(a) In exercising
its authority to license child care centers or renew, suspend, or revoke a
license, the department shall analyze the qualifications of providers of child
care, review the facility's written policies and program provisions, and
inspect the child care facility. Authorized representatives of the department
and parents or guardians of children in care may visit a child care facility at
any time during the hours of operation for purposes of monitoring and
inspecting the facilities, activities, staffing, and other aspects of the child
care center. The department may call on political subdivisions and governmental
agencies for appropriate assistance within the agencies' authorized
fields.
(b) The applicant or
licensee shall cooperate with the department by providing access to its
facilities, records, and staff. Failure to comply with reasonable requests may
constitute grounds for denial, suspension, or revocation of license.
(c) After the initial licensure, the licensee
shall ensure that new employees comply with section 17-892.1-2(a)(5).
(1) New employees shall be fingerprinted
within five working days of employment.
(2) When the applicant, employee or rehired
employee has left the state for a period of six consecutive months or more,
they shall be required to be fingerprinted again within five working days of
beginning employment.
(d) Annual criminal history record checks and
child abuse/neglect checks shall be conducted. The applicants and employees
shall provide consent to the department to conduct such checks within five
working days of the employment anniversary date or the anniversary date of the
last consent to a criminal history record check.
(e) The department shall request the
applicant or licensee to terminate the employment of an employee who has a
criminal history, employment history or child abuse/neglect history which poses
a risk to children in care. Any such request shall be in writing and shall
state those criminal convictions, employment history or child abuse/neglect
history which indicates a risk to children. The standard to be applied in
disqualification of an applicant or an employee based on these checks shall be:
(1) Except as stated in section (B) below,
felony convictions of any offenses against the person as provided in Hawaii
Revised Statutes chapter 707 shall result in immediate disqualification.
(A) These offenses include, but are not
limited to:
(i) murder in the first and
second degree;
(ii)
manslaughter;
(iii) negligent
homicide in the first and second degree;
(iv) negligent injury in the first
degree;
(v) assault in the first
degree;
(vi) reckless endangering
in the first degree;
(vii)
terroristic threatening in the first degree;
(viii) kidnapping;
(ix) unlawful imprisonment in the first
degree;
(x) custodial interference
in the first degree;
(xi) sexual
assault in the first, second, and third degree;
(xii) incest;
(xiii) promoting child abuse in the first and
second degree;
(xiv) extortion in
the first and second degree; and
(xv) extortion when a firearm, explosive, or
any dangerous weapon is immediately available and is physically used as part of
the threat.
(B) In the
case of second degree assault convictions, immediate disqualification shall
occur for only those convictions that were within the last five years from the
date of the most recent criminal history record check.
(2) Felony conviction of an offense against
property rights as provided in Hawaii Revised Statutes chapter 708 shall result
in immediate disqualification when the crime leading to the conviction involved
use of a weapon, threatened harm, and/or violence to achieve the crime, and the
conviction was within the last five years from the date of the most recent
criminal history record check. These offenses include, but are not limited to:
(A) burglary in the first degree;
(B) criminal property damage in the first
degree; and
(C) robbery in the
first and second degree.
(3) Conviction of an offense against the
family as provided in Hawaii Revised Statutes chapter 709 shall result in
immediate disqualification when the conviction was within the last five years
from the date of the most recent criminal history check. These offenses
include, but are not limited to:
(A)
concealing the corpse of an infant;
(B) abandonment of a child;
(C) endangering the welfare of a minor in the
first and second degree;
(D)
compensation by an adult of juveniles for crimes;
(E) endangering the welfare of an incompetent
person; and
(F) abuse of a family
or household member.
(4)
Conviction of an offense against public health and morals as provided in Hawaii
Revised Statutes chapter 712, shall result in immediate disqualification when
the conviction was within the last five years from the date of the most recent
criminal history record check. These offenses include, but are not limited to:
(A) promoting prostitution in the first,
second, and third degree;
(B)
loitering for the purpose of engaging in or advancing prostitution;
(C) displaying indecent matter;
(D) promoting pornography;
(E) promoting pornography for
minors;
(F) open
lewdness;
(G) promoting a dangerous
drug in the first, second, and third degree;
(H) promoting a harmful drug in the first,
second, third, and fourth degree;
(I) promoting a detrimental drug in the
first, second, and third degree;
(J) commercial promotion of marijuana in the
first and second degree;
(K)
promoting a controlled substance in, on, or near schools or school
vehicles;
(L) promoting
intoxicating compounds; and
(M)
promoting intoxicating liquor to a minor.
(5) Confirmation by the department that the
applicant or the employee was the perpetrator of abuse or neglect shall result
in immediate disqualification.
(6)
Confirmation by the department that the applicant or the employee was the
perpetrator of threatened harm shall result in immediate disqualification for a
five-year period starting from the date that the child abuse case record was
closed. An applicant may request, at the discretion of the licensing social
worker, that the case be presented to a panel constituted by the department
which shall make a final decision of whether the confirmed threatened harm
warrants immediate disqualification or an exception should be
granted.
(7) For any other
situations that have not been listed in this section the department may
disqualify an applicant or employee after assessing whether the caregiver poses
a risk to the health, safety, or well-being of the children in care. When
making an assessment, the criteria to be used shall include, but not be limited
to, the following:
(A) The nature of the
incident;
(B) When the incident
occurred;
(C) Patterns of behavior
which are considered reckless or negligent and resulted in or could have
resulted in injury to the person or others; and
(D) Evidence of rehabilitation.
(f) If the applicant
does not terminate the employment of the employee when requested under this
section, the applicant shall notify the department within seven working days of
receipt of the request. Such notification shall be in writing and shall state
the reasons for the decision.
(g)
Refusal to terminate the employment of an employee when requested under this
section shall be grounds for revocation or suspension of a certificate of
approval.
(h) Rules prescribed
herein are minimum standards. The department shall issue a license under the
following conditions:
(1) A regular license
shall be issued if the result of the department's evaluation indicates
compliance with the applicable rules as established by the department;
or
(2) A provisional license shall
be issued if the result of the department's evaluation indicates that all of
the applicable rules cannot be met immediately but shall be met within six
months or less, and the deviations are minor deficiencies.
(i) The length of the licensing period shall
be as follows:
(1) Regular licenses shall be
valid for one year for new applicants and those providers licensed for less
than four years, and for two years for all other providers unless subsequently
suspended or revoked. When a regular license is issued after a provisional
license, the expiration date of the regular license shall be one year or two
years from the issuance date of the last provisional license;
(2) Provisional licenses may be issued for up
to six months; and
(3) Licenses
shall be renewed only upon application and upon the department's
approval.
(j) Each
license shall clearly state the kind of program the licensee is permitted to
operate, the address of the licensee, and the number and types of children who
can be cared for at the facility.
(k) Implementation of two year licenses shall
be accomplished by dividing a unit's caseload so that one-half of the cases
fall on the even year and one-half of the cases fall on the odd years. To
accomplish this, licenses one-year in length may be issued, if necessary, to
achieve an even caseload between the two years. This decision shall be within
the discretion of the department.
