10400, Risk Evaluation

Revision 23-4; Effective Nov. 30, 2023

A risk evaluation is a process the Centralized Background Check Unit (CBCU) conducts to determine if a subject of a background check who has certain criminal history or child abuse or neglect history poses a threat to the health or safety of children in a particular operation. The result of the risk evaluation process is a determination of whether the subject may be present at the operation with or without conditions.

Procedure

A CBCU manager or designee conducts a risk evaluation only:

1. after CBCU notifies the subject that he or she is eligible to request a risk evaluation; and
2. when the subject requests the CBCU to complete a risk evaluation.

The background check subject submits a request for a risk evaluation and completes risk evaluation packet no later than the due date in the CLASS notification Match Letter-Subject.

Staff refer to the CBCU Resource Guide, available on CCR SharePoint site, for additional details.

26 TAC Section 745.601

10410 When a Risk Evaluation is Required

Revision 23-4; Effective Nov. 30, 2023

When reviewing background check matches, CBCU staff determine whether the subject is eligible for a risk evaluation as outlined below:

• Criminal offenses: reviewing the applicable Criminal Criminal History Requirements Chart; and
• Abuse or Neglect findings: reviewing 26 TAC Section 745.671.

Risk Evaluation for Out-of-State Background Check Results

When reviewing out-of-state criminal history or abuse or neglect matches, CBCU staff may consult with an Enforcement attorney for Child Care Licensing to resolve questions about the match and determine if the subject is eligible for a risk evaluation.

Additional Consideration for Subjects Associated with Prospective Foster or Adoptive Homes

A prospective foster or adoptive parent, or any subject who is required to undergo a background check because of the foster or adoptive parent application, is eligible for a risk evaluation for a sustained finding for physical abuse if:

• it has been more than five years since the finding; and
• the prospective foster or adoptive parent is related to, or has a significant longstanding relationship with, the foster or adoptive child to be placed.

Contact with children would be allowed if a risk evaluation is approved for a subject meeting the criteria detailed above.

26 TAC Sections 745.661; 745.671

10411 Temporary Risk Evaluation

Revision 23-4; Effective Nov. 30, 2023

A subject whom the CBCU has allowed to be present at the operation with a provisional eligibility determination may request a temporary risk evaluation under the following circumstances:

1. CBCU has been notified of certain crimes for which the subject has been arrested, indicted or charged (10331 Acting on New and Updated Criminal History Results) and does not have an arrest warrant (10324  Processing Warrants); or
2. the subject has a child abuse or neglect finding that is not sustained, has requested a due process hearing for the finding and is eligible for a risk evaluation according to 26 TAC Section 745.671(a)(7-8).

The process for the CBCU to notify a subject about the results and for the subject to request a temporary risk evaluation is the same as the policies and procedures outlined in 10412 Notifying a Subject Who is Eligible for a Risk Evaluation and 10420 Processing Risk Evaluation Requests. When conducting a temporary risk evaluation, the CBCU assumes that the subject was convicted for the relevant crime or that the child abuse or neglect finding was sustained, as applicable.  

Exception for an Unverified Foster Home or Unapproved Adoptive Home

If the background check subject is a foster or adoptive parent or a household member at an unverified foster home or an unapproved adoptive home, CBCU offers a temporary risk evaluation when:

• DFPS has placed a child in the home;  
• DFPS plans to place a child in the home pending a background check decision; or
• an adoption is pending a background check decision. 

CBCU staff may consult with CPI staff or the HHSC Child Care Licensing Legal Department to determine if a temporary risk evaluation is needed because DFPS has placed or plans to place a child in the home. 

See: 10510.3 Eligibility Determinations Which Include Conditions

26 TAC Sections 745.671; 745.673; 745.683; 745.697

10411.1 Reevaluating a Temporary Risk Evaluation

February 2021

CBCU staff reevaluate a temporary risk evaluation decision when:

1. the CBCU receives additional information regarding the pending criminal case or abuse or neglect finding; or
2. the subject of the risk evaluation provides additional information and requests a review of the decision.

