2018 -- H 7713

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LC005009

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

     Introduced By: Representatives Diaz, Slater, Blazejewski, Johnston, and Maldonado

     Date Introduced: February 28, 2018

     Referred To: House Health, Education & Welfare

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 42-72.1-2, 42-72.1-3 and 42-72.1-6 of the General Laws in

Chapter 42-72.1 entitled "Licensing and Monitoring of Child Care Providers and Child-Placing

Agencies" are hereby amended to read as follows:

     42-72.1-2. Definitions.

     As used in this chapter:

     (1) "Administrator of licensing" means the director of the licensing unit (or his/her

designee) that carries out the provisions of this chapter, hereafter referred to as the

"administrator".

     (2) "Applicant" means a child-placing agency or childcare provider that applies for a

license to operate.

     (3) "Child" means any person less than eighteen (18) years of age; provided, that a child

over eighteen (18) years of age who is nevertheless subject to continuing jurisdiction of the

family court, pursuant to chapter 1 of title 14, or defined as emotionally disturbed according to

chapter 7 of title 40.1, shall be considered a child for the purposes of this chapter.

     (4) "Childcare provider" means a person or agency, which offers residential or

nonresidential care and/or treatment for a child outside of his/her natural home.

     (5) "Child day care" or "child care" means daily care and/or supervision offered

commercially to the public for any part of a twenty-four (24) hour day to children away from

their homes.

     (6) "Child day care center" or "child care center" means any person, firm, corporation,

association, or agency who, on a regular or irregular basis, receives any child under the age of

sixteen (16) years, for the purpose of care and/or supervision, not in a home or residence, apart

from the child's parent or guardian for any part of a twenty-four (24) hour day irrespective of

compensation or reward. It shall include childcare programs that are offered to employees at the

worksite. It does not include nursery schools or other programs of educational services subject to

approval by the commissioner of elementary and secondary education.

     (7) "Child-placing agency" means any private or public agency, which receives children

for placement into independent living arrangements, supervised apartment living, residential

group care facilities, family foster homes, or adoptive homes.

     (8) "Department" means the department of children, youth, and families (DCYF).

     (9) "Director" means the director of the department of children, youth, and families, or

the director's designee.

     (10) "Family day care home" means any home other than the child's home in which child

day care in lieu of parental care and/or supervision is offered at the same time to four (4) or more

children who are not relatives of the care giver.

     (11) "Group family day care home" means a residence occupied by an individual of at

least twenty-one (21) years of age who provides care for not less than nine (9) and not more than

twelve (12) children, with the assistance of one or more approved adults, for any part of a twenty-

four (24) hour day. The maximum of twelve (12) children shall include children under six (6)

years of age who are living in the home, school-age children under the age of twelve (12) years

whether they are living in the home or are received for care, and children related to the provider

who are received for care. These programs shall be subject to yearly licensing as addressed in this

chapter and shall comply with all applicable state and local fire, health, and zoning regulations.

     (12) "Licensee" means any person, firm, corporation, association, or agency, which holds

a valid license under this chapter.

     (13) "Regulation" means any requirement for licensure, promulgated pursuant to this

chapter having the force of law.

     (14) "Related" means any of the following relationships, by marriage, blood or adoption,

even following the death or divorce of a natural parent: parent, grandparent, brother, sister, aunt,

uncle, and first cousin. In a prosecution under this chapter or of any law relating thereto, a

defendant who relies for a defense upon the relationship of any child to him or herself, the

defendant shall have the burden of proof as to the relationship.

     42-72.1-3. Powers and scope of activities.

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     (a) The department shall issue, deny, and revoke licenses for, and monitor the operation

of, facilities and programs by child placing agencies and child care providers, as defined in § 42-

72.1-2 or assess any administrative penalty under the provisions of chapter 72.11 of title 42

relating to licensed child care centers, family child care homes, or group family child care homes.

     (b) The department shall adopt, amend, and rescind regulations in accordance with this

chapter and implement its provisions. The regulations shall be promulgated and become effective

in accordance with the provisions of the Administrative Procedures Act, chapter 35 of title 42.

     (c) The department through its licensing unit shall administer and manage the regulations

pertaining to the licensing and monitoring of those agencies, and shall exercise all statutory and

administrative powers necessary to carry out its functions.

     (d) The administrator shall investigate complaints of noncompliance, and shall take

licensing action as required.

