TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 745. LICENSING

SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS

The executive commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §745.8801, concerning Introduction; §745.8803, concerning Administrative Review Requestors; §745.8805, concerning How to Request an Administrative Review; §745.8807, concerning Waiving the Right to an Administrative Review; §745.8809, concerning Administrative Review Conductors; §745.8811, concerning Conducting an Administrative Review; §745.8813, concerning Administrative Review Decisions and Actions; §745.8815, concerning Timeframe for Administrative Review Decisions; §745.8835, concerning Who may request a due process hearing; and new §745.8802, concerning Requesting Records for an Administrative Review.

Sections 745.8801, 745.8805, and 745.8813 are adopted with changes to the proposed text as published in the February 14, 2025, issue of the Texas Register (50 TexReg 816). These rules will be republished.

Sections 745.8803, 745.8807, 745.8809, 745.8811, 745.8815, and 745.8835 are adopted without changes to the proposed text as published in the February 14, 2025, issue of the Texas Register (50 TexReg 816). Section 745.8802 is withdrawn. These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new section are necessary to update Texas Administrative Code (TAC), Title 26, Part 1, Chapter 745, Licensing, as it relates to administrative reviews and due process hearings. The rule adoption establishes guidelines regarding records that an operation or individual requests in relation to an administrative review, including the records that are relevant to different administrative review subjects and the effect of a records request on when a review may occur. The rule adoption addresses the ability to request an administrative review related to a waiver or variance decision that matches the language in 26 TAC Chapter 745, Subchapter J, Waivers and Variances for Minimum Standards. The rule adoption also clarifies a person's inability to request an administrative review or due process hearing related to certain subjects and amends certain rule titles from the question format.

COMMENTS

The 31-day comment period ended March 17, 2025.

During this period, HHSC received comments regarding the proposed rules from five commenters. HHSC received comments from Texas Alliance of Child and Family Services, Texas Kinder Prep, Tiger-Rock Portland, Wonderland Montessori, and Epiphany Soul. A summary of comments relating to the rules and the response from HHSC follows.

Comment: Based on the proposed language in §745.8801, a commenter expressed concern that if there is a lack of clarity regarding what constitutes an administrative review, or the specific grounds upon which a review can be requested, unequal application or arbitrary enforcement could result in a violation of due process.

Response: HHSC disagrees with this comment. The proposed rules at §745.8801 and Figure §745.8801(b) make clear that an administrative review (AR) can be requested to determine whether a decision or action was appropriate under applicable law and rules and defines the scope of the AR for each decision or action that is subject to AR. The proposed rules also make clear that the requestor may present evidence and arguments at the AR to dispute the decision or action.

Comment: Based on the proposed language in §745.8803, the commenter expressed concerns that "proposed changes" could limit who may request an administrative review "in an unclear or overly restrictive manner" in violation of due process, especially if stakeholders were prevented from appealing decisions that affect their ability to operate.

Response: HHSC disagrees with this comment. No amendments change who may request an administrative review. An administrative review of a decision that impacts the ability to operate can be requested by the applicant, owner, partner, governing body, director, licensed administrator, or designee--all stakeholders who are responsible for the management of the child care operation. A person who is designated as a controlling person and a person who is determined to pose an immediate threat to the health and safety of children may also request an administrative review.

Comment: Based on the proposed language in §745.8807, the commenter expressed concerns that if the amendments include implications that individuals can waive their right to an administrative review without informed consent or understanding of the implications, it could raise concerns about coercion and potentially violate procedural due process. The commenter observed that regulations should ensure that waivers are made voluntarily and with clear communication of consequences.

Response: HHSC declines to amend the proposed rule based on this comment. No amendments were made to the existing rule language related to waiving the right to an administrative review. Upon notification of a decision or action for which an administrative review may be requested, the operation is given notification of how to request an administrative review and a clear statement that if the time limit to request an administrative review expires, the right to an administrative review is waived. The rule clearly describes how an administrative review is waived--by either not meeting requirements for requesting the administrative review or by submitting a written statement waiving the right to administrative review. The rule also explains that the consequence of waiving the administrative review is that the decision or action is upheld, and when applicable, HHSC will send notice of the right to a due process hearing.

Comment: Based on the proposed language in §745.8813 and §745.8815, the commenter expressed concerns that the rules could allow actions or decisions that lack a transparent rationale or do not adhere to factual determinations derived from the administrative review process.

