Current through Rules and Regulations filed through September 23, 2024
No day care center shall operate in the State without a license or commission unless the department determines that it is exempt from licensure or commission requirements. A license or commission to operate a day care center may be denied, revoked, restricted or suspended in accordance with the following:**
(a)
Refusal of a License or Commission. The department shall refuse to issue any license or commission upon a showing of:**
1. Noncompliance with the Rules and Regulations for Day Care Centers which are designated in writing to the center as being related to children's health and safety; or, flagrant and continued operation of an unlicensed facility in contravention of the law; or prior license denial or revocation within one (1) year of application; or,**
2. the department may refuse to issue a license or commission where the applicant, or the agent of the applicant, denies the department's representative access to the center for the purposes of determining whether a license or commission will be granted; or,**
3. the department may refuse to issue a license or commission where the director or employees of the center do not undergo the applicable records check and receive satisfactory determinations.**
(b)
Revocation of a License or Commission. The department may revoke any license or commission in the following instances:**
1. where the department's representative is refused access to the center for the purpose of determining whether the center is in compliance with these rules; or,**
2. where the department determines that a non-correctable deficiency, abuse or dereliction exists in the operation or management of the center; or,**
3. where the department determines that a correctable abuse, dereliction or deficiency in the operation or management of the center has not been corrected within a reasonable time after:**
(i) having been brought immediately to the attention of the administrator of the center by a department representative; and,**
(ii) having been advised in writing of the deficiencies and setting a time not to exceed ten (10) working days for the filing of an acceptable plan of correction; and,**
(I) the licensee or commission holder fails to submit an acceptable plan of correction to the department within the specified time limits. In determining whether a plan of correction is acceptable, the department will consider the extent of the deficiencies, whether the licensee or commission holder has previously been cited for the same deficiencies, the history of compliance including whether the licensee or commission holder has sustained compliance with previous plans of correction, and whether the correction required can be maintained over time; or**
(II) the licensee or commission holder fails to follow the accepted plan of correction;**
4. where the director or employees of a center do not undergo the applicable records checks and receive satisfactory determinations;**
5. where there is a flagrant abuse, dereliction or deficiency that constitutes shocking intentional misconduct.**
(c)
Suspension of a License or Commission. The department may suspend the license or commission to operate a center in the following instances:**
1. where the director or employees of a center do not undergo the applicable records checks and receive satisfactory determinations or**
2. where the department finds that the public health, safety or welfare imperatively requires emergency action and incorporates a finding to this effect in its order summarily suspending the license pending proceedings for revocation or other action, which proceedings shall be promptly instituted and determined.**
(d)
Restriction of a License or Commission. The department may restrict or limit the holder of a regular, restricted or temporary license or commission from providing certain kinds of care or services to children or limiting the number and/or age of the children who may be served if the department determines that the holder of the license or commission either cannot comply with these rules or has not complied with these rules.**
(e)
Emergency Order. Notwithstanding other remedies available to the department which may be pursued at the same time, the commissioner or his designee may order the emergency placement of a monitor or monitors in a center in accordance with the following:**
1. the department's rules and regulations are being violated which threaten the health, safety, or welfare of children in care and when one or more of the following conditions are present:**
(i) the center is operating without a license or commission; or,**
(ii) the department has denied the application for the license or commission or has initiated action to revoke the existing license or commission of the center; or,**
(iii) children are suspected of being subjected to injury or life-threatening situations or the health or safety of a child or children is in danger.**
2. A monitor may be placed in the center for no more than ten (10) consecutive calendar days, during which time the monitor shall observe conditions and regulatory compliance with any recommended remedial action of the department. Upon expiration of the ten (10) day period, should conditions warrant, the initial ten (10) day period may be extended for an additional ten (10) day period. The monitor shall report to the department. The monitor shall not assume any administrative responsibility within the center, nor shall the monitor be liable for any actions of the center. The salary and related costs and travel and subsistence allowance as defined by department policy of placing a monitor in a center shall be reimbursed to the department by the center, unless the order placing the monitor is determined to be invalid in a contested case or by final adjudication by a court of competent jurisdiction, in which event the costs associated with the monitor shall be paid by the department.**
