5600, Administrative Reviews

Revision 23-3; Effective Sept. 22, 2023

If an operation disagrees with certain decisions or actions taken by the inspector, the operation may request an administrative review.

Human Resources Code Section 42.072(e)

26 TAC Section 745.8801

5610 The Right to an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

The following persons may request an administrative review of a decision or action:

  1. The governing body, director or designee of an operation that is entitled to request an administrative review
  2. A person that Licensing has determined is an immediate threat or danger to the health or safety of children
  3. The holder of an administrator’s license regarding the review of an enforcement action concerning that license
  4. An individual whom Licensing intends to designate as a controlling person

26 TAC Section 745.8803

5611 When an Operation is Entitled to an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Specific situations in which an operation’s governing body, director or designee is entitled to an administrative review, include the following:

  1. Licensing does not agree that the operation is exempt from HHSC regulation.
  2. Licensing denies the operation’s request for a waiver or variance from a minimum standard.
  3. Licensing cites the operation for a deficiency, and the operation does not agree that a deficiency was committed.
  4. 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.

26 TAC Section 745.8803

5612 When an Individual is Entitled to an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Specific situations in which an individual is entitled to an administrative review include the following:

  1. Licensing determines that the individual is an immediate threat or danger to the health and safety of children in a child care operation.
  2. Licensing takes enforcement action against the individual’s administrator’s license.
  3. Licensing intends to designate the individual as a controlling person.

26 TAC Section 745.8803

5613 Explaining the Right to an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

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:

  1. leaving a printed copy of the completed CLASS form 2936 Child-Care Facility Inspection with the person in charge during the exit conference; or
  2. sending the specific notification letter in the CLASS system that is appropriate for the decision or action by both regular and certified mail to the individual or the governing body, director or designee of the operation.

Licensing staff inform the individual or the governing body, director or designee of the operation that the request for an administrative review:

  1. must be submitted to Licensing in writing, either by letter or by using Form 2940 Request for an Administrative Review;
  2. must include the information outlined in 5616 Receiving a Request for an Administrative Review; and
  3. must be received by Licensing no later than 15 days after the individual or operation received notice about Licensing’s decision or action.

26 TAC Section 745.8805

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:

5616.1  Determining Whether a Request for an Administrative Review Meets the Due Date

5614 Waiving the Right to an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

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.

26 TAC Section 745.8807 

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 time frame.

See 5616.1 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:

  1. changes the status of the administrative review in the CLASS from Pending to Waived, if there was no additional information requested or from Requested to Waived, if additional information had been requested (see 5616.22 When a Request or an Administrative Review is Incomplete);
  2. 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
  3. documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date, if applicable (see 5616.1 Determining Whether a Request for an Administrative Review Meets the Due Date).

For actions or decisions involving adverse actions, the Licensing staff person:

  • drafts the appropriate letter notifying the individual or designee of the decision (see 5620 Notifying a Requestor About the Outcome of an Administrative Review); and
  • enters a date in the decision date field in CLASS. 

5615 Roles for Conducting an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Violations

A supervisor plans and conducts administrative reviews of violations identified during inspections, assessments and investigations.

All Other Decisions and Actions

For all other Licensing decisions and actions, the administrative review is conducted by the relevant:

  1. division administrator;
  2. district director;
  3. program specialist; or
  4. 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.

26 TAC Section 745.8809 

5616 Receiving a Request for an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Before conducting an administrative review, Licensing staff must determine that the request for an administrative review:

  1. is addressed to the Licensing contact person designated on the notice;
  2. includes a signed Form 2940 Request for an Administrative Review, or a signed letter granting authorization to an attorney to represent the operation or individual, if applicable;
  3. is received by the due date; and
  4. is complete.

26 TAC Section 745.8805

5616.1 Determining Whether a Request for an Administrative Review Meets the Due Date

Revision 23-3; Effective Sept. 22, 2023

Licensing must receive a request for an administrative review in writing, including by email or fax, within 15 days of the date that the individual or permit holder received notice about the Licensing decision or action.

26 TAC Section 745.8805 

When determining the due date for an administrative review request, Licensing allows three 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 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 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 5616.11 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 5616.12 When the Request for an Administrative Review Does Not Meet the Due Date. 

