7700, Legal Actions When an Operation Disagrees with the Actions of an Inspector

September 28, 2018

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

If an adverse action is taken or an administrative penalty is imposed, an operation may request a hearing before an administrative law judge (ALJ) from the State Office of Administrative Hearings (SOAH).

The inspector may request injunctive relief, including restraining orders and civil penalties when necessary to protect children.

An operation may seek injunctive relief from the district court in Travis County or from the county in which the operation is located. See 7733 Suit Filed.

Texas Human Resources Code §42.072(e)

40 TAC §§745.8613745.8835745.8837745.8681745.8877

Procedure

Administrative Review

An administrative review is a review conducted by a supervisor or other designated Licensing staff when an operation disagrees with certain decisions or action made by the inspector. See 7710 Administrative Reviews.

40 TAC §§745.8801745.8803

Release Hearing

An individual may request a release hearing held by the SOAH, when the individual has been notified that he or she will be listed in the DFPS Central Registry as a perpetrator of abuse, neglect, or exploitation of a child. See 7720 Hearings Concerning Child Abuse, Neglect, or Exploitation Findings.

40 TAC Chapter 745, Subchapter M, §745.8805a(1)-(3)

Due Process Hearing

A due process hearing is a hearing held by the SOAH at an operation’s request if the operation has had:

  • an adverse action of denial, revocation, suspension; or
  • an adverse amendment to a license certificate, registration, listing, or compliance certificate.

A due process hearing may also be held by SOAH at the request of an operation’s governing body, director, or designee, if a recommendation of an administrative penalty is made against the operation. See 7730 Due Process Hearings, and 7500 Administrative Penalties.

Texas Human Resources Code §42.078

40 TAC Chapter 745, Subchapter M, §745.8803

Combination Hearing

A combination hearing is a single hearing held by SOAH combining either of the following:

  • A due process hearing for an adverse action and a release hearing. This may be done when an adverse action is being taken against an operation and the operation is the designated perpetrator of abuse, neglect, or exploitation, and the same set of facts apply to both actions; or
  • A due process hearing for a revocation and a due process hearing for a controlling person. This may be done when an operation’s permit is being revoked and those designated as controlling request due process hearings, if the judge decides to combine the hearings. If so, the SOAH judge decides how to handle the designation of the controlling persons at the time of the revocation hearing.

Injunctive Release

An injunction is a legal action by district court. Licensing may seek an injunction enjoining a permit holder from operating. A permit holder may seek injunctive relief from Licensing to continue operating.

See:

7740 Injunctive Relief

7733 Suit Filed

7760 Settlement of Legal Case

Hearing Requested by Controlling Person

A person designated by Licensing as controlling may request a due process hearing conducted by SOAH.

A controlling person against whom Licensing recommends imposing an administrative penalty may also request a due process hearing.

40 TAC Chapter 745, Subchapter M

Texas Human Resources Code §§42.07442.072(e)42.078

Texas Government Code, Chapter 2001

40 TAC §§745.8851745.909

 

7710 Administrative Reviews

December 2013

Licensing staff conduct administrative reviews to determine whether a decision made by Licensing or an action taken by Licensing was appropriate, according to the applicable licensing statutes, administrative rules, or minimum standards when a permit holder or individual disputes the action or decision.

40 TAC §§745.8801745.8803

 

7711 The Right to an Administrative Review

September 28, 2018

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

  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

40 TAC §§745.8805745.8807

40 TAC §745.21

 

7711.1 When an Operation is Entitled to an Administrative Review

September 28, 2018

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.

Human Resources Code §42.073

40 TAC §745.8805

 

7711.2 When an Individual is Entitled to an Administrative Review

September 28, 2018

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.

40 TAC §§745.8805745.8807

 

7711.3 Explaining the Right to an Administrative Review

September 28, 2018

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 particular 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 7713 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.

40 TAC §§745.8806745.8809

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:

7713.1 Determining Whether a Request for a Review Meets the Due Date

 

7711.4 Waiving the Right to an Administrative Review

December 2013

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.

40 TAC §745.8817

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 7713.1 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 7713.22 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 7713.1 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 7717 Notifying a Requestor About the Outcome of an Administrative Review); and
  • enters a date in the decision date field in CLASS.

 

7712 Roles for Conducting an Administrative Review

September 28, 2018

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.

40 TAC §745.8813

 

7713 Receiving a Request for an Administrative Review

December 2013

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.

40 TAC §§745.8806745.8809

 

7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date

June 2016

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.

40 TAC §745.8806

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 time 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 time 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 7713.11 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 7713.12 When the Request for an Administrative Review Does Not Meet the Due Date.

 

7713.11 When the Request for an Administrative Review Meets the Due Date

November 2011

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:

7714 Initiating Contact with the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

 

7713.12 When the Request for an Administrative Review Does Not Meet the Due Date

December 2013

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 7711.4 Waiving the Right to an Administrative Review.

 

7713.2 Determining Whether a Request for an Administrative Review is Complete

November 2011

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.

40 TAC §745.8809

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

 

7713.21 When a Request for an Administrative Review is Complete

September 28, 2018

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 7714 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.

