Once due process has been completed, the CCI program administrator or designee must complete both of the following:

  • Select the appropriate final disposition from the Final Disposition drop-down menu on the Investigation Conclusion page.
  • Document the reason for the final disposition, including whether the due process hearing was waived or the hearing upheld or overturned the finding, 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

CCI September 2020

Under certain circumstances, information about an alleged perpetrator may be released before the completion of an investigation. The investigator consults with a DFPS attorney and a Licensing attorney before releasing information before the investigation has been completed. An emergency release may be done when either of the following applies:

  • CCI determines that the presence of the alleged perpetrator is an immediate threat or danger to the health, safety, or welfare of the children.
  • CCI determines that the information is necessary to allow the operation to safeguard children’s health, safety, or welfare.

The information may be released to the operation at the same time the alleged perpetrator is notified of the emergency release.

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.

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