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TENNESSEE COMPILATION OF SELECTED LAWS ON CHILDREN, YOUTH AND FAMILIES, 2011 EDITION

TENNESSEE CODE ANNOTATED

Title 71 Welfare

Chapter 3 Programs and Services for Children

Part 5 Child Care Agencies

71-3-509. Violations of licensing regulations - Probation - Civil penalties - Suspension, denial and revocation of licenses - Appeal procedures.

(a) If any complaint is made to the department concerning any alleged violation of the laws or regulations governing a child care agency, the department shall investigate such complaint and shall take such action as it deems necessary to protect the children in the care of such agency.

(b) (1) If, during the licensing period, the department determines that a child care agency is not in compliance with the laws and regulations governing its operation, the department may place the agency on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days, as determined by the department. Upon a determination by the department to place an agency on probation, the department shall serve written notice to the agency by personal delivery describing the violations of the licensing laws or rules that support the basis for the probationary status and the procedures for appeal of the probationary status. Ten (10) business days after the service of the probation notice on the agency, the department shall require the agency to post the notice of probation as directed by the department.

(2) (A) If placed on probation, the agency 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 agency's license, and the agency shall immediately notify in writing the custodians of each of the children in its care of the agency's status, the basis for the probation and of the agency's right to an informal review of the probationary status.

(B) If the agency requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing to the department's licensing staff that imposed the probation, the department shall informally review the probationary status by a licensing supervisor or other designee who was not involved in the decision to impose the probation. The agency may submit any written or oral statements as argument to the licensing supervisor 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 licensing supervisor 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 licensing supervisor or designee does not lift the probation under subdivision (b)(2)(B), the agency may also appeal such action in writing to the commissioner within five (5) business days of the receipt of the notice of the licensing supervisor or designee's decision regarding the agency'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 at 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) The provisions of this subsection (b) shall be discretionary with the department, and shall not be a prerequisite to any licensing action, to impose a civil penalty or to suspend, deny or revoke a license of a child care agency.

(c) (1) If the department determines that there exists any violation with respect to any person or entity required to be licensed 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 agency's history of violations;

(C) (i) The extent of deviation from the statutes, rules or orders governing the operation of the child care agency;

(ii) 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

(iii) 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 license of the agency 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 agency'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 licensee 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 licensee may appeal the penalty to the board of review 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 board's order unless the board's 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 such 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 licensing action to suspend, deny or revoke a license of a child care agency. Civil penalties may also be imposed in conjunction with the probation, suspension, denial or revocation of a license.

(d) (1) If the department determines that any applicant for a temporary license or for the renewal of an existing license has failed to attain, or an existing licensee has failed to maintain, compliance with licensing laws or regulations after reasonable notice of such failure and a reasonable opportunity to demonstrate compliance with licensing laws or regulations, the department may deny the application for the new or renewed license or may revoke the existing license; provided, that the department at any time may deny a temporary license if the applicant fails to meet the initial requirements for its issuance; and, provided, further, that if the department determines that repeated or serious violations of licensing laws or regulations warrant the denial or revocation of the license, then, notwithstanding any provisions of § 4-5-320 or this subsection (d) to the contrary, the department may seek denial or revocation of the license regardless of the licensee's demonstration of compliance either before or after the notice of denial of the application or before or after notice of the revocation.

(2) Notwithstanding the provisions of § 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 license is denied or if an existing license is revoked, the applicant may appeal the denial or revocation by requesting in writing to the department a hearing before the child care agency board of review 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 license immediately upon the expiration of the time for appeal.

(4) The hearing upon the denial or revocation shall be heard by the board of review 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 board or the administrative law judge may continue the hearing. In order to protect the children in the care of the agency from any risk to their health, safety and welfare, the board or administrative law judge shall re-set 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 agency may continue to operate pending the decision of the board of review unless the license is summarily suspended as provided in subsection (e).

(B) The board, as part of its decision regarding the status of the applicant's application for a license or the licensee's license, may direct that the child care agency be allowed to operate on a probationary or conditional status, or may grant or continue the license with any restrictions or conditions on the agency's authority to provide care.

(e) (1) Subject to the provisions of 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 agency imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of the license 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 license 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 agency, 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 agency. 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 license, the department shall use, at a minimum, the following procedures:

(A) The department shall proceed with the summary suspension of the agency's license and shall notify the licensee of the opportunity for an informal hearing within three (3) business days of the issuance of the order of summary suspension.

(B) The notice provided to the licensee may be provided by any reasonable means and, consistent with the provisions of subdivision (e)(2), shall inform the licensee 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) (i) 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;

(ii) The hearing is intended to provide an informal, reasonable opportunity for the licensee to present to the hearing official the licensee's version of the circumstances leading to the suspension order;

(iii) The sole issues to be considered are:

(a) Whether the public health, safety or welfare imperatively require emergency action by the department;

(b) 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 summary suspension order that eliminate the threat to the public health, safety or welfare of the children in the care of the agency; and

(c) Whether the agency demonstrates a reasonable ability to maintain or continue compliance with all relevant licensing laws and regulations; and

(iv) The hearing official may lift, modify or continue the order of summary suspension.

