View
0
Download
0
Category
Preview:
Citation preview
1
Texas Health and Human Services ● hhs.texas.gov
Background Checks Significant Changes for New or Amended Rules
All Operation Types
Overview of Changes
This document lists each new or amended background check rule number and title that will become effective on January 13,
2019. All of the background check rules in Subchapter F of Chapter 745 are new (except for the Definitions rule at §745.601)
and have been reorganized and renumbered. In addition, this document provides an overview and summary of the significant
changes to the new or amended rule.
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§743.105
New
What are the background
check requirements?
Shelter care operations must now comply with the background check requirements of
Subchapter F, Chapter 745 (instead of having separate background check rules for shelter
care operations). Any differences for shelter care operations are specifically noted in
Subchapter F.
The one exception still noted in the rule is that shelter care operations do not have to submit
a background check request for a person 14 years of age or older who resides at the shelter,
unless the person is otherwise required to have a background check.
[Replaced deleted §743.105]
2
Texas Health and Human Services ● hhs.texas.gov
§745.601
Amended
What words must I know
to understand this
subchapter?
The significant changes:
Add new definitions for:
o “Central Registry” (incorporates the definition from deleted §745.611(3));
o “client in care” (incorporates part of the definition from deleted §745.619);
o “criminal history”;
o "days";
o "designated finding";
o “DFPS”;
o “DPS”;
o “FBI”;
o “HHSC”;
o “Licensing”;
o “present at an operation” (which incorporates the definition from deleted §745.603 and
clarifies that solely attending orientation or pre-service training at an operation while not
having contact with children in care is not considered "present at an operation");
o “subject or subject of a background check”; and
o “sustained finding”;
Delete the definitions for:
o “continuous stay” and “non-continuous visit”; and
o “owner” (which has been incorporated into new §745.605(a)(1));
Change the term “direct care or direct access” to “direct access”; and
Update the definitions for:
o “CBCU”;
o “initial background check”;
o “regularly or frequently present at an operation” (which has incorporated the deleted
definitions of “continuous stay” and “non-continuous visit”);
o “renewal background check”;
3
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
o “risk evaluation” (which clarifies that the process is now initiated by the subject of a
background check, versus the operation);
o “substitute employee”; and
o “unsupervised access”.
4
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.605
New
For whom must I submit
requests for background
checks?
The rule is simplified into two subsections:
(a) Persons the operation must submit a background check request for; and
(b) Persons the operation does not have to submit a background check request for,
including a client in care;
Other significant changes include:
o Incorporating the deleted definition of “owner” at §745.605(a)(1) as a role at an
operation that requires a background check;
o Requiring any person that provides direct care and supervision to a child in care to have
a background check;
o Clarifying that persons regularly or frequently present at an operation that are 14 years
of age or older includes volunteers;
o Incorporating the deleted information from §745.621 to clarify that controlling persons,
including board members, who do not otherwise fulfill a role specified in §745.605(a) do
not require background checks; and
o Removing the requirement that operations identify which types of background checks are
required for each person who must have a background check (instead the CBCU will use
the information the operation submits as part of the request for a background check to
make this determination).
Note: Information on what types of background checks are needed for people with particular
roles at certain operation types is now separated into §§745.609, 745.611, 745.613, and
745.615.
[Replaced portions of deleted §745.615]
5
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.607
New
What are the different
types of background
checks?
The rule describes the different types of background checks and organizes them into a chart,
including:
Adding three new types of out-of-state checks:
o Out-of-state criminal history check;
o Out-of-state child abuse and neglect registry check; and
o Out-of-state sex offender registry check; and
Clarifying that a fingerprint-based criminal history check or a name-based criminal history
check includes a sex offender registry search.
[Replaced deleted §745.611]
§745.609
New
What types of
background checks are
required for persons at
my operation?
The rule describes which types of background checks persons must have based on the type of
operation submitting the check and the person’s role at the operation. The required types of
background checks include:
A fingerprint-based criminal history check or name-based criminal history check based on
criteria further described in §745.611;
A central registry check; and
For certain persons identified in §745.613, out-of-state checks (out-of-state criminal history,
out-of-state child abuse and neglect registry, and out-of-state sex offender registry).
Note: The rule does not apply to background checks requested by relative-only listed family
homes, employer-based child care operations, and shelter care operations. These types of
operations are covered in §745.615.
[Replaced portions of deleted §745.615]
6
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.611
New
Which persons at my
operation require either
a fingerprint-based
criminal history check or
a name-based Texas
criminal history check?
