§ 49-1-1107 — Investigation of complaints regarding violations - Probation - Appeal procedures - Orders of assessment - Civil penalties, suspension, denial, and revocation of certificates

(a) If any complaint is made to the department concerning any alleged violation of the laws or regulations governing a child care program, the department shall investigate the complaint and shall take such action as it deems necessary to protect the children in the care of the program. (b) (1) If, during the certificate period, the department determines that a child care program is not in compliance with the laws or regulations governing its operation, and if after reasonable written notice to the program of the violation, the department determines that the violation remains uncorrected, the department may place the certified program on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days as determined by the department, and the department shall require the posting by the program of the notice of probation. The department shall provide the program a written basis describing the violation of the certificate rules that support the basis for the probationary status. (2) (A) If placed on probation, the program shall immediately post a copy of the probation notice, together with a list provided by the department of the violations that were the basis for the probation, in a conspicuous place as directed by the department and with the program's certificate, and the program shall immediately notify in writing the custodians of each of the children in its care of the program's status, the basis for the probation and of the program's right to an informal review of the probationary status. (B) If the program requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing, to the department's program staff that imposed the probation, the department shall informally review the probationary status by a child care program staff person or other designee who was not involved in the decision to impose the probation. The program may submit any written or oral statements as argument to the child care program staff person or designee within five (5) business days of the imposition of the probation. Written and oral statements may be received by any available electronic means. The child care program staff person or designee shall render a decision in writing upholding, modifying or lifting the probationary status within seven (7) business days of the imposition of the probation. (3) If the child care program staff person or designee did not lift the probation under subdivision (b)(2)(B), the program may also appeal such action in writing to the commissioner within five (5) business days of the receipt of the notice of the child care program staff's or designee's decision regarding the program's probationary status as determined in subdivision (b)(2)(B). If timely appealed, the department shall conduct an administrative hearing pursuant to the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, concerning the department's action within fifteen (15) business days of receipt of the appeal, and shall render a decision in writing within seven (7) business days following conclusion of the hearing. The hearing officer may uphold, modify or lift the probation. (4) This subsection (b) shall be discretionary with the department, and shall not be a prerequisite to any certificate action, to impose a civil penalty or to suspend, deny or revoke a certificate of a child care program. (c) (1) If the department determines that there exists any violation with respect to any person or entity required to be approved pursuant to this part, the department may assess a civil penalty against such person or entity for each separate violation of a statute, rule or order pertaining to such person or entity in an amount ranging from fifty dollars ($50.00) for minor violations up to a maximum of one thousand dollars ($1,000) for major violations or violations resulting in death or injury to a child as defined in the rules of the department. Each day of continued violation constitutes a separate violation. (2) The department shall by rule establish a graduated schedule of civil penalties designating the minimum and maximum civil penalties that may be assessed pursuant to this subsection (c). In developing the graduated civil penalty procedure, the following factors may be considered: (A) Whether the amount imposed will be a substantial economic deterrent to the violator; (B) The circumstances leading to the violation and the program's history of violations; (C) The extent of deviation from the statutes, rules or orders governing the operation of the child care program, the severity of the violation, including specifically the level of risk of harm to the children in care of the person or entity caused by the violation, and the penalty may be further classified based upon whether the violation resulted in the issuance of an order of summary suspension, denial or revocation of the certificate of the program and whether death or injury of a child occurred as a result of violation; (D) The economic benefits gained by the violator as a result of noncompliance; (E) The program's efforts to comply with the licensing requirements; and (F) The interest of the public. (3) The department shall assess the civil penalty in an order that states the reasons for the assessment of the civil penalty, the factors used to determine its assessment and the amount of the penalty. (4) The order may be served on the certificate holder personally by an authorized agent of the department who shall complete an affidavit of service, or the order may be served by certified mail, return receipt requested. (5) The certificate holder may appeal the penalty to the child care advisory council by filing a request for an appeal in writing with the commissioner within ten (10) days of the service of the order. (6) (A) Civil penalties assessed pursuant to this subsection (c) shall become final ten (10) days after the date an order of assessment is served if not timely appealed, or, if timely appealed, within seven (7) days following entry of the child care advisory council's order unless the order is stayed. (B) If the violator fails to pay an assessment when it becomes final, the department may apply to the chancery court for a judgment and seek execution of the judgment. (C) Jurisdiction for recovery of such penalties shall be in the Chancery Court of Davidson County. (7) All sums recovered pursuant to this subsection (c) shall be paid into the state treasury, but shall be earmarked to be used by the department