Current through Register No. 40, October 3, 2024
(a) The department
shall consider the following enforcement actions in response to non-compliance
with licensing rules and laws:
(1) Assessment
of administrative fines;
(2)
Placement of conditions on a permit or license;
(3) Suspension of a permit or
license;
(4) Denial of an
application for a new or renewed license; or
(5) Revocation of a permit or
license.
(b) The
department shall place conditions on a license or permit when it determines
that the applicant, licensee, or permittee is in violation of any of the
provisions of RSA
170-E or any rule, and it determines that
placement of those conditions shall:
(1)
Protect the health, safety, or well-being of children;
(2) Assist the applicant, licensee, or
permittee to achieve and maintain compliance with licensing rules or statute;
or
(3) Assist the applicant,
licensee, or permittee to avoid suspension, revocation or denial of their
license or permit.
(c)
When the department intends to place conditions on a license or permit, it
shall send to the applicant, licensee, or permittee a notice setting forth:
(1) The reason(s) for the intended
action;
(2) The specific
condition(s) the department intends to place on the license or
permit;
(3) The effective date(s)
of the proposed conditions;
(4)
Notice that, once the department places conditions on the license or permit,
failure to comply with those conditions shall constitute failure to comply with
the provisions of license; and
(5)
Information about the right to request an administrative hearing by submitting
a written request for an administrative hearing to the commissioner no later
than 10 calendar days from the date of receipt of the notice.
(d) The conditions placed in
accordance with (b) above:
(1) Shall be
determined by the department, based on the single or combination of options
specified that will best address the specific issue or problem; and
(2) Shall include, but not be limited to:
a. Prohibiting a licensee or permittee from
enrolling any additional children in a program;
b. Reducing the license capacity or the
number of children for whom a licensee or permittee is authorized to care in a
specific component of a program;
c.
Requiring an individual to obtain additional education other than that required
for their position, or to complete additional in-service professional
development activities, in excess of the annual requirement as specified under
He-C
4002.33 in order to prepare them to more effectively
work with children or assist them in achieving and maintaining compliance with
He-C 4002;
d. Requiring an
applicant, licensee, or permittee to hire additional staff on a temporary or
permanent basis;
e. Restricting an
administrator, or any other child care staff, or other individual's access to
enrolled children during child care hours as a result of a determination that
the individual poses a threat to children and has been having, or may have,
regular contact with the children enrolled in the program;
f. Prohibiting a licensee or permittee from
applying for an increase in the license capacity, or any addition of new
program types to an existing license or permit, until they achieve and maintain
compliance with He-C 4002;
g.
Prohibiting an applicant, licensee, or permittee from applying for additional
child care program licenses; or
h.
Requiring the licensee to replace the center director, site director, or site
coordinator.
(e) The department's decision to place
conditions on a license or permit shall become final when:
(1) The applicant, licensee, or permittee
does not request an administrative hearing as specified in (c)(5) above;
or
(2) The department's decision to
place conditions on the license or permit is upheld after an administrative
hearing.
(f) The
placement of conditions on a license or permit shall not prohibit the
department from enforcing any conditions or any other enforcement action
available to it under He-C 4002 or
RSA
170-E.
(g) When the department places conditions on
a license or permit, the department shall issue a revised license or permit
reflecting the conditions imposed.
(h) Upon receipt of notice of the
department's intent to place conditions on a license, the applicant, licensee,
or permittee receiving the notice shall immediately provide the department with
evidence that the program notified all of the parents of enrolled children of
the conditions imposed on the license by the department.
(i) When a program has met the conditions
placed on the license and has maintained compliance with all licensing rules
and statutes related to the conditions for a period of one year or the time
period reflected on the license or permit, whichever is greater, the department
shall:
(1) Provide written notice to the
licensee or permittee of the department's intention to rescind the conditions;
and
(2) Issue a revised license or
permit.