     (e) Regulations formulated pursuant to the foregoing authority shall include, but need not

be limited to, the following:

     (1) Financial, administrative and organizational ability, and stability of the applicant;

     (2) Compliance with specific fire and safety codes and health regulations;

     (3) Character, health suitability, qualifications of child care providers;

     (4) Staff/child ratios and workload assignments of staff providing care or supervision to

children;

     (5) Type and content of records or documents that must be maintained to collect and

retain information for the planning and caring for children;

     (6) Procedures and practices regarding basic child care and placing services to ensure

protection to the child regarding the manner and appropriateness of placement;

     (7) Service to families of children in care;

     (8) Program activities, including components related to physical growth, social,

emotional, educational, and recreational activities, social services and habilitative or rehabilitative

treatment;

     (9) Investigation of previous employment, criminal record check and department records

check; and

     (10) Immunization and testing requirements for communicable diseases, including, but

not limited to, tuberculosis, of child care providers and children at any child day-care center or

family day-care home as is specified in regulations promulgated by the director of the department

of health. Notwithstanding the foregoing, all licensing and monitoring authority shall remain with

the department of children, youth, and families.

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     (f) The administrator may:

     (1) Prescribe any forms for reports, statements, notices, and other documents deemed

necessary;

     (2) Prepare and publish manuals and guides explaining this chapter and the regulations to

facilitate compliance with and enforcement of the regulations;

     (3) Prepare reports and studies to advance the purpose of this chapter;

     (4) Provide consultation and technical assistance, as requested, to assist licensees in

maintaining compliance; and

     (5) Refer to the advisory council for children and families for advice and consultation on

licensing matter.

     (g) The department may promulgate rules and regulations for the establishment of child

day care centers located on the second floor.

     (h) When the department is otherwise unsuccessful in remedying noncompliance with the

provisions of this chapter and the regulations promulgated under it, it shall petition the family

court for an order enjoining the noncompliance or for any order that equity and justice may

require.

     (i) The department shall collaborate with the departments of human services, elementary

and secondary education, and health to provide monitoring, mentoring, training, technical

assistance, and other services which are necessary and appropriate to improving the quality of

child care offered by child care providers who are certified, licensed, or approved by the

department or the department of elementary and secondary education or who are seeking

certification, licensure, or approval pursuant to § 42-72-1 or § 16-48-2, including non-English

speaking providers.

     (j) The department shall adopt, amend, and rescind regulations in the same manner as set

forth above in order to permit the placement of a pregnant minor in a group residential facility

which provides a shelter for pregnant adults as its sole purpose.

     42-72.1-6. Violations, suspensions and revocations of license.

     (a) When a licensee violates the terms of the license, the provisions of this chapter, or any

regulation thereunder, the department may pursue the administrative remedies herein provided,

including the assessment of administrative penalties under the provisions of chapter 72.11 of title

42 relating to licensed child care centers, family child care homes, or group family child care

homes, in addition to other civil or criminal remedies according to the general laws.

     (b) After notice and hearing, as provided by the Administrative Procedures Act, chapter

35 of title 42, the administrator may revoke the license, or suspend the license for a period not

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exceeding six (6) months.

     (c) During a suspension, the agency, facility or program shall cease operation.

     (d) To end a suspension, the licensee shall, within thirty (30) days of the notice of

suspension, submit a plan of corrective action to the administrator. The plan shall outline the

steps and timetables for immediate correction of the areas of noncompliance and is subject to the

approval of the administrator.

     (e) At the end of the suspension, the administrator may reinstate the license for the term

of the original license, revoke the license, issue a new license, or deny a reapplication.

     (f) Upon revocation, the licensed agency, program or facility shall cease operation. The

licensee whose license has been revoked may not apply for a similar license within a three (3)

year period from the date of revocation.

     (g) Except in those instances wherein there is a determination that there exists a danger to

the public health, safety, or welfare or there is a determination that the child care provider has

committed a serious breach of state law, orders, or regulation, the director shall utilize

progressive penalties for noncompliance of any rule, regulation or order relating to child care

providers. Progressive penalties could include written notice of noncompliance, education and

training, suspending enrollment to the program, assessing fines, suspension of license, and

revocation of license.

     SECTION 2. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 72.11

ADMINISTRATIVE PENALTIES FOR CHILD CARE LICENSING VIOLATIONS

     42-72.11-1. Short title.

     This chapter shall be known and may be cited as the "Administrative Penalties for Child

Care Licensing Violations".

     42-72.11-2. Definitions.

     As used in this chapter, the following words, unless the context clearly requires

otherwise, shall have the following meanings:

     (1) "Administrative penalty" means a monetary penalty not to exceed the civil penalty

specified by statute or, where not specified by statute, an amount not to exceed five hundred

dollars ($500).

