5700, Due Process Hearings

Revision 24-2; Effective May 22, 2024

Child Care Enforcement (CCE) is a unit within the Regulatory Enforcement (RE) Department of the Regulatory Services Division (RSD) responsible for making decisions about enforcement actions and due process. CCE decisions are based on information CCR staff gather for all regulated providers and unregulated operations subject to regulation.

Credentialing and Registry Enforcement (CARE) is a unit within the RE department of RSD. The CARE unit is responsible for making decisions about remedial actions taken against the holder of, or applicant for, an administrator’s license issued by CCR.

A due process hearing is a hearing held by the State Office of Administrative Hearings (SOAH) to determine if an HHSC decision or action was appropriate under applicable statute or rule.

Procedure

The following table outlines the action for which a person is entitled to a due process hearing and who can request the hearing:

Decision or Action in Dispute:	Person Who Can Request a Due Process Hearing:
The imposition of either of the following against an operation: an adverse action subject to the limitations in 26 TAC Section 745.8835(b); or an administrative penalty.	The applicant or an owner, partner, governing body, director, licensed administrator, or designee of the operation.
A denial, refusal to renew, suspension, or revocation of an administrator's license.	The applicant for an administrator’s license or the licensed administrator.
The designation of the person as a controlling person. Note: A designated controlling person becomes sustained if the associated revocation is upheld and: the designation is upheld at SOAH and all subsequent appeals, if any; or the person does not make a timely request for a due process hearing to challenge the designation. CCE processes sustained controlling persons per relevant procedures.	The person designated as a controlling person.
The imposition of an administrative penalty against a controlling person. Note: An administrative penalty against a controlling person is upheld if: the decision is upheld at SOAH and all subsequent appeals, if any; or the person does not make a timely request for a due process hearing to challenge the penalty.	Controlling person against whom an administrative penalty has been assessed.
A Central Registry finding of child abuse, neglect, or exploitation that: is the result of a background check conducted under 26 TAC Chapter 745, Subchapter F; and has not been sustained. The finding may be the result of: a DFPS investigation; or an HHSC Provider Investigation. Note: If the background check subject is a minor, the subject’s parent or guardian is notified of the right to request a due process hearing and may request the hearing.	The subject of the background check.
A determination that the person poses an immediate threat or danger to the health or safety of children because of: a juvenile adjudication; or another issue not related to criminal history or a Texas Department of Family and Protective Services (DFPS) child abuse, neglect, or exploitation investigation. Note: If the person is a minor, the subject’s parent or guardian is notified of the right to due process and may request the hearing.	The person determined to pose the immediate threat or danger.

26 TAC Sections 745.8831, 745.8835, 745.8837, 745.8681, and 745.8877

HRC Section 42.078

Government Code Chapter 2001

Combination Hearing

A due process hearing may address a combination of actions and decisions that are related to each other in a combination hearing.

Examples of combination hearings include:

a DFPS Child Protective Investigations (CPI) finding of abuse, neglect, or exploitation and CCE’s decision to revoke an operation’s permit based on the DFPS finding.
CCE’s decision to designate a controlling person and CCE’s decision to revoke an operation’s permit.

26 TAC Section 745.8849

5710 Due Process Hearing Procedure

Revision 24-2; Effective May 22, 2024

Procedure

A person may request a due process hearing in writing by certified or regular mail or fax. A background check subject may request a due process hearing in writing by certified or regular mail, fax, or email. CCR staff refer to the following table to determine how to handle questions and requests or waivers for due process hearings:

Person Who Can Request Hearing	Reason for Requesting Hearing	For Any Questions or Written Correspondence, Refer the Requestor to:	HHSC Department or Division Processing the Hearing Offer
Applicant, owner, partner, member of the governing body, director, licensed administrator, or the designee of an operation	denial, revocation, refusal to renew, or suspension of a permit; imposition of an administrative penalty against the operation; or placement of a new or additional restriction or condition on the permit after initial issuance.	Child Care Enforcement (CCE)	CCE
Controlling person or designated controlling person	the designation as a controlling person; or the administrative penalty.	CCE	CCE
Licensed administrator or applicant for an administrator’s license	Denial, revocation, refusal to renew, or suspension of the license.	Credentialing and Registry Enforcement (CARE)	CARE
Background check subject	Central Registry finding of child abuse, neglect or exploitation that has not been sustained when the subject receives a notification from the Centralized Background Check Unit (CBCU) of the finding.	CBCU or Child Care Licensing Legal Enforcement Department	CBCU
Background check subject	A determination by CBCU staff that the person’s presence presents an immediate threat to the health or safety of children for a reason that is not related to criminal history or a DFPS finding of child abuse, neglect or exploitation.	CCE	CCE

CCE and CARE staff process and document due process hearing requests. CCR staff refer to the table in 7200 Overview of CCR and Regulatory Enforcement Staff Responsibilities Related to Non-voluntary Enforcement Actions for more information.

Reference

Actions Taken When a Due Process Hearing is Requested, 10253

26 TAC Sections 745.909, 745.8837, 745.8839, 745.8841, and 745.8613

5711 Waiving a Due Process Hearing and Expediting the HHSC Decision or Action

Revision 24-2; Effective May 22, 2024

The notification sent to a person advising of the right to request a due process hearing also provides the deadline to request the hearing. The right to a due process hearing is waived if:

the person does not request the hearing per 26 TAC Section 745.8837; or
the person submits a written statement to the Child Care Licensing Legal Enforcement Department or Child Care Enforcement (CCE) per the notification, waiving the right to the due process hearing.

Procedure

If the person waives the right to a due process hearing, the HHSC decision or action is expedited and is effective on the date HHSC receives the written waiver.

26 TAC Section 745.8855

5712 Procedure for Requested Due Process Hearings

Revision 24-2; Effective May 22, 2024

Procedure

When a person requests a due process hearing, Child Care Licensing Legal Enforcement Department staff determine if the request is timely. If the request is timely, the Child Care Licensing Legal Enforcement Department staff refer the case to State Office of Administrative Hearings (SOAH). SOAH assigns a docket number and an administrative law judge to handle the case.

Once the hearing has been docketed, Child Care Licensing Legal Enforcement Department staff proceed, and otherwise manage the case per the relevant procedural rules.

The Child Care Licensing Legal Enforcement attorney may ask HHSC staff to help by presenting testimony, providing background information, or gathering evidence for the hearing.

26 TAC Section 745.8839 and 745.8845

5713 When an HHSC Decision or Action is Effective Following a Due Process Hearing Decision

Revision 24-2; Effective May 22, 2024

A due process hearing is considered complete, and the relevant decision(s) or action(s) are effective per the following table:

Due Process Hearing Offer Was For	Due Process Hearing Was	Decision or Action is Effective
an HHSC decision or action, other than designating a controlling person.	not requested per 26 TAC Section 745.8837(a) and (b).	the day after the expiration of the required time frame to request a due process hearing.
an HHSC decision or action other than designating a controlling person.	waived in writing.	the date HHSC receives the written request.
an HHSC decision or action other than designating a controlling person.	requested and SOAH upheld the action or decision.	following the expiration of time to file a motion for rehearing and any appeals of the SOAH decision.
designation of Controlling Person.	not requested per 26 TAC Section 745.8839; or waived in writing.	determined per 26 TAC 745.907(b).
designation of Controlling Person.	requested and SOAH upheld the designation.	determined per 26 TAC 745.907(b).

If the administrative action is upheld after completing administrative reviews, due process hearings, and any further appeals, CCE changes a designated controlling person to a sustained controlling person.

CCR staff receive the Review and Update Controlling Person Association Status for Sustained Controlling Person [NAME] To-Do and refer to 5453 Eligibility to Serve As a Controlling Person After Finding a Match.