(D) Subsequent to the hearing on the summary suspension, the department may proceed with revocation or denial of the license or other action as authorized by this part, regardless of the decision concerning summary suspension of the license.

(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 agency 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 agency is located, seeking immediate closure of the agency to prevent further harm or threat of harm to the children in care, or immediate restraint against any violations of the licensing 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 licensing 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 proceedings.

(f) (1) In determining whether to deny, revoke or summarily suspend a license, the department may choose to deny, revoke or suspend only certain authority of the licensee to operate and may permit the licensee to continue operation, but may restrict or modify the licensee's authority to provide certain services or perform certain functions, including, but not limited to, transportation or food service, enrollment of children at the agency, the agency's hours of operation, the agency's use of certain parts of the agency's physical facilities or any other function of the child care agency that the department determines should be restricted or modified to protect the health, safety or welfare of the children. The board of review, in considering the actions to be taken regarding the license, may likewise restrict a license or place whatever conditions on the license and the licensee it deems appropriate for the protection of children in the care of the agency.

(2) The actions by the department or the board authorized by this subsection (f) may be appealed as otherwise provided in this part for any denial, revocation or suspension.

(g) (1) When an application for a license has been denied, or a license has been revoked, on one (1) occasion, the child care agency may not reapply for a license 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 board's or reviewing court's order.

(2) If application for a license has been denied, or a license has been revoked, on two (2) occasions, the child care agency may not reapply for a license 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 board's or reviewing court's order.

(3) If an application for a license has been denied, or a license has been revoked, on three (3) occasions, the agency shall not receive another license 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 agency shall receive a license to operate a child care agency if that person participated in such capacity in a child care agency that has been denied a license, or that had a license revoked, on three (3) occasions.

(5) (A) The time restrictions of subdivisions (g)(1) and (2) may be waived by the board of review in the hearing in which the denial or revocation is sustained, or, if requested by the former licensee in writing to the commissioner, in a separate subsequent hearing before the board of review or, in the discretion of the commissioner, upon review by the commissioner.

(B) The agency must show to the board's or the commissioner's satisfaction that the agency has corrected the deficiencies that led to the denial or revocation, and that the child care agency can demonstrate that it has the present and future ability, and is willing, to maintain compliance with licensing laws or regulations. The decision of the board or the commissioner shall be reduced to an order, which shall be a final order pursuant to the Uniform Administrative Procedures Act, compiled at 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 of the appeal of a denial or revocation of a license before the board of review 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 agency appealing the department's licensing action and with the due process rights of the license applicants or licensees.

(2) If, however, the administrative procedures division of the office of the secretary of state certifies by letter to the recording secretary of the board of review that the division's contested case docket prevents the scheduling of a hearing on the appeal of the denial or revocation of a license before the board of review within the initial time frames set forth in this part, then the department shall have the authority to obtain an attorney who shall act as the administrative law judge to conduct the proceedings before the board. The substitute administrative law judge may be obtained by contract with a private attorney or by contract or agreement with another state agency. The substitute administrative law judge shall have all authority as an administrative law judge of the department of state. The hearing may be continued by order of the board for the purpose of obtaining a substitute judge.

(3) Hearings on summary suspension orders shall be heard by an administrative law judge from the administrative procedures division of the secretary of state's office, if the administrative law judge is available within the time frames for a summary suspension hearing. If the administrative procedures division of the secretary of state's office informs the department that an administrative law judge is unavailable, the department may obtain an administrative law judge or hearing officer who is not an employee of the department who may be obtained by the department by contract with a private attorney or by contract or agreement with another state agency. The administrative law judge or 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. If the administrative procedures division of the office of the secretary of state informs the department that the division's contested case docket prevents the scheduling of a hearing on the issuance of a summary suspension order within the initial time frames set forth in this part, and if the department is unable to obtain a private or state agency administrative law judge or hearing officer to hear the show cause hearing on the summary suspension order within the time frames set forth in this part, the department may utilize a hearing officer from the department's administrative review section.

(i) By July 1, 2000, any initial rules to implement the provisions of this section shall be by public necessity rules of the department; provided, however, that any permanent rules shall be promulgated pursuant to the provisions of the Uniform Administrative Procedures Act, compiled at title 4, chapter 5.

Acts 2000, ch. 981, § 10; 2001, ch. 453, §§ 16-19.

Compiler's Notes. Former § 71-3-509 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); T.C.A. (orig. ed.), § 14-1409; Acts 1986, ch. 536, § 3; T.C.A., § 14-10-109), concerning a revocation of a license, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

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