7600, Adverse Actions

March 2017

Licensing may deny, suspend, revoke, or impose conditions on the permit (adverse amendment) of an operation that does not comply with the law, administrative rules, minimum standards, or the specific terms of the permit.

Texas Human Resources Code §42.072(a), (e)

40 TAC §745.8649 §745.8875

Pending the appeal of a decision to deny the permit, an operation may not operate.

Pending the appeal of the decision to revoke the operation's permit, an operation may continue to operate, unless Licensing determines health or safety concerns exist that requires the operation to stop operating. In this case, the operation may only continue to operate pending appeal of the revocation if a judge grants injunctive relief allowing the operation to remain open.

The inspector or supervisor consults with a Licensing attorney before notifying the permit holder of an adverse action.

40 TAC §§745.8655 and 745.8609

HRC §42.072(e)

7610 Defining Adverse Action

September 28, 2018

Adverse action is taken when deficiencies pose a risk that endangers the health and safety of children, or there are indications of a continued failure to comply with the rules or law.

An adverse action is one of the following:

  1. Denial of an application (during application status)
  2. Denial of an application for issuance of a permit (during initial status)
  3. Denial of a request for amendment of a license, certificate, or registration
  4. Adverse amendment of the permit with conditions
  5. Involuntary suspension (this type of suspension is not the same as an automatic suspension that takes place when there is a failure to pay an annual fee)
  6. Revocation of an initial or full permit

40 TAC §745.8649

7620 Criteria for Taking Adverse Action

March 2017

Licensing imposes adverse action upon determining that the operation not operate or must cease operating or that a permanent restriction or condition to the operation's permit is necessary because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

7621 Criteria for Imposing a Denial

March 2017

Licensing may deny an applicant a permit for an issue identified in 7110 Circumstances That May Call for Enforcement Action upon determining that:

  1. a background check result makes an applicant ineligible for a permit, because either the result is ineligible for a risk evaluation or the Central Background Check Unit will not approve a risk evaluation;
  2. the operation does not demonstrate the ability to comply with minimum standards and other applicable laws during the initial permit period, if applicable;
  3. the results of a public hearing make an applicant ineligible for a permit;
  4. the operation presents an immediate threat to the health or safety of children; or
  5. the applicant is otherwise ineligible for a permit because of an issue described in 7110 Circumstances That May Call for Enforcement Action.

40 TAC §§745.8605; 745.8650

See:

3710 Denial Because of Failure to Comply With Minimum Standard Rules, Administrative Rules, or Law
3713 Compliance History Indicates Inability to Meet Minimum Standard Rules
10760 When to Deny or Revoke a Permit Based on Criminal History or Child Abuse or Neglect History
7110 Circumstances that May Call for Enforcement Action
Appendix 7000-1: Factors to Consider for Enforcement Actions.

7622 Criteria for Imposing an Adverse Amendment

March 2017

Licensing may impose an adverse amendment on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists, and Licensing determines the following criteria are met:

  1. an amendment on the permit will mitigate any risks;
  2. the amendment is the most effective enforcement action for addressing risk at the operation; and
  3. the operation is capable of following the restrictions of the amendment.

40 TAC §§745.8605; 745.8651

7623 Criteria for Imposing an Involuntary Suspension

March 2017

Licensing may impose an involuntary suspension on an operation if a circumstance described in 7110 Circumstances That May Call for Enforcement Action exists, and upon determining that:

  1. the operation will pose a danger or threat of danger to the health or safety of children in the operation's care until the issue is resolved;
  2. the operation cannot correct the issue while children are in care, but can do so during a specific period of time;
  3. the operation is capable of making the necessary corrections while the permit is suspended; and
  4. there are no additional concerns about the operation's compliance history that would make revocation a more appropriate enforcement action for the health or safety of children.

40 TAC §§745.8605; 745.8652

7624 Criteria for Imposing a Revocation

March 2017

Licensing may revoke an operation's permit if an issue described in 7110 Circumstances That May Call for Enforcement Action exists, and upon determining that:

  1. the operation is ineligible for corrective action;
  2. Licensing cannot address the risk at the operation by taking corrective action or another type of adverse action;
  3. A background check result or a finding of abuse or neglect makes the permit holder ineligible for a permit, either because the result is ineligible for a risk evaluation or the Central Background Check Unit informs will not approve a risk evaluation; or
  4. Revocation is otherwise necessary to address the issue described in 7110 Circumstances That May Call for Enforcement Action.

40 TAC §§745.8605; 745.8654

7630 Taking Adverse Action

Revision 23-3; Effective Sept. 22, 2023

Procedure

When imposing an adverse action, the inspector does as follows:

Determine the Appropriate Adverse Action

Licensing staff:

  • uses Appendix 7000-1 as an aid in determining which action to recommend (see 7620 Criteria for Taking Adverse Action);
  • discusses the recommendation of an adverse action with the supervisor; and
  • makes the recommendation to the program administrator or district director.

