7300, Voluntary Enforcement Action

Revision 23-2; Effective June 26, 2023

7310 Reserved for Future Use

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7320 Reserved for Future Use

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7330 Reserved for Future Use

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7331 Reserved for Future Use

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7332 Reserved for Future Use

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7333 Reserved for Future Use

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7334 Reserved for Future Use

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7340 Reserved for Future Use

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7341 Reserved for Future Use

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7342 Reserved for Future Use

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7343 Reserved for Future Use

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7344 Reserved for Future Use

Revision 23-2; Effective June 26, 2023

7350 Plan of Action

March 2017

A plan of action is a voluntary enforcement action that is a collaborative effort between Licensing and an operation. The goal is to develop a plan to reduce risk and help improve the operation’s compliance with Licensing statutes, administrative rules, and minimum standards.

Because a plan of action is voluntary, an operation may decline to develop and follow a plan. If this occurs, Licensing may impose a more restrictive enforcement action if Licensing staff determines that risk cannot be mitigated without a plan and the operation meets the criteria for another enforcement action.

The time frame for a plan of action is six months.

Because a plan of action is a voluntary action, it is not eligible for an administrative review.

40 TAC §§745.8611; 745.8613; 745.8631(1) and 745.8633(c)

7351 Criteria for Recommending a Plan of Action

March 2017

An operation is eligible to participate in a plan of action if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists and Licensing determines the operation meets all of the following criteria:

  1. demonstrates the ability to identify risk;
  2. accepts responsibility for correcting deficiencies;
  3. has the ability to make corrections;
  4. has a history of making corrections to maintain compliance, if applicable;
  5. will be able to mitigate risk by following the plan of action; and
  6. has not participated in a voluntary plan of action during the previous 12 months for similar issues.

If the permit holder operates multiple operations, Licensing staff may consider the criteria listed above for each operation the permit holder operates when determining the operation’s eligibility to participate in a plan of action.

In determining whether a plan of action is the most appropriate enforcement action for an operation, Licensing staff should consult Appendix 7000-1: Factors to Consider for Enforcement Actions.

40 TAC §§745.8605; 745.8607; and 745.8633

7352 Staffing and Initiating a Plan of Action

September 2019

Procedure

The inspector must discuss the recommendation to initiate a plan of action with the supervisor and obtain supervisory approval before recommending a plan of action to the operation. Licensing staff documents the supervisor's approval in a Chronology in CLASS.

After receiving approval from the supervisor, the inspector:

  1. prepares the operation’s compliance history report;
  2. completes Section I of Form 7277 Child Care Licensing Plan of Action; and
  3. attaches Form 7277 to the operation’s compliance history.

The inspector then contacts the operation to schedule a meeting to:

  1. discuss the identified compliance issues with the operation;
  2. explain the purpose of the plan of action and the process for developing the plan;
  3. explain the benefits of participating in a plan of action; and
  4. ask the operation if they agree to complete a plan of action.

The meeting is held either in person or via telephone. During the meeting, Licensing staff provide the operation a copy of Form 7277 Child Care Licensing Plan of Action with the compliance history report attached. If the meeting is conducted by phone, the inspector ensures that the permit holder receives a copy of the plan before the phone conference.

The inspector documents a summary of the conversation with the operation in a CLASS Chronology.

7352.1 If the Operation Agrees to Participate in a Plan of Action

March 2017

Procedure

If the operation agrees to complete a plan of action, the inspector takes the following actions:

  • explains to the operation’s permit holder, director, or administrator that they must complete Section II of Form 7277 Child Care Licensing Plan of Action and return to Licensing within 10 days of receipt; and
  • explains to the operation’s permit holder, director, or administrator that licensing staff and the operation will discuss and must agree to action items the operation documents in Section II of Form 7277 before the plan can be implemented.

7352.2 If the Operation Does Not Agree to Participate in a Plan of Action

September 28, 2018

Procedure

If the operation does not agree to complete a plan of action, the inspector:

  • discusses with the Licensing supervisor, program administrator, or district director whether Licensing should impose a more restrictive enforcement action; and
  • notifies the operation, in writing on HHSC letterhead, of the outcome of the discussion.