The rule describes which persons must have either a fingerprint-based criminal history check
or a name-based Texas criminal history check. The following three requirements remain
unchanged:
o Persons identified by §745.605(a)(1)-(6) require a fingerprint-based criminal history
check;
o Persons identified by §745.605(a)(7) (persons regularly or frequently present at the
operation that are 14 years of age or older, including volunteers) require a name-based
Texas criminal history check only; and
o Persons who would otherwise only require a name-based check require a fingerprint-
based check if the person resided outside of Texas in the previous 5 years or there is
reason to believe the person has criminal history outside of Texas.
The rule also adds a clarification that a person who is at the operation to complete a skills
practicum or receive observation only requires a name-based criminal history check if certain
requirements described in the rule are met.
Note: The rule does not apply to background checks requested by relative-only listed family
homes, employer-based child care operations, and shelter care operations. These types of
operations are covered in §745.615.
[Replaced portions of deleted §746.615]
7
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.613
New
Which persons at my
operation must have an
out-of-state criminal
history check, an out-of-
state child abuse and
neglect registry check,
and an out-of-state sex
offender registry check?
The rule outlines new requirements regarding when a person must have out-of-state checks.
Out-of-state checks (out-of-state criminal history, out-of-state child abuse and neglect
registry, and out-of-state sex offender registry) are required for any person required to have
a background check submitted under §745.605 if:
o The person lived outside of Texas in the previous 5 years; or
o There is reason to believe the person has a relevant history in another state.
However, out-of-state criminal history checks are not required:
o If the requesting operation is a residential child-care operation, including a CPA, agency
foster home, or GRO; or
o If the state where the person resided during the previous five-year period participates in
the FBI's National Fingerprint File program.
Note: The rule does not apply to background checks requested by relative-only listed family
homes, employer-based child care operations, and shelter care operations. These types of
operations are covered in §745.615.
§745.615
New
What types of
background checks are
required for persons at
listed family homes that
only provide care to
related children,
employer-based child
care operations, and
shelter care operations?
The rule relates specifically to listed family homes that only provide care to related children,
employer-based child care operations, and shelter care operations.
In most situations persons requiring background checks at these types of operations only
require a name-based Texas criminal history check and a central registry check.
Persons who require a name-based check require a fingerprint-based check instead if:
o The person lived outside of Texas in the previous 5 years; or
o There is reason to believe the person has criminal history outside of Texas.
8
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.617
New
How do I submit a
request for a background
check?
The rule explains in a chart how operations must submit background checks, including:
The unchanged requirement that residential child care operations, licensed child care
centers, before or after-school programs, and school-age programs must submit requests for
background checks online through the operation’s Child Care Licensing Account;
The new requirement that licensed and registered child care homes must submit requests for
background checks online through the home’s Child Care Licensing Account (previously these
homes were allowed to submit the checks manually); and
The unchanged requirement that listed family homes, small employer based operations, and
temporary shelter care operations may submit requests for background checks online
through the home’s or operation’s Child Care Licensing Account, or manually by sending
Form 2971 to the CBCU.
[Replaced deleted §745.623(b), (c), and (d)]
§745.619
New
What information must I
include with a request for
a background check?
The rule requires the following additional information about a person to be included with a
request for a background check:
The city and state of each residence outside of Texas where the person lived in the previous
5 years;
The person’s email address, if available; and
The person's role at the operation, including title and job duties, level of supervision, and
ages of children the person will be caring for.
Note: The online background check request form and Form 2971 will be updated to include the
additional information.
[Replaced deleted §745.623(a)]
9
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.621
New
When must I submit a
request for an initial or
renewal background
check for a person?
The rule outlines when the initial and renewal background check is due for a person:
There is no change to when the operation must submit the initial check for a person;
The updated renewal background check submission requirement is:
o 5 years from the last background check submitted for a person requiring a fingerprint-
based check; or
o 2 years from the last background check submitted for a person requiring a name-based
Texas criminal history check; and
A new clarification that an operation must also submit renewal background checks when:
o There is a change in the person’s state of residence; or
o The person’s role at the operation changes from a role that only required a name-based
Texas criminal history check to a role that requires a fingerprint-based criminal history
check (for example, if a person who is a volunteer and has only had a name-based
criminal history check transitions to an employee role, you must submit a renewal
background check for the person so that the fingerprint check is completed).
[Replaced deleted §745.625]
§745.623
New
How does the subject of
a background check
submit fingerprints for a
fingerprint-based
criminal history check?