Notify the Permit Holder or Applicant About the Action

Licensing staff:

  • notifies the permit holder or applicant about the intent to deny, revoke, suspend or amend a permit; and
  • explains in the notification that the permit holder or applicant has the right to request an administrative review within 15 days after the permit holder receives the letter of intent to deny, revoke, suspend, or adversely amend a permit.

See:

5600  Administrative Reviews
7631  Notice of Intent to Deny, Revoke, or Suspend
7632  Administrative Review for Adverse Action

Notify Controlling Persons About the Intent to Designate

If the action being taken is a revocation, Licensing staff:

  • determines which controlling persons to designate; and
  • notifies the controlling person about the intent to designate.

See 7770 Administrative Review and Due Process Hearing for a Designated Controlling Person.

Notify the Permit Holder or Applicant About the Results of an Administrative Review

If the permit holder or applicant requests an administrative review, the Licensing staff who conducts the review notifies him or her about the decision to deny, revoke, suspend, or adversely amend the permit after the administrative review is completed. See 7632 Administrative Review for Adverse Action.

If the Licensing staff who conducts the review upholds the adverse action, and the permit holder or applicant appeals the Licensing decision, Licensing staff notifies him or her about the final decision to deny, revoke, suspend, or adversely amend the permit after the opportunity to appeal has been exhausted. See 7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit.

Documentation

Licensing staff documents all adverse action in CLASS.

Licensing staff generates all adverse action letters from CLASS.

The forms available in CLASS under the Corrective/Adverse Action tab in CLASS include:

Form 2880 Intent to Impose Adverse Action Letter

Form 2878 Decision to Impose Adverse Action Letter

Form 2895 Final Notice of Adverse Action Letter

7631 Notice of Intent to Deny, Revoke, or Suspend

August 2020

The district director or designee consults with the legal department before notifying an operation or home about the intent to deny, revoke, or suspend.

No denial, revocation, or suspension is effective unless Child Care Regulation (CCR):

  • notified the permit holder or applicant in person or by both regular and certified mail about the alleged deficiencies warranting action; and
  • gave the permit holder or applicant an opportunity through an administrative review to retain the permit by showing compliance with CCR statutes, administrative rules, and minimum standards.

Texas Government Code Section 2001.054

26 TAC Section 745.8609

Procedure

The district director or designee drafts CLASS Form 2880 Intent to Impose Adverse Action letter.

The district director or designee:

  • shares the drafted Form 2880 during consultation with the legal department;
  • finalizes Form 2880, with or without changes, when Legal approves the recommendations; and
  • documents the date Legal provides final approval of the notification letter in the Final Approval Date field of the Provider Adverse Action (for Revocation/Denial) page in CLASS.

The district director or designee has five days after Legal provides approval to send the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, to the permit holder or applicant. The purpose of the letter is to:

  • notify the permit holder or applicant about CCR's intent to deny, revoke, or suspend the permit; and
  • explain the basis for that action.

7631.1 When Immediate Intervention Is Warranted at an Operation

August 2020

If circumstances at the operation are determined to be so extreme that immediate intervention is warranted, the district director or designee may make a referral for legal action (injunctive relief) simultaneously with the mailing of the notification letter (CLASS Form 2880 Intent to Impose Adverse Action).

See 7740 Injunctive Relief.

7631.2 Creating the Notification of Intent Letter

August 2020

When preparing the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, the district director or designee must:

  1. Include a statement of intent to deny, revoke, or suspend the permit.
  2. Include references to the legal authority for the adverse action taken. The authority is Human Resources Code §42.072(a). CCR includes additional legal authority as applicable and with direction from the legal department for adverse action because of matches found during a background check, matches found during a search for a controlling person, or for the denial of a residential license. For example, HRC §42.072(f) requires Licensing to revoke or deny an operation's permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.
  3. Include specific details of the findings or basis for denial, revocation, or suspension, including:
    1. specific citation of statute, administrative rules, and minimum standards;
    2. dates of the deficiencies;
    3. description of each deficiency; and
    4. the name of the district director or designee who made the determination.
  4. Include information specific to the action taken. See: 
    7631.21 Requirements if the Action Taken is Denial. 
    7631.22 Requirements When the Operation is Already on Corrective Action or Suspension. 
    7631.23 Requirements if the Action Taken is Revocation or Suspension and There is Risk to the Health or Safety of Children.
  5. Include information notifying the operation about their requirements, rights, and restrictions. See: 
    7631.24 Notifying an Operation About the Requirements For Informing the Public About an Adverse Action 
    7631.25 Notifying an Operation About the Right to Request an Administrative Review 
    7631.26 Notifying an Operation About the Restrictions on Reapplying for a Permit 
    7631.27 Notifying an Operation About Restrictions on Controlling Persons
  6. A statement that forms and letters from each inspection, investigation, or assessment used as a basis for the action are enclosed with the notice. The district director or designee prints and includes as enclosures copies of forms and letters from each of the inspections and investigations where deficiencies used as the basis for the adverse action are documented.

