1280 Reviews by the Office of Consumer Affairs (OCA)
1281 Overview of the OCA Review Process
CPS March 2019
When an administrative review of investigation findings (ARIF) upholds a person’s role as a designated perpetrator, the person may request that the Office of Consumer Affairs (OCA) review his or her role in the investigation.
The person is required to request the OCA review in writing within 30 days after the date when the notification letter about the ARIF decision was sent. The OCA director may waive the 30-day requirement if there is good cause for doing so.
OCA Review Procedures
When a person requests an OCA review, the OCA obtains a copy of the case record from the regional office that did the original investigation.
The OCA reviews the following:
• The case record.
• The ARIF documentation.
• Other information that was available during the investigation and that the staff members who did the investigation considered or should have considered.
In extraordinary circumstances, the OCA may also review information that was not available during the investigation.
The OCA prepares written findings and recommendations after completing its review.
If the OCA recommends no change to the person’s role, the OCA does as follows:
• Tells the requester.
• Tells the regional office that did the original investigation.
• Closes the OCA review.
If the OCA recommends a change to the person’s role, the OCA sends the recommendations to the associate commissioner for investigations or a designee. The associate commissioner or designee does as follows:
• Reviews the OCA’s recommendations.
• May discuss the OCA’s recommendations with the regional office that did the original investigation.
• Tells the OCA whether the associate commissioner (on behalf of CPI) agrees with the OCA’s recommendations.
The following occurs, depending on whether the associate commissioner for investigations agrees with the OCA:
• If the associate commissioner agrees, the OCA tells the requester the findings.
• If the associate commissioner does not agree, the associate commissioner or the OCA may refer the case to the DFPS general counsel. If this happens, the general counsel reviews the case and recommends a final decision to the DFPS commissioner.
OCA Notification Letter
When the results of the OCA review are final, the OCA does as follows:
• Sends a notification letter to the requester stating that his or her role in the investigation either has changed or has not changed.
• Sends a copy of this letter to the resolution specialist within five business days of the date on the letter.
More Information
For more information about the OCA, including policies and procedures for an OCA review, see the Office of Consumer Affairs Handbook.
1282 Regional Responsibilities
CPS March 2019
Timing of Sending Case Record to the OCA
When a designated perpetrator requests an OCA review, the regional office that did the original investigation sends the case record to the OCA within 10 business days from the date of the OCA’s request.
Regional Director Responsibilities
When a designated perpetrator requests an OCA review, the regional director at the regional office that did the original investigation does as follows:
• Oversees the regional office’s work with the OCA.
• Makes sure that staff members at the regional office complete all requirements in a timely and appropriate manner.
Resolution Specialist Responsibilities
Documenting in IMPACT
The resolution specialist documents the OCA review and its results in the Administrative Review for Investigation (ARI) stage in IMPACT. He or she does this as soon as he or she receives a copy of the notification letter that the OCA sent to the requester about the findings of the OCA review.
The resolution specialist also notifies the following people about the OCA review and its findings:
• The supervisor of the investigation.
• The supervisor of the ongoing case, if any.
Handling Changes in the Findings
If the OCA review led to a change in the findings, the resolution specialist does as follows:
• Follows the policy in 1265 Documenting the ARIF in IMPACT.
• Tells the people who originally received notification of the investigation findings, except for the following people:
• The requester, since the OCA told him or her.
• Any non-professional reporter.
• A professional reporter whom DFPS staff did not tell, at the end of the original investigation, that the requester was a designated perpetrator.
• Files copies of the notification letters in the paper record.
1290 Release Hearings When CPI Releases Investigation Findings
CPS May 2021
If Child Protective Investigations (CPI) determines that a person designated as a perpetrator of child abuse or neglect poses a substantial risk to other children or vulnerable adults outside the perpetrator’s family or household, CPI releases information about the substantiated investigation findings to entities that have control over the perpetrator’s access to the other children or vulnerable adults. The purpose of the release is to protect the other children or vulnerable adults.