 

7713.22 When a Request for an Administrative Review is Incomplete

November 2011

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. completes Form 2809 Information Required for Administrative Review Letter:
    • 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. mails the completed Form 2809 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 Form 2809 Information Required for Administrative Review Letter was mailed,
    2. the information needed in order for the request to be considered complete, and
    3. the date that the information is due back to Licensing.

 

7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date

November 2011

Procedure

To determine whether the 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 Licensing mailed Form 2809 Information Required for Administrative Review Letter 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 time period that is not a Saturday, Sunday, or legal holiday.

 

7713.24 When the Information Missing From a Request for an Administrative Review is Received by the Due Date

November 2011

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:

7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date

7714 Initiating Contact with the Requestor of an Administrative Review

7715 Conducting an Administrative Review Conference

 

7713.25 When the Information Missing From a Request for an Administrative Review is Not Received by the Due Date

September 28, 2018

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 7717 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 7713.23 Determining Whether the Information Missing From a Request for an Administrative Review is Received by the Due Date).

 

7714 Initiating Contact with the Requestor of an Administrative Review

April 2011

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 7714.1 Scheduling an Administrative Review Conference).

40 TAC §745.8815

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.

 

7714.1 Scheduling an Administrative Review Conference

April 2011

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 7715 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.

40 TAC §745.8815

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.

 

7714.2 Documenting the Initial Contact with the Requestor in CLASS

April 2011

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

 

7715 Conducting an Administrative Review Conference

September 28, 2018

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 7714.1 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).

 

7715.1 If the Requester Waives the Right to the Administrative Review Conference

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.

40 TAC §745.8815

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.

 

7716 Determining the Outcome of an Administrative Review

December 2020

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.

40 TAC §§745.8801745.8815

Procedure

When conducting an administrative review, the reviewer does the following in order 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 7716.1.

 

7716.1 Overturning Citations for Abuse, Neglect or Exploitation

December 2020

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:
7716.2 Documenting the Outcome of an Administrative Review in CLASS
7718 Notifying DFPS of an Overturned Citation of Abuse, Neglect, or Exploitation

 

7716.2 Documenting the Outcome of an Administrative Review in CLASS

December 2020

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 7717 Notifying a Requestor About the Outcome of an Administrative Review).

 

7716.3 Amending an Action or Decision as the Result of an Administrative Review

December 2020

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:
7716.2 Documenting the Outcome of an Administrative Review in CLASS
4165 Completing a Supplemental Inspection Form
7718 Notifying DFPS of an Overturned Citation for Abuse, Neglect or Exploitation

 

7717 Notifying a Requestor About the Outcome of an Administrative Review

May 2020

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 Child Care Regulation (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.

40 TAC §745.8815

 

7717.1 Notifying an Operation of the Outcome of the Administrative Review

September 28, 2018

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.

40 TAC §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. 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 7716.3 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.

 

7717.2 Notifying an Individual of the Outcome of the Administrative Review

September 28, 2018

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)

 

7718 Notifying DFPS of an Overturned Citation for Abuse, Neglect or Exploitation

May 2020

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 7716.1 Additional Considerations if Recommending an Abuse, Neglect or Exploitation Citation be Overturned

7716.2 Documenting the Outcome of an Administrative Review in CLASS

7716.3 Amending an Action or Decision as the Result of an Administrative Review

 

7720 Hearings Concerning Child Abuse, Neglect, or Exploitation Findings

September 28, 2018

A person has an opportunity to request a due process hearing when:

  • DFPS finds that the person abused, neglected, or exploited a child following in a child care operation, and the finding is upheld at the administrative review or the person waives the review; or
  • HHSC conducts a background check on the person and seeks to release that DFPS has designated the person as a perpetrator of child abuse, neglect, or exploitation.

The finding may also be the basis for an enforcement action for which the person may request a due process hearing. In that situation, the person will have a hearing related to the finding and the consequent enforcement action at the same time. An HHSC attorney will represent HHSC at the hearing related both to the finding and the enforcement action.

Procedure

If the finding of an investigation conducted by DFPS is to be the basis for a Licensing action, and that investigation finds that a person has abused, neglected, or exploited a child, Licensing may offer a release hearing if the following has occurred:

  • the investigating program has offered an Administrative Review of Investigation Findings (ARIF) and the person has waived the review either in writing or by failing to request the review within the required time period; or
  • the investigating program has held an ARIF and the program’s finding has been upheld.

 

7721 When a Minor Turns Eighteen

September 28, 2018

Licensing staff follow policy and procedures relating to adults who were designated as a perpetrator of abuse or neglect once a minor who was designated as a perpetrator of abuse or neglect:

  • turns 18 years old; and
  • has received notification of the opportunity to a due process hearing to challenge the finding.

 

7722 Sustaining a Perpetrator in IMPACT

September 28, 2018

CBCU staff sustain a perpetrator in the Information Management Protecting Adults and Children in Texas (IMPACT) if:

  • HHSC conducts a background check on a person who has a Child Protective Services or Adult Protective Services finding for the abuse or neglect of a child; and
  • the person does not make a timely request for a due process hearing to challenge the finding.

Procedure

CBCU staff sustains the perpetrator in the Administrative Review/Appeal stage in IMPACT by:

  1. choosing FPS Position Upheld from the Result drop-down menu;
  2. documenting the outcome, in detail, in the Narrative field;
  3. selecting the check box by the indicator for Change Role to Sustained Perpetrator; and
  4. entering the date the individual was notified of the decision.

