AN ACT Relating to child care; amending RCW 74.15.020 and 74.15.030; adding a new chapter to Title 74 RCW; prescribing penalties; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that:

(1) A majority of women with preschool and school age children in Washington state are working outside the home and have a need for quality child care services for their children;

(2) The supply of licensed child care facilities in Washington state is insufficient to meet the growing demand for child care services;

(3) There is no mechanism to ensure the safety of children in, or evaluate the quality of, child care services provided by unlicensed child care facilities;

(4) The availability of affordable child care services is essential to enable low-income families to enter and remain in the workforce.

NEW SECTION. Sec. 2. The purpose of this chapter is to:

(1) Safeguard the well-being of children being cared for in child care facilities;

(2) Encourage the establishment and maintenance of quality child care facilities that provide for the well-being and healthy development of children in their care; and

(3) Establish standards for regulating and licensing child care facilities that provide for the well-being of the children receiving child care services, but are consistent with principles of child development and the abilities and resources of child care providers.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of social and health services.

(2) "Child care facility" means any person that advertises, announces, maintains facilities for, or receives children for, control, care, or maintenance outside those children's homes on less than a twenty-four hour per day basis. A church which provides child care on an irregular basis, without compensation, shall not be considered a child care facility.

(3) "Provider" means any person who is licensed to operate, or has applied for a license to operate, a child care facility under this chapter.

(4) "Person" means any individual, partnership, corporation, or other form of business enterprise, including not-for-profit entities and associations.

(5) "Facility" means a child care facility.

(6) "Requirement" means any provision of this chapter and any rule adopted by the department under chapter 34.05 RCW.

NEW SECTION. Sec. 4. The following shall be exempt from operation of this chapter:

(1) Agencies caring for children that are licensed pursuant to chapter 74.15 RCW;

(2) Persons who care for a neighbor's or friend's child or children, with or without compensation, or who on a mutually cooperative basis exchange care of one another's children;

(3) Persons related by blood or marriage to the child in the following degrees: Parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, or first cousin;

(4) Persons who are legal guardians of the child;

(5) Nursery or preschool programs engaged primarily in educational work with preschool-aged children and in which no child is enrolled on a regular basis for more than four hours per day;

(6) A child care facility operated by a unit of local, state, or federal government, or a child care facility located within the boundaries of a federally recognized Indian reservation, licensed by an Indian tribe;

(7) A child care facility located on a federal military reservation, except where the military authorities request that such child care facility be subject to the licensing requirements of this chapter;

(8) Kindergarten programs operated by public schools and the office of the superintendent of public instruction, certified private schools;

(9) Schools, including boarding schools, which are engaged primarily in education, operate on a definite school year schedule, follow a stated academic curriculum, accept only school-age children, and do not accept custody of children;

(10) Seasonal camps of three months or less duration engaged primarily in recreational or educational activities;

(11) Hospitals licensed pursuant to chapter 70.41 RCW when performing functions defined in chapter 70.41 RCW; and

(12) Facilities providing care to children for periods of less than twenty-four hours whose parents remain on the premises to participate in activities other than employment.

NEW SECTION. Sec. 5. Except where otherwise provided, chapter 34.05 RCW shall govern all rule-making and adjudicative activities under this chapter.

NEW SECTION. Sec. 6. (1) In consultation with the child care coordinating committee established pursuant to RCW 74.13.090 and representatives of child care facilities to be licensed under this chapter, the department shall adopt rules and standards with respect to all child care facilities and the operators thereof to be licensed under this chapter to carry out the purposes and requirements of this chapter. In developing rules, the department is authorized to designate categories of child care facilities for which separate or different requirements may be developed, as may be appropriate, whether because of the age of children served, the number of children served in the facility, the number of hours children are in care, or any other relevant factors.

(2) The rules and standards adopted shall include but not be limited to:

(a) The size and suitability of a facility and the plan of operation;

(b) The character, suitability, and competence of the provider and staff directly responsible for the care of children using the facility. In consultation with law enforcement personnel, the department shall investigate the conviction record or pending charges and dependency record information under chapter 43.43 RCW of the provider and its staff. The department shall use the information solely for the purpose of determining eligibility for a license and for determining the character, suitability, and competence of those persons who will care for children using the facility. Criminal justice agencies shall provide the department such information as they may have and that the department may require for such purpose upon request of the department;

(d) The safety, cleanliness, and general adequacy of the premises to provide to the comfort, care, and well-being of children. In consultation with the department of community development, through the director of fire protection, the department shall develop fire safety standards. In consultation with the department's division of health, the department shall develop health standards;

(e) The provision of necessary care, including food, supervision and discipline, physical, mental, and social well-being, and educational and recreational opportunities for the children using the facility;

(f) The financial ability of the provider to comply with this chapter and the rules adopted under this chapter; and

(g) The maintenance of records pertaining to the children using the facility.