7631.21 Requirements if the Action Taken is Denial

September 28, 2018

If the action taken is denial, CCR staff:

  • leaves the check box stating that HHSC has determined the operation poses a risk to the health and safety of children unchecked. This check box should only be used when the action taken is revocation or suspension; and
  • includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the CLASS Form 2880 Intent to Impose Adverse Action letter.

7631.22 Requirements When the Operation Has Been on Corrective Action or Suspension

August 2020

Corrective Action

If the operation had been on corrective action, the district director or designee must include both of the following in the notification letter (CLASS Form 2880 Intent to Impose Adverse Action):

  • the date that the operation was placed on evaluation or probation; and
  • a statement that the conditions were not met, if applicable.

Suspension

If the operation had been on suspension, the notification must explain the corrections needed before the license or registration can be reinstated.

7631.23 Requirements if the Action Taken is Revocation or Suspension and There is Risk to the Health or Safety of Children

August 2020

If CCR intends to revoke an operation's permit and determines that the operation poses an immediate risk to the health or safety of children, the district director or designee must also include the following information on CLASS Form 2880, Intent to Impose Adverse Action letter:

  1. a statement explaining the risks, and that the operation must discontinue operating pending the outcome of a due process hearing, unless the permit holder obtains injunctive relief from a district court in the county in which the operation is located;
  2. specifies how the operation poses an immediate danger to a child's safety or health, or both, with information included as outlined under 26 TAC §745.751, for example: 
    Your operation poses an immediate risk to the health or safety of children for several reasons: First, you have failed to meet the standards for supervision during eight inspections; second, two staff members were recently found to have neglected a child, and the child suffered substantial physical injuries because of the neglect; and third, the operation has failed to comply with minimum standard §___.___ eight times.

Texas Human Resources Code, §42.072(e)

40 TAC §745.8875

Procedure

If the operation poses an immediate threat to the health or safety of children, CCR provides immediate notification to the operation. See 7631.3 Authorizing and Delivering the Intent to Impose Adverse Action Letter.

The program administrator or designee changes the operation's main page in CLASS by selecting the check box Do not display on public/provider website.

7631.24 Notifying an Operation About the Requirements For Informing the Public About an Adverse Action

August 2020

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the district director or designee must include statements explaining the following.

Statement 1

Within five days of receiving the notification letter, the operation must notify the public about the adverse action by sending a copy of the adverse action letter by certified mail to each parent or managing conservator (one copy for each child currently enrolled in the operation).

Statement 2

The operation must post the adverse action in a prominent place near each public entrance, as required by 40 TAC §745.8873, 26 TAC §745.8655.

Statement 3

The operation must notify persons seeking to enroll a child that CCR is seeking to deny, suspend, or revoke the permit.

Statement 4

The operation must give the inspector a copy of each return receipt (the green card) within five days after receiving return receipts generated by the letters operation staff sent by certified mail.

Texas Human Resources Code, Section 42.077(d-1)

26 TAC Sections 745.8655; 40 TAC 745.8879

The inspector follows up to ensure that the operation has:

  • notified the parents; and
  • sent the receipts to CCR.

7631.25 Notifying an Operation About the Right to Request an Administrative Review

August 2020

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the district director or designee must include a statement that:

  • explains that the operation has a right to request an administrative review; and
  • explains the procedures for requesting a review, including:
  • whom to contact and where that person can be reached; and
  • that an administrative review must be requested within 15 days after receipt of the letter.

26 TAC Sections 745.8613; 40 TAC Sections 745.8809-745.8817

7631.26 Notifying an Operation About the Restrictions on Reapplying for a Permit

August 2020

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the district director or designee must include a statement that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Texas Human Resources Code, Section 42.072(c)

If CCR denies a permit and the denial of the permit is upheld, CCR applies a five-year restriction on reapplying.

If a sustained controlling person reapplies for a permit within five years from the date that the applicant was sustained, CCR does not apply an additional five-year restriction. Applying within five years is not considered a substantial enough violation to warrant an additional five-year restriction.

7631.27 Notifying an Operation About Restrictions on Controlling Persons

August 2020

When preparing a notification letter (CLASS Form 2880 Intent to Impose Adverse Action), the district director or designee must include a statement that when CCR revokes a child care permit, controlling persons associated with the operation:

  • are designated as controlling; and
  • receive a letter offering an administrative review of that designation.

The inspector includes that a person's designation as a controlling person is sustained when the revocation and the due process for a designated controlling person are final.

For five years after the designation is sustained, a sustained controlling person cannot:

  • obtain a permit to operate a child care operation; or
  • serve as a controlling person.

Texas Human Resources Code, Section 42.072(g)

40 TAC Section 745.8873

7631.3 Authorizing and Delivering the Intent to Impose Adverse Action Letter

August 2020

The notification letter CLASS Form 2880 Intent to Impose Adverse Action, must be signed by the district director or designee.

The date the letter is saved as final in CLASS is the date the letter must be delivered or sent to the operation.

The district director or designee:

  • delivers the letter to the permit holder or applicant personally or by courier and obtains a signed receipt; or
  • sends the letter by both regular and certified mail, with a return receipt requested.

