5100, Waivers and Variances

Revision 24-1; Effective Feb. 20, 2024

Waivers and variances are tools to help child care operations comply with minimum standards within a specified period, without compromising the safety of children served by the operation.

Human Resources Code Sections 42.042(e-5), 42.042(j) and 42.048(c) 

Evaluating Risk

A waiver or variance is not an entitlement. CCR evaluates the risk to children before granting a waiver or variance. CCR may not grant a waiver or variance if child safety would be negatively impacted. When granting a waiver or variance, staff place conditions on the waiver or variance to ensure that children are not at risk.

Determining the Appropriate Action

A waiver may be appropriate if the economic impact of compliance is great enough to make compliance impractical.

A variance may be appropriate if there is good and just cause for the operation to meet the purpose of the standard in a different way.

CCR may only grant a waiver or variance for a specified period. A waiver or variance expires on the date specified by the supervisor, which the supervisor lists in CLASS.

26 TAC Sections 745.8301, 745.8311 and 745.8313

5110 Receiving a Waiver or Variance Request

Revision 24-1; Effective Feb. 20, 2024

CCR staff may receive a waiver or variance request from the operation in CLASS, by mail or email. 

Waiver or Variance Request Received in CLASS

The inspector assigned to the operation will receive a CLASS To-Do to process the waiver or variance request if the operation submits the request through the operation’s CCR Online Account. 

Waiver or Variance Request Received by Mail or Email

The inspector may receive either Form 2937 Child Care Regulation Waiver/Variance Request, or a letter with all the same information from the operation by mail or email. The inspector uploads the request to CLASS Document Library and enters the request in CLASS within one day after receiving the request. 

For All Waiver or Variance Requests

The inspector:

• uploads all documentation to CLASS Document Library; and
• verifies the waiver or variance request is only for:
  • one operation;
  • one minimum standard number or subsection; and
  • one foster home, if a child-placing agency is requesting a waiver or variance for a minimum standard relating to foster care.

If the request is for more than one operation, one minimum standard or subsection, or one foster home, the inspector contacts the operation to discuss if the operation should submit a separate waiver or variance request.

References: 

5141.1 Entering the Request in CLASS

26 TAC Section 745.8305

5120 Decision Guidelines for Recommending to Grant or Deny a Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

CCR staff determine if the requested waiver or variance is appropriate and consider its potential impact on child safety. The CCR inspector recommends denying a waiver or variance that could negatively impact the safety of the children in the care of the operation.

CCR presumes that a waiver or variance would negatively impact child safety and would not be appropriate if:

• the operation requesting the waiver or variance is currently on an enforcement action or heightened monitoring; and
• the operation is requesting to waive or vary a minimum standard that is a basis for the enforcement action or heightened monitoring.

Procedure

When deciding to recommend granting or denying a request, the inspector considers if:

• The operation has demonstrated the ability to maintain compliance with minimum standards, administrative rules, and statutes for the past five years.
• The operation has any current or past enforcement actions.
• The operation is on heightened monitoring (RCCR only).
• Any economic factors or other constraints affect the operation’s ability to comply.
• The operation can comply with the minimum standards without a waiver or variance.
• There are risk variables at the operation, such as the operation experiencing a staff shortage or location of the operation.
• The operation has other waivers or variances in effect.
• The operation’s permit status has any relevance.
• The operation was previously granted a waiver or variance and if the operation complied with the conditions.
• To conduct an inspection before making the decision.
• Granting this request will negatively impact child safety.
• The length of time requested for the waiver or variance is reasonable or a shorter time is more appropriate.

Additional Considerations for Foster Homes

When determining whether to recommend granting a waiver or variance request for a foster home, the inspector considers the following factors: 

• the compliance history of the foster home;
• whether the foster home may use the exception criteria in 26 TAC Section 749.2551(b), if the request is to increase the maximum number of foster children a foster home may care for ;
• any limitations in state or federal law, including that CCR:
  • may only issue a waiver if the home is a kinship foster home;
  • may not grant a request that would result in a foster home’s total capacity exceeding eight foster children; and
  • may not grant a request that would result in a foster home’s foster care capacity exceeding six foster children unless the operation:
    • is requesting a variance for 26 TAC Section 749.2551(b)(1); and
    • is not able to use the exception criteria in 26 TAC Section 749.2551(b)(1) to increase the foster home’s foster care capacity.

References:

26 TAC Sections 745.8313 and 745.8315

Human Resources Code Section 42.0463(a)(2)

42 United States Code Section 672(c)(1)(B) 

5121 Waiver or Variance Request for a Minimum Standard with Requirements in Federal or State Law

Revision 24-1; Effective Feb. 20, 2024

CCR cannot waive or vary a requirement in minimum standards that is in Chapter 42, Human Resources Code, or any other Texas statute or federal law.

