7400, Probation

Revision 24-1; Effective Feb. 20, 2024

Probation is a non-voluntary enforcement action that Child Care Enforcement imposes to ensure the safety of children in care of an operation. During probation CCE imposes a corrective action plan, which includes conditions beyond the minimum standards and the basic permit requirements to help the operation improve compliance with identified standards. CCR inspects the operation at least monthly to evaluate compliance with standards and conditions imposed as part of the corrective action plan. 

The time frame for probation is a maximum of twelve months.

References:

Definitions of Terms for corrective action

26 TAC Sections 745.8603; 745.8611; 745.8631(2) and 745.8637 

Human Resources Code Section 42.071(c)

7410 Criteria for Imposing Probation

Revision 24-1; Effective Feb. 20, 2024

Child Care Enforcement (CCE) imposes probation on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists and upon determining that:

1. the operation is eligible to participate in a voluntary plan of action but refuses to do so, or the operation does not qualify for a voluntary plan of action;
2. the operation has not demonstrated the ability to make the necessary changes to address risk, but expresses a willingness to comply and make corrections;
3. the operation can mitigate risk by complying with the conditions identified in a corrective action plan in addition to statutes, administrative rules, and minimum standards; and
4. a more serious enforcement action is not necessary to reduce risk.

References: 

Appendix 7000-1: Factors to Consider for Enforcement Actions

Human Resources Code Section 42.071(c)

26 TAC Sections 745.8601, 745.8605, 745.8607 and 745.8637

7420 Submitting the Referral for Enforcement Action to Child Care Enforcement

Revision 24-1; Effective Feb. 20, 2024

Procedure

Following a deficiency or other triggering event, the inspector and supervisor consult the program administrator and regional director to discuss the operation’s compliance history and determine if the regional director will begin the referral process to Child Care Enforcement (CCE) (Appendix 7000-1: Factors to Consider for Enforcement Actions).

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

7430 Decision to Impose Probation

Revision 24-1; Effective Feb. 20, 2024

CCE notifies CCR of their decision after the Referral for Enforcement Action is submitted. 

Procedure

CCR staff complete the actions outlined in the following chart, depending on CCE’s decision about the Referral for Enforcement Action.

7430.1 When CCE Requests Additional Information from CCR After the Referral for Enforcement Action is Submitted (Probation)

Revision 24-1; Effective Feb. 20, 2024

CCE notifies CCR if CCE staff require more information after CCR submits the Referral for Enforcement Action.

Procedure

If CCR staff receive a request for more information from CCE after the Referral for Enforcement Action is submitted, CCR staff: 

• provide the additional information requested; and
• document a summary of the additional information provided as a Chronology in CLASS.

7431 Meeting with an Operation About Probation

Revision 24-1; Effective Feb. 20, 2024

Procedure

If CCE schedules a meeting with the operation to review the corrective action plan, and invites CCR to the meeting, the following CCR staff attend the meeting:

• inspector;
• supervisor; and
• program administrator and regional director if circumstances exist to warrant their involvement.

7432 Reviewing Probation Conditions

Revision 24-1; Effective Feb. 20, 2024

Procedure

After CCE sends CCR the finalized Form 2885 Corrective Action Letter, but before CCR conducts the first inspection during the probation period, the inspector and supervisor meet to discuss:

• the conditions being imposed by the corrective action plan; 
• any due dates associated with the conditions; and
• a plan for how CCR will evaluate the operation for compliance with the probation conditions.

If the operation declines to participate in a meeting offered by CCE to discuss the probation, CCE staff will not schedule a meeting with the operation to review the corrective action plan.

If CCE does not hold a meeting with the operation, the inspector coordinates a meeting with the operation’s permit holder, designee, director, or administrator as follows: 

7433 Requesting or Waiving the Right to an Administrative Review of Probation

Revision 24-1; Effective Feb. 20, 2024

If an operation disagrees with the corrective action plan, including any condition imposed as a part of the plan, the operation may request an administrative review within 15 days of receiving the finalized CLASS Form 2885 Corrective Action Letter.