The district director or designee sends a copy of the letter to the:

  1. inspector;
  2. CCR enforcement attorney;
  3. supervisor;
  4. CBCU inspector; and
  5. DFPS residential contract manager (if applicable).

Day care district director or designee also notifies:

  • the local workforce board (Texas Workforce Commission contractor); and
  • the Child and Adult Care Food Program (CACFP), if applicable.

26 TAC Section 745.8657

7631.31 When the Operation is Required to Close Immediately

November 2019

Under statute, an operation cannot operate pending the appeal of a denial or suspension. Moreover, an operation cannot operate pending appeal of a revocation or refusal to renew if CCR determines that the operation poses an immediate threat to the health or safety of children, unless the operation gets an injunction allowing the operation to stay open. CCR staff is responsible for providing immediate notification to the operation by delivering the letter to the permit holder or applicant personally.

After the CCR staff personally delivers the letter, the inspector documents the name of the person at the operation who received the notification in a Corrective/Adverse Action category Chronology in CLASS.

If the operation is located at a distance where CCR staff is not able to immediately hand deliver the letter, CCR staff:

  1. notify the permit holder or applicant by telephone;
  2. send the letter by email or fax; and
  3. send the letter by both regular and certified mail, with a return receipt requested.

Texas Human Resources Code Section 42.072

7631.4 Follow-Up After Delivery of Notice of Intent to Take Adverse Action When Operation Required to Close Immediately

November 2019

If the operation must close immediately, the inspector must conduct a follow-up inspection at the operation within 15 days, after CLASS Form 2880 Intent to Impose Adverse Action letter has been sent or delivered, to determine whether the operation is continuing to care for children.

If no one is present at the operation, the inspector:

  1. documents the inspection type as Follow-up, if the inspector observes enough to confirm the operation is no longer caring for children;
  2. documents the inspection type as Attempted, if the inspector is not able to determine if the operation is continuing to care for children;
  3. documents the observations made during the inspection in a chronology (type Monitoring); and
  4. consults with the supervisor to determine the next course of action.

If the operation continues to operate, the inspector informs the supervisor, who notifies the district director. The director notifies the Legal department and requests legal action against the operation (see 7740 Injunctive Relief).

If the revocation, suspension or denial involves a state-operated operation, the director notifies the associate commissioner of CCR (see 2280 State-Operated Facilities Exempt from Licensure).

7632 Administrative Review for Adverse Action

Revision 23-3; Effective Sept. 22, 2023

The inspector must inform a permit holder or applicant that the permit holder or applicant:

  • has a right to request an administrative review, if he or she disagrees with an adverse action; and
  • must request the review no later than 15 days after being notified about the right.

See:

7630 Taking Adverse Action
5600 Administrative Reviews

If the permit holder or applicant does not request an administrative review within 15 days after the notification, the action is implemented as planned.

The permit holder or applicant may file a written waiver of administrative review so that the action may begin before the 15 days expires.

The administrative review for the revocation of a permit or certificate may be combined with the administrative reviews for designated controlling persons. Licensing may combine the reviews or may hold each review separately.

26 TAC Sections 745.8613; 745.909(b)

7632.1 Adverse Action is Overturned at an Administrative Review

September 28, 2018

Procedure

If the permit holder or applicant shows compliance and the person conducting the administrative review overturns the adverse action, the person conducting the administrative review mails a letter on HHSC Letterhead (CLASS Form 2834a), advising the permit holder or applicant about the decision.

The inspector sends the letter within 15 days following the administrative review.

For the procedures on providing due process for a person designated as controlling as a result of a revocation, see 7773.1 Adverse Action Overturned or Stopped.

7632.2 Adverse Action is Upheld at an Administrative Review or No Administrative Review is Requested

Revision 23-3; Effective Sept. 22, 2023

Procedure

If an administrative review is not requested, or if compliance was not shown during the administrative review, the inspector notifies the permit holder or applicant by sending a decision letter (CLASS Form 2878 Decision to Impose Adverse Action).

The inspector sends the letter within 15 days following the administrative review or within 15 days of the administrative review being waived.

The inspector initiates adverse action.

See:

5600 Administrative Reviews
7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit
7773 Providing a Due Process Hearing for a Designated Controlling Person

7633 Notice of Decision to Deny, Revoke, or Suspend an Application or Permit

August 2020

If, after the opportunity for administrative review, CCR decides to deny, revoke, or suspend an application or permit, the district director or a designee sends a certified letter to the permit holder or applicant to notify the permit holder or applicant about the decision.

26 TAC §745.8609

The district director or designee notifies the permit holder or applicant about the decision to deny, revoke, or suspend by sending a decision letter, CLASS Form 2878 Decision to Impose Adverse Action by both regular and certified mail.

In addition, the district director or designee must notify other state agencies, if applicable, and update the operation's status in CLASS. 