26 TAC §745.697

See: 10611 Eligibility Determination Reviews

10412 Notifying a Subject Who is Eligible for a Risk Evaluation

February 2021

Procedure

When a subject has a criminal conviction, arrest, indictment, charge, or child abuse, neglect or exploitation finding that requires a risk evaluation, CBCU staff send the Match Letter – Subject notification to advise the subject:

1. that the subject is eligible to request a risk evaluation;
2. whether the subject can be present at the operation pending the risk evaluation decision;
3. whether there are any conditions placed on the subject’s presence at the operation; and
4. that the due date for requesting the risk evaluation is 30 days from the date of the notification.

26 TAC §§745.661; 745.671

See:

10510 Types of Eligibility Determinations
10531 Types of Background Check Notifications

10420 Processing Risk Evaluation Requests

Revision 23-4; Effective Nov. 30, 2023

Procedure

When the CBCU receives a risk evaluation request, CBCU staff first evaluate if the subject submitted the request for a risk evaluation by the due date provided in the notification. Next, CBCU staff evaluate whether the subject submitted a completed risk evaluation packet according to:

• 10421 Information Required for All Risk Evaluations;
• 10422 Additional Information Required for Criminal History Matches, if applicable; and
• 10423 Additional Documentation Required if the Subject is Associated with a Foster or Adoptive Home, if applicable.

If the risk evaluation packet is incomplete, the CBCU staff determines if:

• the risk evaluation decision can be made based on the information provided;
• additional information is required; 
• the risk evaluation will be denied due to receiving an incomplete packet (10430 Making a Risk Evaluation Decision); or 
• the background check will be closed due to becoming noncompliant (10510.41 Determination of Ineligible Due to Noncompliant Background Checks)

If the risk evaluation packet is complete, the CBCU staff determines who issues the risk evaluation decision according to 10425 Determining Which CBCU Staff Issues the Risk Evaluation Decision.

Staff refer to the CBCU Resource Guide, available on CCR SharePoint site, for additional details.

See: 

10424  Documenting the Risk Evaluation Request
10432  Time Frame for Making a Risk Evaluation Decision

26 TAC Sections 745.681, 745.683, 745.685, 745.687

10421 Information Required for All Risk Evaluations

February 2021

For all risk evaluations, CBCU staff determine if the subject requesting a risk evaluation submitted the following information to CBCU:

1. A completed Form 2974 Request for Risk Evaluation Based on Past Criminal History or Central Registry Findings, which requires a detailed, signed statement from the subject regarding the nature and seriousness of the crime or abuse or neglect finding, including:
   • the age of the subject at the time of the crime or the abuse or neglect finding;
   • the circumstances that led to the arrest(s) or finding(s);
   • who else was involved;
   • whether anyone was injured;
   • the extent and nature of other arrests or abuse or neglect history;
   • what has changed for the subject since the arrest or finding; and
   • why the subject does not feel that he or she poses a risk to children in care.
2. The subject’s work history over the past 10 years, including names of employers, dates of employment and positions held.
3. Evidence of rehabilitative effort.
4. At least three reference letters from individuals who are not related to the subject (such as professionals, employers, law enforcement) and who have knowledge about the subject’s character and ability to work with children.
5. Any additional items requested by the CBCU manager or designee to assist with the risk evaluation decision.

