7600, Adverse Actions

Revision 24-1; Effective Feb. 20, 2024

CCR may submit a Referral for Enforcement Action to Child Care Enforcement if an operation does not comply with statutes, administrative rules, minimum standards, or the specific terms of the permit.

Human Resources Code Section 42.072(a), (e)

26 TAC Sections 745.8649 and 745.8875

7610 Defining Adverse Action

Revision 24-1; Effective Feb. 20, 2024

Adverse action is taken when deficiencies pose a risk that endanger the health and safety of children, or there are indications of a continued failure by the operation to comply with statutes, administrative rules, or minimum standards.

An adverse action is any of the following:

  1. Denial of a permit during application status.
  2. Denial of a license or certificate during initial license status.
  3. Denial of a request for amendment of a license, certificate, or registration.
  4. Adverse amendment of the permit with conditions.
  5. Involuntary suspension, which is a type of suspension that is not the same as an automatic suspension that takes place when there is a failure to pay an annual fee.
  6. Revocation of a permit.
  7. Refusal to Renew of a full permit, which is not just when an operation fails to meet renewal requirements but an adverse action with the same general grounds as a revocation that occurs during the permit renewal process.

26 TAC Section 745.8649

7620 Criteria for Taking Adverse Action

Revision 24-1; Effective Feb. 20, 2024

Child Care Enforcement (CCE) may take adverse action when they determine that the operation must not operate, 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

Revision 24-1; Effective Feb. 20, 2024

CCE may deny an applicant a permit for an issue identified in 7110 Circumstances That May Call for Enforcement Action if they determine that:

  1. a background check result makes an applicant ineligible for a permit;
  2. the operation does not demonstrate the ability to comply with statutes, administrative rules, or minimum standards during the initial permit period, if applicable;
  3. the results of a public hearing make an applicant ineligible for a permit;
  4. the operation presents an immediate threat to the health or safety of children; or
  5. the applicant is otherwise ineligible for a permit because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

26 TAC Sections 745.8605 and 745.8650

References:

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
7110 Circumstances that May Call for Enforcement Action
10760 When to Deny or Revoke a Permit Based on Criminal History or Child Abuse or Neglect History
Appendix 7000-1: Factors to Consider for Enforcement Actions.

7622 Criteria for Imposing an Adverse Amendment

Revision 24-1; Effective Feb. 20, 2024

CCE may impose an adverse amendment on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists, and if they determine that:

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

26 TAC Sections 745.8605 and 745.8651

7623 Criteria for Imposing an Involuntary Suspension

Revision 24-1; Effective Feb. 20, 2024

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

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

26 TAC Sections 745.8605 and 745.8652

7624 Criteria for Imposing a Revocation

Revision 24-1; Effective Feb. 20, 2024

CCE may revoke an operation's permit if an issue described in 7110 Circumstances That May Call for Enforcement Action exists, and if they determine that:

  1. the operation is ineligible for probation;
  2. CCE cannot address the risk at the operation by imposing probation or involuntary suspension;
  3. a background check result or a finding of abuse or neglect makes the permit holder ineligible for a permit; or
  4. revocation is otherwise necessary to address the issue described in 7110 Circumstances That May Call for Enforcement Action.

26 TAC Sections 745.8605 and 745.8654

7625 Criteria for Refusing to Renew a Permit

Revision 24-1; Effective Feb. 20, 2024

CCE may refuse to renew an operation’s permit if an issue described in 7110 Circumstances That May Call for Enforcement Action exists, and if they determine that:

  1. the operation is ineligible for probation;
  2. risk at the operation cannot be addressed by imposing any other type of enforcement action;
  3. a background check result or a finding of abuse or neglect makes the permit holder ineligible for a permit; or
  4. refuse to renew is otherwise necessary to address the issue described in 7110 Circumstances That May Call for Enforcement Action.

CCE staff may impose the refusal to renew adverse action type at any time between the time the permit renewal period begins and before CCR renews the permit, including after the renewal period expires. The action may be based on grounds that occurred before or after the renewal period expires. If CCE is revoking the operation’s permit before or after the renewal period expires, CCE does not also have to refuse to renew the permit.

26 TAC Sections 745.8605 and 745.8655 

7626 Operating Pending Appeal of an Adverse Action

Revision 24-1; Effective Feb. 20, 2024

An operation:

  1. may not operate pending appeal of a denial or suspension; but
  2. may operate pending appeal of a revocation or refusal to renew its permit, unless CCE determines health or safety concerns exist that requires the operation to stop operating; and
  3. if CCE makes such a determination, the operation may only continue to operate pending appeal of the revocation or refusal to renew if a judge grants injunctive relief allowing the operation to remain open.