3. The emergency order shall contain the following:**
(i) The scope of the order;**
(ii) The reasons for the issuance of the order;**
(iii) The effective date of the order if other than the date the order is issued;**
(iv) The person to whom questions regarding the order are to be addressed; and**
(v) Notice of the right to a preliminary hearing.**
4. Unless otherwise provided in the order, an emergency order shall become effective upon its service to the owner of the center, the director of the center, or any other agent, employee, or person in charge of the center at the time of the service of the order.**
5. The request for a preliminary hearing shall be made in writing within five (5) days from the time of service, excepting weekends. The request must be made to the representative of the department designated in the order. Unless a request is made to appear in person, the preliminary hearing shall consist of an administrative review of the record, written evidence submitted by the center affected, and a preliminary written argument in support of its contentions.**
6. If a request is made to appear in person at the preliminary hearing, the center shall provide the name and address of the person or persons, if any, who will be representing the center in the preliminary hearing.**
7. Upon receipt of a request for a preliminary hearing, the department shall set and give notice of the date, time and location of the preliminary hearing. The preliminary hearing shall be held as soon as possible after a request therefor but in no event later than seventy-two (72) hours after such request, provided that a center may request that such hearing be held earlier; provided, however, that in no event will a hearing be held on a weekend or holiday.**
8. If a personal appearance is requested, the preliminary hearing shall consist of a review of the evidence in the record, any additional evidence introduced at the hearing, and any arguments made. A recording shall be made of the hearing.**
9. The department shall, where practicable, issue an immediate oral order and shall, in all instances, issue a written order within four (4) business days after the close of the hearing.**
10. Pending final appeal of the validity of any emergency order issued as provided for pursuant to O.C.G.A. Sec. 49-5-90et seq., such emergency order shall remain in full effect until vacated or rescinded by the commissioner or his designee.**
11. The department is not precluded from taking any actions permitted by other laws or regulations during the time that an emergency order is in force.**
(f)
Right to a Hearing. The department's action revoking or refusing to renew or issue a license or commission required pursuant to O.C.G.A. Sec. 49-5-12 shall be preceded by notice and opportunity for a hearing and shall constitute a contested case within the meaning of the "Georgia Administrative Procedure Act", O.C.G.A. Sec. 50-13-1et seq. except that only thirty (30) days' notice in writing from the commissioner's designee shall be required prior to license or commission revocation and except that the hearing held relating to such action by the department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at that hearing.**
1. In connection with the department instituting proceedings to revoke, suspend, refuse to renew or restrict a previously issued license or commission, the department shall provide notice sent by certified mail setting forth the facts or conduct which has warranted the department's action. The notice shall inform the licensee or commission holder of the opportunity to demonstrate that the licensee or commission holder was in full compliance with all lawful requirements for the retention of the license or commission at the time that the facts or conduct warranting the revocation, suspension or restriction action allegedly occurred. However, this notice shall not be required in the following instances:**
(i) The department finds that the public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, in which case summary suspension of the license may be ordered pending proceedings for revocation or suspension or other action, which proceeding shall be promptly instituted and determined; or**
(ii) The department's order is expressly required, by judgment or a statute, to be made without the right to or hearing or continuance of any type.**
2. The notice of revocation, suspension or restriction of a license or commission becomes effective thirty (30) days from the day of notice unless the licensee or commission holder requests a hearing. A request for a hearing must be made in writing within ten (10) days of receipt of the notice of revocation, suspension or restriction.**
(g)
Notice of Hearing. If the licensee or commission holder requests a hearing, a notice of hearing shall be mailed or served personally on the licensee or commission holder. The notice shall contain the following:**
1. a statement of the date, time, place and nature of the hearing;**
2. a statement of the legal authority and jurisdiction under which the hearing is to be held;**
3. a reference to the particular section of the statutes and rules involved;**
4. a short and plain statement of the matters asserted. The department may refer to any child that is the subject of a deficiency or violation in the notice by the child's initials. The name of the child so referenced will be released orally to the licensee or commission holder upon written request to the department. If the department is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application approved by the hearing officer, a more definite and detailed statement shall be furnished; and**
5. a statement as to the right of any party to subpoena witnesses and documentary evidence through the department.**
(h)
