No. 35580 (Repeal): Rule R430-3. General Child Care Facility Rules Inspection and Enforcement

(Repeal)

DAR File No.: 35580
Filed: 12/23/2011 04:38:54 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is obsolete and will be combined with another obsolete rule, Rule R430-2, in a new rule to be numbered Rule R430-1. (DAR NOTE: The proposed repeal of Rule R430-2 is under DAR No. 35579 and the proposed new Rule R430-1 is under DAR No. 35581 in this issue, January 15, 2012, of the Bulletin.)

Summary of the rule or change:

This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 39

Anticipated cost or savings to:

the state budget:

Because the content of this rule is being moved to another rule, the costs that currently occur will continue. Therefore, the agency does not anticipate any cost or savings associated with this repeal.

local governments:

Because the content of this rule is being moved to another rule, the costs that currently occur will continue. Therefore, the agency does not anticipate any cost or savings associated with this repeal.

small businesses:

Because the content of this rule is being moved to another rule, the costs that currently occur will continue. Therefore, the agency does not anticipate any cost or savings associated with this repeal.

persons other than small businesses, businesses, or local governmental entities:

Because the content of this rule is being moved to another rule, the costs that currently occur will continue. Therefore, the agency does not anticipate any cost or savings associated with this repeal.

Compliance costs for affected persons:

Because the content of this rule is being moved to another rule, the agency does not anticipate any increased costs for compliance.

Comments by the department head on the fiscal impact the rule may have on businesses:

As requested by Governor Herbert, this rule was carefully reviewed with impacted business and other parties. This rule will be repealed and replaced by a new Rule R430-1 with streamlined and simplified language. No new costs to business are expected by repeal of this rule.

David Patton, PhD, Executive Director.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Family Health and Preparedness, Child Care Licensing
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Teresa Whiting at the above address, by phone at 801-538-6320, by FAX at 801-538-6325, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2012

This rule may become effective on:

03/01/2012

Authorized by:

David Patton, Executive Director

RULE TEXT

R430. Health, Family Health and Preparedness, Child Care Licensing.

[R430-3. General Child Care Facility Rules Inspection and Enforcement.

R430-3-1. Legal Authority and Purpose.

This rule is adopted pursuant to Title 26, Chapter 39. It delineates the role and responsibility of the Department in the enforcement of rules pertaining to health and safety in all child care facilities regulated by Title 26, Chapter 39. It provides criteria to ensure that sanctions are applied consistently and appropriately.

 

R430-3-2. Informal Discussions.

Independent of any administrative proceeding, a licensee may request, within 30 days, to discuss a Department decision with Department staff.

 

R430-3-3. Definitions.

(1) "Deficiency" means a violation of any rule provision.

(2) "Department" means the Department of Health.

(3) "Facility" means the building and adjacent property, equipment, and supplies devoted to the child care operation.

(4) "High Risk for Harm" means there is the potential for serious injury to a child.

(5) "Inspection" means observation, measurement, review of documentation, and interview to determine compliance with rules.

(6) "Investigation" means an in-depth inspection of specific alleged rule violations.

(7) "Licensee" means the legally responsible person, people, program, or agency that hold a valid Department of Health issued child care license.

(8) "Statement of Findings" means a statement of one or more specific rule violations which, if not corrected, will prompt the Department to take disciplinary action.

(9) "Technical Assistance" means the noting of a rule violation and providing information on how to come into compliance.

 

R430-3-4. Compliance Assurance.

(1) The Department shall conduct an announced and unannounced inspection of each licensed facility to:

(a) determine compliance with rules;

(b) verify compliance with conditions placed on a license in a conditional status; and

(c) verify compliance with variance conditions.

(2) If allegations of rule violations are reported to the Department, the Department shall conduct a complaint investigation.

(a) The Department shall not investigate complaints from an anonymous source.

(b) The Department shall inform complainants that they are guilty of a class B misdemeanor if they are giving false information to the Department with the purpose of inducing a change in a licensing status.

 

R430-3-5. Technical Assistance.

If the Department finds a deficiency that does not pose a high risk for harm:

(1) the Department shall offer technical assistance; and

(2) the licensee shall provide a date by which correction must be made.

(a) The correction date shall not exceed 30 days from the date of the inspection.

(b) The licensee may request a correction date of more than 30 days if circumstances outside the licensee's control prevent compliance within 30 days.

 

R430-3-6. Statement of Findings.

(1) If a licensee does not correct a deficiency by the correction date provided in R430-3-5(2), the Department shall issue a statement of findings that includes:

(a) a citation to the violated rule;

(b) a description of the violation with the facts which constitute the violation; and

(c) the date by which correction must be made.

(i) The correction date shall not exceed 30 days from the date of the subsequent inspection.

(ii) The licensee may request a correction date of more than 30 days if circumstances outside the licensee's control prevent compliance within 30 days.

(2) If a licensee violates a rule for which the licensee previously received technical assistance, the Department shall issue a statement of findings that includes:

(a) a citation to the violated rule;

(b) a description of the violation with the facts which constitute the violation; and

(c) the date by which the correction must be made.

(i) The correction date shall not exceed 30 days from the date of the inspection.

(ii) The licensee may request a correction date of more than 30 days if circumstances outside the licensee's control prevent compliance within 30 days.

(3) If a licensee violates a rule that creates a high risk for harm, the Department shall issue a statement of findings that includes:

(a) a citation to the violated rule;

(b) a description of the violation with the facts which constitute the violation; and

(c) the date by which the correction must be made which shall not exceed 30 days from the date of the inspection.

 

R430-3-7. Directed Plan of Correction.

The Department may issue a directed plan of correction that specifies how and when cited findings will be corrected if a licensee:

(1) fails to comply by the correction date specified in R430-3-6; or

(2) violates the same rule provision more than three times within any 12-month period.