26 TAC Sections 745.8609 and 745.8655

Human Resources Code Section 42.072(e)

7630 Taking Adverse Action

Revision 24-1; Effective Feb. 20, 2024

Procedure

When imposing any adverse action, HHSC staff:

  • determine that an adverse action is appropriate; and
  • notify the permit holder or applicant about the action.

Submitting the Referral for Enforcement Action to Child Care Enforcement

If CCR staff determine that Child Care Enforcement (CCE) should impose an adverse action on an operation, the inspector, supervisor, program administrator, and regional director meet to discuss if the regional director will begin the referral process to CCE. CCR staff use Appendix 7000-1 as an aid to determine if adverse action is appropriate (7620 Criteria for Taking Adverse Action).

Based on this discussion CCR staff take the following actions:

IfThen
the regional director agrees with submitting the Referral for Enforcement Action to CCE

the regional director begins the CCE referral process. 

The inspector documents a summary of the discussion and CCR’s decision as a Chronology in CLASS.

the regional director does not agree with submitting the Referral for Enforcement Action to CCE

CCR staff determine if less serious measures should be taken to reduce risk at the operation.

The inspector documents a summary of the discussion and CCR’s decision as a Chronology in CLASS.

If the refusal to renew, revocation, suspension or denial involves a state-operated operation, the regional director also notifies the associate commissioner of CCR: 

  • after the Referral for Enforcement Action is submitted to CCE; and 
  • at the time CCE decides to impose adverse action. 

Reference 2280 State-Operated Facilities Exempt from Licensure

Child Care Enforcement’s Decision

After CCR submits the Referral for Enforcement Action, CCE notifies CCR of the decision of which enforcement action, if any, that CCE will recommend or impose on the operation.

If CCE decides to impose adverse action, CCE drafts the written notification to the operation and shares the final written notification with CCR staff to review.

Notify the Permit Holder or Applicant About the Action

HHSC staff:

  • notify the permit holder or applicant about the intent to deny, refuse to renew, revoke, suspend, or amend a permit by sending CLASS Form 2880 Intent to Impose Adverse Action letter; 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 CLASS Form 2880.

References:

Referral Instructions for Probation, Adverse Actions, and Judicial Actions job aid located on CCR’s SharePoint site

5600 Administrative Reviews
7631 Notice of Intent to Deny, Refuse to Renew, Revoke, or Suspend
7632 Administrative Review for Adverse Action

Notify Controlling Persons About the Intent to Designate

When revoking a permit, CCE staff:

  • determine the controlling persons to designate; and
  • notify the controlling person about the intent to designate by sending CLASS Form 2762 Intent to Designate.

Reference 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, the CCE staff person conducting the review notifies the permit holder or applicant about the decision to deny, refuse to renew, revoke, suspend, or adversely amend the permit after the administrative review is completed. Reference 7632 Administrative Review for Adverse Action.

If the CCE staff person conducting the review upholds the adverse action, and the permit holder or applicant appeals the decision, the CCE staff person notifies the permit holder about the final decision to deny, refuse to renew, revoke, suspend, or adversely amend the permit after the opportunity to appeal has been exhausted. Reference 7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit.

Documentation

CCE staff document all adverse actions in CLASS and generate all adverse action letters from CLASS.

7631 Notice of Intent to Deny, Refuse to Renew, Revoke, or Suspend

Revision 24-1; Effective Feb. 20, 2024

CCE drafts and finalizes CLASS Form 2880 Intent to Impose Adverse Action letter. The purpose of the letter is to:

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

No denial, refusal to renew, revocation, or suspension is effective unless HHSC:

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

Texas Government Code Section 2001.054

26 TAC Section 745.8609

7631.1 When Immediate Intervention Is Warranted at an Operation

Revision 24-1; Effective Feb. 20, 2024

If CCR determines that circumstances at the operation are extreme enough to warrant immediate intervention, such as judicial action, the regional director or program administrator begins the CCE referral process simultaneously with the mailing or delivery of CLASS Form 2880.

Reference 7740 Injunctive Relief

7631.2 Requirements if the Action Taken is Refusal to Renew or Revocation and There is Risk to the Health or Safety of Children

Revision 24-1; Effective Feb. 20, 2024

If CCE intends to refuse to renew or revoke an operation's permit and determines that the operation poses an immediate risk to the health or safety of children, CCE staff:

  • select the Not Allowed to Operate checkbox on CLASS Form 2880 Intent to Impose Adverse Action letter; and 
  • document in the textbox how the operation poses an immediate danger to a child’s safety, health, or both with information included as outlined under 26 TAC Section 745.751.

Procedure

On the same day that CCR staff receive CLASS Form 2880 from CCE, they review the letter to determine if CCE:

  • intends to refuse to renew or revoke the relevant operation’s permit; and
  • has also determined that the operation poses an immediate risk to children and must stop operating. 