DFPS Rules, 40 TAC §707.571(2)
A vulnerable adult is defined as a person who is either of the following:
- An adult or an emancipated minor who has a physical, mental, or developmental disability that substantially impairs the person’s ability to provide adequately for the person’s care or protection.
- A person age 65 or older.
DFPS Rules, 40 TAC §707.571(5)
Entities to Which CPI May Release Information
CPI may release information about substantiated investigation findings to an entity outside DFPS, including, but not limited to, the following:
- Employers.
- Licensing boards.
- Other entities that monitor or have control over the designated perpetrator’s access to children or vulnerable adults.
For example, DFPS may release the information to the following:
- Board of Social Work Examiners.
- Board of Nurse Examiners.
- Board of Medical Examiners.
- State Bar of Texas.
- State Board of Psychologists.
- State Board for Educator Certification.
- Texas Education Agency.
When releasing the substantiated investigation findings to an entity outside DFPS, the caseworker does the following:
- Uses the appropriate letter template. See 1298 Templates for Notice Letters in the Release Hearing Process.
- Follows the procedures in the Adult Protective Services Handbook, 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies, if the release is to one of those entities, and uses the mailing address and complaint form that the entity requires.
Release Hearing (Also Known as Due Process Hearing)
When DFPS determines that release of the information is necessary, the designated perpetrator is offered a release hearing (also known as a due process hearing) to appeal the decision through a formal administrative legal proceeding before an administrative law judge in the State Office of Administrative Hearings (SOAH).
DFPS Rules, 40 TAC §707.571(3)
There are two types of release hearings:
- A release hearing that DFPS offers to a designated perpetrator in a CPI investigation when CPI releases information about the investigation findings based on a determination that the designated perpetrator poses a substantial risk of harm to children or vulnerable adults (see 40 TAC Chapter 707, Subchapter A, Division 3).
- A release hearing that the Health and Human Services Child Care Licensing (CCL) program offers to an employee or prospective employee of a child care operation after CCL conducts a background check on the person and finds the person’s name on the central registry (see 26 TAC Chapter 745, Subchapter F, Division 3 and 40 TAC Chapter 745, Subchapter M, Division 2).
This policy is about release hearings that DFPS offers when CPI releases investigation findings.
Emergency and Non-Emergency Release
If CPI determines that the risk of harm is substantial and immediate, CPI releases the substantiated investigation findings on an emergency basis before the release hearing.
DFPS Rules, 40 TAC §707.573(d)
If CPI determines that there is a substantial risk of harm, but the harm is not immediate, CPI only releases the substantiated investigation findings after the findings have been sustained. The findings are sustained when either of the following occurs:
- A hearing is held, and the administrative law judge sustains the abuse or neglect findings that DFPS made against the perpetrator.
- The designated perpetrator waives the right to appeal. This occurs if the designated perpetrator receives notice of the right to appeal and then does any of the following:
- Submits a written request to waive the release hearing.
- Does not request a release hearing.
- Requests a release hearing, but does not mail the written request in time for it to be postmarked within 15 days of when the perpetrator received the written notice of the right to appeal.
DFPS Rules, 40 TAC §707.571(4)
DFPS Rules, 40 TAC §707.573(c)
1291 Factors CPI Considers When Deciding Whether Release Is Necessary
CPS May 2021
To determine whether a designated perpetrator poses a substantial risk to children or vulnerable adults, CPI staff members consider the following:
- The nature of the abuse or neglect that CPI concluded the designated perpetrator was responsible for.
- The designated perpetrator’s past patterns of behavior, including any history of child or adult abuse or neglect that DFPS has not directly investigated.
- Any attempts by the designated perpetrator to seek employment with, or volunteer for, agencies or institutions that provide services to children or vulnerable adults.
- The designated perpetrator’s apparent level of maturity and psychological functioning.
- The apparent age, physical condition, level of maturity and psychological functioning, and other characteristics of the children or vulnerable adults to whom the designated perpetrator has or might have access.