26 TAC §§745.689; 745.691

10422 Additional Information Required for Criminal History Matches

February 2021

If the risk evaluation is for a criminal history match, the subject submits the following information:

1. Information required in 10421 Information Required for All Risk Evaluations.
2. A copy of the police report regarding the circumstances of the arrest.
3. An official copy of the final record of judicial finding or conviction (signed by the judge and file stamped, if available).
4. Age of the subject at the time the crime was committed.
5. The following information related to a probated sentence (including deferred adjudication community supervision), if applicable;
   • the terms and conditions of probation, including documentation of whether the subject successfully completed the terms and conditions of the probation;
   • proof that the subject paid all court costs, fees, restitution and fines; and
   • a statement from the subject’s probation officer regarding the status of the subject’s probation, if the subject is currently on probation.
6. The following information if the subject was incarcerated:
   • a copy of local, state or federal release order;
   • the date that the subject was released from incarceration; and
   • the terms and conditions of parole, if applicable.
7. A detailed, signed statement from the subject regarding the nature and seriousness of the crime including:
   • why the subject was arrested, indicted or charged with a crime;
   • where the subject was when arrested, indicted or charged with a crime;
   • who else was involved in the criminal incident;
   • whether anyone was injured;
   • the extent and nature of other arrests within the subject’s past criminal history;
   • what has changed for this subject since the time of the arrest; and
   • why the subject does not feel that he or she poses a risk to children in care.

26 TAC §745.689

10423 Additional Documentation Required if the Person is Associated with a Foster or Adoptive Home

February 2021

If the subject requesting a risk evaluation is associated with a prospective or current foster or adoptive home, CBCU staff determine if the child-placing agency that submitted the background check submitted the following information to the CBCU:

1. signed Form 2405 Affidavit for Risk Evaluation by Child-Placing Agency, including a valid rationale from the child-placing agency’s owner, executive director, administrator or some other similar position of authority explaining why the subject does not pose a risk to the health or safety of children;
2. the names and dates of birth of any foster or adoptive children who have been or are expected to be placed in the home (if known);
3. a description of the foster or adoptive parent’s relationship to each child; and
4. a copy of the most recent home assessment or home screening, if one has been completed.

26 TAC §745.689

10424 Documenting the Risk Evaluation Request

Revision 23-4; Effective Nov. 30, 2023

Procedure

After receiving a risk evaluation request, in the Risk Evaluation section on the applicable background check results page in CLASS, CBCU staff do the following:

1. in the Request Date and Due Date fields, enter the applicable dates;
2. select the type of risk evaluation by checking the appropriate box(es);
3. review the request and any documentation received to determine if the risk evaluation packet is complete according to 10420 Processing Risk Evaluation Requests; and
4. in the Overall Background Check Comments section, document:
   • a summary of the documents received; 
   • whether the packet is complete;
   • any contact with the background check subject or operation; and
   • the identity of the risk evaluation decision-maker according to 10425 Determining Which CBCU Staff Issues the Risk Evaluation Decision. 

The risk evaluation decision-maker follows the applicable steps in 10430 Making a Risk Evaluation Decision and 10433 Documenting a Risk Evaluation Decision to complete the risk evaluation decision.

10425 Determining Which CBCU Staff Issues the Risk Evaluation Decision

Revision 23-4; Effective Nov. 30, 2023

Procedure

Either a CBCU manager (or designee) or the inspector processing the background check makes the risk evaluation decision. 

A CBCU manager (or designee) makes the decision when:

• the decision is a denial (due to an incomplete risk evaluation packet or based on the level of risk to children);
• the subject’s background check role is owner/  permit holder, licensed administrator, foster or adoptive parent, or director;
• the subject’s abuse or neglect history includes any child fatality or near child fatality;
• a CBCU manager has not approved the CBCU inspector processing the risk evaluation packet to make independent risk evaluation decisions; 
• the risk evaluation is a temporary risk evaluation; or 
• the risk evaluation does not meet a scenario that a CBCU inspector is authorized to make according to the table below.

The CBCU inspector makes the decision when:

• a CBCU manager has approved the inspector to make independent risk evaluation decisions; 
• the background check subject’s role is staff/  employee, volunteer, frequent visitor, household member or contracted service provider; and 
• the scenario is listed in the table below:

A CBCU manager may approve a CBCU inspector to complete a risk evaluation decision other than as listed in the table when:

• the inspector has reviewed and discussed the decision with the manager;
• the manager has approved the inspector’s decision; and
• the manager has added a summary of the approval to the Overall Background Check Comments section.

