No. 28246: R430-3. General Child Care Facility Rules Inspection and Enforcement

DAR File No.: 28246
Filed: 11/17/2005, 04:21
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

In response to public comment, some changes have been made to this rule.

 

Summary of the rule or change:

In response to public comment, there has been some clarification in the wording of some provisions and providers now have a 30-day time limit to request an informal discussion of a Department decision. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the October 15, 2005, issue of the Utah State Bulletin, on page 18. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

 

State statutory or constitutional authorization for this rule:

Title 26, Chapter 39

 

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings due to the additional changes made to this rule.

 

local governments:

There is no anticipated cost or savings due to the additional changes made to this rule.

 

other persons:

There is no anticipated cost or savings due to the additional changes made to this rule.

 

Compliance costs for affected persons:

There are no compliance costs associated with this rule.

 

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

I approve of the proposed changes. David N. Sundwall, MD, Executive Director

 

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

Health
Health Systems Improvement, Child Care Licensing
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

 

Direct questions regarding this rule to:

Donna Thomas at the above address, by phone at 801-538-9294, 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:

01/17/2006

 

This rule may become effective on:

01/18/2006

 

Authorized by:

David N. Sundwall, Executive Director

 

 

RULE TEXT

R430. Health, Health Systems Improvement, 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[ at any time], 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 [or certification ]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 [14]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 [body]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

[2005]2006

Notice of Continuation December 19, 2002

26-39