NEW SECTION. Sec. 7. After July 1, 1990, no person shall operate or maintain a child care facility in this state without a license issued under this chapter.

NEW SECTION. Sec. 8. (1) An application for a license shall be made to the department upon forms provided by the department and shall contain such information as the department reasonably requires, which may include affirmative evidence of ability to comply with this chapter and the rules adopted under this chapter.

(2) The department shall issue a license to a child care facility if, after inspection and any discretionary investigation, the department finds that the provider and the facility are in compliance with this chapter and the rules adopted under this chapter; and that the provider has no prior violations of this chapter relating to the child care facility subject to the application or any other child care facility within the past five years that has resulted in revocation or nonrenewal of a license or certification.

(3) The department shall serve upon the provider by certified mail a copy of the decision granting or denying an application for a license. A provider shall have the right to contest denial of his or her application for a license as provided in chapter 34.05 RCW by requesting a hearing in writing within ten days after receipt of the notice of denial.

(4) The department shall reach a decision granting or denying an application for a license within sixty days of receiving the application.

(5) A child care facility shall conspicuously post its license issued pursuant to this chapter.

NEW SECTION. Sec. 9. (1) A license shall be valid for two years. No later than twelve months after issuance of the full license, the department shall conduct an inspection of the child care facility to monitor its continued compliance with the requirements of this chapter. The department also shall investigate any complaints it receives regarding child care facilities licensed pursuant to this chapter.

(2) At least ninety days prior to the expiration of the license, the department shall send a license renewal application to the provider. The provider shall complete and submit the application within sixty days of expiration of the license. The department shall have the authority to investigate any information included in the application for license renewal, and shall conduct an inspection of the applicant facility at least thirty days prior to expiration of the license.

(3) If the department finds that the facility is not in compliance with the requirements of this chapter, it shall require the facility to correct any violations as provided in section 10 of this act and may issue a provisional license as provided in section 14 of this act. If the department finds that the provider is in compliance with this chapter and the rules adopted under this chapter, the department shall renew the license of the facility.

NEW SECTION. Sec. 10. (1) Child care facilities shall accord the department, the department of health, if one is created, and the director of fire protection of the department of community development, or their designees access to the facility for purposes of inspection under this chapter. During inspections of a child care facility, the department, the department of health, if one is created, and the director of fire protection of the department of community development, or their designees, shall have full access and authority to examine, among other things, a child care facility's records and accounts, and physical premises, including the buildings, grounds, equipment, or any vehicles used to care for children using the facility. The department also shall have the authority to interview the provider, staff, and children in the care of the child care facility. Inspections may be conducted without advance notice during all hours of operation of the facility.

(2) Whenever an inspection is conducted and the department finds that a facility is in violation of this chapter or the rules adopted under this chapter, the department shall prepare a statement of deficiencies that contains the following information:

(a) A description of each condition in the facility that constitutes a violation;

(b) Each requirement alleged to have been violated;

(c) A plan of correction that includes the date by which violations shall be corrected, but no later than ninety days after receipt of the notice;

(d) Sanctions that may be imposed against the facility for failure to correct the violations by the date specified in the statement of deficiencies;

(e) The right to contest violations if an administrative sanction is imposed; and

(f) The right to apply for a variance, as provided in section 11 of this act.

The statement of deficiencies shall be served upon the provider personally or by certified mail within five working days of the inspection. All statements of deficiencies shall be made available to the public at the department during business hours.

(3) The department shall conduct an inspection of the facility within ninety days after the date by which violations shall be corrected as specified in the statement of deficiencies.

(4) The department may delegate all or part of its authority to inspect and monitor child care facilities to the department of community development, through the director of fire protection or to the department of health, if one is created. Following inspection, the director of fire protection or the department of health shall issue to licensed applicants who comply with the requirements of this chapter for which those agencies have been delegated authority, a certificate of compliance, a copy of which shall be presented to the department before a license is issued.