See:

7633.2 Notifying HHSC Staff and Other State Agencies
7633.3 Updating the Operation's Status in CLASS

7633.1 Creating the Decision to Impose Adverse Action Letter

August 2020

Procedure

The district director or designee drafts CLASS Form 2878 Decision to Impose Adverse Action letter. The decision letter must include:

  1. A statement that the permit holder or applicant either did not request an administrative review, or did request an administrative review but the decision to take adverse action was upheld.
  2. The date that the administrative review was held, if applicable.
  3. The name of the CCR staff who conducted the review, if applicable.

  4. The legal authority for the adverse action. 
    The legal authority is Human Resources Code §42.072(a). 
    The director or designee includes additional legal authority, as applicable, and with direction from the legal department, for adverse action because of matches found:

    • during a background check;
    • during a search for a controlling person; or
    • for the denial of a residential license.

    For example, HRC §42.072(f) requires CCR to revoke or deny an operation's permit if the results of a background check show that a person has been convicted of an offense under Title 5, Title 6, or Chapter 43 of the Penal Code.

  5. A statement that the notification letter, CLASS Form 2880 Intent to Impose Adverse Action, was previously sent to the permit holder, explaining the basis for the action.
  6. If the action taken is denial, the director or designee:
    • leaves the check box stating that HHSC has determined the operation poses a risk to the health and safety of children unchecked; and
    • includes a statement that the operation cannot continue to care for children pending the outcome of due process in the Enter any additional information below text box on the Decision to Impose Adverse Action letter.
  7. If appropriate, include a statement that the operation poses an immediate risk to the health or safety of children, and must discontinue operating immediately. See: 7633.12 Requirements if There is Immediate Risk to Children below.
  8. Information about the operation's other requirements, rights, and restrictions.

See:

7633.13 Right to Appeal 
7633.14 Notifying an Applicant Who Is Denied or Revoked About the Restrictions on Reapplying 
7633.15 Notifying an Operation About a Controlling Person's Right to Request a Hearing 
7633.16 Failure to Close the Operation 
7633.17 Posting Requirements

7633.11 Enclosures Included with the Decision to Impose Adverse Action Letter

August 2020

Procedure

When sending CLASS Form 2878 Decision to Impose Adverse Action letter, the district director or designee encloses the following:

  1. a copy of CLASS Form 2880 Intent to Impose Adverse Action Letter; and
  2. a link to view Human Resources Code, Chapter 42 online.

The director or designee will need to update the prefilled language in the Enclosure field of CLASS Form 2878 to reflect a-b, above.

7633.12 Requirements if There is Immediate Risk to Children

August 2020

Procedure

If appropriate, the CLASS Form 2878 Decision to Impose Adverse Action letter includes a statement that the operation poses an immediate risk to the health or safety of children. The director or designee includes a statement that because of these risks, the operation must discontinue operating immediately unless the permit holder obtains injunctive relief from a district court in Travis County or the county in which the operation is located.

The director or designee must specify how the operation poses an immediate danger to the safety or health of children, or both, in the text box provided in the CLASS letter by including information as outlined under 26 TAC §745.751. For example:

Your operation poses an immediate risk to the health and/or safety of children for several reasons. First, you have failed to meet the standards for supervision during eight inspections. Second, two staff members were recently found to have neglected a child, and the child suffered substantial physical injuries because of the neglect. Third, the operation has failed to comply with standard §__.___ eight times.

Texas Human Resources Code §42.072(e)

40 TAC §745.8875

Procedure

The program administrator or designee changes the operation's main page in CLASS by selecting the check box Do not display on public/provider website to reflect that the operation must not be posted.

If the operation poses an immediate threat to the health or safety of children, the inspector and supervisor are responsible for providing immediate notification to the operation by delivering the letter to the permit holder or applicant personally.

If the inspector personally delivers the letter, CLASS Form 2878 Decision to Impose Adverse Action, the inspector documents the following in CLASS by selecting the Corrective/Adverse Action category when entering data in the Chronology:

  • The dates that the letter was delivered to and received by the operation.
  • The name of the person at the operation who received the notification.

If the operation is located at a distance where the inspector is not able to immediately hand-deliver the letter, the inspector:

  1. notifies the permit holder or applicant by telephone;
  2. sends the letter by email or fax; and
  3. sends the letter by both regular and certified mail, with a return receipt requested.

7633.13 Right to Appeal

May 2020

Procedure

The letter must include a statement informing the permit holder or applicant that to appeal the decision, a written request for an appeal must be submitted to: Docket Clerk, HHSC Legal Services, Mail Code Y-956, P.O. Box 149030, Austin, Texas 78714-9030 within 30 days after receiving the decision for revocation, suspension, or denial letter.

The permit holder or applicant must state in the letter the reasons the permit should not be denied, revoked or suspended. Include a statement that a copy of the request must be sent to the inspector who sent the notice letter.

Texas Human Resources Code §42.072(b)

40 TAC §§745.8839-745.8841

The letter must include a statement that if the permit holder or applicant does not request an appeal, the denial or revocation is final 30 days after the letter is received, and to return the permit to Child Care Regulation (CCR) within the 30-day time frame. When the adverse action is final, CCR will publish notice of the action on the CCR page of the public website.