Exception: Texas Human Resources Code Section 42.042(e-5) allows for a licensed child care center or a registered child care home to request a waiver on a standard relating to nutrition, physical activity or screen time if the economic impact of compliance is great enough to make compliance impractical.

References:

26 TAC Section 745.8307

Human Resources Code Sections 42.042(e-3) and 42.042(e-5)

5130 Conditions and Time Frames for the Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

The CCR inspector establishes conditions and time frames for all granted waivers and variances. The conditions include what CCR determines is necessary to protect the health and safety of children in care. 

Each condition must be observable and measurable by CCR staff and the operation. CCR staff:

• do not re-state the minimum standards in the conditions, but describe specific circumstances that the operation must address; and
• evaluate the operation’s compliance with the conditions during certain types of inspections at the operation.

When deciding on conditions for the waiver or variance, the inspector considers the same factors as outlined in 5120 Decision Guidelines for Recommending to Grant or Deny a Waiver or Variance.

References:

Evaluating the Conditions of a Waiver or Variance, 5160

26 TAC Sections 745.8311 and 745.8317

5131 Establishing Conditions for a Granted Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

Procedure

When establishing conditions, the inspector ensures that the conditions include details about:

• the specific person the request applies to;
• the name of the foster home if the request is for a foster home;
• the measures the operation must take to reduce risk and protect the children;
• steps the operation must take toward meeting the standard;
• any dates when CCR requires supporting documentation from the operation;
• documentation or other observable items that must be available at the operation; and
• other restrictions or requirements placed on the operation.

References:

5150 When an Operation Disagrees with Conditions or Expiration Date on the Waiver or Variance

26 TAC Section 745.8311

5132 Waiver and Variance Expiration Time Frame

Revision 24-1; Effective Feb. 20, 2024

When setting time frames for the waiver or variance, the inspector ensures:

• the dates are reasonable based on risk to children; and 
• the expiration date is three years or less from the date the request is granted. 

26 TAC Section 745.8317

5140 Time Frames for Processing a Waiver or Variance Request

Revision 24-1; Effective Feb. 20, 2024

Procedure

CCR staff take the actions per the time frames outlined in the table below:

References: 

5141.4 Supervisor’s Review of the Waiver or Variance Request

5142 Notifying the Operation of Waiver or Variance Decision

26 TAC Section 745.8307

5141 Documenting the Waiver or Variance Decision in CLASS

Revision 24-1; Effective Feb. 20, 2024

5141.1 Entering the Request in CLASS

Revision 24-1; Effective Feb. 20, 2024

Procedure

If the operation submits Form 2937, Child Care Regulation Waiver/Variance Request, or a request with the same information as collected on form 2937, the inspector enters the following information on the Waiver Variance Detail page in CLASS:

• if the request is a waiver or a variance;
• for CPS contractors only, the relationship of the children, if the request is for a foster home;
• the Original Receive Date as the date CCR received the request;
• comments in the Licensing Representative Comments box:
  • the comments should include the reason for the request and relevant specific details, such as the names and ages of children, the name of the person the request pertains to, if applicable, and the justification for the request;
• the applicable minimum standard number; and
• the date the request was completed.

The inspector uploads the paper request and supporting documentation to CLASS Document Library per 1432 Storage of Photographs, Video, Audio, Scanned Documents and Other Digital Files in CLASS Document Library.

5141.2 Recommending, Documenting, and Granting a Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

Procedure

To recommend that CCR grant a waiver or variance request on the Waiver/Variance Detail page in CLASS, the inspector:

• selects Grant from the Recommendation drop-down menu; 
• enters the Recommendation Date; 
• documents the rationale for granting the request in the Documentation narrative field in the Licensing Representative Recommendation section; and
• enters the Effective Date, Expiration Date and conditions in the Waiver/Variance Specifics section.

When entering conditions in CLASS, the inspector follows 5131 Establishing Conditions for a Granted Waiver or Variance.

5141.3 Recommending and Documenting Denial of a Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

Procedure

To recommend the denial of a waiver or variance request, the inspector takes the following actions in the Licensing Representative Recommendation section of the Waiver/Variance Detail page in CLASS:

1. selects Denied from the Recommendation drop-down menu;
2. enters the date of the decision in the Recommendation Date field; and
3. documents the rationale in the Documentation narrative field.

5141.4 Supervisor's Review of the Waiver or Variance Request

Revision 24-1; Effective Feb. 20, 2024

Procedure

The supervisor considers the same factors as the inspector when recommending granting the request outlined in 5120 Decision Guidelines for Recommending to Grant or Deny a Waiver or Variance.

The supervisor grants or denies the waiver or variance request within 15 days of receiving notice of the inspector’s recommendation.