Inspection Warrants. If a department representative is denied entrance to a center which is believed to be subject to licensure, an application for an inspection warrant may be made by the department to a court of competent jurisdiction and, if granted, used to gain entry to that center.**
(i)
Injunctive Relief. The department may, without regard to the availability of other remedies, including administrative remedies, seek an injunction against the continued operation of a center without a license or commission or the continued operation of a center in willfull violation of O.C.G.A. Sec. 49-5-1et seq. or of any regulation of the department or in violation of any other order of the board of the department.**
(j)
Criminal Penalties. The criminal penalties which may be imposed for violation of these rules are as follows:**
1. Any person who violates the provisions of O.C.G.A. Sec. 49-5-12 or who hinders, obstructs, or otherwise interferes with any representative of the department in the discharge of that person's official duties in making inspections or in investigating complaints shall be guilty of a misdemeanor.**
2. Any person who shall make, utter, execute, or submit to the department any oral or written representation, knowing the same to be false, for the purpose of obtaining anything of value, including any service, shall be guilty of a misdemeanor.**
3. Any day care center which operates without a currently valid license or commission issued by the department is subject to the provisions of O.C.G.A. Sec. 49-5-12(p) which provides upon conviction of operating a day care center without a license or commission, for a fine of not less than fifty dollars ($50.00) nor more than two hundred dollars ($200) for each offense. Each day of operation without a license or commission constitutes a separate criminal offense.**
(k)
Civil Penalties. The department may assess civil penalties in accordance with the following:**
1. A fine, not exceeding five hundred dollars ($500) may be assessed by the department against any person who**
(i) violates any licensing or commissioning provision of O.C.G.A. Sec. 49-5-1et seq. or any rule, regulation, or order issued under O.C.G.A. Sec. 49-5-1et seq. or any term, condition, or limitation of any license, commission or registration certificate under O.C.G.A. Sec. 49-5-1et seq. thereby subjecting a child in care to injury or a life-threatening situation; or,**
(ii) commits any violation for which a license or commission may be revoked.**
2. If any violation is a continuing one, each day of such violation will constitute a separate violation for the purpose of computing the applicable civil penalty.**
3. Whenever the department proposes to subject a person to the imposition of a civil penalty, it shall notify such person in writing. The notice shall set forth the following:**
(i) the date, facts, and nature of each act or omission with which the person is charged;**
(ii) the specific and particular provisions of the Official Code of Georgia Annotated section, the rule, regulation, order, license, or commission certificate involved in the violation;**
(iii) each penalty which the department proposes to impose and its amount;**
(iv) that the person has an opportunity to show in writing, within ten (10) days of the receipt of the notice, why such penalty should not be imposed;**
(v) that the failure to pay the civil penalty, subsequently determined by the department, if any, may result in collection through a civil action (lawsuit); and**
(vi) that the person also has the right to appeal the imposition of the civil penalty pursuant to the Georgia Administrative Procedure Act, O.C.G.A. Sec. 50-13-1et seq. by filing a timely request for a hearing.**
4. The written notice of the intention to impose a civil penalty shall be sent by registered or certified mail by the department of the last known address of such person.**
5. The amount of the civil penalty will be assessed in accordance with the following:**
(i) a penalty of five hundred dollars ($500) may be assessed for any violation of these rules which has resulted in a disabling or permanent injury or the death of a child;**
(ii) a penalty ranging from three hundred one dollars ($301) to four hundred ninety-nine dollars ($499) may be assessed for any violation of these rules which has resulted in an injury or harm to a child but has left no disabling or permanent physical damage;**
(iii) a penalty ranging from fifty dollars ($50) to two hundred ninety-nine dollars ($299) may be assessed for any violation of these rules which demonstrates a reckless and serious disregard for the physical or mental health or safety of a child in care but which may or may not result in physical injury to a child or for any other violation of these rules for which a license may be revoked.**
6. The department will consider in assessing a civil penalty the severity of the rule violation, the duration of non-compliance, the licensee's or commission holder's prior licensure or commission history and the voluntary reporting of the violation for which the fine is being imposed by the licensee or the commission holder.**
7. The assessment of a civil penalty will not preclude the department from taking any additional actions authorized by law or regulation including but not limited to license or commission restriction, suspension, revocation, emergency monitors or the seeking of an injunction against the continued operation of the center.**
(l)
Complaints. All complaints concerning a licensed or unlicensed day care center may be submitted to the department by telephone, letter or personal conference. Complaints will be investigated by a department representative, if appropriate. A written report of the findings of the investigation will be sent to the complainant upon request where authorized by law.**
O.C.G.A. Chapter 49-5-12 (1982); O.C.G.A. Secs. 31-1-4, 49-5-1et seq., 50-13-1et seq.