10430 Making a Risk Evaluation Decision

Revision 24-1; Effective Feb. 20, 2024

Procedure

The risk evaluation decision-maker reviews the risk evaluation request and decides if the background check subject is ineligible to be present, eligible to be present at the operation, or if conditions are needed to protect the health or safety of children at the operation that submitted the background check request.
The risk evaluation decision-maker sends an e-mail to the monitoring inspector and supervisor assigned to the operation for subjects with the following background check roles: 

• director; 
• owner or permit holder; 
• adoptive parent in a home a CPA has approved for adoption; 
• foster parent in a home a CPS has verified to provide foster care; 
• foster or adoptive parent in a home a CPA has verified to provide foster care or approved for adoption; 
• foster or adoptive household member in a verified home; or 
• licensed administrator. 

The email includes the following: 

• the operation number, name of subject, role of subject and BGC ID; 
• a statement that a risk evaluation was completed and if the risk evaluation decision is approved, denied or conditional; 
• the subject’s whether the subject’s eligibility determination is eligible, eligible with conditions or ineligible; and
• a statement reminding staff to maintain the confidentiality of background check results. Results can be discussed with a CPA when the background check role is foster or adoptive parent, or household member. 

Revising or Rescinding a Risk Evaluation Decision

If CBCU staff rescind or revise a risk evaluation, the risk evaluation decision-maker notifies his or her supervisor, the monitoring inspector assigned to the operation, and the monitoring inspector’s supervisor.

References:

10420  Processing Risk Evaluation Requests
10510.41  Determination of Ineligible Due to Noncompliant Background Checks

26 TAC Section 745.695

10431 Factors to Consider When Making a Risk Evaluation Decision

Revision 23-4; Effective Nov. 30, 2023

When making a risk evaluation decision, the risk evaluation decision-maker considers the following factors:

1. the contents of the risk evaluation packet as outlined in 10421 Information Required for All Risk Evaluations, 10422 Additional Information Required for Criminal History Matches, and 10423 Additional Documentation Required if the Subject is Associated with a Foster or Adoptive Home;
2. whether the subject who requested the risk evaluation failed to submit any information;
3. the compliance history and regulatory status of the operation for the previous five years;
4. the subject’s intended or current roles and responsibilities that were included in the operation’s background check submission;
5. the length of time that has elapsed since the criminal conviction, child abuse or neglect finding, or crime for which the subject has been arrested, indicted or charged;
6. the nature and severity of the criminal conviction, child abuse or neglect finding, or crime for which the subject has been arrested, indicted or charged;
7. the subject’s role in the criminal conviction, child abuse or neglect finding, or crime for which the subject has been arrested, indicted or charged;
8. whether there is a pattern of any type of crime or abuse or neglect;
9. work history, references and any evidence of rehabilitative effort over the past 10 years;
10. any federal requirements regarding criminal history and child abuse and neglect findings; and
11. any other relevant factor that enhances or mitigates the risk to the health or safety of children in the operation.

10432 Time Frame for Making a Risk Evaluation Decision

Revision 23-4; Effective Nov. 30, 2023

Procedure

CBCU staff refer to 10425 Determining Which CBCU Staff Issues the Risk Evaluation Decision to determine if a CBCU inspector or manager makes the risk evaluation decision. 

The CBCU inspector provides the risk evaluation packet and summary to the manager or makes the risk evaluation decision within 10 business days of receiving the complete risk evaluation packet. 

When the risk evaluation decision-maker is the CBCU manager, the inspector provides the following:

• the complete risk evaluation packet;
• the summary of the packet; and
• a decision recommendation.

The CBCU manager has 10 business days from receiving the risk evaluation packet and recommendation to complete the risk evaluation decision.