See internal document, Process CR Checks for Licensing Job Aid, for additional details.

Exception

If the individual who is designated as a perpetrator of abuse or neglect is a minor and the due process hearing was waived, CBCU staff do not sustain the minor as a perpetrator in IMPACT.

 

7730 Due Process Hearings

January 2022

The following persons may request due process hearings related to certain Child Care Regulations (CCR) decisions or actions in writing by certified or regular mail, email or fax:

  • an applicant for, or holder of, an operational permit; 
  • a person designated as a controlling person;
  • a licensed administrator, or applicant for, an administrator’s license; and
  • a background check subject.

When CCR staff receive a due process request, staff send the request to the appropriate Child Care Licensing Legal Enforcement Department contact. 

40 TAC §§745.8837745.8839745.8841

26 TAC §§745.909745.8613

When an Applicant for, or Holder of, an Operational Permit May Request a Due Process Hearing

The applicant or permit holder may request a due process hearing on a CCR decision intended to:

  1. deny, revoke, refuse to renew, or suspend a permit;
  2. impose an administrative penalty (permit holder only); or
  3. place a new or additional restriction or condition on the permit after initial issuance (permit holder only).

When a Controlling Person May Request A Due Process Hearing

A person designated as controlling may request a due process hearing on a decision regarding the designation.

A controlling person may request a due process hearing when an administrative penalty is being imposed against the individual.

When a Licensed Administrator or Applicant for an Administrator’s License May Request A Due Process Hearing

A licensed administrator or applicant for an administrator’s license may request a due process hearing if HHSC decides to deny, revoke, refuse to renew, or suspend the administrator’s license.

When a Background Check Subject May Request a Due Process Hearing

A background check subject may request a due process hearing to challenge: 

  • a finding of abuse, neglect or exploitation that has not been sustained when the subject receives a notification from the Centralized Background Check Unit (CBCU) of the finding; or
  • a determination by CBCU staff and an Enforcement attorney for Child Care that the person’s presence presents an immediate threat to the health or safety of children for a reason that is not related to a finding of abuse, neglect or exploitation. 

Waiver of Due Process Rights

Due process rights for a hearing are waived by the operation or individual, if the rights were not requested according to 40 TAC §745.8839 and §745.8841.

If due process rights are waived by not requesting a hearing according to the rules, the CCR decision or action, or both, is effective the day after the date that the option to request a hearing expires, unless the due process hearing was offered due to the designation of a controlling person.

If the due process hearing was offered due to the designation of a controlling person, and the controlling person does not request a hearing, the CCR decision is effective on:

  • the day after the date that the revocation is final and;
  • after the controlling person has waived his or her rights to a due process hearing.

26 TAC §745.907(b)

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

Expediting the Appeals Process

If an applicant or permit holder asks to expedite a CCR decision or adverse action, or both, the inspector directs the applicant or permit holder to send CCR a written waiver of the right to a due process hearing before the 30-day time frame has expired.

The CCR decision or action is effective on the date that CCR receives the written waiver.

40 TAC §745.8855

State Office of Administrative Hearings

If granted, the request for an appeal is forwarded to the State Office of Administrative Hearing (SOAH) by the docket clerk for the Child Care Licensing Legal Enforcement Department.

Operating During the Appeal Process

An operation cannot continue to operate pending appeal of a denial or a suspension.  An operation may continue to operate during the appeal of a revocation, unless CCR has determined that the operation poses an immediate risk to the health or safety of children.  If CCR informs the operation of such a determination, the operation cannot continue to operate pending appeal unless a district court in Travis County or in the county where the operation is located overrules CCR’s determination of risk and issues an injunction allowing the operation to stay open pending appeal.

HRC §§42.072(e)42.072(d-1)

40 TAC §§745.8835745.8839745.8841745.8873745.8875

Appeals Process

When a person listed under 7730 Due Process Hearing requests an appeal, Child Care Licensing Legal Enforcement Department staff determines if the request is timely. If the request is timely, the enforcement department submits a request to SOAH, which will, in turn, assign a docket number and an administrative law judge to handle the case.

Once the hearing has been docketed, Child Care Licensing Legal Enforcement Department staff track time lines and arrange for discovery, amended notices, and so on, in accordance with the relevant law.

The enforcement attorney may ask the inspector to assist in presenting testimony or providing background information or evidence to be used at the hearing. 

40 TAC §745.8843

Documentation

On the applicable due process page in CLASS, the inspector documents:

  • the status of the due process hearing; and
  • information on the hearing.

 

7731 Regulation During Appeal Process

September 28, 2018

Procedure

After a request for an appeal has been granted, the inspector:

  • confers with the Licensing attorney about monitoring the operation; and
  • establishes a schedule so that inspections continue (inspections may be unannounced).

After inspecting, the inspector sends a letter to the permit holder stating the concerns, the corrections required to address the concerns, and the time limits within which the corrections should be made. If appropriate, the inspector discusses with the permit holder the fact that corrections are needed or Licensing may pursue an injunction.