The rule requires the CBCU to send a notification with instructions on how to schedule
appointments for submitting fingerprints to the person who is the subject of the background
check. The notice was previously sent to the operation.
[Replaced deleted §745.629]
10
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.625
New
Does the subject of a
background check who
has already undergone a
fingerprint-based
criminal history check
have to submit new
fingerprints?
The requirements for submitting fingerprint checks have significantly changed, because
Licensing now uses the FBI’s national rap back service. A person:
Will not need to be fingerprinted again, if the CBCU is able to confirm that HHSC has an
active subscription to the FBI's national rap back service for this person, or if the CBCU is
able to reactivate a subscription for this person; or
Will need to be fingerprinted again, if the CBCU is unable to confirm or reactivate a
subscription for this person.
For a description of the FBI’s national rap back service, please refer to Background Checks, FBI
National Rap Back Overview.
[Replaced deleted §745.630]
§745.627
New
How soon will the CBCU
notify the subject of a
background check and
me of the determination
of the background
check?
The rule is a new requirement that the CBCU will notify the operation and the person who is the
subject of a background check of the written background check determination as soon as
possible, but no later than 45 days from the date the operation submitted the background check
request.
§745.629
New
What are the possible
determinations for the
subject of a background
check?
The rule adds a new list and description of the four possible background check determinations:
provisionally eligible with conditions, eligible, eligible with conditions, and ineligible.
11
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.631
New
In what situations may
the CBCU place
conditions or restrictions
on a subject's presence
at an operation?
The rule outlines situations in which the CBCU may place conditions or restrictions on a person’s
presence at an operation. In addition to placing conditions or restrictions on a person for a
pending risk evaluation or an approved risk evaluation, the CBCU may also place conditions or
restrictions:
While the person’s out-of-state criminal history check or abuse or neglect registry check is
pending and there is no information that renders the person ineligible to be present at an
operation; or
For a subsequent minimum standard violation relevant to a condition or restriction already in
place.
[Replaced deleted §745.691]
12
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.633
New
What information will a
notice letter that the
CBCU sends to an
operation include?
The rule includes significant changes because Licensing will no longer release criminal history
and child abuse and neglect findings directly to operations (including non-enumerated
crimes), with the noted exception below for child-placing agencies (CPA).
The rule requires the CBCU to provide a notice to an operation, which includes:
o The person’s background check determination;
o Any conditions or restrictions on the person’s presence at the operation; and
o A list of each operation that submitted a request for a background check on the person
and when the operation submitted the request. [Note: This requirement from deleted
§745.637 and is not a change in practice, however, the language in the new rule is more
specific as to what will be provided in the notice.]
If a CPA submitted a request because of the person’s association with a current or
prospective foster or adoptive home, the notice will also include:
o The sources of the information that were used for the background check;
o Any criminal history, including non-enumerated crimes;
o Sustained Central Registry findings;
o Whether the person is eligible for a risk evaluation; and
o Any out-of-state child abuse or neglect finding released due to a determination of
immediate risk.
[Replaced deleted §745.653 and §745.659]
13
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.635
New
What must I do after the
CBCU notifies my
operation of a subject's
background check
determination?
The rule requires an operation to take an action based on the person’s background check
determination, not the person’s particular criminal conviction or central registry finding. The
action an operation must take for a background check determination depends upon the
determination:
An eligible determination does not require any action by the operation;
An ineligible determination requires the operation to immediately remove the person from
being present at the operation and notify the CBCU of the removal; and
An eligible with conditions or provisionally eligible with conditions determination requires the
operation to restrict the person’s duties in a manner that follows the conditions or
restrictions the CBCU placed on the person.
[Replaced deleted §745.661 and §745.693(a)]
§745.637
New
What actions may
Licensing take if I do not
follow the conditions or
restrictions on a
subject’s presence at an
operation?
The rule describes what actions Licensing may take if an operation does not follow the
conditions or restrictions the CBCU placed on a person’s presence at the operation and clarifies
that Licensing may also take an action if there is a minimum standard violation that is relevant
to a condition or restriction placed on a person’s presence at the operation. The rule allows
Licensing to take any of the following actions:
Amend the conditions or restrictions that the CBCU placed on the person’s presence at the
operation;
Rescind an approved risk evaluation; and
Take an enforcement action against the operation.
[Replaced deleted §745.693(b)]
14
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.639
New
What information will a
notice letter that the
CBCU sends to the
subject of a background
check include?