(j) The
department shall revoke a permit or license or deny an application for a new
license, license renewal, or license revision in accordance with
RSA
170-E:12 if:
(1) The applicant, licensee, or permittee
fails to provide or does not meet the requirements of
He-C
4002.02;
(2) The applicant, licensee, or permittee
refuses to submit or adhere to an agreement or corrective action plan which
ensures that an individual determined ineligible for employment or as a
household member is removed from employment or from the household and will not
have access to the children in care during the operating hours of the
program;
(3) The applicant,
licensee, or permittee has endangered, or continues to endanger one or more
children, or otherwise caused one or more children to be physically or mentally
injured;
(4) The applicant,
licensee, or permittee has a:
a. Finding of
abuse, neglect, or exploitation of any person;
b. Conviction of child endangerment, fraud,
or a felony against a person in this or any other state by a court of law;
c. Conviction of any crime as
referenced in RSA
170-E:7, III or IV;
or
d. Complaint investigation for
abuse, neglect, or exploitation substantiated by the department or in any other
state;
(5) The
applicant, licensee, or permittee, or any representative or employee thereof
knowingly provides false or misleading information to the department, including
but not limited to information on the application or in the application
attachments;
(6) The applicant,
licensee, or permittee, or any representative or employee thereof fails to
cooperate with any inspection by the department or fails to submit any records
or reports required by the department;
(7) The applicant, licensee, or permittee
violates any of the provision of
RSA
170-E:1-23 or He-C 4002;
(8) The applicant, licensee, or permittee has
demonstrated a history or pattern of multiple or repeat citations of
RSA
170-E or He-C 4002, that pose or have posed a
threat to the safety of a child or children;
(9) The applicant, licensee, or permittee
fails to submit an acceptable corrective action plan or fully implement and
continue to comply with a corrective action plan approved by the department in
accordance with He-C 4002.06(f) through
(i);
(10) The applicant, licensee, or permittee
fails to pay a fine assessed by the department as specified in
He-C
4002.45; or
(11) The applicant, licensee, or permittee
fails to implement and comply with conditions placed on a license by the
department as specified in
He-C
4002.44(b).
(k) If the department revokes a license or
permit, or if a license or permit has expired due to the program's failure to
submit a timely application for renewal in accordance with He-C 4002, the
program shall discontinue operations immediately.
(l) The department shall notify applicants,
licensees, or permittees of a decision of the department to deny, revoke, or
suspend a license of their right to an administrative hearing in accordance
with RSA
170-E:13.
(m) If an applicant, licensee, or permittee
fails to request an administrative hearing in writing within 10 days of the
receipt of the notice required by
RSA
170-E:13, I, the action of
the department shall become final.
(n) Administrative hearings under this
section shall be conducted in accordance with
RSA
170-E:13 and 14,
RSA
541-A, and He-C 200.
(o) Further appeals of department decisions
under this section shall be governed by
RSA
170-E:14.
(p) Any licensee or permittee who has been
notified of the department's intent to revoke or suspend a license or deny an
application for license renewal may continue to operate during the appeal
process except as specified in (q) below.
(q) When the department includes in its
notice of revocation or suspension an order of immediate closure, pursuant to
RSA
170-E:13, III, or
RSA
541-A:30, III, the program
shall immediately terminate its operation and not operate while an
administrative hearing is pending except under court order or as provided by
RSA
541-A:30, III.
(r) The department shall initiate suspension
of a license or permit rather than revocation when it determines that:
(1) The program does not have a history of
repeat citations of licensing rules or statute and the action is based on
non-compliance or a situation that is:
a.
Related to a correctable environmental health or safety issue, including but
not limited to a problem with a program's water supply, septic system, heating
system, or structure; and
b.
Documented by the program as being temporary in nature; or
(2) The action is for one of the following
and is under appeal:
a. A criminal conviction;
or
b. A finding by the division for
children, youth, and families, of child abuse, neglect, or
endangerment.
(s) Any suspension of a license or permit for
which an administrative hearing has not been requested or any suspension of a
license that has been upheld by an administrative hearing shall remain in
effect until the department notifies the program whose license or permit was
suspended that the suspension has been removed because:
(1) The non-compliance which resulted in the
suspension is corrected; or
(2) The
suspension was the result of loss of fire or health officer approval and the
local fire or health officer has reinstated their previously rescinded
approval.