If hazards are noted or conditions in the operation warrant it, the director and the Licensing attorney confer to determine if a request for legal action is necessary.

The inspector continues to inspect the operation as long as the operation operates.

 

7732 When an Administrative Law Judge Issues a Final Decision on an Appeal

September 28, 2018

Procedure

When a final decision is issued on an appeal and the administrative law judge (ALJ) upholds the adverse action, the district director or designee sends the appellant the Final Adverse Action letter (CLASS Form 2895) as notification, if:

  • the appellant requested a rehearing and the request was denied; and
  • the appellant does not then file suit in a district court within 30 days after the decision.

The director or designee:

  • explains in the letter that the decision to deny, suspend, or revoke the permit is final according to the requirements in the Human Resources Code, Section 42.072; and
  • sends the letter to the appellant by both regular and certified mail, with a return receipt requested.

If the appellant has a permit but has not yet returned it to Licensing, the appellant must return it within five calendar days of receiving the letter.

In the case of a denial or revocation of a permit, the appellant whose permit has been denied or revoked may not apply for another permit before the fifth anniversary after the adverse action takes effect.

Operating without a permit is a violation of the law and results in legal action.

The Licensing director sends copies of the final letter to the associate commissioner of Licensing and the Licensing attorney.

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

Follow Up

Within two weeks after the letter is sent to the operation, the inspector conducts a follow-up inspection to determine whether the operation is continuing to care for children and obtain the license, certification, registration, or listing if the operation has not returned it. See 7636 Follow-Up to Suspension, Revocation, or Denial.

 

7733 Suit Filed

September 28, 2018

If the appellant files suit in a district court, the person may continue to operate during the appeal of a revocation unless the revocation was based on the operation posing an immediate risk to the health or safety of children. An operation cannot operate pending the appeal of a denial.

The inspector notifies the appellant in the final denial or revocation letter:

  • of the violations of minimum standards that caused the denial or revocation; and
  • that the operation poses an immediate risk to the health or safety of children.

The operation may seek injunctive relief from a district court in Travis County or in the county in which the operation is located to allow operation during the pendency of a district court appeal of the revocation.

The court may grant injunctive relief allowing the operation to operate pending appeal of the revocation only if the court finds that the child care operation does not pose a health or safety risk to children.

A court granting injunctive relief under this section has no other jurisdiction over an appeal of final Licensing action unless conferred by Chapter 2001, Texas Government Code.

Texas Human Resources Code §42.072

Texas Government Code, Chapter 2001

40 TAC §§745.8877745.8879

 

7740 Injunctive Relief

December 2009

Injunctive relief may be requested to:

  • obtain a temporary restraining order; or
  • obtain a temporary or permanent injunction.

 

7741 Temporary Restraining Order

December 2009

Procedure

The Licensing attorney may request from the state attorney general a temporary restraining order, valid for 14 days, pending a temporary injunction hearing.

 

7742 Injunction

December 2009

The Licensing attorney may request an injunction from the state attorney general. It may be requested at any time if there is substantial risk of immediate harm to the health and safety of children in care, or an operation subject to regulation is operating illegally and has failed to submit an application.

Texas Human Resources Code §42.074

40 TAC §745.8681

Procedure

The inspector:

  • makes the decision to request the temporary restraining order (TRO) and injunction with the supervisor, director, and Licensing attorney;
  • completes a Form 2883 Affidavit as listed in 7637 Emergency Suspension and Closure; and
  • sends it to the Licensing attorney along with documentation necessary to show why the operation should cease operating immediately.

The Licensing attorney will ask the HHSC liaison with the Attorney General's Office to request an injunction from the Attorney General's Office.

 

7742.1 Following Up an Injunction

September 28, 2018

After an operation has been served an injunction, the inspector, with the concurrence of the attorney representing HHSC, develops a plan for follow-up.

Procedure

The inspector:

  • follows up to determine if the court order is being obeyed. If it is not, the inspector contacts a Licensing attorney; and
  • document violations of the court order and sends a copy to the state office Licensing attorney.

The Licensing attorney may file for contempt in district court, when appropriate, for violations of temporary restraining orders, injunctions, and appeals.

 

7750 Civil and Criminal Penalties

September 28, 2018

Civil and criminal penalties are considered in consultation with the Licensing attorney and the Office of the Attorney General.

The Human Resources Code, §42.075 (Civil Penalty), provides for civil penalties for any person who:

  • threatens serious harm to a child in an operation by violating laws, administrative rules, or licensing minimum standard rules;
  • violates a provision of the law, administrative rules, or licensing minimum standard rules three or more times within a 12 month period;
  • places a public advertisement for an unlicensed operation;
  • knowingly fails to meet or maintain any criterion of an exemption and engages in activities that require a license or registration; or
  • fails to inform the department of a change in status and knows the change in status requires the person to be licensed or registered.

The Human Resources Code, §42.076, provides for criminal penalties:

  • Section 42.076(a) states that a person who operates a child care operation or child placing agency without a license commits a Class B misdemeanor.
  • Section 42.076(b) states that a person who operates a family home without a required listing or registration commits a Class B misdemeanor.
  • Section 42.076(c) states that a person who places a public advertisement for an unlicensed facility or an unlisted or unregistered family home commits a Class C misdemeanor.