40 TAC §745.8855; 26 TAC §745.8659

Texas Health Resources Code §42.077(a)

7633.14 Notifying an Applicant Who is Denied or Revoked About the Restrictions on Reapplying

August 2020

When CCR staff notify a permit holder or applicant that Child Care Regulation (CCR) is taking action to revoke or deny the permit holder's or applicant's child care permit, staff must also provide written notification about the applicable restrictions on reapplying for a permit.

Procedure

The district director or designee includes a statement in the decision letter (CLASS Form 2878 Decision to Impose Adverse Action Letter), that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

If CCR staff deny an applicant a permit because the applicant applies within five years from the date that the applicant was sustained as a controlling person, the inspector does not apply an additional five-year restriction because applying within five years is not considered a substantial violation to warrant it.

7633.15 Notifying an Operation About a Controlling Person's Right to Request a Hearing

August 2020

When revoking a permit, the district director or designee includes in the notification letter (CLASS Form 2880 Intent to Impose Adverse Action) a statement that each designated controlling person will be notified about the ability to request a due process hearing.

A person's designation as a controlling person is sustained when the revocation and the due process for a designated controlling person are final.

If the revocation of a person's permit or designation as a controlling person is sustained by Child Care Regulation (CCR), the person is restricted for five years from:

  • obtaining a permit to operate a child care operation; or
  • becoming a controlling person.

26 TAC §745.907

Texas Human Resources Code, §§42.072(c); 42.062; 42.072(g)

7633.16 Failure to Close the Operation

May 2020

Procedure

The letter must state that if an operation fails to close after receiving notice to discontinue operating, legal action may result.

7633.17 Posting Requirements

May 2020

Procedure

The letter must include the requirement to post the notice of the adverse action in one or more prominent places near each public entrance as soon as the permit holder receives it.

26 TAC §745.8655

7633.2 Notifying HHSC Staff and Other State Agencies

August 2020

Procedure

The district director or designee sends copies of the letter, CLASS Form 2878 Decision to Impose Adverse Action, to the appropriate CCR enforcement attorney, program administrator, supervisor, monitoring inspector and CBCU inspector.

In addition, the district director or designee sends copies of this letter to the following, as applicable:

  • Local workforce board (Texas Workforce Commission contractor);
  • Child and Adult Food Care Program (Texas Department of Agriculture) staff; and
  • DFPS residential contract manager.

7633.3 Updating the Operation's Status in CLASS

August 2020

Procedure

When CCR denies, suspends or revokes an operation's permit, the inspector changes the Operating Status to No and updates the Effective Date to reflect the Begin Date of the denial, suspension or revocation on the Operation Main page in CLASS. The inspector also notifies the program administrator or designee to check the Do not display on public/provider site box.

7634 Inspecting During the Suspension, Revocation, or Denial Process

March 2017

Licensing staff consults with district director, director of day care field operations or director of residential child care field operations, as appropriate, and the Licensing attorney to determine a plan for inspecting during the revocation, suspension, or denial process.

The purpose of inspecting during this process is to ensure the safety of children. Because the operation still has children in care during this time, Licensing continues to have monitoring responsibility.

Procedure

Inspection procedures are described in 7731 Regulation During Appeal Process.

7635 Sending an Operation Final Notice of Suspension, Revocation, or Denial

Revision 23-3; Effective Sept. 22, 2023

The district director notifies the applicant or permit holder that the decision to revoke, suspend, or deny the permit is final when:

  • the opportunity to request a due process hearing has passed; or
  • the decision is upheld at the due process.

Human Resources Code Section 42.077(a)

26 TAC Section 745.8659

Procedure

The district director or designee:

  • sends a Final Adverse Action letter (CLASS Form 2895) to the permit holder or applicant by both regular and certified mail, with a return receipt requested; and
  • updates the due process fields in CLASS to ensure that the revocation/suspension is reflected on the website.

See also:

5614  Waiving the Right to Administrative Review
5619.2  Documenting the Outcome of an Administrative Review in CLASS
7632  Administrative Review for Adverse Action

7635.1 Statements Required in the Notice of Final Adverse Action (CLASS Form 2895)

September 28, 2018

Procedure

When an inspector sends a final notice of adverse action to a permit holder or applicant, as required in 7635 Sending an Operation Final Notice of Suspension, Revocation, or Denial, the inspector includes the following statements in the notice.

Statement 1: Decision is Final

The final notice must include a statement that the decision to revoke, suspend, or deny is final according to the requirements in Human Resources Code, Section 42.072.

In the case of revocation or suspension, the operation must return the permit, if the operation is still operating when it is notified.

Statement 2: Operation Must Notify Parents or Managing Conservator

If the final notice is being sent to a permit holder who is operating, the final notice must include a statement requiring the permit holder to:

  • mail a notice about the adverse action to the parents or managing conservator of each child enrolled; and
  • send the notice by both certified and regular mail within five days of the date that the permit holder received notice about the denial, suspension, or revocation.