 

R430-3-8. Conditional Status.

(1) The Department may place a license on a conditional status to assist the licensee to comply with rules if the licensee:

(a) fails to comply with rules by correction date specified in R430-3-6;

(b) violates the same rule provision more than three times within any 12-month period; or

(c) violates multiple rule provisions.

(2) The Department shall establish the length of the conditional status.

(3) The Department shall set the conditions that the licensee must satisfy to remove the conditional status.

(4) The Department shall return the license to a standard status when the licensee meets the conditions of the conditional status.

 

R430-3-9. Revocation.

(1) The Department may revoke a license if the licensee:

(a) fails to meet the conditions of a conditional status;

(b) violates the Child Care Licensing Act;

(c) provides false or misleading information to the Department;

(d) refuses to submit or make available to the Department any written documentation required to do an inspection or investigation;

(e) refuses to allow authorized representatives of the Department access to a facility to ascertain compliance to rules;

(f) fails to provide, maintain, equip, and keep the facility in a safe and sanitary condition; or

(g) has committed acts that would exclude a person from being licensed or certified under R430-6.

(2) The Department may set the effective date of the revocation such that parents are given 10 business days to find other care for children.

 

R430-3-10. Immediate Closure.

The Department may order the immediate closure of a facility if conditions create a clear and present danger to children in care and which require immediate action to protect their health or safety.

 

R430-3-11. Death or Serious Injury of a Child in Care.

The Department may order a provider to restrict or prohibit new enrollments if the Department learns of the death or serious injury of a child in care, pending the review of the Child Fatality Review Committee or receipt of a medical report determining the probable cause of death or injury.

 

R430-3-12. Operating without a License.

If a person is providing care in lieu of care ordinarily provided by parents for more than four unrelated children without the appropriate license or certificate, the Department may:

(1) issue a cease and desist order; or

(2) allow the person to continue operation if:

(a) the person was unaware of the need for a license or certificate;

(b) conditions do not create a clear and present danger to children in care; and

(c) the person agrees to apply for the appropriate license or certificate within 30 calendar days of notification by the Department.

 

R430-3-13. Deemed Status.

The Department may grant deemed status to facilities accredited by the National Academy of Early Childhood Programs or National Accreditation Commission for Early Care and Education Programs, National Association for Family Child Care or National Early Childhood Program Accreditation or the National After School Association in lieu of the licensing inspection by the Department upon completion of the following:

(1) As part of the license renewal process, the licensee must indicate on the license application its desire to initiate or continue deemed status.

(2) This request constitutes written authorization for the Department to attend the provider's exit conference with the accrediting agency.

(3) Upon receipt from the accrediting agency, the licensee shall submit copies of the following:

(a) accreditation certificate;

(b) survey reports and recommendations; and

(c) progress reports of all corrective actions underway or completed in response to the accrediting body's action or Department recommendations.

(4) The Department may exercise its regulatory responsibility and authority regardless of the facility's deemed status.

 

R430-3-14. Variances.

(1) If a licensee or applicant cannot comply with a rule but can meet the intent of the rule in another way, he may apply for a variance to that rule. The Department cannot issue a variance to the background screening requirements of Section 26-39-107 and R430-6.

(2) A licensee or applicant requesting a variance shall submit a completed variance request form to the Department. The requests must include:

(a) the name and address of the facility;

(b) the rule from which the variance is being sought;

(c) the time period for which the variance is being sought;

(d) a detailed explanation of why the rule cannot be met;

(e) the alternative means for meeting the intent of the rule;

(f) how the health and safety of the children will be ensured; and

(g) other justification that the licensee or applicant desires to submit.

(3) The Department may require additional information before acting on the request.

(4) The Department shall act upon each request for a variance within 60 days of the receipt of the completed request and all additional information required by the Department.

(5) If the Department approves the request, the licensee shall keep a copy of the approved variance on file in the facility and make it publicly available.

(6) The Department may grant variances for up to 12 months.

(7) The Department may impose health and safety conditions upon granting a variance.

(8) The Department may revoke a variance if:

(a) the provider is not meeting the intent of the varied rule by the documented alternative means;

(b) the facility fails to comply with the conditions of the variance; or

(c) a change in statute, rule, or case law affects the justification for the variance.

 

R430-3-15. Statutory Penalties.

(1) A violation of any rule is punishable by administrative civil money penalty of up to $5,000 per day as provided in Utah Code Section 26-39-108 or other civil penalty of up to $5,000 per day or a class B misdemeanor on the first offense and a class A misdemeanor on the second offense as provided in Utah Code, Title 26, Chapter 23.

(2) The Department may impose an administrative civil money penalty of up to $100 per day to a maximum of $10,000 for unlicensed or uncertified child care.

(3) The Department may impose an administrative civil money penalty of up to $100 per day to a maximum of $10,000 for each violation of the Child Care Licensing Act or the rules promulgated pursuant to that act.

(4) Any person intentionally making false statements or reports to the Department may be fined $100 for each violation to a maximum of $10,000.

(5) Assessment of any civil money penalty does not preclude the Department from also taking action to deny, revoke, condition, or refuse to renew a license or certificate.

(6) Assessment of any administrative civil money penalty under this section does not preclude injunctive or other equitable remedies.

(7) Within 10 working days after receipt of a negative licensing action or imposition of a fine, each child care program must provide the Department with the names and mailing addresses of parents or legal guardians of each child cared for at the facility so the Department can notify the parents and guardians of the negative licensing action.

 

KEY: child care facilities

Date of Enactment or Last Substantive Amendment: February 6, 2006

Notice of Continuation: August 13, 2007

Authorizing, and Implemented or Interpreted Law: 26-39]

 

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