5100, Waivers and Variances | Texas Health and Human Services

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Revision 23-3; Effective Sept. 22, 2023

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

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

Evaluating Risk

A waiver or variance is not an entitlement. Staff evaluate the risk to children before granting approval for a waiver or variance. A waiver or variance may not be granted if child safety would be negatively impacted. When granting a waiver or variance, conditions are put into place to ensure that children are not at risk.

26 TAC Sections 745.8301; 745.8313

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 applicant or operation to meet the purpose of the standard in a different way.

A waiver or variance may only be granted for a specified period. A waiver or variance expires on the date approved by the supervisor, which is specified in the Child Care Licensing Automation Support System (CLASS) that has been approved by the supervisor.

26 TAC Section 745.8311

Obtaining Supervisory Approval

Supervisors decide whether to grant or deny a waiver or variance. They consider the following when making a decision to grant a waiver or variance:

whether the requirement in the standard for which the operation is seeking a waiver or variance is also in statute (Exception: Waivers and variances are allowed for a licensed child care center and registered child care home minimum standards related to nutrition, physical activity or screen time);
the risk to children if the operation does not meet the standard;
the operation’s compliance history;
waivers or variances currently in effect;
permit status, including whether the operation has an initial or full permit;
whether the operation is on probation, operating under a provider plan of action or on a heightened monitoring;
economic factors or other issues that affect an operation’s ability to comply; and
other variables identified by Child Care Regulation (CCR).

If a supervisor chooses to delegate decision-making authority, the supervisor must set parameters by which the designee reviews and approves or denies waivers and variances.

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

26 TAC Sections 745.8307; 745.8309

Reviewing the Decision to Deny

If CCR denies the operation’s request for a waiver or variance, the provider may request an administrative review of the decision.

See 5600 Administrative Reviews

26 TAC Section 745.8319

Changing the Conditions or Dates

If the supervisor grants a waiver or variance, but the expiration date varies from the plan the provider submitted, the supervisor contacts the provider to discuss the alternative time limit or conditions.

For Child Day Care Only

A child day care provider does not need to submit a waiver or variance request if the provider can come into compliance with the standard within 60 days. This does not mean a waiver or variance must be submitted if the violation exceeds 60 days; however, the operation will continue to be in violation until the correction is made or a waiver or variance is approved. Staff consider the risk to the children and all variables listed in this item under Obtaining Supervisory Approval.

5110 Submitting a Waiver or Variance Request

Revision 23-3; Effective Sept. 22, 2023

A provider who applies for a waiver or variance:

submits the request online through the provider’s online account; or
completes and mails or emails Form 2937 Child Care Regulation Waiver/Variance Request (or a letter containing all the same information) to CCR; and
mails or emails any supporting documentation to CCR.

The provider may also submit the request online through the provider’s CCR Online Provider Account and submit any supporting documentation to CCR separately.

26 TAC Section 745.8305

A provider cannot request a waiver or variance for multiple operation types of minimum standards in one request. A request must be for one operation type and minimum standard number.

5120 Decision Guidelines for Granting Waivers or Variances

July 2021

When deciding whether to grant a waiver or variance, CCR staff determine whether the waiver or variance would be appropriate, including its potential impact on child safety. CCR staff does not recommend granting 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 is not granted if:

the operation that is requesting the waiver or variance is currently on probation, a voluntary plan of action or heightened monitoring; and
the operation is requesting to waive or vary a minimum standard that is a basis for the probation, plan of action or heightened monitoring.

Procedure

When deciding whether to recommend granting or denying a request, CCR staff consider the following:

Is the operation requesting to waive or vary a minimum standard that is the basis for a voluntary plan of action, probation or heightened monitoring?
What is the operation’s overall compliance history?
Is the request reasonable?
Can the operation comply with the minimum standard without a waiver or variance?
What are the risk variables at the operation?
What other waivers or variances are in effect or have been in effect at the operation?
When was the last inspection at the operation?
Does an inspection need to be conducted before making the decision?
How will the waiver or variance impact the children in care?
Will granting this request negatively impact child safety?
Is the length of time requested for the waiver or variance reasonable?
Is a shorter time for the waiver or variance more appropriate?
Is the requirement in the minimum standard for which the operation is seeking a waiver or variance also in statute?

