Effective Date of Rule: July 22, 2011.

     Purpose: The department is amending sections of the department of early learning (DEL) child care licensing, chapters 170-151, 170-295, and 170-296 WAC to implement SSB 5504 (chapter 296, Laws of 2011). Effective July 22, 2011, this bill revises civil penalty (fine) amounts that the department may levy for violation of chapter 43.215 RCW or requirements adopted pursuant to that chapter, and revises required notice and other provisions regarding individuals or entities suspected of providing child care without a license when a license is required under the statute. DEL rules must be made consistent with the new law.

     Citation of Existing Rules Affected by this Order: Amending WAC 170-151-095, 170-295-0130, 170-296-0360, 170-296-0420, and 170-296-0430.

     Statutory Authority for Adoption: RCW 43.215.060 and 43.215.070 (2)(c); chapter 43.215 RCW.

     Other Authority: SSB 5504 (chapter 296, Laws of 2001 [2011]).

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: Emergency adoption is needed to prevent potential confusion about the amount of civil penalty DEL may issued [issue] by law for violation of chapter 43.215 RCW or requirements adopted by DEL pursuant to this statute, and notice that DEL must provide when the department suspects an agency (individual or entity) of providing child care without a license. Amending the rules is expected to prevent errors in administrative hearing or judicial proceedings appealing a civil penalty issued by the department, and assure due process. SSB 5504 amends sections and adopts a new section of chapter 43.215 RCW, Department of early learning, effective July 22, 2011:

•	Section 1 of the bill amends RCW 43.215.300 (3)(c), changing the amount of civil monetary penalty (fine) that may be imposed by the department on child care agencies for violation of provisions of chapter 43.215 RCW or requirements adopted by DEL pursuant to this statute.
•	Section 2 of the bill amends RCW 43.215.370 by requiring DEL to post on its web site those agencies subject to licensing that have not initiated the licensing process within thirty days of the department's notification as required in RCW 43.215.300.
•	Section 3 creates a new section of chapter 43.215 RCW specifying the content of the notice that DEL must provide when the department suspects an individual or entity of providing child care services without a license, including that DEL may impose a civil fine and the amount of fine per day that violations occur, and actions that DEL may take to inform the public about the suspected unlicensed care if the individual or entity does not cease providing child care without a license.

     The provision of unlicensed child care is a significant public health, safety and welfare concern. The legislature defines in chapter 43.215 RCW the various types of child care that must be licensed. Without licensing oversight, unlicensed child care operators may:

•	Be caring for children without adequate health or safety monitoring;
•	Not have had their facilities inspected for fire safety and emergency evacuation of children, particularly infants and children who cannot walk;
•	Be caring for more children than would be safe, even if licensed;
•	Not be providing adequate early learning activities;
•	Not have adequate child care or child development training; and/or
•	Not have had background checks on individuals who have access to the children.

     The legislature established DEL in part to "safeguard and promote the health, safety and well-being of children receiving child care and early learning assistance, which is paramount over the right of any person to provide care..." RCW 43.215.005 (4)(c). These rules are needed to provide the tools for the department to address suspected unlicensed child care, as well as to protect the safety, health and well-being of children who may be in unlicensed child care.

     Proceeding with these rules is consistent with state office of financial management guidance regarding Executive Order 10-06 suspending noncritical rule making, but allowing rules to proceed that are, "required by federal or state law or required to maintain federally delegated or authorized programs," and "necessary to protect public health, safety, and welfare or necessary to avoid an immediate threat to the state's natural resources."

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 5, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 5, Repealed 0.

     Date Adopted: July 20, 2011.