- The nature of the designated perpetrator’s access to those children or vulnerable adults.
- The presence or absence of adults who can supervise the designated perpetrator’s access to those children or vulnerable adults, or otherwise protect them from harm.
- All other information that appears relevant in the particular case.
1292 Approval before Releasing Information
CPS May 2021
Before a caseworker begins a non-emergency or emergency release, both the regional director and regional managing attorney do the following:
- Consult with the caseworker and with each other.
- Agree that the risk of harm that the designated perpetrator poses to one or more children or vulnerable adults outside the perpetrator’s family or household is substantial.
- Approve the release.
For an emergency release, the regional director and regional managing attorney must also determine that the risk of harm is immediate.
DFPS Rules, 40 TAC §707.573(b)
1293 Release of Designated Perpetrator Information
1293.1 Notice to Perpetrator
CPS May 2021
When the regional director and regional managing attorney agree to release information about substantiated investigation findings against a person CPI has designated as a perpetrator of abuse or neglect, CPI staff gives the designated perpetrator written notice of the decision to release, regardless of whether CPI previously gave the perpetrator notification of the investigation findings. This applies whether the release is a non-emergency release or an emergency release.
DFPS Rules, 40 TAC §707.575(a)
CPI uses one of the following templates to notify the designated perpetrator of DFPS’s decision to release:
Template 1 Notice of Non-Emergency Release to Perpetrator
Template 2 Notice of Emergency Release to Perpetrator
Contents of Notice
The notice of the release of investigation findings on an emergency or non-emergency basis must include the following information:
- A statement of the investigation findings.
- Notice of CPI’s decision to release information about the designated perpetrator to specific outside entities.
- Notice, when applicable, that the information will be released on an emergency basis before a release hearing can be completed.
- Notice of the following:
- The designated perpetrator has a right to a release hearing to appeal the decision to release information about him or her.
- To appeal the decision, the designated perpetrator must submit two copies of a written request for an appeal.
- The two copies of the designated perpetrator’s written request for an appeal must be postmarked within 15 days of when the perpetrator received DFPS’s written notice of the release.
- One of the two copies must be sent to the docket clerk for Child Care Licensing in the Texas Health and Human Services Legal Services Division, Enforcement Department.
- The other copy must be sent to the regional director for the region that issued the abuse or neglect findings.
- The designated perpetrator is responsible for sending the docket clerk written notification of any change in address that occurs after having requested a release hearing.
- Notice that failure to appeal the decision may result in CPI releasing information about the substantiated investigation findings now and in the future to outside entities without the perpetrator’s consent and without additional notice to the perpetrator at any time in the future.
- Notice of the designated perpetrator’s right to do the following:
- Review all audio and video recordings included in the CPI investigation record, if any.
- Request a copy of all written documentation included in the CPI investigation record.
- Notice of DFPS’s obligation to delete the following information from all written documentation that DFPS gives to the designated perpetrator:
- The name of the person who reported the abuse or neglect that CPI investigated.
- Any other information that is confidential by law.
- Notice that the designated perpetrator’s request for a copy of the written documentation included in the investigation record may be denied if either of the following applies:
- Releasing the documentation would jeopardize an ongoing criminal investigation or proceeding.
- The attorney representing DFPS has determined that the documentation must be withheld.
DFPS Rules, 40 TAC §707.575(e)
Approval of Notice before Sending
The written notice of the release requires the approval of the DFPS regional managing attorney before the caseworker sends it to the designated perpetrator.
DFPS Rules, 40 TAC §707.575(c)
Time Frame for Sending Notice of Emergency Release
If CPI is releasing information on an emergency basis, the caseworker sends the written notice to the designated perpetrator either before, or at the same time that, CPI releases the information to the outside entity.
The notice offers the designated perpetrator an opportunity to request the following:
- A release hearing after the release occurs.
- The DFPS records related to the released investigation findings.