7353 Meeting with an Operation to Review a Plan of Action

March 2017

Licensing staff schedule a meeting, in person or via telephone, with the operation’s permit holder, designee, director or administrator to:

  • review Section II of Form 7277 Child Care Licensing Plan of Action; and
  • ensure that the operation’s proposed plan addresses the deficiencies and will mitigate risk to children.

The meeting must take place within 10 days of receiving the completed Form 7277 Child Care Licensing Plan of Action from the operation. The inspector and supervisor must review the plan submitted by the operation before the meeting.

Procedure

During the plan of action meeting, Licensing staff:

  1. review the operation’s compliance history report and discuss areas of concern with the operation;
  2. review the operation’s plan to ensure the action items:
    • address the areas of concern identified in the operation’s compliance history;
    • reduce or eliminate the recurrence of deficiencies; and
    • mitigate risk to children caused by the deficiencies;
  3. explain to the provider how Licensing follows up on the implementation of the plan; and
  4. discuss the date the operation will implement the plan (the start date) and the date the plan will end (see 7357 Plan of Action Time Frames).

In the event the action items the operation outlined in the plan do not mitigate risk, the inspector:

  • explains to the operation how the plan fails to reduce risk and correct deficiencies; and
  • works with the operation to develop new action items that reduce risk and address the deficiencies.

7353.1 When Licensing and Operation Agree on a Proposed Plan of Action

March 2017

Procedure

Once Licensing and the operation have agreed to the plan of action, the permit holder or designee and the Licensing inspector and supervisor review and sign the completed Form 7277 Child Care Licensing Plan of Action.

Licensing staff places a hard copy of the plan of action in the case file.

At least 15 days prior to the start date of the plan, Licensing staff sends the permit holder notification that includes the plan’s start date, along with a signed copy of the plan.

Licensing staff documents the plan in CLASS (See 7354 Documenting the Plan of Action in CLASS).

7353.2 When Licensing and Operation Cannot Agree on a Proposed Plan of Action

March 2017

Procedure

If Licensing staff and the operation cannot agree on the proposed plan of action, the inspector consults with the supervisor, and, if needed, the program administrator and/or director, to determine whether Licensing should:

  1. implement the plan as written by the operation;
  2. collaborate further with the operation; or
  3. impose a more restrictive enforcement action.
    • Licensing staff documents the consultation and resulting recommendations in a CLASS Chronology.

40 TAC §745.8631(1), §745.8639

7354 Documenting the Plan of Action in CLASS

September 2019

Licensing staff document the plan of action in the CLASS Provider Plan of Action List located under the Monitoring tab as follows:

What to DocumentWhen to DocumentCLASS Field(s)
Planned Start DateBefore plan of action beginsBegin Date
Planned Completion DateBefore plan of action beginsEnd Date (must be 6 months from the Start Date)
List of deficiencies within the last 24 months that are the basis for recommending the plan (may or may not include all deficiencies cited within the past 24 months)Before plan of action begins
  • Basis for Plan of Action - Investigation
  • Basis for Plan of Action - Inspection
  • Basis for Plan of Action - Assessment
Operation’s action itemsBefore plan of action beginsPlan Summary
Whether implementation of the plan was successfulAfter plan of action endsStatus dropdown

7355 Starting a Plan of Action

March 2017

A plan of action starts 15 days from the date the operation was notified, in writing, of the plan unless the operation requests, in writing, to begin the plan earlier.

Procedure

If an operation requests to begin the plan of action early, the inspector:

  • documents the revised start date in the Begin Date field in the Provider Plan of Action List in CLASS; and
  • updates the end date in the End Date field in the Provider Plan of Action List in CLASS.

See 7354 Documenting a Plan of Action in CLASS

7356 Inspecting an Operation During a Plan of Action

September 2019

During a plan of action, Licensing staff conduct at least two unannounced inspections while children are in care to determine whether the operation has come into and maintained compliance with minimum standards, administrative rules and statutes.

Licensing staff may conduct additional inspections based on the compliance of the operation and risk to children determined during the required inspections.

Before the end of the plan of action, Licensing staff evaluate the operation’s compliance with the entire subchapter associated with each minimum standard listed in the Basis for Plan of Action section of the Provider Plan of Action List in CLASS.

