PROPOSED RULES
EARLY LEARNING
Original Notice.
Preproposal statement of inquiry was filed as WSR 11-12-076.
Title of Rule and Other Identifying Information: The department of early learning (DEL) is proposing amended sections in chapters 170-151 and 170-295 WAC consistent with SSB 5504 (chapter 296, Laws of 2011) regarding unlicensed child care and civil penalties (fines).
Hearing Location(s): DEL, Tumwater Office, Nisqually Room, 6860 Capitol Boulevard S.E., Building 2, Tumwater, WA 98501, on Tuesday, February 7, 2012, at 6:00 p.m.; and at the Northeast Washington Educational Services District 101, 4202 South Regal, Spokane, WA 99223, on Saturday, February 11, 2012, at 11:00 a.m.
Individuals may arrive after the posted start time and still participate in these hearing[s]. However, the presiding officer may close the hearing if there are no public participants in attendance, or after all persons who indicated they wish to testify have done so. The public is encouraged to give input in writing.
The deadline for sending written comments on the proposed rules is midnight on Monday, February 13, 2012. See the "Submit Written Comments to" section of this notice about how to submit written input on this proposal.
DEL encourages the public to use of the department Facebook and DEL blog pages on the internet to post input about DEL programs and initiatives. However, for a written comment to be considered part of the official record for this proposal, the comment must be received at the on-line, e-mail, fax or postal mail locations as described in this notice under "Submit Written Comments to."
Everyone who comments on the proposed rules either in writing as provided in this notice or at a public hearing will receive the department's combined written response, called a concise explanatory statement. This statement is also available to anyone who requests it, by writing to the DEL Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, or by e-mailing Rules@del.wa.gov.
Date of Intended Adoption: Not earlier than February 14, 2012.
Submit Written Comments to: DEL, Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, on-line at https://apps.del.wa.gov/PolicyProposalComment/Detail.aspx, e-mail Rules@del.wa.gov, fax (360) 413-3482, by February 13, 2012.
Assistance for Persons with Disabilities: Contact DEL rules coordinator by February 2, 2012, (360) 725-4424.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: SB 5504 increases the maximum civil fine that may be assessed by DEL for a child care agency that violates chapter 43.215 RCW or rules adopted under this law, or when an individual or entity is suspected of providing child care without a license (unlicensed care), when a license is required by law. SB 5504 also changed the content of the notice DEL must give an individual or entity suspected of providing unlicensed care, and other actions the department may take to let the public know about agencies providing unlicensed care.
The provision of unlicensed child care is a significant public health, safety and welfare concern. The legislature in chapter 43.215 RCW defines the types of child care agencies that must be licensed. Without licensing oversight, unlicensed child care operators may:
| • | Be caring for children without adequate monitoring; |
| • | Not have had their facilities inspected for health and safety, particularly for fire safety and emergency evacuation of infants and other children who cannot walk; |
| • | Be caring for more children than would be safe, even if the facility was licensed; |
| • | Not be providing adequate early learning or developmental activities; |
| • | Not have staff with adequate child care or child development training; and/or |
| • | Not have done background checks on individuals caring for or having access to the children. |
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," or |
| • | "Necessary to protect public health, safety, and welfare or necessary to avoid an immediate threat to the state's natural resources." |
Reasons Supporting Proposal: The rules must be consistent with current law to avoid confusion in the amount of civil fines that may be levied and the notice requirements regarding suspected unlicensed child care. Amending the rules is expected to prevent errors in administrative or judicial proceedings regarding appeals of DEL enforcement actions regarding unlicensed child care or enforcement actions that include assessment of a civil fine.
Statutory Authority for Adoption: RCW 43.215.070 and 43.215.060; chapter 43.215 RCW.
Statute Being Implemented: Chapter 43.215 RCW as amended by chapter 296, Laws of 2011.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed rules apply to DEL child care centers and school-age center programs. Rules implementing SSB 5504 for licensed family home child care agencies were adopted in new chapter 170-296A WAC, Licensed family home child care standards, filed for permanent adoption as WSR 11-23-068 and effective March 31, 2012. DEL has filed emergency rules implementing SSB 5504, WSR 11-24-025. The department intends to adopt the emergency rules as permanent.
Name of Proponent: DEL, governmental.
Name of Agency Personnel Responsible for Drafting: Lynne Shanafelt, Licensing Adminis., DEL State Office, P.O. Box 40970, Olympia, WA 98504, (360) 725-2829; Implementation and Enforcement: DEL licensing offices, statewide.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The maximum civil fine amounts in the proposed rules are prescribed by law. The law and DEL rules provide for decreasing or withdrawing a civil fine if a licensee, or an individual or entity suspected of providing unlicensed child care, comes into compliance before an assessed civil fine takes effect. The proposed rules are not expected to create new costs for businesses - other than costs prescribed by law - that would require preparation of a small business economic impact statement.
A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328.
January 4, 2012
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.]