5720 Regulating Pending the Due Process Hearing for Denial, Refusal to Renew, Revocation, or Suspension

Revision 24-2; Effective May 22, 2024

Procedure

CCE staff decide when an operation may continue providing care pending the due process hearing. When an operation continues to care for children, CCR staff continue to monitor the operation.

The following table summarizes CCE’s decision about when an operation may continue to provide care to children pending the due process hearing decision.

CCE Action Related to the Due Process Hearing	Continue to Provide Care
Denial or Suspension	No
Refusal to renew or revocation and CCE has not determined the operation poses an immediate risk to the health or safety of children	Yes
Refusal to renew or revocation and CCE has determined the operation poses an immediate risk to the health or safety of children	No

After CCE notifies the operation of the intent to take adverse action of revocation or refusal to renew, CCR follows up with inspection activities to ensure:

the health and safety of children if CCE determines the operation may continue providing care; or
the operation has ceased providing care pending the appeal process.

If CCE staff decide an operation cannot continue providing care pending the due process hearing, the operation may seek judicial relief in a district court.

References

Conducting Inspections When CCE Determines the Operation Can Continue Providing Care Pending the Due Process Hearing, 5721
Conducting Inspections When CCE Determines the Operation Cannot Continue Providing Care Pending the Due Process Hearing, 5722
Judicial Actions, 7700

26 TAC Sections 745.8835, 745.8873, 745.8875, and 745.8879

HRC Sections 42.072(d-1) and (e)

5721 Conducting Inspections When CCE Determines the Operation Can Continue Providing Care Pending the Due Process Hearing

Revision 24-2; Effective May 22, 2024

Procedure

If CCE staff decide the operation can continue providing care while the operation challenges the adverse action, CCR staff monitor the operation to ensure the health and safety of children. The CCR inspector:

consults with the inspector’s supervisor, program administrator, and regional director to develop a plan to monitor the operation;
establishes a schedule so inspections continue; and
conducts inspections and assessments, provides results, and follows up per the relevant sections in 4000 Inspections.

If appropriate, the inspector discusses with the permit holder the possibility of additional actions, including an injunction.

5722 Conducting Inspections When CCE Determines the Operation Cannot Continue Providing Care Pending the Due Process Hearing

Revision 24-2; Effective May 22, 2024

Procedure

If CCE determines the operation cannot provide care during the due process hearing and the operation does not get judicial relief overriding CCE’s determination, CCR staff conduct inspections per the following table:

Status of Verification	Conduct Inspection to Verify the Operation is Not Providing Care
CCR has previously verified the operation has stopped proving care	No
CCR has not previously verified the operation has stopped providing care	Yes

After CCE notifies the operation and CCR of the decision, CCR leadership consult with CCR staff to decide the appropriate timing to inspect the operation to verify it has stopped providing care.

5723 Submitting a Subsequent Referral for Enforcement Action to CCE

Revision 24-2; Effective May 22, 2024

Procedure

CCR considers making a subsequent referral to CCE to update the adverse action or take additional action if the inspector decides:

the health and safety of children is at risk; or
the operation continues to provide care after CCE decided continuing care was not approved.

The inspector and supervisor consult with the program administrator and regional director to discuss the inspection activities and decide if the regional director will submit a subsequent Referral for Enforcement Action to CCE.

Based on this discussion and the situation, CCR staff take the following actions:

If	Then
the regional director agrees with submitting the Referral for Enforcement Action to CCE	the regional director begins the CCE referral process; and 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 decide if less serious measures need to be taken to reduce risk at the operation; and the inspector documents a summary of the discussion and CCR’s decision as a Chronology in CLASS.

The inspector:

continues to inspect the operation if the operation continues to provide care;
verifies the operation is no longer providing care; and
follows any other directive provided by CCE.

5730 Due Process Hearing Upholds an Adverse Action

Revision 24-2; Effective May 22, 2024

Procedure

When the final decision in a due process hearing upholds the adverse action, CCE provides the notification to the operation. CCR staff conduct follow up per 7636 Follow-Up to Final Notice of Suspension, Revocation, or Denial.