The rule is a new requirement for the CBCU to provide written notice to the person who is the
subject of a background check. The notice must include:
The sources of information;
Whether additional information is needed;
Any criminal history;
Sustained Central Registry history;
Whether the person may request a risk evaluation;
Whether the person may be present at an operation;
Any conditions or restrictions on the person’s presence;
Any child abuse or neglect finding that is not sustained and whether the CBCU has
determined the person poses an immediate threat or danger to the health or safety of
children; and
Information on how to challenge the accuracy and completeness of the background check
results.
§745.641
New
How soon after I submit
a request for a
background check on a
subject can that subject
be present at an
operation?
The rule requires the CBCU to notify the operation that the person’s background check
determination is eligible, eligible with conditions, or provisionally eligible with conditions
before allowing the person to be present at an operation.
Exception: While the background check determination is pending, the person may be present
for the sole purpose of attending orientation or pre-service training, provided the person
does not have contact with children in care.
Note: The staff shortage exception that allowed a person to be present before receipt of the
person’s FBI fingerprint check results was deleted in response to federal and state law changes.
[Replaced deleted §745.626]
15
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.643
New
How can the subject of a
background check
challenge the accuracy or
completeness of the
information contained in
the results of the
background check?
The rule clarifies that the person who is the subject of the background check (rather than
the operation) is responsible for challenging the accuracy or completeness of the information
in the background check.
The rule also clarifies the process for challenging the results as follows:
o The person should first attempt to resolve the issue with the CBCU representative; and
o If still unable to resolve the issue, then the person should seek resolution from the
agency that provided the results.
[Replaced deleted §745.663]
§745.645
New
How can the subject
request that the CBCU
review the background
check determination?
The rule is a new requirement that:
Allows a person who is the subject of a background check to request a review of the
background check determination from the CBCU, if the person:
o Disagrees with the determination (the person must request the review within 30 days
from the notice letter); or
o Has new information not available at the time of the determination (the person may
request the review any time new information is available);
Requires the CBCU to respond to the request to review the background check determination
within 30 days, which may be extended for good cause;
Allows the person to request that the CBCU Director review the accuracy of the background
check determination, if the person still disagrees with the determination; and
States the CBCU Director’s decision is final.
16
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.647
New
Must the CBCU complete
the background checks
before Licensing issues
my permit?
The rule requires the CBCU to issue a background check determination of eligible or eligible with
conditions (rather than just receiving the results from the background check):
For all household members before Licensing may issue a permit to a licensed, registered, or
listed home; or
For only the owner before Licensing may issue a permit to any other operation that is not a
home. Exception: Based on statutory requirement, background checks for a shelter care
operation or an employer-based childcare operation during the application stage will be on
the prospective caregivers and not the owner.
[Replaced deleted §745.631]
§745.649
New
Can a child-placing
agency (CPA) verify a
foster family home or
approve an adoptive
home prior to receiving
the background check
determinations?
The rule requires a CPA to receive a CBCU background check determination of eligible or eligible
with conditions (rather than a cleared background check) for all household members of a foster
family home or adoptive home before the CPA may verify or approve the home.
[Replaced deleted §745.633]
§745.651
New
Am I required to indicate
when the subject of a
background check is no
longer associated with
my operation?
The rule adds new requirements that operations must indicate that a person is no longer
associated with the operation by:
o Inactivating the person within seven days; and
o Validating the current list of employees every three months, or once a year for licensed,
registered, and listed homes.
The tasks of inactivating and validating may be completed through the operation’s online
Child Care Licensing account.
§745.653
New
Can I do my own
criminal history
background checks?
The rule maintains the ability for operations to conduct their own background checks, but these
background checks do not replace the background checks that must be submitted to Licensing.
This is not a change from previous requirements.
[Replaced deleted §745.635]
17
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.661
New
What types of criminal
convictions may affect a
subject's ability to be
present at an operation?
The rule outlines the types of criminal convictions that affect a person’s ability to be present
at an operation, including referring to the three charts posted on the Child Care Licensing
website (which is not a change from previous requirements):
o Licensed or Certified Child Care Operations: Criminal History Requirements;
o Foster or Adoptive Placements: Criminal History Requirements; and
o Registered Child Care Homes and Listed Family Homes: Criminal History Requirements.