Waiver/Variance Requests for Minimum Standards with Statutory Requirements

CCR cannot waive or vary statutory requirements. Accordingly, CCR cannot waive or vary a requirement in minimum standards that is in Chapter 42, Human Resources Code, or any other statute.

Exception: Texas Human Resources Code §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.

Texas Human Resources Code §§42.042(e-3); 42.042(e-5)

26 TAC §745.8307

5130 Establishing and Monitoring Conditions for the Waiver or Variance

July 2021

Staff establish conditions for all approved waivers and variances. When establishing conditions, staff also specify the month, day and year the waiver or variance expires.

Both staff and the operation must be able to easily observe and measure each condition. Additionally, conditions:

do not merely re-state the minimum standards, but rather describe specific circumstances that the operation must address. Conditions are another way of achieving compliance with the minimum standard and reducing risk to children; and
are evaluated during each inspection and during each CCR investigation relevant to the minimum standard and the conditions.

Procedure

Conditions are not limited to, but may include:

that the request applies to a specific child or caregiver;
measures the provider must take to reduce risk and protect the children;
steps the provider must take toward meeting the standard;
any dates when CCR requires supporting documentation from the provider;
documentation or other observable items that must be available at the operation; and
other restrictions or requirements placed on the operation.

5131 Establishing Conditions

July 2021

When establishing conditions, staff ensure that:

waiver or variance expiration dates are reasonable and based upon the risk to children;
no waiver or variance is granted for more than three years; and
required documents, records or other observable activity are specified in the conditions so that evaluation of conditions can be recorded on the CCR inspection form or letter.

5132 Evaluating Conditions

July 2021

Evaluating Conditions During an Inspection

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:

the conditions of the waiver or variance;
whether conditions were met or not met;
whether conditions changed; and
whether unintended risk to children is observed as a result of the waiver or variance.

Evaluating Conditions Outside of an Inspection

When evaluating conditions outside of an inspection, staff document the evaluation in a CLASS Chronology. Staff select Waiver/Variance as the category type for the chronology entry. Staff include a description of any documentation that the operation submitted to CCR and whether the operation has met the conditions.

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

Review documentation that is required to be submitted to CCR, including:
- proof of enrollment in courses;
- transcripts;
- training certificates or logs;
- proof of GED completion; and
- medical visit documentation; and
Evaluate conditions of a waiver or variance for a listed family home.

5140 Processing a Waiver or Variance Request

Revision 23-3; Effective Sept. 22, 2023

Procedure

Within 15 days of receiving a waiver or variance request, CCR staff:

enters the request in CLASS under the Waiver Variance tab of the operation if the operation submitted Form 2937, Child Care Regulation Waiver/Variance Request;
uploads the request and supporting documentation to CLASS Document Library from the applicable CLASS page;
evaluates the request; and
makes a recommendation to the supervisor whether to grant or deny the request.

The supervisor reviews the request and the CCR staff's recommendation and makes the final decision to grant or deny the request within 15 days of receiving the recommendation to grant or deny the waiver or variance.

26 TAC Section 745.8309

5141 Recommending and Documenting the Waiver or Variance Decision

5141.1 Entering the Request in CLASS

July 2021

Procedure

If the provider submits Form 2937, Child Care Regulation Waiver/Variance Request, CCR staff enter the following information under the Waiver Variance tab in the operation in CLASS:

whether the request is a waiver or a variance;
the relationship of the children, if the request is for a foster home (for CPS contractors only);
the Original Receive Date as the date the request was received by CCR;
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.

5141.2 Recommending and Documenting an Approval

July 2021

Procedure

To recommend the approval of a waiver or variance request on the Waiver/Variance Detail page in CLASS, CCR staff:

selects Grant from the Recommendation drop-down menu, enters the Recommendation Date, and documents the rationale for approval 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.

5141.3 Recommending and Documenting a Denial

July 2021

Procedure

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

select Denied from the Recommendation drop-down menu;
enter the date of the decision in the Recommendation Date field; and
document the rationale in the Documentation narrative field.

5141.4 Supervisor's Review of the Waiver or Variance Request

July 2021

Procedure

The supervisor must grant or deny the waiver/variance request within 15 days of receiving notice of the CCR staff's recommendation.