exclusively to improve child care quality in this state by funding activities that include, but are not limited to, child care provider training activities, but excluding any costs associated with conducting criminal background checks. (8) The provisions of this subsection (c) relative to civil penalties shall be discretionary with the department, and shall not be a prerequisite to any certificate action to suspend, deny or revoke a certificate of a child care program. Civil penalties may also be imposed in conjunction with the probation, suspension, denial or revocation of a certificate. (d) (1) If the department determines that any applicant for a conditional certificate or for the renewal of an existing certificate has failed to attain, or an existing certificate holder has failed to maintain, compliance with certificate laws or regulations after reasonable notice of such failure and a reasonable opportunity to demonstrate compliance with certificate laws or regulations, the department may deny the application for the new or renewed certificate or may revoke the existing certificate; provided, that the department at any time may deny a conditional certificate if the applicant fails to meet the initial requirements for its issuance; and provided, further, if the department determines that repeated or serious violations of certificate laws or regulations warrant the denial or revocation of the certificate, then, notwithstanding any provisions of § 4-5-320 or this subsection (d) to the contrary, the department may seek denial or revocation of the certificate regardless of the program's demonstration of compliance either before or after the notice of denial of the application or after notice of the revocation. (2) Notwithstanding § 4-5-320 , the notice of denial or revocation may be served personally by an authorized representative of the department who shall verify service of the notice by affidavit, or the notice may be served by certified mail, return receipt requested. (3) If application for the temporary, annual or extended certificate is denied or if an existing certificate is revoked, the applicant may appeal the denial or revocation by requesting in writing to the department a hearing before the child care advisory council within ten (10) days of the personal delivery or mailing date of the notice of denial or revocation. Failure to timely appeal shall result in the expiration of any existing certificate immediately upon the expiration of the time for appeal. (4) The hearing upon the denial or revocation shall be heard by the child care advisory council within thirty (30) days of the date of service of the notice of denial or revocation; provided, that, for good cause as stated in an order entered on the record, the council or the administrative law judge may continue the hearing. In order to protect the children in the care of the program from any risk to their health, safety and welfare, the council or administrative law judge shall reset the hearing at the earliest date that circumstances permit. (5) (A) If timely appeal is made, pending the hearing upon the denial or revocation, the child care program may continue to operate pending the decision of the council unless the certificate is summarily suspended as provided in subsection (e). (B) The council, as part of its decision regarding the status of the applicant's application for a certificate or the certificate holder's certificate, may direct that the child care program be allowed to operate on a probationary or conditional status, or may grant or continue the certificate with any restrictions or conditions on the program's authority to provide care. (e) (1) Subject to this subsection (e), if the department determines at any time that the health, safety or welfare of the children in care of the child care program imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of the certificate may be ordered by the department pending any further proceedings for revocation, denial or other action. If the department determines that revocation or denial of the certificate is warranted following suspension, those proceedings shall be promptly instituted and determined as authorized by this part. (2) The department shall set forth with specificity in its order the legal and factual basis for its decision stating in the order the specific laws or regulations that were violated by the program, and shall state with specificity in the order the reasons that the issuance of the order of summary suspension is necessary to adequately protect the health, safety or welfare of children in the care of the child care program. Summary suspension may be ordered in circumstances that have resulted in death, injury or harm to a child or that have posed or threatened to pose a serious and immediate threat of harm or injury to a child based upon the intentional or negligent failure to comply with licensing laws or regulations. (3) In issuing an order of summary suspension of a certificate the department shall use, at a minimum, the following procedures: (A) The department shall proceed with the summary suspension of the program's certificate and shall notify the certificate holder of the opportunity for an informal hearing within three (3) business days of the issuance of the order of summary suspension before the department; (B) The notice provided to the certificate holder may be provided by any reasonable means and, consistent with subdivision (e)(2), shall inform the certificate holder of the reasons for the action or intended action by the department and of the opportunity for an informal hearing as permitted by subdivision (e)(3)(C); (C) The informal hearing described by this subdivision (e)(3) shall not be required to be held under the contested case provisions of the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, part 3. The hearing is intended to provide an informal, reasonable opportunity for the certificate holder to present to the hearing official the certificate holder's version of the circumstances leading to the suspension order. The sole issues to be considered are whether the public health, safety or welfare imperatively required emergency action by the department and what, if any, corrective measures have been taken by the child care agency following the violation of licensing laws or regulations and prior to the issuance of the order of summary suspension that eliminate the danger to the health, safety or welfare of the children in the care of the agency. The hearing official may lift, modify or continue the order of summary suspension; and (D) Subsequent