Elizabeth M. Hyde

Director

OTS-4134.1

AMENDATORY SECTION(Amending WSR 08-08-012, filed 3/19/08, effective 4/19/08)

WAC 170-151-095   May the department assess civil penalties on unlicensed programs?   (1) If the department receives information that a school-age program is operating without a license, the department will investigate. ((The department may contact the program, send a letter, or make an on-site visit to determine that the agency is operating without a license. Where the department has determined that an agency is operating without a license, the department must send written notification to the unlicensed program by certified mail or other means showing proof of service. This notification must contain the following:

     (1) Notice to the agency of the basis for the department's determination that the agency is providing child care without a license and the need for the department to license the agency;

     (2) The citation of the applicable law;

     (3) The assessment of seventy-five dollars per day penalty for each day the agency provides unlicensed care. The department makes the fine effective and payable within thirty days of the agency's receipt of the notification;

     (4) How to contact the department;

     (5) The unlicensed agency's need to submit an application to the department within thirty days of receipt of the department's notification;

     (6) That the department may forgive the penalty if the agency submits an application within thirty days of the notification; and

     (7) The unlicensed agency's right to an adjudicative proceeding as a result of the assessment of a monetary penalty and the appropriate procedure for requesting an adjudicative proceeding.)) (2) If the department suspects that an individual is providing unlicensed child care, the department will send the individual written notice within ten calendar days to explain:

     (a) Why the department suspects that the individual is providing child care without a license;

     (b) That a license is required and why;

     (c) That the individual must immediately stop providing child care;

     (d) That if the individual seeks to obtain a license, within thirty calendar days from the date of the department's notice in this subsection, the individual must submit a written agreement on a department form stating that he or she agrees to:

     (i) Attend the next available department child care licensing orientation; and

     (ii) Submit a child care licensing application after completing orientation; and

     (e) That the department has the authority to issue a fine of two hundred fifty dollars per day for each day that the individual continues to provide child care without a license.

     (3) The department's written notice in subsection (2) of this section must inform the individual providing unlicensed child care:

     (a) How to respond to the department;

     (b) How to apply for a license;

     (c) How a fine, if issued, may be suspended or withdrawn;

     (d) That the individual has a right to request an adjudicative proceeding (hearing) if a fine is assessed; and

     (e) How to ask for a hearing.

     (4) If an individual providing unlicensed child care does not submit an agreement to obtain a license as provided in subsection (2)(d) of this section within thirty calendar days from the date of the department's written notice, the department will post information on its web site that the individual is providing child care without a license.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-151-095, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-151-095, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.15.020. 01-02-031, § 388-151-095, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 96-20-095, § 388-151-095, filed 10/1/96, effective 11/1/96.]

OTS-4135.1

AMENDATORY SECTION(Amending WSR 08-08-012, filed 3/19/08, effective 4/19/08)

WAC 170-295-0130   When can ((I)) an individual be fined for operating an unlicensed program?   (1) If ((we)) the department receives information that ((you are)) an individual is operating a child care center without a license, ((we)) the department investigates the allegation.

     (2) ((We contact you, send you a letter, or make an on-site visit to your center to determine whether you are operating without a license.

     (3) If we determine that you personally or on behalf of another person are operating a child care center without a license, we send written notification by certified mail or other method showing proof of service to the owner of the unlicensed center. This notification must contain the following:

     (a) Notice to the center owner of our basis for determination that the owner is providing child care without a license and the need for us to license the center;

     (b) Citation of the applicable law;

     (c) The fine is effective and payable within thirty days of the agency's receipt of the notification;

     (d) Information about how to contact the department;

     (e) The requirement that the unlicensed center owner submit an application for a license to the department within thirty days of receipt of our notification;

     (f) That we can forgive the fine if the center submits an application within thirty days of the notification; and

     (g) The unlicensed center owner's right to an adjudicative proceeding (fair hearing) as a result of the assessment of a monetary fine and how to request an adjudicative proceeding.)) If the department suspects that an individual is providing unlicensed child care, the department will send the individual written notice within ten calendar days to explain:

     (a) Why the department suspects that the individual is providing child care without a license;

     (b) That a license is required and why;

     (c) That the individual must immediately stop providing child care;

     (d) That if the individual seeks to obtain a license, within thirty calendar days from the date of the department's notice in this subsection, the individual must submit a written agreement on a department form stating that he or she agrees to:

     (i) Attend the next available department child care licensing orientation; and

     (ii) Submit a child care licensing application after completing orientation; and

     (e) That the department has the authority to issue a fine of two hundred fifty dollars per day for each day that the individual continues to provide child care without a license.