If CCE has determined that the operation must stop operating, then:

  • CCR staff provide immediate notification to the operation, 7631.4 Authorizing and Delivering the Intent to Impose Adverse Action Letter; and
  • the program administrator or designee changes the operation’s main page in CLASS by selecting the Do not display on public/provider website checkbox.

Human Resources Code Section 42.072(e)

26 TAC Section 745.8875 

7631.3 Following Up on Notification Requirements for Informing the Public About an Adverse Action

Revision 24-1; Effective Feb. 20, 2024

Procedure

The inspector follows up to ensure that the operation has:

  • notified the parents; and
  • sent the copies of the certified return receipts to CCR.

Reference 26 TAC Section 745.8656

7631.4 Authorizing and Delivering the Intent to Impose Adverse Action Letter

Revision 24-1; Effective Feb. 20, 2024

CCE must sign CLASS Form 2880 Intent to Impose Adverse Action letter.

CCE sends the letter to the operation on the date that CCE saves the letter as final in CLASS.

The regional director or designee must deliver the letter to the permit holder or applicant in person if:

  • CCE cannot deliver the letter; or
  • the operation is required to close immediately (7631.41 When the Operation is Required to Close Immediately).  

In addition to sending CLASS Form 2880 to CCR staff for review, CCE also sends a copy of the letter to the following, when applicable:

  1. DFPS residential contract manager;
  2. the Child and Adult Care Food Program (CACFP); and
  3. the Texas Workforce Commission Local Workforce Board.

Procedure

When the regional director receives a copy of CLASS Form 2880, the regional director sends a copy of the letter to the:

  1. program administrator;
  2. supervisor; 
  3. inspector; and
  4. CBCU inspector.

26 TAC Section 745.8657

7631.41 When the Operation is Required to Close Immediately

Revision 24-1; Effective Feb. 20, 2024

Under statute, an operation cannot operate pending the appeal of a denial or suspension. Moreover, an operation cannot operate pending appeal of a revocation or refusal to renew if CCE determines that the operation poses an immediate threat to the health or safety of children, unless the operation gets an injunction allowing the operation to stay open. CCR staff are responsible for providing immediate notification to the operation by personally delivering CLASS Form 2880 Intent to Impose Adverse Action letter to the permit holder or applicant.

After CCR staff personally deliver CLASS Form 2880, the CCR staff person who delivered the letter documents the name of the person at the operation who received the notification as a Chronology in CLASS using the Corrective/Adverse Action category type.

If the operation is located at a distance where CCR staff are not able to immediately hand deliver CLASS Form 2880, CCE staff:

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

Human Resources Code Section 42.072

7631.5 Follow-Up After Delivery of Notice of Intent to Take Adverse Action When Operation Required to Close Immediately

Revision 24-1; Effective Feb. 20, 2024

Procedure

If the operation must close immediately, the inspector must conduct a follow-up inspection at the operation within 15 days after CLASS Form 2880 Intent to Impose Adverse Action letter has been sent or delivered to the operation. This inspection is to determine if the operation is continuing to care for children.

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

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

If the operation continues to operate, the inspector informs the supervisor, who notifies the program administrator and regional director. The regional director then begins the CCE referral process (7740 Injunctive Relief).

7632 Administrative Review for Adverse Action

Revision 24-1; Effective Feb. 20, 2024

If the permit holder or applicant disagrees with the adverse action imposed, the person may request an administrative review within 15 days of receiving the finalized CLASS Form 2880 Intent to Impose Adverse Action letter.

References:

5612 Waiving the Right to an Administrative Review
5613 Receiving a Request for an Administrative Review
7630 Taking Adverse Action

26 TAC Sections 745.8805; 745.8613 and 745.909(b)

7632.1 When an Adverse Action is Overturned at an Administrative Review

Revision 24-1; Effective Feb. 20, 2024

If, after conducting the administrative review, CCE overturns the adverse action, CCE mails a letter advising the permit holder or applicant about the decision and updates the Provider Adverse Action page in CLASS.

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

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

Revision 24-1; Effective Feb. 20, 2024

CCE notifies the permit holder or applicant by sending CLASS Form 2878 Decision to Impose Adverse Action letter and updates the Provider Adverse Action page in CLASS if:

  1. CCE conducts the administrative review and upholds the adverse action; or
  2. the operation does not request an administrative review for the adverse action. 