26 TAC §745.8631(1)

Procedure

The inspector must conduct the inspections at appropriate intervals in order to be able to:

  • evaluate the operation’s progress in implementing the plan; and
  • determine whether the operation successfully completed the plan or a more restrictive action may be needed.

During each monitoring inspection, the inspector:

  1. evaluates the operation’s compliance with at least one subchapter of the minimum standards associated with the plan of action;
  2. evaluates the operation's compliance with one additional subchapter of the minimum standards to ensure overall compliance with the minimum standards;
  3. documents that the plan of action was evaluated during the inspection in the Narrative field on CLASS Form 2936;
  4. provides technical assistance in the areas where the operation is deficient; and
  5. completes all other tasks required during a monitoring inspection (See 4126 Monitoring Inspections).

The inspector may evaluate whether the operation is following the plan of action, but only cites a deficiency if the operation violates a minimum standard, administrative rule, or statute. If the operation is still deficient in the areas identified in the plan, the inspector reviews the specific action items in the plan related to the deficiencies with the permit holder or designee at the time of the inspection.

7357 Ending a Plan of Action

 

7357.1 Staffing Before a Plan of Action Ends

March 2017

Before a plan of action ends, the Licensing inspector meets with the Licensing supervisor at least once to review the operation’s compliance with minimum standards, administrative rules, and statutes. The inspector may conduct additional staffing with the supervisor as needed based on the operation’s progress and overall compliance.

Procedure

During each staffing, the Licensing inspector and supervisor review the operation’s progress on the plan of action and overall compliance with minimum standards. They also discuss whether:

  1. the plan remains appropriate;
  2. the plan should end early;
  3. additional inspections are needed; or
  4. a more restrictive enforcement action would be more appropriate.

Before ending the plan, the Licensing inspector and supervisor must discuss whether the plan of action has been successful.

The staffing and any recommendations are documented as a Chronology in CLASS.

7357.2 Plan of Action Time Frames and Ending a Plan of Action Early

March 2017

A plan of action lasts six months. Licensing may not extend a plan of action, but may end a plan of action early if Licensing determines that:

  • the operation has reduced risk and come into and maintained compliance with minimum standards, administrative rules, and statutes; or
  • the operation’s compliance has worsened and a more restrictive enforcement action is necessary.

40 TAC §745.8611, 745.8643

See 7357.3 Ending a Plan of Action When Compliance Has Been Established and Maintained and 7357.4 Modifying or Ending a Plan of Action When Compliance Has Not Been Established

7357.3 Ending a Plan of Action When Compliance Has Been Established and Maintained

September 28, 2018

Procedure

When the operation has come into and maintained compliance with all minimum standards, administrative rules, and statutes, the inspector sends a letter on HHSC letterhead to the operation stating that:

  1. compliance with the minimum standards, administrative rules, and law has been established;
  2. the plan of action has ended; and
  3. compliance with the minimum standards, administrative rules, the law, and any restrictions or conditions on the license or registration must be maintained.

The inspector also changes the Status from In Progress to Successful on the Plan of Action Details page in CLASS.

7357.4 Modifying or Ending a Plan of Action When Compliance Has Not Been Established

March 2017

If the operation’s compliance with minimum standards, administrative rules, and statute does not improve sufficiently to reduce risk at the operation as a result of the plan of action or the operation’s compliance worsens, the inspector may:

  • recommend additional action items, modify action items, and/or increase inspections; or
  • end the plan of action and impose a more restrictive enforcement action.

40 TAC §745.8643

Procedure

If the operation has not met compliance with minimum standards, administrative rules, and statute, Licensing staff:

  • reevaluates the plan to determine the appropriateness of its terms and:
    • recommends an amendment to the plan’s action items and/or increased inspections if the term of the plan of action is not expiring within the next 45 days; or
    • ends the plan and imposes a more serious enforcement action; and
  • notifies the operation, in writing, that the operation has not met compliance and Licensing is proceeding with the decided upon action.

When the plan ends, the inspector also completes the fields below on the Plan of Action Details page in CLASS as follows:

  • Status: Change from In Progress to Not Successful.
  • CLASS Chronology: Document an explanation for ending the plan and the date the plan actually ended.