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

enters the Decision Date;
documents the rationale for approval or denial in the Documentation narrative field;
selects Granted or Denied from the Waiver/Variance Status drop-down menu; and
selects a Reason only if denying the waiver or variance request (the supervisor does not select a Reason if granting the wavier or variance request).

5141.5 Duplicate Requests

July 2021

Procedure

If the request is a duplicate of an existing waiver or variance, CCR staff recommends denying the request and follows the policy and procedure in 5141.3 Recommending and Documenting a Denial. Staff then selects “Duplicate Request” from the Reason drop-down menu in the Supervisor Decision section.

5142 Notifying Provider of Waiver or Variance Decision

July 2021

Procedure

Within five days of the supervisor’s decision, the CCR staff sends the provider notice of the decision using CLASS Form 2937 Decision on Waiver/Variance Letter.

If the provider indicated on Form 2937, Child Care Regulation Waiver/Variance Request, to be notified by email, CCR staff send CLASS Form 2937 Decision on Waiver/Variance Letter to the operation’s contact email in CLASS.

If the provider indicated on Form 2937, Child Care Regulation Waiver/Variance Request, to be notified by certified mail, CCR staff includes in the letter:

a certified mail number;
conditions for approval, if approved;
the reason for denial, if denied; and
the name of the supervisor the operation must send the administrative request to if the request was denied.

5143 Updating Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Procedure

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

See:

5160 Review of Conditions or Denied Request for a Waiver or Variance
CLASS Online Help available in CLASS

5144 Documenting Outcomes for Waivers and Variances

July 2021

Procedure

CCR staff follow up with any expiring waiver or variance and complete the Result and Outcome Date fields in the Outcome section on the Waiver/Variance Detail page in CLASS.

No outcome is selected when a waiver (W) or variance (V) is denied.

If…	Then, select one of the following Results:
The current waiver or variance is no longer needed…	Met standard before expiration; New W/V request; or No longer needed.
CCR rescinds the waiver or variance…	Rescinded.
The waiver or variance has expired…	W/V expired - standard met; or W/V expired - standard not met.
The operation closes…	Operation closed.

5150 Renewing a Waiver or Variance

July 2021

If the provider is unable to come into compliance with the minimum standard by the expiration date, the operation may request to renew the waiver or variance by applying for a new waiver or variance prior to the expiration date.

Procedure

When deciding whether to recommend granting or denying a renewal, CCR staff consider the following:

Was the operation in compliance with the conditions of the original waiver or variance?
What is the operation’s overall compliance history since the approval of the original waiver or variance request?
Has there been any change to the operation since the approval of the original waiver or variance request and how does it affect child safety?

5160 Review of Conditions or Denied/Revoked Request for a Waiver or Variance

Revision 23-3; Effective Sept. 22, 2023

If a supervisor denies or rescinds a request for a waiver or variance, the provider may request an administrative review following the policy and procedures in 5600 Administrative Reviews.

If a provider disagrees with the conditions or time limits established, he or she may contact the CCR supervisor to discuss concerns.

A provider who wants to amend conditions or time limits must call or write to the supervisor and request a meeting to discuss items of concern.

26 TAC Sections 745.8315; 745.8319

5170 Rescinding or Amending a Waiver or Variance

July 2021

CCR staff may rescind or amend a waiver or variance that a CCR staff has previously granted, based upon:

risk to children;
changing conditions;
conditions not met; or
a combination of any of the criteria above.

Procedure

Protocol to Recommend an Action

The CCR staff who determines that a waiver or variance should be rescinded or conditions amended consults with the supervisor regarding a recommended course of action.

Notice by Supervisor of Rescission

The supervisor writes a letter to the provider rescinding the waiver or variance or amending the conditions and sends a copy to the program administrator.

Entering in CLASS if the Waiver or Variance is Rescinded

CCR staff select Rescinded from the drop-down options of the Outcome section in the Waiver/Variance page in CLASS and then select the outcome date of the approval by the supervisor.

Statement of Provider’s Right to Review

If a waiver or variance is rescinded, the letter must include the provider's right to an administrative review within 15 calendar days. The letter is sent by certified mail.