The supervisor takes the following actions in the Supervisor Decision section of the Waiver/Variance Details page in CLASS:

1. enters the Decision Date;
2. documents the rationale for granting or denying the request in the Documentation narrative field;
3. selects Granted or Denied from the Waiver/Variance Status drop-down menu; and
4. selects a Reason only if denying the waiver or variance request.

5141.5 Denying a Duplicate Waiver or Variance Request

Revision 24-1; Effective Feb. 20, 2024

Procedure

If CCR determines that an operation submitted a duplicate of an existing waiver or variance, the inspector recommends denying the request and follows the policy and procedure in 5141.3 Recommending and Documenting Denial of a Waiver or Variance. The supervisor then selects “Duplicate Request” from the Reason drop-down menu in the Supervisor Decision section.

5142 Notifying the Operation of Waiver or Variance Decision

Revision 24-2; Effective May 22, 2024

Procedure

The inspector sends the operation notice of the decision within five days of the supervisor’s decision. 

CCR Grants the Waiver or Variance Request

If CCR grants the waiver or variance request, the inspector pastes the information from the CCR SharePoint Form 2937 Decision on the Waiver/Variance Granted Only to the HHSC letterhead within the Waiver/Variance Detail page in CLASS.

CCR Denies the Waiver or Variance Request

If CCR denies the waiver or variance request, the inspector generates CLASS Form 2937 Decision on Waiver/Variance Letter (page 2) from the Waiver/Variance Detail page in CLASS. Then the inspector enters the reason for the denial on the CLASS Form 2937 Decision on Waiver/Variance Letter and sends the letter to the operation.

In Both Cases

If the operation indicated on Form 2937, Child Care Regulation Waiver/Variance Request, to be notified by email, the inspector sends the appropriate notification to the operation’s contact email address in CLASS.

If the operation indicated on Form 2937, Child Care Regulation Waiver/Variance Request, to be notified by certified mail, the inspector includes a certified mail number in the letter and mails the letter to the operation.

5143 Updating Administrative Review

Revision 24-1; Effective Feb. 12, 2024

Procedure

After finalizing and sending the decision letter, the inspector completes both fields of the Notifications and Administrative Review section by following the policy and procedures in 5600 Administrative Reviews.

Reference: 5150 When an Operation Disagrees with Conditions or the Expiration Date on the Waiver or Variance

5150 When an Operation Disagrees with Conditions or the Expiration Date on the Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

If the operation disagrees with the conditions or expiration date that CCR sets on the waiver or variance, the operation may:

• contact the CCR supervisor to discuss concerns; or
• request an administrative review of the decision.

The operation may request an administrative review without first contacting the supervisor. If the operation contacts the supervisor first, but a mutual agreement cannot be made, the operation may request an administrative review.

Reference: 26 TAC Section 745.8321

5151 Operation Contacts the Supervisor to Address Concerns with Conditions or Expiration Date on the Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

Procedure

An operation that wants to amend conditions or the expiration date of a granted waiver or variance may contact the supervisor by calling, emailing, or mailing a letter to request a meeting to discuss items of concern.

If the operation contacts the CCR supervisor to address concerns with the conditions or expiration date on the waiver or variance, the supervisor takes the following steps in CLASS:

• documents the discussion as a Chronology (type, Waiver/Variance); and
  • makes the changes on the Waiver/Variance Detail page if the supervisor approves the changes; or
  • leaves the conditions or expiration date as originally documented if the supervisor does not approve the changes.

The supervisor advises the operation of the right to request an administrative review if the operation continues to disagree with the supervisor’s decision about the original conditions or expiration date on the granted waiver or variance.

Reference: 26 TAC Section 745.8321

5160 Evaluating the Conditions of a Waiver or Variance

Revision 24-1; Effective Feb. 20 2024

Evaluating Conditions of a Waiver or Variance During an Inspection

The inspector evaluates the operation’s compliance with the conditions on the waiver or variance during the following types of inspections:

• initial;
• monitoring; 
• follow-up, if the inspection is relevant to the waiver or variance; and
• investigation, if the investigation is relevant to the waiver or variance.

For operations on heightened monitoring (RCCR only), the heightened monitoring inspector evaluates the operation’s compliance with the conditions on the waiver or variance during at least one inspection per month. 

When evaluating conditions during an inspection, the inspector selects the check box titled The following items regarding risk were evaluated on the Inspection Details page in CLASS or CLASSMate. While at the operation, the inspector evaluates:

1. the conditions of the waiver or variance;
2. if conditions were met;
3. if circumstances at the operation have changed that may affect the status of the waiver or variance; and
4. if unintended risk to children is observed because of the waiver or variance.

If the operation is not meeting a condition, the inspector cites 26 TAC Section 745.8311(b) as deficient for the operation not meeting the condition.