5616.11 When the Request for an Administrative Review Meets the Due Date

Revision 23-3; Effective Sept. 22, 2023

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:

5617  Initiating Contact with the Requestor of an Administrative Review    
5618  Conducting an Administrative Review Conference 

5616.12 When the Request for an Administrative Review Does Not Meet the Due Date

Revision 23-3; Effective Sept. 22, 2023

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 5614 Waiving the Right to an Administrative Review. 

5616.2 Determining Whether a Request for an Administrative Review is Complete

Revision 23-3; Effective Sept. 22, 2023

A request for an administrative review is complete if it:

  1. describes the specific decision or action in dispute;
  2. indicates why the decision or action is being disputed; and
  3. includes documentation that supports the requestor’s position, such as photographs, diagrams or written and signed statements.

26 TAC Section 745.8805 

Procedure

After determining that a request for an administrative review was received within the specified time frame, the reviewer evaluates the request to determine whether it contains the following and is therefore complete:

  1. A description of the specific decision or action in dispute
  2. The reason the decision or action is being disputed
  3. Any documentation that supports the requestor’s position, such as photographs, diagrams or written and signed statements 

5616.21 When a Request for an Administrative Review is Complete

Revision 23-3; Effective Sept. 22, 2023

Procedure

If the reviewer determines that a request for an administrative review is complete and was received within the specified time frame, 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 5617 Initiating Contact with the Requestor of an Administrative Review.)

To update the Due Process field on the Standards Detail Page, the reviewer:

  1. changes the status of the administrative review from Pending to Requested;
  2. enters the date that the request for an administrative review was received; and
  3. enters the name of the person assigned to conduct the administrative review. 

5616.22 When a Request for an Administrative Review is Incomplete

Revision 23-3; Effective Sept. 22, 2023

Procedure

If a reviewer determines that Licensing received a request for an administrative review by the specified time frame but is incomplete, the reviewer:

  1. drafts a letter in CLASS using HHSC Letterhead:
    • explaining the missing information that must be submitted to Licensing; and
    • noting that the missing information must be submitted to Licensing within five days;
  2. sends the completed letter to the individual or permit holder;
  3. files a copy of the letter in the hard copy record for the individual or permit holder; and
  4. updates the details about the administrative review in the Due Process field of the Standards Detail page in CLASS.

To update review details on the Standards Detail page, the reviewer:

  1. changes the status from Pending to Requested;
  2. enters the date that the request for an administrative review was received;
  3. enters the name of the person assigned to conduct the administrative review; and
  4. enters the following information in the Narrative box:
    1. the date that the letter requesting the missing information was sent;
    2. the information needed for the request to be considered complete; and
    3. the date that the information is due back to Licensing. 

5616.3 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date

Revision 23-3; Effective Sept. 22, 2023

Procedure

To determine whether Licensing received information that was missing from a request for an administrative review was received by the due date, the reviewer:

  1. determines the date that he or she sent the letter requesting the missing information to the individual or permit holder explaining the need to send Licensing additional information;
  2.  adds three calendar days to that mail date to determine the date that the individual or permit holder is presumed to receive the letter;
  3. adds five calendar days to the date of presumed receipt; and
  4. identifies the first date after that period that is not a Saturday, Sunday or legal holiday. 

5616.31 When the Information Missing From a Request for an Administrative Review is Received by the Due Date

Revision 23-3; Effective Sept. 22, 2023

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:

5616.3  Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date 
5617  Initiating Contact with the Requestor of an Administrative Review 
5618  Conducting an Administrative Review Conference

5616.32 When the Information Missing From a Request for an Administrative Review is Not Received by the Due Date

Revision 23-3; Effective Sept. 22, 2023

If Licensing does not receive the information that was missing from a request for an administrative review within the required time frame, the reviewer:

  1. notifies the requestor that the request is late (see 5620 Notifying a Requestor About the Outcome of an Administrative Review);
  2. changes the status of the administrative review in CLASS from Requested to Waived; and
  3. documents in the Chronology field in CLASS how the reviewer determined that the request was not received by the due date (see 5616.3 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date). 

5617 Initiating Contact with the Requestor of an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

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 5617.1 Scheduling an Administrative Review Conference).

26 TAC Section 745.8811

Procedure

A reviewer may make this contact with a requestor by:

  • sending an email, 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. 

5617.1 Scheduling an Administrative Review Conference

Revision 23-3; Effective Sept. 22, 2023

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 5618 Conducting an Administrative Review Conference.