DFPS Rules, 40 TAC §707.573(d)
Use of Certified Mail
The caseworker sends the notice to the designated perpetrator by certified mail with a return receipt requested, unless the caseworker or a higher-ranking staff member determines that a faster form of written notice is required.
DFPS Rules, 40 TAC §707.575(d)
1293.2 Emergency Release to Outside Entity
CPS May 2021
When releasing the investigation findings on an emergency basis to an outside entity that has control over the designated perpetrator’s access to children or vulnerable adults, CPI releases the information at the same time that, or after, it sends the written notice of the emergency release to the perpetrator.
The caseworker uses Template 3 Notice of Emergency Release to Employer to release the findings.
See also:
1290 Release Hearings When CPI Releases Investigation Findings
Adult Protective Services Handbook, 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
1298 Templates for Notice Letters in the Release Hearing Process
1294 Release of Sustained Perpetrator Information When Release Hearing Is Waived
CPS May 2021
A person designated as a perpetrator waives his or her right to a release hearing and automatically becomes a sustained perpetrator if the person does any of the following:
- Submits a written request to waive the release hearing.
- Does not request a release hearing after being notified of the right to do so.
- Requests a release hearing, but does not mail the written request in time for it to be postmarked within 15 days of when the perpetrator received the written notice of the right to a release hearing.
When this occurs, CPI sends written notice of the perpetrator’s sustained status to both the perpetrator and the outside entity.
Notice to Perpetrator
CPI uses Template 4 Notice of Sustained Status to Perpetrator to notify the person that his or her role has changed to sustained perpetrator, regardless of which of the following occurred earlier in the process:
- CPI released information about substantiated investigation findings on an emergency basis.
- CPI informed the perpetrator of CPI’s intent to release the findings on a non-emergency basis.
Release of Information to Outside Entity
CPI uses Template 5 Notice of Sustained Findings to Employer to notify an outside entity of the findings when CPI previously released the findings on an emergency basis.
CPI uses Template 6 Notice of Sustained Findings to Employer to notify an outside entity of the findings when CPI informed the perpetrator of CPI’s intent to release the findings on a non-emergency basis.
See also:
1290 Release Hearings When CPI Releases Investigation Findings
Adult Protective Services Handbook, 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
1298 Templates for Notice Letters in the Release Hearing Process
1295 Release of Sustained Perpetrator Information When Release Hearing Occurs
1295.1 Preparation for and Scheduling of a Release Hearing
CPS May 2021
If the designated perpetrator requests a release hearing in a timely manner after being notified of CPI’s decision to release information to outside entities about substantiated investigation findings, the regional staff alerts the docket clerk for Child Care Licensing in the Texas Health and Human Services Legal Services Division, Enforcement Department (HHSC Legal Services Division).
The HHSC Legal Services Division does the following:
- Assigns an attorney to represent DFPS and handle the case.
- Contacts the State Office of Administrative Hearings (SOAH) to request a date for the release hearing, which will usually be held in the region where the investigation occurred.
- Obtains case records from DFPS to prepare for the hearing.
- Prepares the caseworker, supervisor, or other appropriate DFPS staff member who is most familiar with the case, for witness testimony.
- After a hearing date is put on the calendar and SOAH has assigned a docket number to the case, sends a notice of hearing to either of the following:
- The designated perpetrator’s last known address, as it appears in DFPS records (or in recent notification from the perpetrator), by both regular and certified mail. (The designated perpetrator is responsible for giving the HHSC Legal Services Division written notification of any change in address that occurs after he or she requests a release hearing.)
- The designated perpetrator’s attorney, if DFPS or the HHSC Legal Services Division has received written notice of representation from an attorney representing the designated perpetrator.
DFPS Rules, 40 TAC §707.579(b)
1295.2 Procedures for a Release Hearing
CPS May 2021
A release hearing is conducted according to the following procedural rules:
- State Office of Administrative Hearings (SOAH) rules found at 1 TAC Chapter 155 Rules of Procedure, 1 TAC Chapter 157 Temporary Administrative Law Judges, and 1 TAC Chapter 161 Requests for Records.
