Texas Health and Human Services (HHS) certifies, monitors, and regulates all childcare providers in the state. These providers include childcare administrators, child-placing agency administrators, and center-based childcare operations, all of which must maintain certain requirements to remain eligible for various permits and licenses. Complaints against any childcare providers can result in disciplinary proceedings that can lead to the loss of licenses and permits, as well as other sanctions. If you are facing a complaint that someone has filed with HHS about you, you likely need the advice and counsel of an experienced childcare provider license defense attorney.
Types of Enforcement Actions
HHS can take various types of enforcement actions against childcare providers to help them comply with state laws, rules, and related minimum standards, while minimizing the risk to the children involved. In the case of deficiencies in a minimum standard, rule, statute, specific term of your permit, or a condition of probation, HHS can either offer technical assistance or recommend or impose an enforcement action against your permit. The agency can choose any of these actions depending on the severity of the situation, which include:
- Plan of Action
- Probation
- Adverse Actions (Adverse Amendment, Denial, Refusal to Renew, Revocation, Involuntary or Emergency Suspension)
- Judicial Actions
- Administrative Penalties
These potential sanctions fall in line with how 26 Tex. Admin. Code §745.8603(a) categorizes potential penalties, as follows:
- Voluntary and Corrective Actions – These actions can address deficiencies without requiring the operation to close, such as a voluntary action plan or probation with a corrective action plan.
- Adverse Actions – These actions address deficiencies but may require you to close or add permanent restrictions or conditions to your permit.
- Judicial Actions – A court may impose Judicial Actions, which include closure, when HHS requests a court order to address deficiencies. Judicial actions include temporary restraining orders (TROs) and temporary or permanent injunctions.
- Monetary Actions – These actions are fines or penalties that HHS may impose, which may be administrative or civil.
How HHS Determines What Enforcement Action to Recommend or Take
First, HHS considers several risk factors when recommending or imposing enforcement action on childcare providers. While these risk factors are common, they are not exhaustive, and HHS can consider other risk factors as circumstances dictate. These risk factors include:
Governing Body and Staffing
- Level of involvement the governing body has in the operation
- Ability to identify operation needs
- Knowledge behind intent of standards
- Knowledge of the operation’s policy and procedures
- Other history as a permit holder, governing body member, or a controlling person
Compliance History
- Scope and severity of deficiencies
- Patterns of deficiencies
- Repetition of deficiencies
- Investigation history
- Responsiveness to deficiencies
- Previous enforcement actions
Nature of the Risk
- Isolated serious incident caused or may have caused injury or death
- Systemic issues at the operation negatively impact the health and safety of children in care and caused or may have caused injury or death
Impact that Other Factors Have on Risk
- Operation capacity
- Type of permit
- Type of services provided
- Number of children impacted by enforcement action
- Impact to the community
- Involvement from other governmental agencies
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Once HHS has considered the above factors, the agency uses a matrix to determine the specific enforcement action to recommend or impose. For each potential enforcement action, HHS must consider the following three questions:
- What is the capability of the governing body or permit holder?
- Are there limitations on this enforcement action?
- Can risk be mitigated while the operation is continuing to operate?
Analysis of these questions allows HHS to choose the appropriate sanction from the potential sanctions listed above.
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26 Tex. Admin. Code §745.8607 provides a more succinct and less detailed summary of the factors that HHS uses to determine the appropriate enforcement action:
- The severity of any deficiency that is a reason for the enforcement action, including whether the deficiency involved the abuse or neglect or resulted in the death or near fatal injury of a child;
- The severity and frequency of a repetition or pattern of deficiencies;
- The extent to which a deficiency or repetition or pattern of deficiencies can be corrected;
- How quickly you can make the necessary correction (for a suspension, whether the deficiency can be corrected within the suspension period);
- Whether you demonstrate the responsibility and ability to maintain compliance with minimum standards, rules, and statutes;
- Whether we must impose conditions to avoid further deficiencies;
- Your compliance history;
- The degree or immediacy of danger or threat of danger posed to the health or safety of children; and
- Any aggravating or mitigating factors.
Standards for Administrative Penalties
HHS can impose administrative penalties before imposing probation for failing to comply with background check requirements or violation of certain statutes or rules. Some rules apply only to listed family homes, before or after school or school-age programs, licensed childcare centers, general residential operations, or child-placing agencies. Others apply to licensed and registered childcare homes. Still others apply to all providers, such as those involving background check violations.
Get the Advice You Need About Your Childcare Provider License
When you face the potential loss of your career, you cannot risk making mistakes. Trying to handle these challenging situations on your own can be disastrous for your future. The child care provider license defense lawyers at Bertolino LLP, can examine your circumstances and help you devise the best strategy to protect your license or permit. Call us today at (512) 980-3751 or get more information about us online.
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