The Human Resources Code, §42.056 provides for civil penalties (a Class B misdemeanor) if:

  • the director, owner, or operator of a child care center knowingly:
    • fails to submit to Licensing information about a person for use in background checks, and
    • employs the person at the child care center or otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care; or
  • the director, owner, or operator of a day care center receives notice from Licensing that, based on the results of a person’s background check, the person may not be present at the child care center, and the director, owner, or operator knowingly:
    • employs the person at the child care center, or
    • otherwise allows the person to regularly or frequently stay or work at the child care center while children are being provided care.

Human Resources Code §42.0761 provides for penalties (a Class B misdemeanor), when an owner or operator of a child care center knowingly operates the child care center:

  • without a director who meets the qualifications of a director; or
  • without the routine presence of a director during the child care center’s hours of operation.

Texas Human Resources Code §§42.05642.07542.07642.0761

 

7760 Settlement of Legal Case

September 28, 2018

After the attorney general has accepted a case, agreeing to represent Licensing, the attorney general may suggest a settlement.

If the attorney general contacts the state office HHSC litigation counsel suggesting proposed settlement terms, the litigation counsel consults with the district director before making a decision about the settlement of a legal case involving temporary restraining orders, injunctions, or appeals of Licensing decisions to district courts.

 

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

December 2012

Within seven days of notifying a permit holder about the intent to revoke the permit of a child care operation, the inspector designates the controlling persons whose actions contributed to the revocation of the operation’s permit. See 5400 Controlling Person.

The inspector may designate a person at an operation as controlling, regardless of whether the person’s name is submitted by the operation, if the person meets the definition of a controlling person.

40 TAC §745.905

Each person designated as controlling is offered an opportunity to review and appeal the designation through the following:

  • An administrative review conducted by Licensing staff
  • A due process hearing conducted by the State Office of Administrative Hearings (SOAH)

At Licensing’s discretion, the administrative review regarding the designation may be combined with the review regarding the revocation of the operation’s permit. In addition, the administrative law judge may combine SOAH hearings that involve issues related to the same decision.

40 TAC §745.909

A designated controlling person becomes a sustained controlling person when the revocation is final and:

  • when the person has waived due process rights regarding the designation; or
  • when the designation was upheld after exhausting due process rights.

40 TAC §745.907(b)745.8855

 

7771 Choosing the Persons to Designate as Controlling

September 2012

After an inspector notifies a permit holder about the intent to revoke an operation’s permit, the inspector designates each controlling person who actively served as a controlling person when the events occurred that led to the revocation. The person may be designated, even if he or she is not actively serving as controlling person when the revocation is initiated.

40 TAC §745.905

Procedure

In the CLASS on the Designate Controlling Persons page, the inspector:

  1. evaluates the list of controlling persons who have actively been associated with the operation within the two years preceding the adverse action (including the controlling persons who are presently inactive);
    and
  2. designates the controlling person by selecting the check box in the Designated column;
    or
  3. selects the appropriate reason from the drop-down box in the Reason not Designated column.

Reasons Not to Designate a Controlling Person

The following chart explains when not to designate a controlling person:

Reason Not Designate is … when …
Not at Branch (CPA only) … the controlling person is associated with a branch of the CPA that is not involved in the events responsible for the revocation.
Not responsible for revocation events  the controlling person is not involved in the events responsible for the revocation.

 

For example, the events leading to the revocation occurred only after a controlling person became inactive or before the controlling person became active.

 

7771.1 Notifying Persons About the Intent to Designate

March 2020

Procedure

Within seven days of sending an intent to revoke letter (CLASS Form 2880 Intent to Impose Adverse Action) to a permit holder, the inspector sends a copy of the intent to revoke letter and CLASS Form 2762 Intent to Designate a Controlling Person, by both certified and regular mail, to each person who has been designated as a controlling person for the operation.

Content of the Letter

The Intent to Designate a Controlling Person letter includes the following information:

  1. The date that Licensing received information from the operation naming the person as a controlling person (or, if the person was not named as a controlling person by the operation, the date that Licensing decided to designate the person as controlling).
  2. A statement explaining the intent to revoke the operation’s permit, indicating the operation’s address, and explaining that a copy of the intent to revoke letter is enclosed.
  3. A statement explaining the intent to designate the person as controlling due to the intent to revoke the operation’s permit.
  4. The facts to support Licensing’s decision to designate the person, if Licensing intends to designate the person as controlling and the operation did not submit the person’s name to Licensing as a controlling person.
  5. A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062.
  6. A statement explaining the controlling person’s right to an administrative review and the procedures for requesting an administrative review, including the name of the person to whom a written request for an administrative review must be addressed.
  7. Notice of the right to request an administrative review within 15 days after receipt of the letter, if the person disagrees with the designation.
  8. A statement that the designation will be sustained when the revocation for the operation is final, and if:
    • the designated controlling person has waived due process rights regarding the designation; or
    • the designation for the controlling person is upheld after due process rights are exhausted.
  9. A statement explaining the consequences of being a sustained controlling person.
  10. The signature of the director of day care or residential child care licensing, the district director, or his or her designee.

Enclosures

The inspector encloses:

  1. Form 2880 Intent to Impose Adverse Action letter;
  2. a link to the Human Resources Code, Chapter 42; and
  3. a copy of 40 TAC §§745.8809-745.8817.