Texas Human Resources Code §42.077(d)

40 TAC §745.8661

Statement 3: HHSC Will Notify the Public

The final notice from HHSC to the permit holder or applicant must also explain that notice about the adverse action will be published by HHSC on the public CCL website. See 7635.2 Additional Actions to Be Taken by Licensing Staff When Adverse Action Is Final.

In the case of a denial, Licensing publishes the notice only if the permit holder was previously operating. Notification will also be sent to any state and federal programs and agencies, as appropriate.

Texas Human Resources Code §42.077(a)

40 TAC §745.8659

Statement 4: Applicant is Restricted from Reapplying

The final notice must contain a statement that the permit holder or applicant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Texas Human Resources Code §42.072(c)

If an applicant applies for a permit within five years from the date that the applicant was sustained as a controlling person, the inspector does not apply an additional five-year restriction because applying within five years is not considered a substantial violation.

Statement 5: Operating Without a Permit Will Result in Legal Action

The final notice must note that beginning or continuing operation without a permit is a violation of the law and will result in legal action.

For a state-operated operation, legal action may not be taken. The inspector notifies the relevant state agency to explain that HHSC will notify the state administrative authority.

7635.2 Additional Actions Taken by Licensing Staff When Adverse Action Is Final

September 28, 2018

Procedure

Notifying HHSC Staff and Other Entities

Licensing staff sends copies of the Final Adverse Action notice (CLASS Form 2895) to the following Licensing staff responsible for the operation:

  1. Licensing attorney
  2. district director
  3. program administrator
  4. supervisor
  5. DFPS residential contract manager (when applicable)
  6. staff of the following (when applicable):
    • the local child and adult food care program
    • the local child care services program

Entering Data in HHSC's Adverse Action System

Once a denial or revocation is final, the designated user of the HHSC Adverse Action Record Sharing (AARS) system enters information about the operation and the operation's controlling persons if the denial or revocation is for one of the following reasons:

  1. The applicant committed an act or omission that resulted in the physical or mental harm to an individual.
  2. The applicant is a threat to the health, safety, or well-being of an individual.
  3. The applicant engaged in the physical, mental, or financial exploitation of an individual.
  4. The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the permit.

Rules, 40 TAC §745.907

Texas Government Code §531.953

See 7774 Documenting in the AARS When the Denial or Revocation of a Permit Is Final or the Role of Controlling Person Is Sustained.

7636 Follow-Up to Final Notice of Suspension, Revocation or Denial

November 2019

Procedure

Within two weeks after the final notice of revocation, suspension, or denial is mailed, the inspector conducts a follow-up inspection to:

  • determine whether the operation is continuing to care for children; and
  • obtain the license, registration, or listing if it has not been returned.

If the inspector previously confirmed closure of the operation after delivery of the Intent to Impose Adverse Action letter, then a follow-up inspection is not necessary (see 7631.4 Follow-Up After Delivery of Notice of Take Adverse Action When Operation Required to Close Immediately).

If no one is present at the operation, the inspector:

  1. documents the inspection type as Follow-up, if the inspector observes enough to confirm the operation is no longer caring for children;
  2. documents the inspection type as Attempted, if the inspector is not able to determine if the operation is continuing to care for children;
  3. documents the observations made during the inspection in a chronology (type Monitoring); and
  4. consults with the supervisor to determine the next course of action.

If the operation continues to operate, the inspector informs the supervisor, who notifies the district director. The director notifies the legal department and requests legal action against the operation (see 7740 Injunctive Relief).

If the revocation, suspension, or denial involves a state-operated operation, the director notifies the associate commissioner of Licensing (see 2280 State-Operated Facilities Exempt From Licensure).

7637 Emergency Suspension and Closure

August 2012

The inspector initiates the emergency suspension and closure of an operation when there is an immediate risk to the health or safety of children cared for or residing at the operation. The inspector, in consultation with a Licensing attorney, may choose to seek injunctive relief rather than using emergency suspension and closure. This may occur at any time in the regulatory process. See 7740 Injunctive Relief.

The decision to suspend and order immediate closure is made by the director.

The inspector discusses the decision to suspend and order immediate closure with the Licensing attorney before implementation.

The inspector documents the action in the CLASS, in the chronology.

Texas Human Resources Code §42.073

40 TAC §745.8877

Procedure

After consulting with legal staff, the inspector carries out the process for emergency suspension and closure, as described in Licensing policy.

See:

7637.1 Completing the Order for Emergency Suspension and Closure
7637.2 Writing the Letter for Emergency Suspension and Closure
7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

7637.1 Completing the Order for Emergency Suspension and Closure

September 28, 2018

Procedure

Licensing staff use Form 2931 Emergency Suspension and Closure Order (to notify an operation that:

  • the operation's license, registration, or listing is suspended; and
  • the operation is being closed for a period of no more than 30 days.

The order must contain the following:

  1. The intent: Please be advised that pursuant to §42.073 of the Texas Human Resources Code (copy attached), the child care operation named below is immediately closed and its permit, license, registration, or listing suspended for a period of 10 calendar days for child care or 30 calendar days.