     (2) "Citation" means a notice of an assessment of an administrative penalty issued by the

director or their duly authorized agent.

     (3) "Director" means the director of the department of children, youth and families or

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their duly authorized agent.

     (4) "Person" means any public or private corporation, individual, partnership, association,

or other entity that is licensed as a child care center, family child care home, group family child

care home or any officer, employee or agent thereof.

     42-72.11-2. Authority of director to assess penalty.

     The director may assess an administrative penalty against a person who fails to comply

with any provision of any rule, regulation, order, permit license, or approval issued or adopted by

the director, or of any law which the director has the authority to enforce.

     42-72.11-3. Notice of violation and assessment of penalty.

     Whenever the director seeks to assess an administrative penalty against any person the

director shall cause to be served upon the person, either by service in hand, or by certified mail,

return receipt requested, a written notice of the director's intent to assess an administrative penalty

which shall include:

     (1) A concise statement of the alleged act or omission for which the administrative

penalty is sought to be assessed;

     (2) Each law, rule, regulation, or order which has not been complied with as a result of

the alleged act or omission;

     (3) The amount which the director seeks to assess as an administrative penalty for each

alleged act or omission;

     (4) A statement of the person's right to an adjudicatory hearing on the proposed

assessment;

     (5) The requirements the person must comply with to avoid waiving the right to an

adjudicatory hearing; and

     (6) The manner of payment thereof if the person elects to pay the penalty and waive an

adjudicatory hearing.

     42-72.11-4. Right to adjudicatory hearing.

     (a) Whenever the director seeks to assess an administrative penalty against any person the

person shall have the right to an adjudicatory hearing under chapter 35 of this title, the provisions

of which shall apply except when they are inconsistent with the provisions of this chapter.

     (b) A person shall be deemed to have waived their right to an adjudicatory hearing unless,

within ten (10) days of the date of the director's notice that they seek to assess an administrative

penalty, the person files with the director a written statement denying the occurrence of any of the

acts or omissions alleged by the director in the notice, or asserting that the amount of the

proposed administrative penalty is excessive. In any adjudicatory hearing authorized pursuant to

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chapter 35 of this title the director shall, by a preponderance of the evidence, prove the

occurrence of each act or omission alleged by the director.

     (c) If a person waives their right to an adjudicatory hearing, the proposed administrative

penalty shall be final immediately upon the waiver.

     42-72.11-5. Judicial review.

     (a) If an administrative penalty is assessed at the conclusion of an adjudicatory hearing,

the administrative penalty shall be final upon the expiration of thirty (30) days if no action for

judicial review of the decision is commenced pursuant to chapter 35 of this title.

     (b) The family court shall have exclusive jurisdiction to review all appeals filed under

this chapter.

     42-72.11-6. Determination of administrative penalty.

     Prior to the imposition of an administrative penalty, the department shall complete a risk

and safety analysis and the director shall consider the following:

     (1) The actual and potential impact on health, safety and welfare of children impacted by

the alleged noncompliance;

     (2) Whether the person being assessed the administrative penalty took steps to prevent

noncompliance, and to promptly come into compliance;

     (3) Whether the person being assessed the administrative penalty has previously failed to

comply with any rule, regulation, or order issued or adopted by the director, or any law which the

director has the authority to enforce;

     (4) Deterring future noncompliance;

     (5) Eliminating the economic advantage of noncompliance;

     (6) Consistency with state and/or federal penalties for a similar violation or failure to

comply;

     (7) Any other factor(s) that may be relevant in determining the amount of a penalty,

provided that the other factors shall be set forth in the written notice of assessment of the penalty;

and

     (8) The public interest.

     42-72.11-7. Limitations on amount of penalty.

     The administrative penalty shall be not more than five hundred dollars ($500) for each

investigation or failure to comply unless a different amount is authorized by statute as a civil

penalty for the subject violation.

     42-72.11-8. Rules and regulations.

     No administrative penalty shall be assessed by the director pursuant to this chapter until

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the director has promulgated rules and regulations for assessing administrative penalties in

accordance with the provisions of chapter 35 of this title.

     42-72.11-9. Severability.

     If any provision of this chapter or the application thereof to any person or circumstances

is held invalid, that invalidity shall not affect other provisions or applications of the chapter,

which can be given effect without the invalid provision or application, and to this end the

provisions of this chapter are declared to be severable.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

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     This act would provide a process for issuing administrative penalties for child care

licensing violations.

     This act would take effect upon passage.

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LC005009

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