Delivering the Letter

The inspector:

  • delivers the letter (Form 2880) to the controlling person either in person or by courier, and obtains a signed receipt; or
  • sends the letter by both regular and certified mail, with a return receipt requested.

The inspector also sends a copy of the letter to the:

  1. district director;
  2. Licensing attorney; and
  3. supervisor.

 

7772 Process of Providing an Administrative Review of the Designation as a Controlling Person

June 2015

The controlling person must be informed of the right to request an administrative review due to the designation (see 7710 Administrative Reviews).

The administrative review of the appropriateness of the designation for each controlling person may be:

  • combined with the operation’s administrative review regarding the intent to revoke its permit; or
  • held separately for each designated controlling person.

When held separately, the administrative review to revoke the operation's permit must be completed first, and the decision to revoke the operation's permit upheld before conducting the administrative review of the designation as controlling person for each person named.

40 TAC §745.909

 

7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement

September 28, 2018

Procedure

Adverse Action Is Overturned

If the person conducting the administrative review for the revocation overturns the decision to revoke the operation’s permit, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In CLASS, in the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page, the director or designee:

  1. selects Stop from the Action drop-down box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that the due process was stopped.

Within 15 days of the revocation being overturned, the inspector sends CLASS Form 2766 Stop Due Process of a Controlling Person, to each designated controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

Adverse Action is Stopped

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Stop Adverse Action:

  • the due process for each controlling person designated as a result of the revocation is automatically stopped; and
  • CLASS automatically populates the fields under the Stop Controlling Person Designation Action and Reason section on the Controlling Person Designation Due Process page.

If the adverse action for the revocation of the operation’s permit is stopped with a reason of Settlement, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In CLASS, in the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page, the director or designee:

  1. selects Settlement from the Action drop-down box;
  2. enters the effective date of the settlement in the Effective Stop Date field; and
  3. enters the reason for the settlement in the Reason narrative box, along with any conditions of the settlement relating to the controlling person.

Within 15 days of the revocation being stopped, the inspector sends CLASS Form 2766 Stop Due Process of a Controlling Person, to each designated controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

 

7772.2 No Administrative Review Requested by a Controlling Person

September 2012

Procedure

If a designated controlling person does not request an administrative review within 15 days after receiving an intent to designate letter, the inspector takes the following actions in the CLASS:

  • Sets the CP Administrative Review field to Waived
  • Sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the designated controlling person

If the designated controlling person does not request an administrative review, but the operation does request an administrative review due to the revocation of its permit, the inspector postpones sending the notice offering a due process hearing to the controlling person until the administrative review is completed and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped or Results in a Settlement.

See also:

7713.1 Determining Whether a Request for an Administrative Review Meets the Due Date

7772.5 Notifying Person About Licensing’s Decision to Designate Controlling Person

 

7772.3 Decision to Designate a Controlling Person is Overturned

September 2012

If the person conducting the administrative review overturns the decision to designate a controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision letter to the person by both certified and regular mail within 15 days of the administrative review. The purpose of the letter is to inform the person that the designation is overturned.

If the operation requested an administrative review due to the revocation of its permit, the administrative review for the controlling person is postponed until the administrative review for the revocation is complete and the decision to revoke the operation’s permit is upheld.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

 

7772.4 Decision to Designate a Controlling Person is Upheld

June 2015

Procedure

If the person conducting the administrative review upholds the decision to designate the controlling person, he or she sends CLASS Form 2763 Controlling Person Administrative Review Decision Letter to the individual by both certified and regular mail within 15 days of the administrative review.

If the administrative review for the revocation of the operation’s permit is overturned or stopped, the inspector follows the procedures explained in 7772.1 Adverse Action Is Overturned, Stopped, or Results in a Settlement.

Also see 7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person.

 

7772.5 Notifying Persons About Licensing’s Decision to Designate a Controlling Person

September 2012

Each person who continues to be designated as controlling after the administrative review or the offer of an administrative review receives a letter (CLASS Form 2763 Controlling Person Administrative Review Decision), offering a due process hearing. See 7730 Due Process Hearings.

The due process hearing may be:

  • combined with the operation’s hearing; or
  • held separately for each designated controlling person at the discretion of the judge, in the case of a hearing conducted by the State Office of Administrative Hearings (SOAH).

40 TAC §745.909

 

7772.51 Content of CLASS Form 2763 (Controlling Person Administrative Review Decision Letter)

September 2012

Procedure

The inspector notifies a designated controlling person about the right to a due process hearing, in writing, by sending the CLASS Form 2763 Controlling Person Administrative Review Decision Letter, with a return receipt requested, and includes the following information:

  1. A statement explaining that the person was informed in writing about Licensing’s intent to designate him or her as controlling, the reasons for the designation, and the offer of an administrative review.
    • The letters are enclosed along with a copy of the letter sent to the operation regarding Licensing’s decision to impose adverse action letter against the operation.
  2. A statement:
    • explaining that the person did not request an administrative review; or
    • acknowledging that the person requested an administrative review and explaining that the decision to designate the person as controlling was upheld. In this case, the inspector includes the date of the review and the name of the person who conducted the review.
  3. A statement explaining that the legal authority for the action is Human Resources Code §42.072(g)(2) and (g)(4), and §42.062.
  4. A statement informing the person about the right to a due process hearing and explaining that person’s request for a hearing must be postmarked within 30 days after the person receives the letter (see 7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person).
  5. The signature of the district director or his or her designee.