References: 

5612 Waiving the Right to an Administrative Review
5613 Receiving a Request for an Administrative Review

7440 Starting Probation

Revision 24-1; Effective Feb. 20, 2024

Probation does not start until:

• the operation waives the right to an administrative review per 7433 Requesting or Waiving the Right to an Administrative Review of Probation; or
• the person who conducted the administrative review upholds the decision to impose probation.

If the operation waives the administrative review, in writing, before the 15-day time frame to request the administrative review, CCE may begin the action sooner than the planned begin date. 

After the administrative review is waived or upheld, CCE staff will:

• enter the Actual Begin Date field on the Provider Corrective Action page in CLASS; and
• notify the operation of the Actual Begin Date.

7441 Inspecting an Operation During Probation

Revision 24-1; Effective Feb. 20, 2024

Procedure

During the probation period, CCR staff conduct a monitoring inspection at least once per month, unless there is good cause not to inspect within this time frame including when CCR or DFPS is conducting an investigation.

If there is good cause not to inspect within this time frame, the inspector requests approval from the supervisor and documents the approval and reason for the variation as a Chronology in CLASS.

During each monitoring inspection, the inspector:

1. evaluates the operation’s compliance with:
   • the conditions imposed by the corrective action plan;
   • at least one entire subchapter of the minimum standards listed in the Basis for Corrective Action section of the Provider Corrective Action Plan page in CLASS; and
   • at least one additional entire subchapter of the minimum standards to ensure overall compliance;
2. documents that the probation conditions were evaluated during the inspection by selecting the Probation conditions were evaluated checkbox on the Inspection Details page in CLASS;
3. cites the operation if the operation is in violation of any statute, administrative rule, or minimum standard;
4. cites the operation for a violation of 26 TAC 745.8641  if the operation is in violation of any probation condition;
5. provides technical assistance: 
   • in the area where the operation is deficient; and
   • per 4154 Technical Assistance and 4161.24 Technical Assistance for Violations Recommended for an Administrative Penalty;
6. reviews with the permit holder or designee the probation conditions that relate to the deficiencies cited during the inspection (4170 Conducting the Exit Conference); and
7. completes all other tasks required during a monitoring inspection (4126 Monitoring Inspections).

Before the end of the probation period, the inspector evaluates the operation’s compliance with the entire subchapter associated with each minimum standard listed in the Basis for Corrective Action section of the Provider Corrective Action Plan page in CLASS.

7442 Conducting Surveillance During Probation

Revision 24-1; Effective Feb. 20, 2024

An inspector or supervisor may determine that surveillance is necessary to evaluate if a program or caregiver is complying with minimum standards or conditions outlined in the corrective action plan. Valid reasons for surveillance include, but are not limited to determining if an operation is:

• complying with transportation requirements;
• providing adequate supervision during outdoor activities; or
• providing care to more children than the permit allows.

Procedure

An inspector must receive supervisory approval to conduct surveillance. Upon receiving the necessary approval, the inspector: 

• may conduct surveillance at the operation’s physical location or at other locations where children in care are transported by the operation; 
• takes photographs or video recordings, as necessary, during the course of the surveillance to support violations or a lack of violations;
• uploads any photographs or video recordings to the appropriate folder in the CLASS Document Library (1400 State-Issued Equipment, Photographs, Video, Audio and Digital Files); and
• documents all decisions about surveillance and all information obtained from conducting surveillance as a Chronology in CLASS.

References: 

1400 State-Issued Equipment, Photographs, Video, Audio and Digital Files
1432 Storage of Photographs, Video, Audio, Scanned Documents and Other Digital Files in CLASS Document Library
6450 Conducting Surveillance (Day Care Only)

7443 Consultations During Probation

Revision 24-1; Effective Feb. 20, 2024

During the probation period, the inspector meets with the supervisor to review the operation’s compliance with statutes, administrative rules, minimum standards, and conditions imposed by the corrective action plan. These meetings take place at least four times during the probation period. They may occur more often depending on the operation’s progress and overall compliance.

Procedure

During each consultation, the inspector and supervisor:

• review the operation’s progress on the corrective action plan; 
• review the operation’s overall compliance with statutes, administrative rules, and minimum standards;
• discuss if the corrective action plan remains appropriate, including whether: 
  • more inspections are needed;
  • an amendment to the plan is necessary; or 
  • a more serious enforcement action should be imposed (7450.2 Modifying or Ending Probation When Compliance Has Not Been Established); and
• if the operation has established and maintained compliance during the probation.