26 TAC Section 745.693

10433 Documenting a Risk Evaluation Decision

Revision 23-4; Effective Nov. 30, 2023

Procedure

After making a risk evaluation decision, the risk evaluation decision-maker does the following in the Risk Evaluation section on the applicable background check results page in CLASS:

1. In the Decision Date field, enter the date of the decision.
2. In the Type of Risk Evaluation field, verify the applicable background check type box(es) are checked.
3. In the Risk to Children field, select the appropriate selection indicated in the table below.
4. In the Summary of Decision text box, document the rationale and summary for the decision.
5. In the Conditions text box, enter any conditions placed on the subject’s presence at the operation.
6. Select the Save button to finalize the decision.

After completing the above steps, CBCU staff complete and send appropriate notifications to the subject and operation.

The risk evaluation decision-maker completes the Risk to Children field based on the risk evaluation decision. CLASS calculates the background check eligibility based on the Risk to Children as outlined in the table below:

Staff refer to the CBCU Resource Guide, available on CCR SharePoint site, for additional details.

See:

10510 Types of Eligibility Determinations
10531 Types of Background Check Notifications 

10440 When a Risk Evaluation Expires

May 2021

An approved or conditionally approved risk evaluation only expires when:

1. the background check subject has been arrested, indicted or charged with another crime;
2. the background check subject has an additional criminal conviction or child abuse or neglect finding;
3. the subject’s role at the operation, including the circumstances of the subject’s contact with children, becomes different than when the CBCU approved the risk evaluation;
4. the subject becomes employed at a different operation than when the CBCU approved the risk evaluation; or
5. the CBCU amends or rescinds the risk evaluation in response to:
   • a request for a review of the risk evaluation decision; or
   • an operation not following conditions on a subject’s presence at the operation.

If a risk evaluation expires due to new criminal or child abuse or neglect history, a different role at the operation, or employment at a different operation, a CBCU staff and manager review the new information and the risk evaluation decision to determine if:

• the subject’s eligibility determination will become provisional and a new risk evaluation is needed;
• the risk evaluation will remain in place without changes;
• the risk evaluation conditions will be revised; or
• the subject is ineligible to be present at the operation.

26 TAC §745.697

See: 10441 Risk Evaluation Reconsideration for New and Updated Background Check Results

10441 Risk Evaluation Reconsideration for New or Updated Background Check Results

May 2021

Procedure

When CBCU staff receive new Central Registry or criminal history information for a subject who has an existing risk evaluation, CBCU staff consider whether to continue, revise or rescind the risk evaluation based on the new information.

Prior to finalizing the match determination, CBCU staff consult with a CBCU manager to make this decision.

See:

10211 Processing Central Registry Recheck Results
10330 Receiving New and Updated Criminal History Results
10331 Acting on New an Updated Criminal History Results

10441.1 Reconsideration of Risk Evaluation Due to New or Updated Criminal History Results

May 2021

Procedure

When processing new or updated criminal history results for a subject who has an existing risk evaluation, CBCU staff decide if the subject is ineligible to be present or whether changes to the risk evaluation are needed.  

If CBCU staff determine that changes to the risk evaluation are needed, CBCU staff consult with a CBCU manager.  

10441.2 Reconsideration of Risk Evaluation Due to New or Updated Central Registry Results

May 2021

Procedure

When CBCU receive new or updated Central Registry results for a subject who has an active risk evaluation, CLASS prompts CBCU staff to indicate if an existing risk evaluation will remain valid.  

CBCU staff follow the procedures in the document Job Aid: Risk Evaluation Reconsideration and Documentation for New and Updated Background Check Results, available on the CCR SharePoint site, when CBCU staff document a risk evaluation reconsideration decision.

26 TAC §745.697

See:

10510 Types of Eligibility Determinations
10531 Types of Background Check Notifications

10450 Risk Evaluation Predictions

Revision 24-1; Effective Feb. 20, 2024

A risk evaluation prediction determines if the CBCU would likely approve a risk evaluation for a subject of a background check who has an unsustained Central Registry finding.