 

7772.52 Instructions for Requesting a Due Process Hearing to Appeal the Designation of Controlling Person

September 2012

When preparing to send CLASS Form 2763 Controlling Person Administrative Review Decision to a person designated as a controlling, the inspector must include a statement explaining that the person may appeal the decision by sending a written request for a due process hearing to:

Docket Clerk, Legal Services, Mail Code Y-956
Texas Health and Human Services Commission
P.O. Box 149030
Austin TX 78714-9030

The inspector instructs the person to:

  • state in the letter the reasons why the person should not be designated as controlling; and
  • request that a copy of the request for a due process hearing be sent to the inspector who sent the letter.

 

7772.53 Consequences of a Controlling Person Not Responding to a Letter About the Right to Appeal (CLASS Form 2763)

September 2012

Procedure

If the person designated as a controlling person does not submit a request for a due process hearing within 30 days of receiving CLASS Form 2763 Controlling Person Administrative Review Decision letter, the person waives his or her rights to a hearing, and the designation is sustained when the revocation of the operation’s permit is final.

A person who is a sustained controlling person:

  • cannot be issued a permit; and
  • cannot be a controlling person in a child care operation for a five year period.

 

7772.54 Enclosures When Instructing a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

September 28, 2018

Procedure

When instructing a person designated as controlling about the right to appeal, the district director or designee encloses with CLASS Form 2763 Controlling Person Administrative Review Decision letter:

  1. CLASS Form 2762 Intent to Designate Controlling Person;
  2. Form 2880 Intent to Impose Adverse Action Letter;
  3. Form 2878 Decision to Impose Adverse Action Letter;
  4. a link to Human Resources Code, Chapter 42;
  5. a copy of 40 TAC, §§745.8831-745.8855; and
  6. a copy of the Request for a Due Process Hearing Regarding a Controlling Person Designation form (the last page of Form 2763).

 

7772.55 Delivering the Letter Notifying a Person About the Right to Appeal a Designation as Controlling (CLASS Form 2763)

September 28, 2018

To notify a person about the right to appeal a designation of Controlling, the district director or designee:

  • delivers the decision letter (CLASS Form 2763 Controlling Person Admin Review Decision Letter) in person to the controlling person or sends it by courier, and obtains a signed receipt; or
  • sends the letter by both regular and certified mail to the controlling person, with a return receipt requested.

The district director sends a copy of the letter to the director, Licensing attorney, supervisor, and inspector responsible for the operation.

 

7773 Providing a Due Process Hearing for a Designated Controlling Person

September 2012

A designated controlling person must be informed about the right to request a due process hearing to contest the designation. See 7730 Due Process hearings.

The due process hearing for each controlling person may be:

  • combined with the operation’s due process hearing, regarding the decision to revoke its permit; or
  • held separately for each designated controlling person.

40 TAC §745.909

 

7773.1 Controlling Person Did Not Request a Due Process Hearing

September 28, 2018

Procedure

If the designated controlling person does not request a due process hearing within 30 days after receiving the Controlling Person Administrative Review Decision Letter, CLASS Form 2763, the inspector postpones sending the final notice to the controlling person until the due process hearing for the revocation is waived or upheld.

If the Due Process Hearing Overturns a Decision to Revoke

If a due process hearing overturns the decision to revoke an operation’s permit, the district director stops the due process for each controlling person designated as a result of the revocation.

In the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page in CLASS, the director or designee:

  1. selects Stop from the Action drop-down box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that due process was stopped.

Within 15 days of the revocation being overturned, the inspector sends CLASS Form Stop Due Process of a Controlling Person to the controlling person. The letter notifies the controlling person that Licensing no longer seeks to designate the person as a controlling person.

If the Due Process Hearing for Adverse Action is Upheld or is Not Requested

If the permit holder waived the right to a due process hearing for the revocation of the operation’s permit, or if the due process hearing upholds the decision to revoke the operation’s permit, the inspector must do as follows within 15 days:

  • Change the CP Appeal Hearing (due process) field from Pending to Waived;
  • Send a final notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person.

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

 

7773.2 When a Controlling Person Requests a Due Process Hearing to Appeal the Designation

 

7773.21 Designation of Controlling is Upheld at a Due Process Hearing

September 28, 2018

Procedure

If a due process hearing conducted by the State Office of Administrative Hearings (SOAH) upholds a person’s designation as a controlling person, the district director, manager, or his or her designee takes the following steps in CLASS:

  • Changes the CP Appeal Hearing field from Requested to Upheld;
  • Sends CLASS Form 2764 Final Sustained Controlling Person to the controlling person with 30 days of receiving the court’s decision.

See 7773.3 Final Notice to Sustain the Designation of Controlling Person.

 

7773.22 Revocation is Upheld at a Due Process Hearing but the Designation of Controlling Person is Overturned

September 28, 2018

Procedure

If the controlling person requests a due process hearing and the due process hearing overturns the decision to sustain the designation of controlling person, the district director or his or her designee changes the CP Appeal Hearing field from Requested to Overturned in CLASS.