Name: ________________________

Address: ______________________.

  1. The start date: This order is effective immediately upon receipt of it by the permit holder or the board chairperson.
  2. The end date: This order expires on (date) at midnight.
  3. The basis for the order: The Texas Health and Human Services Commission has found that this child care operation poses an immediate threat to the health or safety or both of the children attending the operation. The reasons for the emergency order are attached as Exhibit A.
  4. The nature of the adverse action: The order must state that Licensing intends to take adverse action, in the form of revocation, against the operation. Licensing staff notify the permit holder in writing as soon as possible after the date of the emergency closure of the operation.
  5. A statement at the bottom of the order to be signed by the person who accepts the order, showing receipt:

I hereby acknowledge the receipt of this order on the _____ day of ___________, 20__.

7637.2 Writing the Letter for Emergency Suspension and Closure

September 28, 2018

Procedure

Before sending Form 2931 Emergency Suspension and Closure Order to an operation as notification that the operation is being closed for 30 days, the inspector prepares a cover letter to attach to the order.

The letter must be printed on HHSC letterhead and include the following details:

  1. The reasons for the closure, including how the operation poses an immediate threat.
  2. A statement requiring the operation to notify parents, guardians, or managing conservators about the following:
    • That it is necessary to pick up their children immediately. Parents whose children are in day care operations must pick up their children within four hours of notification or by the end of the workday, whichever is longer. Parents whose children are in residential care operations must pick their children up as soon as possible.
    • That the operation will send a follow-up letter to parents using certified mail within five days of the effective date of the closure. Copies of the return receipts must be given to Licensing within five days of receipt by the operation.
  3. The date the closure becomes effective.
  4. A statement explaining that a revocation of the permit is being prepared and that HHSC will send the operation a letter listing the reasons for the intent to revoke and offering an administrative review of the decision to revoke.
  5. A statement explaining that the inspector may be required to inspect the operation periodically during the 30-day closure to determine that there are no children in care that would require the operation to be subject to regulation.

7637.3 Delivering the Order and Letter for Emergency Suspension and Closure

September 28, 2018

Procedure

The inspector hand-delivers the emergency suspension and closure order and the letter of deficiencies to either:

  • the operation's director or administrator; or
  • the operation's owner or board chairperson.

The inspector must obtain an acknowledgment of receipt by requiring signatures:

  • on a copy of the letter; and
  • on the emergency suspension order.

For Child Day Care

The inspector ensures that all parents of the children enrolled are notified immediately about the closure.

The parents are notified:

  • by the operation; or
  • by the inspector who delivers the closure notice, while the inspector is at the operation.

When notifying the parents, the operation or the inspector must explain:

  1. why the operation is being closed;
  2. that the closure is for 30 days from the effective date; and
  3. that parents must arrange to pick up their children within four hours, or by the end of the workday, whichever is longer.

If parents cannot be reached or cannot pick up their children within either four hours or the end of the workday, the inspector:

  • notifies law enforcement; and
  • contacts the regional office of Child Protective Services that serves the area in which the operation is located and asks CPS staff to take custody of the children and arrange for their removal.

For Residential Care

The parents, guardian, or managing conservator of the child must make other arrangements for the child's care.

If the child was placed by a state agency, such as DFPS (CPS), another department of HHSC or the Department of State Health Services (DSHS), the inspector notifies that agency.

7637.4 Complete an Affidavit

December 2009

Procedure

The inspector with personal knowledge of events that warranted the order for emergency suspension and closure completes Form 2883 Affidavit for Licensing Representative for Emergency Suspension and Closure.

The affidavit must specify that the operation poses a threat to the health or safety (or both) of children. The affidavit must state the facts that make the immediate action necessary and must be written in consultation with a Licensing attorney. The affidavit must also state that other adverse action, in the form of revocation, will be implemented as soon as possible from the date on which the permit holder received the written notice.

The inspector sends copies of the affidavit, the order, and the letter to the associate commissioner of Licensing and the state office Licensing attorney.

7637.5 Implementation of Revocation

December 2009

Procedure

Adverse action, in the form of revocation, must be implemented no later than five days from the date on which the permit holder received the written notice.

7637.6 The Operation's Notification Requirements

December 2009

Procedure

The inspector ensures that a follow-up letter is sent, certified mail, by the operation to the parents or guardians of the children enrolled at the operation to inform each child's parents or guardians of the action. The notification must be mailed within five days of the effective date of the emergency suspension and closure. The operation must give Licensing copies of the return receipts within five days of receipt by the operation.

7637.7 Update Operating Status

March 2017

Procedure

Licensing staff change the operating status to No and update the Effective Date to reflect the Begin Date of the emergency suspension or emergency closure on the Operation Main page in CLASS.

7638 Follow-Up to Emergency Suspension and Closure

March 2017

Procedure

The inspector establishes a schedule to inspect for compliance with an order for closure as immediate enforcement. The inspector informs the supervisor if the operation continues to operate. The supervisor notifies the district director, who will discuss the need for legal action with the state office Licensing attorney.