CBCU conducts a risk evaluation prediction when:

1. the subject has not exhausted or waived due process related to the Central Registry finding discussed in 10250 Response to Due Process Offers;
2. the finding has not resulted in a determination of immediate risk discussed in 10231 Assessing the Risk of Central Registry Matches for Determination of Immediate Threat; and
3. the subject would be eligible for a risk evaluation if the finding is sustained as discussed in 10410 When a Risk Evaluation is Required.

A risk evaluation prediction is completed when there is an exception to completing a temporary risk evaluation discussed in 10411 Temporary Risk Evaluation.

10451 Requesting CBCU Complete a Risk Evaluation Prediction

February 2021

10451.1 When Monitoring Staff May Request a Risk Evaluation Prediction

February 2021

CCR staff may request a risk evaluation prediction when determining whether to deny or revoke an operation’s permit or an administrator’s license and a CBCU manager and the requestor have agreed a temporary risk evaluation is not appropriate. The subject of the background check with the finding may be the applicant or permit holder or may have an association with an operation that would affect the permit or application. For example, the subject could reside at the operation.

10451.2 When Legal Requests a Risk Evaluation Prediction

February 2021

An enforcement attorney for Child Care Licensing may also request a risk evaluation prediction to resolve a due process case. The subject may be willing to accept a neglect finding or an abuse finding that is eligible for a risk evaluation if the CBCU indicates that the subject may still be present at the operation either without conditions or with conditions included in the prediction decision.

10451.3 How to Request a Risk Evaluation Prediction

February 2021

Procedure

To request a risk evaluation prediction, CCR staff or the enforcement attorney emails the following information to the manager of the CBCU inspector assigned to the operation:

• the name, Social Security number and date of birth of the subject with the unsustained finding;
• the operation’s name and number;
• the subject’s role and level of presence at the operation submitting the background check request, if available;
• a brief summary of the investigation and concerns, including:
  • the IMPACT investigation number;
  • whether the subject is currently present at the operation, if the finding was the result of a DFPS Child Care Investigation (CCI) investigation;
  • whether a safety plan was implemented;
  • whether the subject’s presence at the operation was precluded pending the completion of DFPS’ CCI investigation; and
  • whether the subject’s contact with the victim(s) was restricted during a DFPS Child Protective Investigation (CPI) investigation;
• the status of due process;
• any information that DFPS or HHSC has communicated to the subject;
• additional information requested by the CBCU manager; and
• any additional information the CCR staff or enforcement attorney believes is relevant to the prediction.

10452 Processing Requests for Risk Evaluation Predictions

February 2021

Once the CBCU manager has the information in 10451.3 How to Request a Risk Evaluation Prediction, the manager does the following:

1. makes a prediction decision of denial, approval, or approval with conditions;
2. communicates the risk evaluation prediction decision to the person who requested the prediction; and
3. documents the risk evaluation prediction and communication of the decision in the Overall Background Check Comments section on the Central Registry Results page in CLASS for the subject’s current or most recent background check, including any conditions that would be recommended.

10452.1 Factors to Consider When Making a Risk Evaluation Prediction

February 2021

When making a risk evaluation prediction, the CBCU manager considers the reasons for the request, any additional information the requestor believes is relevant and the risk evaluation considerations listed in 10431 Factors to Consider When Making a Risk Evaluation Decision.

10453 Monitoring Staff Responsibilities After Receiving a Risk Evaluation Prediction Decision

February 2021

After receiving a risk evaluation prediction decision from the CBCU, CCR monitoring staff:

• work with an enforcement attorney for Child Care Licensing to determine:
  • if the operation permit or administrator’s license will be denied or revoked; and
  • what information can be released to the permit applicant or the administrator license holder regarding the reason for the denial or revocation; and
• notify the CBCU manager of the decision to issue, deny or revoke the permit or administrator’s license (See: 7633 Notice of Decision to Deny, Revoke or Suspend an Application or Permit and 9700 Remedial Action on an Administrator License).