The rule does change how the three charts will be updated, including that HHSC will:
o Publish proposed changes to the charts in the Texas Register and the Licensing public
website for a 30-day public comment period;
o Publish responses to the comments on the Licensing public website;
o Base changes to a chart in response to comments on a reasoned justification; and
o Republish adopted changes to a chart in the Texas Register.
The rule also clarifies that on a case-by-case basis Licensing will compare the legal elements
of each offense to determine whether a federal offense or offense in another state is
substantially similar to a Texas offense.
[Replaced deleted §745.651]
§745.663
New
For the purpose of this
subchapter, when do
criminal convictions
include deferred
adjudication community
supervision?
The rule clarifies in a new chart format that deferred adjudication community supervision is also
considered a conviction when Licensing revokes a permit, in addition to issuing or denying a
permit to an applicant as per current requirements.
[Replaced deleted §745.655]
18
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.665
New
What must I do if the
subject of a background
check at my operation
has been arrested or
charged with a crime?
The rule clarifies that a person who has been arrested or charged with a crime may continue to
be present at the operation unless the CBCU notifies the operation that the person is ineligible
to be present. The operation is still responsible for immediately reporting the information to
Licensing as per current requirements.
[Replaced deleted §745.699]
§745.667
New
How will the CBCU
determine whether a
subject who has been
arrested or charged with
a crime may not be
present at an operation?
The rule clarifies that a background check determination for a person who has been arrested or
charged with a crime, including any conditions or restrictions that have been placed on the
person, is temporary, and the CBCU will make a final decision once there is a final outcome to
the alleged crime.
[Replaced deleted §745.701]
§745.669
New
Will a requirement that a
subject register with the
Texas Sex Offender
Registry or an out-of-
state sex offender
registry affect the
subject's ability to be
present at an operation?
The rule clarifies that a person required to register as a sex offender outside of Texas is barred
from being present at an operation. Current requirements already bar a person who is required
to register as a sex offender in Texas from being present at an operation.
[Replaced deleted §745.656]
19
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.671
New
What types of findings
from the Central Registry
or out-of-state child
abuse and neglect
registries may affect a
subject's ability to be
present at an operation?
The rule outlines the Central Registry and out-of-state child and abuse neglect findings that
affect a person’s ability to be present at an operation. The only change from current
requirements is that the chart includes a new type of finding at (a)(7) for a DFPS, not sustained,
child abuse or neglect finding where the CBCU has determined that the person does not present
an immediate threat or danger to the health or safety of a child.
[Replaced deleted §745.657]
§745.673
New
What must I do if the
subject of a background
check at my operation is
under investigation for
child abuse or neglect?
The rule clarifies that a person who is under investigation for child abuse or neglect (whether in
Texas or another state) may continue to be present at the operation unless the CBCU notifies
the operation that the person is ineligible to be present. The operation is still responsible for
immediately reporting the information to Licensing as per current requirements.
[Replaced deleted §745.705]
§745.681
New
Who is responsible for
requesting a risk
evaluation?
The rule states that the person who is the subject of the background check (rather than the
operation) is now responsible for requesting a risk evaluation.
[Replaced deleted §745.683]
§745.683
New
When may the subject of
a background check
request a risk
evaluation?
The rule clarifies that the person who is the subject of a background check may request a risk
evaluation after the CBCU has provided written notice that the person is eligible for a risk
evaluation.
[Replaced deleted §745.681]
§745.685
New
How long does the
subject of a background
check have to request a
risk evaluation?
The rule clarifies that:
A person must submit a request for a risk evaluation within 30 calendar days from when the
operation submitted the background check request; and
The CBCU will notify the person when the request for a risk evaluation is due.
[Replaced deleted §745.686]
20
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.687
New
How does the subject of
a background check
request a risk
evaluation?
The rule clarifies that:
The person who is the subject of the background check is responsible for submitting the risk
evaluation packet (previously, it was the operation’s responsibility) to the CBCU; and
The completed risk evaluation packet must include the information noted in §745.689 or
§745.691. This has always been the practice, but was not clearly stated in rule.
[Replaced deleted §745.685]
§745.689
New
What must a request for
a risk evaluation based
on criminal history
include?
The rule outlines what the person who is the subject of the background check must include in a
risk evaluation packet for criminal history. The requirements remain largely the same, except for
the following changes:
Add a requirement to provide an official copy of the police report regarding the
circumstances of the arrest;
Delete the requirement for the operation to provide a valid rationale as to why the person
would not pose a risk to the health and safety of children (except a CPA must provide a
rationale if the risk evaluation is for a foster or adoptive home); and
Delete the requirement to provide information regarding the person’s role at the operation.