- The Texas Government Code, Chapter 2001, Administrative Procedure Act (APA) rules, to the extent that they do not conflict with the SOAH rules.
- The Texas Rules of Civil Procedure, to the extent that they do not conflict with the SOAH or APA rules.
1295.3 Decisions an Administrative Law Judge (ALJ) Can Make
CPS May 2021
At the end of a release hearing, the ALJ can issue a decision that does any of the following:
- Overturns the original CPI findings.
- Sustains (upholds) the original CPI findings.
- Alters the original CPI findings.
See 1295.5 Appeal of the Decision.
1295.4 Notification of SOAH Decision to DFPS and Perpetrator
CPS May 2021
SOAH provides written notice of its decision to sustain (uphold), overturn, or alter investigation findings to both of the following:
- The perpetrator.
- The HHSC Legal Services Division.
A legal assistant in the HHSC Legal Services Division provides notice of SOAH’s decision, along with the administrative law judge’s written decision, to the appropriate DFPS staff members.
1295.5 Appeal of the Decision
CPS May 2021
Both the perpetrator and DFPS may appeal a release hearing decision that is not in their favor. Both sides have 15 days from the date that SOAH issues its decision to file a motion for rehearing.
Appeal by DFPS
If the regional staff disagrees with SOAH’s decision to overturn or alter investigation findings, staff members consult with the regional director. The regional director discusses SOAH’s decision with the HHSC Legal Services Division to decide whether it is appropriate to file a motion for rehearing with SOAH. If the HHSC Legal Services Division and DFPS agree that a motion for rehearing is appropriate, DFPS must work with HHSC to file the motion within 15 days of SOAH’s decision.
Appeal by the Perpetrator
If the perpetrator disagrees with SOAH’s decision to sustain or alter investigation findings, he or she may file a motion for rehearing with SOAH. If the perpetrator files this motion, he or she must also send the HHSC Legal Services Division a copy of the motion.
Documents to File if an Appeal Occurs
If either DFPS or the perpetrator pursues a motion for rehearing, the regional staff files the following in the paper case record:
- A copy of the administrative law judge’s decision.
- A copy of each signed notice to perpetrator, employer, or other person or entity entitled to notice.
- A copy of any materials or evidence relevant to the appeal.
1295.6 Required Regional Actions after Final SOAH Decision
1295.61 Regional Actions on Sustained Findings
CPS May 2021
Notifications and Release
After an appeal has been completed or the time frame to request an appeal has expired, the staff of the region in which the investigation occurred releases the information about the sustained findings to any appropriate entities outside DFPS, including employers, licensing boards, and other people or entities that have control over the perpetrator’s access to children or vulnerable adults.
If CPI previously released designated perpetrator information to outside entities on an emergency basis before the release hearing, the caseworker notifies those entities of the sustained findings using Template 7 Notice of Sustained Findings to Employer.
If CPI is conducting a non-emergency release, and therefore did not already release designated perpetrator information to outside entities, the caseworker uses Template 8 Notice of Sustained Findings to Employer to notify outside entities.
See also:
1290 Release Hearings When CPI Releases Investigation Findings
Adult Protective Services Handbook, 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
1298 Templates for Notice Letters in the Release Hearing Process
IMPACT Update
The resolution specialist for the region in which the findings were made does the following:
- Creates an Administrative Review of Investigation Findings (ARIF) stage for the case in IMPACT.
- Changes the person’s role to Sustained Perpetrator.
See 1295.63 Timing of Sending Notices and Updating IMPACT.
1295.62 Regional Actions on Overturned or Altered Findings after an Emergency Release
CPS May 2021
Notifications and Release
If CPI previously released designated perpetrator information to outside entities on an emergency basis, after an appeal has been completed or the time frame to request an appeal has expired, the staff of the region in which the investigation occurred notifies those entities of SOAH’s decision using Template 9 Notice of Overturned Findings to Employer.