(t) Upon
receipt of notice of the department's intent to revoke, suspend, deny, or
refuse to issue or renew a license or permit, the applicant, licensee, or
permittee shall immediately provide the department with a list of the names,
addresses, and phone numbers of the parents of enrolled children and staff
employed by the program.
(u) Based
upon information provided under (t) above, the department shall notify the
parents of children currently enrolled in the program, and staff employed by
the program that the department has initiated action to revoke or suspend the
license or deny an application for a license renewal.
(v) When a program is allowed to continue
operating pending appeal as provided in (p) above, the program shall provide
the suspension or revocation notice to any new families prior to enrollment of
their child or children or prospective staff prior to offer of
employment.
(w) The department
shall send a notice equivalent to the notice specified in (u) above to the
following entities:
(1) The health officer and
fire inspector serving the town in which the program is located;
(2) The organization or entity who provides
resource and referral services, pursuant to
RSA
171-E:5-a, which covers the town in which the
program is located; and
(3) The
state office of the United States Department of Agriculture child and adult
food program.
(x) An
applicant, licensee, center director, or site director shall be ineligible to
reapply for a license, employment as a center director or site director, be a
family child care provider, or hold any corporate office or controlling
interest in any licensed program after revocation of a license or denial of an
application.
(y) The period of
ineligibility shall be at least 5 years from:
(1) The date the decision to revoke or deny
becomes final; or
(2) The date an
order is issued upholding the action of the department, if an administrative
hearing was requested.
(z) When an individual enters into an
administrative agreement with the department to surrender a license or withdraw
an application that exceeds the 5 years in (y) above, the agreement shall
supersede the rule.
(aa) The department shall
accept an application from an individual or consider an individual to be
eligible to be employed as a center director, site director, or family child
care provider after the 5 year period specified in (y) above only when it
determines that the individual has, through education, training, or experience,
acquired the knowledge and skills, and has the resources necessary to operate
or direct a child care program in compliance with licensing rules and
statute.
(ab) Notwithstanding (aa)
above, the department shall consider a request for a center director, site
coordinator, or site director, prior to the expiration of the 5 years, to be
considered eligible to be employed as a center director, site coordinator, or
site director for another applicant or licensee, or to become an applicant for
a license, only under the following circumstances:
(1) The revocation or denial was based on the
center director's, site coordinator's, or site director's inability to correct
the non-compliance due to the applicant or licensee's refusal or inability to
correct; and
(2) The center
director, site coordinator, or site director employed by the applicant or
licensee whose license was revoked or application was denied shows that
circumstances have substantially changed such that the department now has a
good cause to believe that the center director, site coordinator, or site
director has the requisite degree of knowledge, skills, and resources necessary
to maintain compliance with the provisions of
RSA
170-E and He-C 4002.
(ac) Notwithstanding (aa) above, the
department shall consider an application submitted after the decision to revoke
or deny becomes final, but before the expiration of the 5 years referenced in
(y) above, provided revocation or denial was the result of non-compliance with
RSA
170-E:4, II,
RSA
170-E:12, I,
RSA
170-E:12, V,
RSA
170-E:12, VI,
RSA
170-E:12, VII,
RSA
170-E:12, VIII and
RSA
170-E:12, XI, and only under
the following circumstances:
(1) The denial
was based on the applicant or licensee's inability or failure to correct
non-compliance caused by a temporary condition which has been corrected;
and
(2) The licensee or applicant
who was denied an initial application shows that circumstances have
substantially changed such that the department now has a good cause to believe
that the applicant has the requisite degree of knowledge, skills, and resources
necessary to maintain compliance with the provisions of
RSA
170-E and He-C 4002.
(ad) No ongoing enforcement action shall
preclude the imposition of any remedy available to the department under
RSA
170-E,
RSA
541-A, He-C 4002 or other law.