to the hearing on the summary suspension, the department may proceed with revocation or denial of the certificate or other action as authorized by this part, regardless of the decision concerning summary suspension of the certificate. (4) The department shall by rule establish any further necessary criteria that it determines are required for the determination of circumstances that warrant imposition of the summary suspension order and any other necessary procedures for implementation of the summary suspension process. (5) If the conditions existing in the child care program present an immediate threat to the health, safety or welfare of the children in care, the department may also seek a temporary restraining order from the chancery or circuit court of the county in which the child care program is located seeking immediate closure of the program to prevent further harm or threat of harm to the children in care, or immediate restraint against any violations of the certificate laws or regulations that are harming or that threaten harm to the children in care. The department may seek any further injunctive relief as permitted by law in order to protect children from the violations, or threatened violations of the certificate laws or regulations. The use of injunctive relief as provided by this subdivision (e)(5) may be used as an alternative, or supplementary measure, to the issuance of an order of summary suspension or any other administrative proceeding. (f) (1) In determining whether to deny, revoke or summarily suspend a certificate, the department may choose to deny, revoke or suspend only certain authority of the certificate holder to operate and may permit the certificate holder to continue operation, but may restrict or modify the certificate holder's authority to provide certain services or perform certain functions, including, but not limited to transportation or food service, enrollment of children at the program, the program's hours of operation, the program's use of certain parts of the program's physical facilities or any other function of the child care program that the department determines should be restricted or modified to protect the health, safety or welfare of the children. The child care advisory council, in considering the actions to be taken regarding the certificate, may likewise restrict a certificate or place whatever conditions on the certificate and the certificate holder it deems appropriate for the protection of children in the care of the program. (2) The actions by the department or the council authorized by subdivision (f)(1) may be appealed as otherwise provided in this part for any denial, revocation or suspension. (g) (1) When an application for a certificate has been denied, or a certificate has been revoked, on one (1) occasion, the child care program may not reapply for a certificate for a period of one (1) year from the effective date of the denial or revocation order if not appealed, or, if appealed, from the effective date of the council's or reviewing court's order. (2) If application for a certificate has been denied, or a certificate has been revoked, on two (2) occasions, the child care program may not reapply for a certificate for a period of two (2) years from the effective date of the denial or revocation if not appealed or, if appealed, from the effective date of the council's or reviewing court's order. (3) If an application for a certificate has been denied, or a certificate has been revoked on three (3) occasions, the child care program shall not receive another certificate for the care of children. (4) No person who served as full or part owner or as director or as a member of the management of a child care program shall receive a certificate to operate a child care program if that person participated in such capacity in a child care program that has been denied a certificate, or that had a certificate revoked, on three (3) occasions. (5) (A) The time restrictions of subdivisions (g)(1) and (2) may be waived by the child care advisory council in the hearing in which the denial or revocation is sustained, or, if requested by the former certificate holder in writing to the commissioner, in a separate subsequent hearing before the child care advisory council or, in the discretion of the commissioner, upon review by the commissioner. (B) The program must show to the council's or the commissioner's satisfaction that the program has corrected the deficiencies that led to the denial or revocation, and that the child care program can demonstrate that it has the present and future ability, and is willing, to maintain compliance with certificate laws or regulations. The decision of the council or the commissioner shall be reduced to an order, which shall be a final order pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, and may be appealed pursuant to § 4-5-322 . (C) No waiver may be granted for any permanent restriction that has been imposed pursuant to subdivision (g)(3). (h) (1) In conducting hearings before the child care advisory council on the appeal of the denial or revocation of a certificate or for review of summary suspension orders, it is the legislative intent that such hearings be promptly determined consistent with the safety of the children in the care of the child care program appealing the department's certificate action and with the due process rights of the certificate applicants or certificate holders. (2) If, however, the administrative procedures division of the office of the secretary of state certifies by letter to the recording secretary of the child care advisory council that the division's contested case docket prevents the scheduling of a hearing on the appeal of a denial or revocation of a certificate before the child care advisory council within the initial time frames set forth in this part, then the department shall have the authority to appoint a hearing officer to conduct the proceedings before the council. The substitute hearing officer shall have all authority as an administrative law judge of the department of state. The hearing may be continued by order of the council for the purpose of obtaining a substitute hearing officer. (3) Hearings on summary suspension orders shall be heard by a hearing officer of the department. Such hearing officer shall have authority, as otherwise permitted in this section, to enter orders binding on the department resulting from show cause hearings involving summary suspension orders. (i) Rules shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Legislative History

Acts 2000, ch. 981, § 47.