References:

Administrative Reviews, 5600
Notice of Decision to Deny, Revoke, or Suspend an Application or Permit, 7633
Providing a Due Process Hearing for a Designated Controlling Person, 7773

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

Revision 24-1; Effective Feb. 20, 2024

If, after the opportunity for administrative review, CCE decides to deny, refuse to renew, revoke, or suspend a permit, CCE:

  • sends a certified letter to the permit holder or applicant to notify the permit holder or applicant about the decision;
  • notifies the permit holder or applicant about the decision to deny, refuse to renew, revoke, or suspend by sending CLASS Form 2878 Decision to Impose Adverse Action letter by both regular and certified mail; and
  • notifies other state agencies, if applicable (7633.2 Notifying HHSC Staff and Other State Agencies).

26 TAC Section 745.8609

If CCE upholds the decision to deny, refuse to renew, revoke, or suspend an application for a permit, CCR updates the operation’s status in CLASS (7633.3 Updating the Operation's Status in CLASS).

7633.1 Requirements if There is Immediate Risk to Children

Revision 24-1; Effective Feb. 20, 2024

Procedure

The program administrator or designee changes the operation's main page in CLASS by selecting the check box Do not display on public/provider website to reflect that the operation must not be posted on the Search Texas Childcare public website.

If the operation poses an immediate threat to the health or safety of children, the inspector and supervisor are responsible for providing immediate notification to the operation by personally delivering CLASS Form 2878 Decision to Impose Adverse Action letter to the permit holder or applicant.

If the inspector personally delivers CLASS Form 2878 Decision to Impose Adverse Action letter, the inspector documents the following as a Chronology in CLASS using the Corrective/Adverse Action category type:

  • 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, CCE staff:

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

References:

7631.2 Requirements if the Action Taken is Refusal to Renew or Revocation and There is Risk to the Health or Safety of Children

Human Resources Code Section 42.072(e)

26 TAC Section 745.8875

7633.2 Notifying HHSC Staff and Other State Agencies

Revision 24-1; Effective Feb. 20, 2024

Procedure

In addition to sending CLASS Form 2878 Decision to Impose Adverse Action letter to CCR for review, CCE also sends a copy of the letter to the following, when applicable:

  • the Texas Workforce Commission Local Workforce Board;
  • the Child and Adult Food Care Program; and
  • DFPS residential contract manager.

When the regional director receives a copy of CLASS Form 2880, the regional director sends a copy of the letter to the:

  1. program administrator;
  2. supervisor;
  3. inspector; and
  4. CBCU inspector.

7633.3 Updating the Operation's Status in CLASS

Revision 24-1; Effective Feb. 20, 2024

Procedure

When CCE denies, suspends, refuses to renew, or revokes an operation's permit, the inspector:

  • updates the Operation Main page in CLASS by changing the Operating Status to No;
  • updates the Effective Date to reflect the date CLASS Form 2878 Decision to Impose Adverse Action letter was finalized in CLASS; and
  • notifies the program administrator or designee to check the Do not display on public/provider site check box.

7634 Inspecting During the Suspension, Refusal to Renew, Revocation, or Denial Process

Revision 24-1; Effective Feb. 20, 2024

CCR staff consult with the regional director, director of day care operations, or director of residential care operations, as appropriate, and the Child Care Licensing Legal Enforcement Department to determine a plan for inspecting during the refusal to renew, 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, CCR continues to have monitoring responsibility.

Procedure

Inspection procedures are described in 7731 Regulation During Appeal Process.

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

Revision 24-1; Effective Feb. 20, 2024

CCE notifies the applicant or permit holder that the decision to refuse to renew, revoke, suspend, or deny the permit is final when:

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

Human Resources Code Section 42.077(a)

26 TAC Section 745.8659

CCE:

  • sends the CLASS Form 2895 Final Adverse Action letter 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 or suspension is reflected on the HHSC public website.

References:

5612 Waiving the Right to Administrative Review
7632 Administrative Review for Adverse Action

7635.1 Additional Actions Taken by CCR Staff When Adverse Action Is Final

Revision 24-1; Effective Feb. 20, 2024

Procedure

After receiving CLASS Form 2895 Final Adverse Action letter from CCE, the regional director sends a copy of the letter to the:

  1. program administrator;
  2. supervisor;
  3. inspector; and
  4. CBCU inspector.

7636 Follow-Up to Final Notice of Suspension, Revocation, or Denial

Revision 24-1; Effective Feb. 20, 2024

Procedure

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

  • determine whether the operation caring for children; and
  • obtain the permit if it has not been returned.

If the inspector previously confirmed closure of the operation after delivery of CLASS Form 2880 Intent to Impose Adverse Action letter, then a follow-up inspection is not necessary (7631.5 Follow-Up After Delivery of Notice of Take Adverse Action When Operation Required to Close Immediately

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

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

If the operation is caring for children, the inspector informs the supervisor, who notifies the regional director. The regional director then begins the CCE referral process (7740 Injunctive Relief).

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