Response: In response to comments, HHSC has amended §745.8813 to remove a reviewer's option to alter a decision or action during an administrative review. The proposed language in §745.8815 is specifically related to timeframes to issue a decision and provides that good cause must be established for delays.

Comment: The commenter expressed concerns that identifying some decisions or actions as ineligible for administrative review could create operational risks for childcare providers without offering recourse.

Response: HHSC disagrees with this comment. The proposed rules do not remove any rights to request an administrative review. While some decisions and actions may not be eligible for an administrative review, formal due process is available for such decisions and actions, and no decision or action is final until all due process has been exhausted.

Comment: Based on the proposed language in §745.8802, commenters expressed concerns that the rule could unfairly limit the type of records available to the requestor.

Response: HHSC disagrees with these comments. The language proposed for new §745.8802, which has been moved to §745.8805, makes clear that copies of HHSC and Texas Department of Family and Protective Services (DFPS) records directly related to the disputed decision or action may be requested, and prescribes the methods and timeline for requesting such records. This section allows requests for records that are relevant to the decision or action that have not already been provided to the operation or received from the operation; when such records are provided, the requestor has all the necessary information to dispute the deficiency or action. Requestors may request records from other sources and may present any relevant evidence at the administrative review.

Comment: The commenter expressed concerns that the proposed rules could disproportionately burden smaller child care operations compared to larger operations, and providers and families in communities with fewer child care operations. The commenter expressed concern that such burdens could constitute indirect discrimination.

Response: HHSC reviewed and noted the concerns but declines to make changes to the rules based on this comment. In furtherance of the effort to protect all children in care equally, the proposed rules apply equally to all regulated operations without regard to operation funding or geographic location. The reviewer does not uphold or overturn a decision or action based upon operation size or location. The reviewer considers the evidence gathered and determines if the decision or action is appropriate based on applicable laws and rules.

Comment: A commenter suggested that the administrative review procedure should take into account the repercussions of citations issued by HHSC. Another commenter suggested that the whole program related to administrative reviews and due process hearings needs to be reviewed and requested advice on how the regulated community can properly help to make changes to increase fairness.

Response: These comments did not suggest specific changes to the proposed rules; therefore, HHSC declines to make changes to the rules based on these comments. This rulemaking process shows that HHSC is reviewing procedures related to administrative reviews and due process hearings and is responding to comments from the regulated community. Furthermore, pursuant to Texas Government Code §2001.021, any interested person may petition HHSC to adopt a rule; procedures for submitting a petition for adoption of a rule to HHSC may be found at 1 TAC §351.2.

Comment: A commenter suggested that in the event that an administrative review results in citation of a different minimum standard deficiency, the requestor should be allowed to request another administrative review to dispute the citation as altered.

Response: In response to comments, HHSC has amended §745.8813 to remove a reviewer's option to alter a decision or action during an administrative review.

Comment: A commenter described a perceived trend of issuance of unwarranted citations, and that such citations are often subsequently overturned. The commenter suggested that such activity may be related to inspectors feeling pressure from management to "find something wrong." The commenter reported hearing that program staff regularly acknowledge that evidence of a cited deficiency is insufficient to meet a preponderance of evidence standard but still issue the citation on the basis that the operation could "just 'AR' it." The commenter suggested that this shows a willingness to issue unwarranted citations without regard to the burdens and expenses incurred by operations that request administrative reviews. The commenter further suggested that it was fundamentally unfair to allow a reviewer to unilaterally change a cited deficiency to a different minimum standard deficiency, and that if evidence does not support the originally cited deficiency, the citation should be overturned rather than altered.

Response: An administrative review allows a requestor an opportunity to present all relevant evidence that the facts do not support a minimum standard deficiency, which could include evidence of an admission by HHSC staff that a citation is not supported by a preponderance of evidence. Additionally, regulated operations that believe they have been cited for a minimum standard deficiency despite a clear statement by inspection staff that the citation is not supported by a preponderance of evidence may file a complaint with the HHSC Office of the Ombudsman. In response to comments, HHSC has amended §745.8813 to remove a reviewer's option to alter a decision or action during an administrative review.

Comment: A commenter expressed concerns that proposed language in §745.8801 could imply that HHSC may impose an enforcement action prior to expiration of due process.

Response: HHSC reviewed and noted the concerns. HHSC clarified the rule language. Most enforcement actions are imposed on operations that, without including all pending administrative reviews, have significant associated risk and have demonstrated failure to comply with standards, rules, and laws. Exceptions are when enforcement actions are taken for emergency purposes, single serious incidents, or determinations of immediate threat. An enforcement action is not final until all due process has been exhausted.