Before ending probation, the inspector must staff the decision with a supervisor and receive the supervisor’s approval to end the probation period.

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

References: 

Reviewing Restrictions, Conditions, Waivers, and Variances, 4152

26 TAC Section 745.8631

7450 Ending Probation

Revision 24-1; Effective Feb. 20, 2024

HHSC may not extend a probation period, but the inspector may end probation early with supervisory approval. HHSC may end probation if:

• CCR determines that the operation has reduced risk and come into and established and maintained compliance with statutes, administrative rules, and minimum standards; or
• after CCR submits a Referral for Enforcement Action, and CCE determines that  a more serious enforcement action is necessary.

References:

Consultations During Probation, 7443 

Ending Probation When Compliance Has Been Established, 7450.1

Modifying or Ending Probation When Compliance Has Not Been Established, 7450.2

26 TAC Sections 745.8611(b) and 745.8643

7450.1 Ending Probation When Compliance Has Been Established

Revision 24-1; Effective Feb. 20, 2024

Procedure

If the operation has complied with the conditions imposed by the corrective action plan, corrected deficiencies and reduced risk, and maintained compliance with all other statutes, administrative rules, and minimum standards, the inspector uses the appropriate probation results letter template located on CCR’s SharePoint site to send the operation a letter on HHSC letterhead in CLASS stating:

• compliance with the minimum standard, administrative rules, statutes, and probation conditions has been established;
• the probation period has ended; and
• compliance with statutes, administrative rules, and minimum standards, and any restrictions or conditions on the operation’s permit must be maintained.

To end the probation period in CLASS, the inspector completes the following fields on the Provider Corrective Action Plan page in CLASS:

• selects the appropriate selection from the Result of Corrective Action drop-down menu; and
• enters the end date in the Actual End Date field.

Reference:

 Consultations During Probation, 7443

7450.2 Modifying or Ending Probation When Compliance Has Not Been Established

Revision 24-1; Effective Feb. 20, 2024

Procedure

During the course of probation, if the operation’s compliance with statutes, administrative rules, minimum standards, and the probation conditions do not improve sufficiently to reduce risk at the operation, CCR staff:

1. reevaluate the corrective action plan to assess the appropriateness of its terms and conditions and determine if CCR should:
   • increase the frequency of inspections if the term of the corrective action is not expiring within the next 90 days; or
   • submit a Referral for Enforcement Action to CCE; and
2. use the appropriate probation results letter template, located on CCR’s SharePoint site, to send the operation a letter on HHSC letterhead in CLASS stating the operation has not met compliance and that CCR will or may, as appropriate, proceed with the decided upon action.

When CCR Determines the Corrective Action Plan Should be Modified or a More Serious Enforcement Action Should be Imposed

If the inspector and supervisor determine that CCE should amend the conditions associated with a corrective action plan or impose a more serious enforcement action, the inspector and supervisor consult the program administrator and regional director to discuss their determination.

If the regional director agrees that CCE should amend the conditions associated with a corrective action plan or impose a more serious enforcement action, then the regional director begins the CCE referral process.

The inspector documents a summary of the staffing in the operation’s record as a Chronology in CLASS.

Ending Probation in CLASS after Submitting a Referral for Enforcement Action to CCE

If CCE imposes a more serious enforcement action after CCR submits a Referral for Enforcement Action, the inspector ends the probation period in CLASS by completing the following fields on the Provider Corrective Action Plan page:

• selects the appropriate selection from the Result of Corrective Action drop-down menu; and
• enters the date the probation period ended in the Actual End Date field.

Reference:

Consultations During Probation, 7443

7460 Following Up After Ending Probation

Revision 24-1; Effective Feb. 20, 2024

Procedure

Within six months from the date a probation period ends, the inspector conducts an unannounced monitoring inspection to ensure the operation is in compliance with: 

• the statutes, administrative rules, and minimum standards associated with the corrective action plan; and
• any restrictions or conditions on the operation’s permit.