NEW SECTION. Sec. 11. (1) A child care facility provider may apply to the department for a variance from a requirement of this chapter. The application for a variance shall state:

(a) The specific requirement from which the variance is sought;

(b) A description of the way in which the facility is not in compliance with this chapter;

(d) The alternative method the provider will use to meet the requirement, and the way in which the provider's alternative method:

(i) Meets the same goal as the specific requirement from which the variance is being sought is designed to meet; and

(ii) Protects the health and safety of the children using the facility as well as they would be protected if strict compliance with the requirement was required.

(2) The department shall grant a variance upon a determination that:

(a) Strict compliance with the requirement would impose a substantial hardship on the provider;

(b) The provider's alternative method of compliance will meet the same goal that the requirement from which the provider seeks the variance was designed to meet; and

(c) The provider's alternative method for compliance with this chapter protects the health, safety, and welfare of the children in care of the provider as well as they would be protected if strict compliance with this chapter were required.

(3) The decision to grant or deny a variance shall be in writing and shall state the finding upon which the decision was based. The department may impose conditions upon the variance it determines are necessary to meet the policies of this chapter, and may limit the duration of the variance. Any conditions imposed shall be stated in the decision granting the variance. The provider shall be served by certified mail with a copy of the decision, and with written notice of the provider's right to contest the decision as provided in chapter 34.05 RCW.

(4) A provider who fails to comply with a decision granting a variance shall be subject to the procedures and sanctions for failure to comply with this chapter.

NEW SECTION. Sec. 12. No public or private agency contractor or employee shall recommend placement of a child into a child care facility that is operating without a license. Any public or private agency contractor or employee who knows or should know that a child care facility is operating without a license shall report the name and address of the facility to the department. The department shall investigate any report filed under this section.

NEW SECTION. Sec. 13. The department shall consult with child care facility licensees and applicants in order to help them comply with this chapter and the rules adopted under this chapter and improve their methods and facilities for the care of children.

NEW SECTION. Sec. 14. The department is authorized to issue a provisional license to any facility for a period not to exceed six months, renewable for a period not to exceed six months, to allow such facility reasonable time to become eligible for a license. A provisional license may be issued following a provider's application for a license when a determination has been made that the provider does not meet all of the requirements of this chapter, or following suspension of a license as provided in section 15 of this act.

NEW SECTION. Sec. 15. The department is authorized to deny, refuse to renew, revoke, or suspend a license or to assess civil monetary penalties, as provided in section 16 of this act, in any case in which the department finds that a child care provider has:

(1) After following the procedures in section 10 of this act, failed or refused to comply with the requirements of this chapter;

(2) Operated a child care facility without a license or under a revoked license;

(3) Knowingly or with reason to know made a false statement of material fact on his or her application for a license or any data attached thereto, or in any matter under investigation by the department; or

(4) Willfully prevented or interfered with any inspection or investigation by the department, the director of fire protection, of the department of community development, or their designee.

NEW SECTION. Sec. 16. (1) The department may assess civil monetary penalties not to exceed one hundred dollars per violation for violations of the requirements of this chapter. Each day upon which the same or a substantially similar violation occurs is a separate violation subject to the assessment of a separate penalty.

(2) Any civil penalty assessed under this section shall bear a reasonable rate of interest from the date of notification of the violation. The department may administer civil monetary penalties under this section by:

(a) Requiring payment in full;

(b) Permitting installment payments;

(c) Requiring that the full amount or a portion of the assessed civil penalty be expended to ameliorate the violation or to improve the nonadministrative services within the facility; or

(d) Deferring the penalty or a portion thereof until one year after corrective action has been completed to assure maintenance of such action. At the end of such year, the penalty may be reduced, all or in part, if the corrective action has been maintained. The penalty may be trebled if such corrective action is not maintained for one year.

(3) All civil monetary penalties collected by the department pursuant to this section shall be deposited in the child care expansion grant fund established under RCW 74.13.095.

NEW SECTION. Sec. 17. (1) Except as provided in subsection (2) of this section, all orders of the department issued under the authority of section 15 of this act shall become final twenty days after the same has been served personally or by certified mail upon the child care provider, unless a hearing is requested.

(2) Orders of the department imposing suspension of a provider's license shall be effective immediately upon notice, pending any hearing, if the basis for the summary suspension is the existence of conditions presenting an immediate threat of harm to children using the facility.

(3) All hearings under this chapter and judicial review of such determinations shall be in accordance with chapter 34.05 RCW.

NEW SECTION. Sec. 18. In addition to other remedies provided by law, the department may seek enforcement of its final orders by filing an action for civil enforcement in a court of competent jurisdiction.