[Replaced deleted §745.687]
§745.691
New
What must a request for
a risk evaluation based
on a child abuse or
neglect finding include?
The rule outlines what the person who is the subject of the background check must include in a
risk evaluation packet for a child abuse or neglect finding. The requirements remain largely the
same, except for the following changes:
Clarify that the rule applies to any child abuse or neglect finding, not just Texas Central
Registry findings;
Delete the requirement for the operation to provide a valid rationale as to why the person
would not pose a risk to the health and safety of children (except a CPA must provide a
rationale if the risk evaluation is for a foster or adoptive home);
Clarify that evidence of rehabilitative efforts must be included; and
Delete the requirement to provide information regarding the person’s role at the operation.
[Replaced deleted §745.689]
21
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.693
New
Who makes the final
decision on a risk
evaluation?
The rule states that a CBCU manager or designee reviews a request for a risk evaluation and
makes the decision on whether to approve the request. The rule adds a new requirement that
the CBCU must provide the person who requested the risk evaluation with a written final
decision on the risk evaluation within 45 days from the date background check was submitted.
[Replaced deleted §745.707]
§745.695
New
What factors does the
CBCU use when deciding
whether the subject of a
background check poses
a risk to the health or
safety of children in a
particular operation?
The rule outlines the factors the CBCU uses when deciding whether a person poses a risk to the
health or safety of children. In addition to the previous requirements for the CBCU to assess the
information submitted in the risk evaluation packet, the compliance history of the operation, the
role and responsibility of the person at the operation, and any federal requirements, the
following new changes apply:
When reviewing the information required by §745.689 and §745.691, the CBCU will consider
whether the person failed to submit any information, and review any other relevant
information; and
The CBCU will consider the following new factors when assessing whether the person poses a
risk to the health or safety of children:
o The length of time since the crime or abuse or neglect was committed;
o The person’s role in the crime or abuse or neglect;
o Any pattern of type of crime or abuse or neglect; and
o Evidence of rehabilitative efforts over the last 10 years.
[Replaced deleted §745.709]
22
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.697
New
Does an approved risk
evaluation expire?
The rule outlines when a risk evaluation expires, including:
o When the person is arrested or charged with another crime or has an additional criminal
conviction or child abuse and neglect finding;
o When the person’s role at the operation (including the level of contact the person has
with children in care of the operation) changes;
o The person becomes employed at a different operation than when the CBCU approved
the risk evaluation; and
o When the CBCU amends or rescinds a risk evaluation.
The rule also clarifies that:
o After a risk evaluation expires, the CBCU will either conduct a new risk evaluation or
reprocess the current risk evaluation based on new information; and
o An approved risk evaluation for a crime for which the person has been arrested or
charged is temporary, and the CBCU will make a final decision once there is a final
outcome to the alleged crime.
[Replaced deleted §745.697]
§745.699
New
Can a subject of a
background check
request that the CBCU
review a risk evaluation
decision?
The rule provides the person who requested the risk evaluation with a new right to request a
review of the risk evaluation decision (this was not previously allowed), including the conditions
or restrictions that were imposed, if there is new information that was not available at the time
of the risk evaluation decision. The rule:
Requires the reviews to be requested in writing;
Requires the CBCU director or designee to provide a written response within 30 days, which
may be extended for another 30 days for good cause; and
States that the review of the risk evaluation is a final decision.
[Replaced deleted §745.711]
§745.731
New
Who are designated
perpetrators and
sustained perpetrators of
child abuse or neglect?
The rule defines “designated perpetrator” and “sustained perpetrator” and clarifies that a
person’s due process rights includes any rights of appeal.
[Replaced deleted §745.731]
23
Texas Health and Human Services ● hhs.texas.gov
New or
Amended
Rule Number
New or Amended Rule
Title Overview and Summary of Significant Changes
§745.751
New
What factors does
Licensing consider when
determining if a person
or an operation is an
immediate threat to the
health or safety of
children?
The rule outlines the factors Licensing considers when determining if a person or operation is an
immediate threat to the health or safety of children in care of the operation. There are no
significant changes to the rule.
[Replaced deleted §745.751]
§745.8713
Amended
When may Licensing
impose a monetary
penalty before a
corrective action?
The rule describes when Licensing may impose a monetary penalty before imposing a corrective
action. The changes to the rule make the circumstances for which Licensing may first impose a
monetary penalty consistent with the changes regarding background check determinations.
Recommended