The administrative review conference must be scheduled within 30 days after the initial contact with the requestor, unless:

  1. additional time is necessary to comply with a request from the individual or permit holder to provide records related to the review;
  2. 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
  3. the requestor does not respond to Licensing’s attempts to schedule a conference, thereby waiving his or her right to a conference.

26 TAC Section 745.8811 

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. 

5617.2 Documenting the Initial Contact with the Requestor in CLASS

Revision 23-3; Effective Sept. 22, 2023

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 CLASS:

  1. The date of the initial contact, including all attempted contacts
  2. The date scheduled for the administrative review conference, if applicable
  3. The date, reason, and outcome of a request for delaying the conference beyond the 30-day time frame, if applicable; and
  4. The date and reason the administrative review conference was waived, if applicable. 

5618 Conducting an Administrative Review Conference

Revision 23-3; Effective Sept. 22, 2023

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 5617.1 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, 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:

  1. the date of the conference;
  2. a brief summary of the discussion held during the conference; and
  3. any new information received. (Information received on paper is placed in the appropriate file). 

5618.1 If the Requester Waives the Right to the Administrative Review Conference

Revision 23-3; Effective Sept. 22, 2023

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.

26 TAC Section 745.8811(d) 

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. 

5619 Determining the Outcome of an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

After conducting an administrative review, the reviewer decides whether the Child Care Regulation (CCR) decision or action being reviewed was appropriate under applicable regulatory law, administrative rules or minimum standard rules.

The final outcome of the review is that the CCR decision or action is overturned, upheld or amended.

26 TAC Section 745.8813 

Procedure

When conducting an administrative review, the reviewer does the following to make a decision:

  • conducts an administrative review conference with the requestor;
  • meets with the CCR staff whose decision or action is being disputed;
  • reviews the CCR record; and
  • reviews any documentation provided during the administrative review conference.

The reviewer may also inspect the operation, if necessary.

The reviewer determines the outcome of the administrative review by considering:

  1. whether documentation for the CCR decision or action provides sufficient detail and clearly explains the reason for the decision or action;
  2. whether the decision or action was consistent with applicable laws and rules;
  3. whether the decision or action was reasonable;
  4. whether the evidence, including any additional evidence provided during the administrative review, supports the decision or action;
  5. whether the decision or action was correct, including whether the CCR staff cited the correct minimum standard, administrative rule or law; and
  6. if the administrative review is reviewing a citation for abuse, neglect or exploitation, CCR staff follow procedures in 5619.1. 

5619.1 Overturning Citations for Abuse, Neglect or Exploitation

Revision 23-3; Effective Sept. 22, 2023

CCR discusses with DFPS any recommendation to overturn a citation for abuse, neglect or exploitation.

Procedure

When the reviewer recommends that a citation for the applicable abuse, neglect or exploitation minimum standard be overturned, the reviewer staffs the recommendation with the CCR program administrator (PA) or regional director (RD).

If the PA or RD disagrees with the recommendation to overturn the citation, the citation is upheld, the reviewer documents the outcome and sends notifications as required.

If the PA or RD agrees with the recommendation to overturn the citation, the reviewer:

  • schedules a meeting with the DFPS Division Administrator of CCI Complex Investigations to consult about the investigation and make a final determination; and
  • notifies the Director of Regional Operations about the decision to consult with DFPS about overturning the citation.

The reviewer does not wait for the outcome of the DFPS ARIF or SOAH to make a final determination. After making a final determination, the reviewer documents the outcome and sends notifications as required.

See: 

5619.2  Documenting the Outcome of an Administrative Review in CLASS     
5621  Notifying DFPS of an Overturned Citation of Abuse, Neglect, or Exploitation 

5619.2 Documenting the Outcome of an Administrative Review in CLASS

Revision 23-3; Effective Sept. 22, 2023

The reviewer documents the outcome in CLASS 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 5620 Notifying a Requestor About the Outcome of an Administrative Review). 

5619.3 Amending an Action or Decision as the Result of an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

If the reviewer determines that the information provided during the review supports a change in the decision or action, the reviewer amends the CCR decision or action.

Specifically, amending a decision or action may include:

  1. changing the conditions of a corrective action, waiver or variance;
  2. editing the original documentation of a decision or action; or
  3. overturning the original citation of a minimum standard that was cited incorrectly and adding the citation of a minimum standard that is more appropriate.