 

7773.23 Revocation and Designation are Both Overturned at a Due Process Hearing

September 28, 2018

Procedure

If the due process hearing overturns a decision to revoke an operation’s permit, the district director or designee stops the due process for each controlling person designated as a result of the revocation.

In the Stop Controlling Person Designation Action and Reason section of the Controlling Person Designation Due Process page in CLASS, the director or designee:

  1. selects Stop from the Action drop down-box;
  2. enters the effective date in the Effective Stop Date field; and
  3. enters the reason that due process was stopped.

 

7773.3 Final Notice to Sustain the Designation of Controlling Person

September 28, 2018

If Licensing’s findings are upheld for the designation of controlling person and the revocation is made final, the district director or designee, notifies the controlling person that the decision to designate the person as controlling is final when all administrative appeals and challenges have been exhausted.

A designated controlling person becomes a sustained controlling person when the revocation is final and:

  • the person has waived his or her right to due process regarding the designation; or
  • the designation is upheld after exhausting his or her due process rights.

40 TAC §§745.907745.8855

 

7773.31 Contents of the Letter to Notify a Controlling Person About a Sustained Designation (CLASS Form 2764)

September 28, 2018

Procedure

The district director, or his or her designee, notifies a person that the designation of controlling person has been sustained by sending CLASS Form 2764 Final Sustained Controlling Person to the person by both regular and certified mail, with a return receipt requested, and includes the following information:

  1. A statement explaining that the decision to sustain the person as controlling is final according to the Human Resources Code, §§42.072(g)(2) and 42.046.
  2. A statement explaining that:
    • the person did not request a due process hearing, the time for making such a request has expired, and the decision to revoke the operation’s permit is final (include the name and address of the operation); or
    • that the person was informed that Licensing’s decision to designate the person as controlling was upheld after a due process hearing, and the decision to revoke the license is final (include the name and address of the operation and the date that the person was informed).
  3. A statement explaining that a sustained controlling person cannot be issued a permit and cannot serve as a controlling person for a five-year period. The statement must also include the date that the person will no longer be prohibited.
  4. The signature of the district director or his or her designee.

 

7773.32 Delivering the Letter Notifying a Controlling Person About a Sustained Designation (CLASS Form 2764)

September 28, 2018

Procedure

To notify a person that the designation of controlling has been sustained, the district director or his or her designee:

  • delivers the notification letter (CLASS Form 2764 Final Sustained Controlling Person) to the controlling person in person, or sends it 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 his or her designee, sends a copy of the letter to the director of Licensing, Licensing attorney, supervisor, and the inspector responsible for the operation.

 

7773.4 Reviewing the Status of a Sustained Controlling Person in CLASS

September 28, 2018

When a person is sustained as a controlling person as a result of a revocation of the operation’s permit, the person is no longer allowed to be a controlling person at any operation for five years.

40 TAC §745.907

Procedure

Each inspector responsible for an operation in which a sustained controlling person is actively associated follows up to ensure that the sustained controlling person is removed from their role immediately.

The inspector:

  • sends CLASS Form 2765, Match of an Ineligible Controlling Person, to the operation; and
  • follows up with the operation within 15 days of sending the notification to ensure that the sustained controlling person is removed.

If the operation fails to remove the sustained controlling person from the role of controlling person, the inspector follows the procedures in 5462 Notifying an Applicant or Permit Holder About an Ineligible Controlling Person.

 

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

September 2012

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters an operation’s information into the AARS when:

  • the denial or revocation of an operation’s permit is final and is based on 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; or
    4. The applicant has committed an act or omission that renders the person unqualified or unfit to fulfill the obligations of the license; and
  • the designation of the permit holder’s role as a controlling person is sustained, if the operation’s permit was revoked.

40 TAC §745.907

Texas Government Code §531.953

 

7774.1 Entering Details About an Operation in the HHSC Record Sharing System

September 2012

Procedure

The designated user of the HHSC Adverse Action Record Sharing (AARS) system enters the following information about an operation when the criteria are met that are explained in 7774 Documenting in the AARS When the Denial or Revocation of a Permit is Final or the Role of Controlling Person is Sustained:

  1. Operation’s name
  2. Operation’s number
  3. Type of permit
  4. Operation type
  5. Operation’s address
  6. Action taken (that is, denial or revocation)
  7. Basis of the action (that is, the reason for the denial or revocation)
  8. Effective date of the action (that is, the date the denial or revocation became final)
  9. End date of the action (that is, five years from the date that the denial or revocation became final)
  10. Summary of the action taken

 

7774.2 Entering Information for the Controlling Persons

September 2012

Procedure

When an operation’s permit is denied, the designated user of the HHSC Adverse Action Record Sharing (AARS) system enters information for all controlling persons documented in CLASS for the operation.

When an operation’s permit is revoked, the designated user of AARS enters the information for all controlling persons whose designation is sustained.

The information entered for controlling persons by the designated user is as follows:

  1. First, middle, and last name
  2. Date of birth
  3. Driver license number and state, if known
  4. Address
  5. Status (Identified for denials and Sustained for revocations)