Reference: 4152 Reviewing Restrictions, Conditions, Waivers, and Variances

Evaluating Conditions Outside of an Inspection

When evaluating conditions outside of an inspection, the inspector: 

• documents the evaluation as a CLASS Chronology (type, Waiver/Variance); and 
• includes a description of documentation that the operation submitted to CCR and if the operation has met the conditions.

Examples of when CCR may evaluate conditions outside of an inspection:

• Reviewing documentation that the operation submitted to CCR, including:
  • proof of enrollment in courses;
  • transcripts;
  • training certificates or logs;
  • proof of GED completion; and
  • medical visit documentation; and
• Evaluating conditions of a waiver or variance for a listed family home.

If the operation is not meeting a condition, staff cite 26 TAC Section 745.8311(b) by assessment for not meeting the condition.

Reference: 5180 Revoking a Waiver or Variance

5170 Renewing a Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

If the operation cannot come into compliance with the minimum standard by the expiration date, the operation may request to renew the waiver or variance. The operation submits a new waiver or variance request to CCR at least 35 days before the expiration date of the current waiver or variance.

If the operation does not request a new waiver or variance, the operation must comply with the minimum standard, even if a new request related to the standard is pending review by CCR.

Procedure

When deciding to recommend granting or denying a request to renew a waiver or variance, the inspector considers the following:

1. The operation’s compliance with the conditions of the original waiver or variance.
2. The operation’s overall compliance history since CCR granted the original waiver or variance request.
3. If there have been any changes to the operation since CCR granted the original waiver or variance request. If so, if the changes may affect child safety.

References:

5120 Decision Guidelines for Recommending to Grant or Deny a Waiver or Variance 
5130 Conditions and Time Frames for the Waiver or Variance 
5140 Time Frames for Processing a Waiver or Variance Request

26 TAC Section 745.8309

5180 Revoking a Waiver or Variance

Revision 24-1; Effective Feb. 202, 2024

The CCR supervisor may revoke a waiver or variance that CCR previously granted, based upon:

• the waiver or variance not addressing a risk to children that currently exists;
• circumstances at the operation supporting the decision to grant the waiver or variance changed;
• the operation not meeting conditions; 
• the waiver or variance requiring an additional or alternative condition; or
• a combination of any of the criteria above.

Procedure

Protocol to Recommend Revoking a Waiver or Variance

The CCR inspector who determines that a waiver or variance should be revoked consults with the supervisor about a recommended course of action. The inspector documents the consultation as a CLASS Chronology using type, Waiver/Variance. Note: CLASS uses the term “rescind” instead of “revoke”.

Notifying the Operation of the Revocation of the Waiver or Variance

If the supervisor agrees with the inspector’s recommendation to revoke the waiver or variance, the supervisor:

• generates a letter on CLASS HHSC letterhead to explain CCR’s revocation of the waiver or variance;
• includes in the letter the operation’s right to request an administrative review within 15 days of receiving the letter;
• sends the letter by certified mail; and 
• notifies the program administrator about the revocation of the waiver or variance.

References:

5150 When an Operation Disagrees with Conditions or Expiration Date on the Waiver or Variance
5190 Documenting Outcomes for Waiver or Variance

26 TAC Sections 745.8319 and 745.8321

5181 Amending Conditions of a Waiver or Variance

Revision 24-2; Effective May 22, 2024

The CCR supervisor may amend the conditions of a waiver or variance that CCR previously granted, based upon:

• the waiver or variance not addressing a risk to children that currently exists;
• circumstances at the operation that supported the decision to grant the waiver or variance changing;
• the operation not meeting conditions; 
• the waiver or variance requiring an additional or alternative condition; or
• a combination of any of the criteria above.

Procedure

Protocol to Recommend Amending Conditions of a Waiver or Variance 

The CCR inspector who decides the conditions for a waiver or variance should be amended consults with the supervisor about a recommended course of action. The inspector documents the consultation as a CLASS Chronology (type, Waiver/Variance).

Notifying the Operation of the Amendments to a Waiver or Variance

If the supervisor agrees with the inspector’s recommendation to amend the waiver or variance, the supervisor: 

• updates the conditions in CLASS; and 
• generates and sends the updated letter by updating the conditions and pasting the information from the CCR SharePoint Form 2937 Decision on Waiver/Variance Granted Only on the HHSC letterhead in the Waiver or Variance Detail page in CLASS.

References:

When an Operation Disagrees with Conditions or Expiration Date on the Waiver or Variance, 5150 
Documenting Outcomes for Waiver or Variance, 5190

26 TAC Sections 745.8319 and 745.8321

5190 Documenting Outcomes for Waiver or Variance

Revision 24-1; Effective Feb. 20, 2024

Procedure

The inspector verifies the status of any expiring waiver or variance. The inspector completes the Result and Outcome Date fields in the Outcome section on the Waiver/Variance Detail page in CLASS.

The inspector does not select an outcome when a waiver (W) or variance (V) is denied.