Comment: Related to §745.8803 and §745.8835, a commenter recommended allowing an operation to request an administrative review and due process hearing to dispute a determination of immediate threat made with regard to a person.

Response: HHSC declines to revise the rules based on this comment. Because a person may request an administrative review and due process hearing to dispute a determination that the person poses an immediate threat, HHSC believes it is unnecessary and duplicative to allow the operation to request an administrative review and due process hearing to dispute the determination. This would be especially true in a situation where the person elects to waive the right to an administrative review or due process hearing to dispute the determination. Moreover, a determination that a person poses an immediate threat may be based on information to which the operation does not have access.

Comment: Related to §745.8803, a commenter recommended allowing an operation to request an administrative review to dispute the designation of a controlling person.

Response: HHSC declines to revise the rule based on this comment. Because a person may request an administrative review to dispute the person's designation as a controlling person, HHSC believes it is unnecessary and duplicative to allow the operation to request an administrative review to dispute the designation. Again, this would be especially true in a situation where the person elects to waive the right to an administrative review to dispute the designation.

Comment: Related to §745.8803, a commenter recommended allowing an operation to request an administrative review to dispute the imposition of an administrative penalty.

Response: HHSC declines to revise the rule based on this comment. An operation seeking to dispute the imposition of an administrative penalty may request administrative review of the deficiency for which the administrative penalty is imposed. If the underlying deficiency is overturned, no administrative penalty is imposed. If a deficiency is upheld and an administrative penalty is imposed, the operation can request a formal due process hearing before the State Office of Administrative Hearings (SOAH) to dispute the administrative penalty.

Comment: Related to §745.8803 and §745.8835, a commenter recommended that the operation be allowed to request an administrative review and due process hearing to dispute a determination that the operation poses an immediate threat.

Response: HHSC disagrees with this comment and declines to revise the rules based on this comment. A determination that an operation poses an immediate threat is made in the context of an adverse action. The adverse action may be eligible for an administrative review and due process hearing; exceptions include certain automatic or emergency suspensions or revocations imposed under Chapter 42 of the Texas Human Resources Code. Because the determination of immediate threat is usually based on the same on the same deficiencies and history of noncompliance that inform the intent to take adverse action, HHSC believes that allowing an operation to request an administrative review and due process hearing to dispute the determination that the operation poses an immediate threat would effectively duplicate any due process available to dispute the accompanying adverse action. Pursuant to §745.8875(b), when HHSC revokes or refuses to renew a permit, the operation cannot continue to operate pending the outcome of an administrative review and due process hearing if HHSC has determined that the operation poses an immediate threat. HHSC notes that it usually takes a significant amount of time to proceed through an administrative review and due process hearing; exhausting this process to dispute a determination of immediate threat would not allow for the possibility of more immediate relief to allow continued operation. Accordingly, HHSC believes it is more appropriate for an operation disputing a determination that the operation poses an immediate threat to seek injunctive relief from a district court in Travis County or in the county where the operation is located as prescribed by §745.8877.

Comment: Related to §745.8803, a commenter recommended striking language that permits non-attorney, subjective determinations that criminal conduct or possible abuse, neglect, or exploitation would support an immediate threat determination.

Response: HHSC disagrees with this comment and declines to revise the rules based on this comment. HHSC disagrees with the contention that determinations of immediate threat are unduly subjective or otherwise inappropriate. The criteria that HHSC considers when making an immediate threat determination are prescribed by §745.751, and HHSC believes that non-attorney program staff are competent to evaluate those criteria in making a determination.

Comment: Related to §745.8805, a commenter recommended that any requirements related to requesting records be combined here and that there should be deadlines by which records must be produced.

Response: HHSC agrees with the comment related to moving the requirements related to requesting records to §745.8805. Proposed new §745.8802 is withdrawn; the language related to requesting records for an administrative review was added to §745.8805.

Comment: Related to §745.8811, a commenter recommended requiring HHSC to specify a good cause determination for a delay HHSC wishes to put into place.

Response: HHSC disagrees with the comment and declines to amend the rule based on this comment. Section 745.8815 discusses "good cause" for the reviewer's delay in preparation of the review decision by reference to the definition in §745.8811(f).

Comment: Comments were received related to §§745.273, 745.8641, 745.9075, 745.9077, 745.9089, 745.9093, and 745.9149.

Response: HHSC declines to make changes. These rules are not part of this rule project.