NEW SECTION. Sec. 19. In addition to other remedies provided by law, the department may, in the manner provided by law, upon the advice of the attorney general, who shall represent the department in the proceeding, maintain an action in the name of the state for injunction or such other relief as the department may deem advisable against any child care facility subject to licensing under this chapter or against any such facility not having a license as provided in this chapter.

NEW SECTION. Sec. 20. The enactment of this chapter does not have the effect of terminating, or in any way modifying, a license issued to a child care provider under chapter 74.15 RCW which is already in existence on the effective date of this act.

NEW SECTION. Sec. 21. The operator of any child care facility which operates without a license is guilty of a misdemeanor.

Sec. 22. Section 2, chapter 172, Laws of 1967 as last amended by section 912, chapter 176, Laws of 1988 and RCW 74.15.020 are each amended to read as follows:

For the purpose of chapter 74.15 RCW and RCW 74.13.031, and unless otherwise clearly indicated by the context thereof, the following terms shall mean:

(1) "Department" means the state department of social and health services;

(2) "Secretary" means the secretary of social and health services;

(3) "Agency" means any person, firm, partnership, association, corporation, or facility which receives children, expectant mothers, or persons with developmental disabilities for control, care, or maintenance outside their own homes, or which places, arranges the placement of, or assists in the placement of children, expectant mothers, or persons with developmental disabilities for foster care or placement of children for adoption, and shall include the following irrespective of whether there is compensation to the agency or to the children, expectant mothers or persons with developmental disabilities for services rendered:

(a) "Group-care facility" means an agency, other than a foster-family home, which is maintained and operated for the care of a group of children on a twenty-four hour basis;

(b) "Child-placing agency" means an agency which places a child or children for temporary care, continued care, or for adoption;

(c) "Maternity service" means an agency which provides or arranges for care or services to expectant mothers, before or during confinement, or which provides care as needed to mothers and their infants after confinement;

(d) ((~~"Day-care center" means an agency which regularly provides care for a group of children for periods of less than twenty-four hours;~~

~~(e)~~)) "Foster-family home" means an agency which regularly provides care on a twenty-four hour basis to one or more children, expectant mothers, or persons with developmental disabilities in the family abode of the person or persons under whose direct care and supervision the child, expectant mother, or person with a developmental disability is placed;

((~~(f)~~)) (e) "Crisis residential center" means an agency which is a temporary protective residential facility operated to perform the duties specified in chapter 13.32A RCW, in the manner provided in RCW 74.13.032 through 74.13.036.

(4) "Agency" shall not include the following:

(a) Persons related by blood or marriage to the child, expectant mother, or persons with developmental disabilities in the following degrees: Parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, and/or first cousin;

(b) Persons who are legal guardians of the child, expectant mother, or persons with developmental disabilities;

(c) ((Persons who care for a neighbor's or friend's child or children, with or without compensation, where the person does not engage in such activity on a regular basis, or where parents on a mutually cooperative basis exchange care of one another's children, or persons who have the care of an exchange student in their own home)) Child care facilities licensed pursuant to chapter 74.-- RCW (sections 1 through 21 of this act);

(d) ((~~Nursery schools or kindergartens which are engaged primarily in educational work with preschool children and in which no child is enrolled on a regular basis for more than four hours per day;~~

~~(e)~~)) Schools, including boarding schools, which are engaged primarily in education, operate on a definite school year schedule, follow a stated academic curriculum, accept only school-age children and do not accept custody of children;

((~~(f)~~)) (e) Seasonal camps of three months' or less duration engaged primarily in recreational or educational activities;

((~~(g)~~)) (f) Hospitals licensed pursuant to chapter 70.41 RCW when performing functions defined in chapter 70.41 RCW, nursing homes licensed under chapter 18.51 RCW and boarding homes licensed under chapter 18.20 RCW;

((~~(h)~~)) (g) Licensed physicians or lawyers;

((~~(i)~~)) (h) Facilities providing care to children for periods of less than twenty-four hours whose parents remain on the premises to participate in activities other than employment;

((~~(j)~~)) (i) Facilities approved and certified under chapter 71A.22 RCW;

((~~(k)~~)) (j) Any agency having been in operation in this state ten years prior to June 8, 1967, and not seeking or accepting moneys or assistance from any state or federal agency, and is supported in part by an endowment or trust fund;

((~~(l)~~)) (k) Persons who have a child in their home for purposes of adoption, if the child was placed in such home by a licensed child-placing agency, an authorized public or tribal agency or court or if a preplacement report has been filed under chapter 26.33 RCW and the placement has been approved by the court;

((~~(m)~~)) (l) An agency operated by any unit of local, state, or federal government or an agency, located within the boundaries of a federally recognized Indian reservation, licensed by the Indian tribe;

((~~(n)~~)) (m) An agency located on a federal military reservation, except where the military authorities request that such agency be subject to the licensing requirements of this chapter.