If possible, the reviewer should discuss the decision to amend the CCR 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 CCR decision or action during the administrative review meeting, the reviewer:

  1. calls the requestor to explain the amended decision or action;
  2. allows the requester an opportunity to respond to the amended decision or action;
  3. informs the requester that there are no due process rights related to CCR amending the decision or action;
  4. creates a supplemental Inspection Form 2936, Investigations Findings letter, or other appropriate form or letter displaying the amended decision or action;
  5. documents the decision as required; and
  6. sends the notifications as required.

See:

4165  Completing a Supplemental Inspection Form    
5619.2  Documenting the Outcome of an Administrative Review in CLASS     
5621  Notifying DFPS of an Overturned Citation for Abuse, Neglect or Exploitation 

5620 Notifying a Requestor About the Outcome of an Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Within 21 days after conducting an administrative review, the reviewer prepares and sends written notification about the outcome to the individual or governing body, director or designee of the operation who requested the review.

If the administrative review is waived by the appropriate person, the reviewer sends written notification explaining the outcome of the administrative review within 21 days of the date that the conference was waived.

Unless the individual or operation has the right to request a due process hearing to challenge the CCR decision or action, it takes effect:

  1. on the date CCR receives the individual or designee’s written statement waiving the right;
  2. on the date that the administrative review is automatically waived;
  3. when the decision or action is upheld; or
  4. when the decision or action is overturned.

26 TAC Section 745.8815 

5620.1 Notifying an Operation of the Outcome of the Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Licensing does not offer due process hearings when any of the following decisions or actions are upheld or waived:

  1. Licensing determines that the operation is not exempt from HHSC regulation.
  2. Licensing denies the operation’s request for a waiver or variance.
  3. Licensing cites the operation for a deficiency.
  4. Licensing imposes corrective action on an operation.

Licensing does offer the permit holder a due process hearing if the decision to impose adverse action is upheld or waived.

26 TAC Section 745.8835

Procedure

To notify a designee of the operation about the outcome of an administrative review, the reviewer drafts and sends by both regular and certified mail one of the following letters:

  1. CLASS Form 2885 Corrective Action Letter to uphold the decision to impose corrective action. CLASS Form 2885 is also mailed if the operation waives the right to administrative review.
  2. CLASS Form 2878 Decision to Impose Adverse Action for a decision regarding an adverse action (see 7632.1 Adverse Action is Overturned at an Administrative Review or 7632.2 Adverse Action is Upheld at an Administrative Review or No Administrative Review is Requested).
  3. CLASS Form 2834a HHSC Letterhead, located on the page in CLASS where the action is documented, for all other types of reviews.

The reviewer includes a copy of supplemental forms or letters if changes were made under 5619.3 Amending a Decision or Action as a Result of an Administrative Review.

If CLASS Form 2834a HHSC Letterhead is used, the reviewer composes the notification letter as a direct response to the designee’s request for an administrative review and includes:

  1. the specific Licensing decision being disputed and reviewed;
  2. the date that the request was received, the date of conference and the date of the final decision; and
  3. the outcome of the review. 

5620.2 Notifying an Individual of the Outcome of the Administrative Review

Revision 23-3; Effective Sept. 22, 2023

Procedure

Licensing offers a due process hearing to an individual designated as a controlling person if the decision is upheld or waived.

To notify an individual about the outcome of an administrative review, the reviewer drafts and mails CLASS Form 2763 Controlling Person Administrative Review Decision Letter for an individual who was designated as a controlling person (see 7772.2 No Administrative Review Requested by the Controlling Person or 7772.3 Decision to Designate a Controlling Person Is Overturned or 7772.4 Decision to Designate a Controlling Person Is Upheld). 

5621 Notifying DFPS of an Overturned Citation for Abuse, Neglect or Exploitation

Revision 23-3; Effective Sept. 22, 2023

If Child Care Regulation (CCR) staff overturn a citation for the abuse, neglect or exploitation citation made during a DFPS investigation, CCR staff notify DFPS of the reason for the decision.

Procedure

Following an overturned administrative review, the reviewer emails the DFPS supervisor who approved the investigation to inform DFPS that the standard has been overturned.

See:

5619.1  Overturning Citations for Abuse, Neglect or Exploitation    
5619.2  Documenting the Outcome of an Administrative Review in CLASS    
5619.3  Amending an Action or Decision as the Result of an Administrative Review