See also:
1290 Release Hearings When CPI Releases Investigation Findings
Adult Protective Services Handbook, 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
1298 Templates for Notice Letters in the Release Hearing Process
IMPACT Update
The resolution specialist for the region in which the findings were made does the following:
- Creates an ARIF stage for the case in IMPACT.
- Changes the allegation dispositions to be consistent with the SOAH decision.
- Changes the person’s role to No Role if the findings were overturned.
- Sends notification letters from IMPACT to the following people:
- The person who was the subject of the release hearing (former designated perpetrator), if all the allegations naming the person as an alleged perpetrator in the investigation are Ruled Out. (The notification letter must contain Form 2235 Role Removal for the former perpetrator’s use.)
- The alleged victim’s parents or guardians.
- The original reporter, if the reporter reported in a professional capacity.
See 1295.63 Timing of Sending Notices and Updating IMPACT.
1295.63 Timing of Sending Notices and Updating IMPACT
CPS May 2021
CPI staff members wait to do the following until SOAH proceedings are finished:
- The regional office that did the original investigation waits to send notices of sustained status to the perpetrator, an employer, or any other relevant people or entities outside DFPS.
- The resolution specialist waits to update IMPACT.
SOAH proceedings are finished when both of the following have occurred:
- SOAH has issued a written decision.
- An appeal has been completed, or the time frame to request an appeal has expired.
1296 Release of Sustained Perpetrator Information When Perpetrator Does Not Appear at Release Hearing
CPS May 2021
If the designated perpetrator requests a release hearing in a timely manner but fails to appear at the hearing, the attorney representing DFPS at the hearing may request, and the administrative law judge may grant, a default judgment. A default judgment sustains (upholds) the findings of abuse or neglect as if a full hearing had been held.
If the administrative law judge issues a default judgment, the designated perpetrator becomes a sustained perpetrator, and the regional staff takes the actions in 1295.6 Required Regional Actions After Final SOAH Decision.
1297 Release of Previously Sustained Perpetrator Information
CPS May 2021
When CPI decides to do another release of investigation findings about a person who was previously sustained as a perpetrator in the same case, CPI has the authority to do this release without giving additional notice to the perpetrator.
DFPS Rules, 40 TAC §707.575(b)
1298 Templates for Notice Letters in the Release Hearing Process
CPS May 2021
The table below presents the names and numbers of each of the templates for notice letters for the release hearing process and summarizes the criteria for when it is appropriate to use each template during the process. For details, see 1290 Release Hearings When CPI Releases Investigation Findings and its other subitems.
These templates (and Spanish versions of them) are also available under the Administrative Review & Release Hearing Forms category in the CPI/CPS section of the DFPS Forms section of the DFPS intranet. Instructions for completing the template are provided on each template.
| Template (Number and Name): |
Type of Release: |
Notice Is Given to: |
Notice of: |
Timing of Notice: |
|---|---|---|---|---|
Non-emergency |
Perpetrator |
Intent to release |
N/A |
|
Emergency |
Perpetrator |
Intent to release |
N/A |
|
Emergency |
Employer or other entity |
Substantiated investigation findings |
N/A |
|
Emergency or Non-emergency |
Perpetrator |
Sustained findings |
When perpetrator did not request a release hearing in a timely manner |
|
Emergency |
Employer or other entity |
Sustained findings |
When perpetrator did not request a release hearing in a timely manner |
|
Non-emergency |
Employer or other entity |
Sustained findings |
When perpetrator did not request a release hearing in a timely manner |
|
Emergency |
Employer or other entity |
Sustained findings |
After release hearing and after appeal or time frame to request appeal |
|
Non-emergency |
Employer or other entity |
Sustained findings |
After release hearing and after appeal or time frame to request appeal |
|
Emergency |
Employer or other entity |
Overturned or altered findings |
After release hearing and after appeal or time frame to request appeal |