(5) "Requirement" means any rule, regulation or standard of care to be maintained by an agency.

Sec. 23. Section 3, chapter 189, Laws of 1988 and RCW 74.15.030 are each amended to read as follows:

The secretary shall have the power and it shall be the secretary's duty:

(1) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to designate categories of facilities for which separate or different requirements shall be developed as may be appropriate whether because of variations in the ages, sex and other characteristics of persons served, variations in the purposes and services offered or size or structure of the agencies to be licensed hereunder, or because of any other factor relevant thereto;

(2) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to adopt and publish minimum requirements for licensing applicable to each of the various categories of agencies to be licensed.

The minimum requirements shall be limited to:

(a) The size and suitability of a facility and the plan of operation for carrying out the purpose for which an applicant seeks a license;

(b) The character, suitability and competence of an agency and other persons associated with an agency directly responsible for the care and treatment of children, expectant mothers or developmentally disabled persons. In consultation with law enforcement personnel, the secretary shall investigate the conviction record or pending charges and dependency record information under chapter 43.43 RCW of each agency and its staff seeking licensure or relicensure. The secretary shall use the information solely for the purpose of determining eligibility for a license and for determining the character, suitability, and competence of those persons or agencies, excluding parents, not required to be licensed who are authorized to care for children, expectant mothers, and developmentally disabled persons. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose;

(c) The number of qualified persons required to render the type of care and treatment for which an agency seeks a license;

(d) The safety, cleanliness, and general adequacy of the premises to provide for the comfort, care and well-being of children, expectant mothers or developmentally disabled persons;

(e) The provision of necessary care, including food, clothing, supervision and discipline; physical, mental and social well-being; and educational, recreational and spiritual opportunities for those served;

(f) The financial ability of an agency to comply with minimum requirements established pursuant to chapter 74.15 RCW and RCW 74.13.031; and

(g) The maintenance of records pertaining to the admission, progress, health and discharge of persons served;

(3) To investigate any person, including relatives by blood or marriage except for parents, for character, suitability, and competence in the care and treatment of children, expectant mothers, and developmentally disabled persons prior to authorizing that person to care for children, expectant mothers, and developmentally disabled persons. However, if a child is placed with a relative under RCW 13.34.060 or 13.34.130, and if such relative appears otherwise suitable and competent to provide care and treatment the criminal history background check required by this section need not be completed before placement, but shall be completed as soon as possible after placement;

(4) On reports of child abuse and neglect, to investigate agencies in accordance with chapter 26.44 RCW, ((~~including day care centers and family day care homes,~~)) to determine whether the abuse or neglect has occurred, and whether child protective services or referral to a law enforcement agency is appropriate;

(5) To issue, revoke, or deny licenses to agencies pursuant to chapter 74.15 RCW and RCW 74.13.031. Licenses shall specify the category of care which an agency is authorized to render and the ages, sex and number of persons to be served;

(6) To prescribe the procedures and the form and contents of reports necessary for the administration of chapter 74.15 RCW and RCW 74.13.031 and to require regular reports from each licensee;

(7) To inspect agencies periodically to determine whether or not there is compliance with chapter 74.15 RCW and RCW 74.13.031 and the requirements adopted hereunder;

(8) To review requirements adopted hereunder at least every two years and to adopt appropriate changes after consultation with the children's services advisory committee; and

(9) To consult with public and private agencies in order to help them improve their methods and facilities for the care of children, expectant mothers and developmentally disabled persons.

NEW SECTION. Sec. 24. No person shall be found to be in violation of this act solely because the number of children at the facility is greater than the amount allowed under this act, if the operator can demonstrate that the excessive number of children is not a normal occurrence and was caused by a temporary emergency situation.

NEW SECTION. Sec. 25. The sum of three million one hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1991, from the general fund to the department of social and health services for the purposes of sections 1 through 21 of this act.

NEW SECTION. Sec. 26. Sections 1 through 21 of this act shall constitute a new chapter in Title 74 RCW.

NEW SECTION. Sec. 27. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.