     (3) The department's written notice in subsection (2) of this section must inform the individual providing unlicensed child care:

     (a) How to respond to the department;

     (b) How to apply for a license;

     (c) How a fine, if issued, may be suspended or withdrawn;

     (d) That the individual has a right to request an adjudicative proceeding (hearing) if a fine is assessed; and

     (e) How to ask for a hearing.

     (4) If an individual providing unlicensed child care does not submit an agreement to obtain a license as provided in subsection (2)(d) of this section within thirty calendar days from the date of the department's written notice, the department will post information on its web site that the individual is providing child care without a license.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-295-0130, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-295-0130, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 03-14-110, § 388-295-0130, filed 6/30/03, effective 8/1/03.]

OTS-4136.1

AMENDATORY SECTION(Amending WSR 08-08-012, filed 3/19/08, effective 4/19/08)

WAC 170-296-0360   What happens if ((I)) an individual fails to follow the rules?   (1) If ((you)) an individual fails to follow the rules, ((we notify you)) the department notifies the individual of the violation in writing and unless the health, safety or welfare of children in care is threatened, ((we)) the department provides ((you)) the individual with an opportunity to come into compliance before ((we)) the department takes adverse licensing action. The notice provides:

     (a) A description of the violation and rule that was broken;

     (b) A statement of what is required to comply with the rules;

     (c) The date by which ((we)) the department requires compliance; and

     (d) The maximum financial penalty (civil fine) that ((you)) the individual must pay if ((you do)) the individual does not comply with the rules by the required date.

     (2) ((We)) The department may fine ((you seventy-five)) an individual one hundred fifty dollars a day for each violation of the licensing rules.

     (3) ((We)) The department may assess and collect the ((penalty)) civil fine with interest for each day ((you)) an individual fails to follow the rules.

     (4) ((We)) The department may impose a civil ((penalty)) fine in addition to other adverse actions against ((your)) an individual's license including probation, suspension and revocation.

     (5) ((We)) The department may, but ((are)) is not required to, withdraw the fine if ((you)) the individual comes into compliance during the notification period.

     (6) If ((we assess)) the department assesses a civil ((penalty you have)) fine, the individual has the right to an adjudicative proceeding (hearing) as governed by RCW 43.215.305 and chapter 170-03 WAC.

     (7) If ((you do)) the individual does not request ((an adjudicative proceeding you)) a hearing he or she must pay the civil fine within twenty-eight days after ((you receive)) receiving the notice.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-296-0360, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-296-0360, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0360, filed 8/31/04, effective 10/1/04.]

[06-15-075, recodified as § 170-296-0420, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0420, filed 8/31/04, effective 10/1/04.]

     (8) How you can ask for an adjudicative proceeding.)) (1) If the department suspects that an individual is providing unlicensed child care, the department will send the individual written notice within ten calendar days to explain:

     (a) Why the department suspects that the individual is providing child care without a license;

     (b) That a license is required and why;

     (c) That the individual must immediately stop providing child care;

     (d) That if the individual seeks to obtain a license, within thirty calendar days from the date of the department's notice in this subsection, the individual must submit a written agreement on a department form stating that he or she agrees to:

     (i) Attend the next available department child care licensing orientation; and

     (ii) Submit a child care licensing application after completing orientation; and

     (e) That the department has the authority to issue a civil fine of one hundred fifty dollars per day for each day that the individual continues to provide child care without a license.

     (2) The department's written notice in subsection (1) of this section must inform the individual providing unlicensed child care:

     (a) How to respond to the department;

     (b) How to apply for a license;

     (c) How a fine, if issued, may be suspended or withdrawn;

     (d) That the individual has a right to request an adjudicative proceeding (hearing) if a civil fine is assessed; and

     (e) How to ask for a hearing.

     (3) If an individual providing unlicensed child care does not submit an agreement to obtain a license as provided in subsection (1)(d) of this section within thirty calendar days from the date of the department's written notice, the department will post information on its web site that the individual is providing child care without a license.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-296-0430, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-296-0430, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0430, filed 8/31/04, effective 10/1/04.]

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