I. Summary Of Applicable Laws.
(A) Child Welfare Agencies (
TCA
§
71-3-501 et seq.) (A
complete copy of the licensing law is available upon request.)
1. Specifies the types of agencies that DHS
has a mandate to license. Licensing of day care (less than 24-hour care) begins
with five children. (Care for one to four children is exempt.)
2. Provides for development of standards,
based on certain criteria by a 16 member "standards committee" appointed by the
Commissioner. Standards are to be reviewed (and revised, if needed) every five
years.
3. Requires DHS to provide
applicants or licensees with assistance in meeting standards.
4. Requires annual application for a license
and an application processing fee.
5. Upon receiving fire safety and
environmental sanitation approval, provides that DHS will issue a 90-day
conditional license if no apparent hazards to the children in care are
present.
6. Provides for denial,
suspension, or revocation of license and a waiting period ranging from 60 days
to one year prior to reapplication.
7. Provides for appeals and hearings before
the Board of Review, which includes representatives from the Departments of
Health, Education, of the "advisory board" of DHS, from the appropriate
Standards Committee, and three at-large members selected by the others. Appeals
from the Board's decision may be made to Chancery Court.
8. Imposes a misdemeanor penalty of
imprisonment for six months and a fine of $500 or both for each offense (day)
of operating without a license.
9.
Requires public agencies to meet the same standards as other child welfare
agencies and a method of reporting to the public any uncorrected
deficiencies.
10. Requires DHS to
regularly inspect agencies without prior notice and grants the Department
access to facilities and records in order to make an evaluation of the "kind
and quality of work done" and to make recommendations regarding
licensure.
11. Requires DHS to
investigate reports of noncompliance.
12. Allows DHS to impose civil penalty ($25 -
$150) for substantial noncompliance and probation for continued
noncompliance.
13. Contains
specified and defined exemptions for Parents' Day Out programs, kindergartens,
and "drop-in" programs. Also provides a waiver of adult to child ratios and
group size requirements for certain Montessori schools.
14. Requires screening for criminal
violations of persons applying to work with children through the registry
maintained by the 'Tennessee Bureau of Investigation (TBI).
15. Allows DHS to investigate all reports of
abuse, neglect, or sexual abuse, even in exempt agencies, and enables DHS to
revoke the license of a licensed agency and to enjoin an unlicensed person or
agency from continuing to provide child care where abuse of children
occurs.
(B) Access to
Public Records
(T.C.A §§
10-7-503 and
10-7-504). Requires
public bodies to provide any citizen of Tennessee access to public records
except for specified confidential records (e.g., medical records, TBI
investigative records, students' records). DHS' records on child welfare
agencies are public records except as they may contain information obtained in
the course of child abuse or neglect investigations.
(C) Child Protective Services
(TCA
§§
37-1-401 et seq. and 37-1-601 et
seq.).
1. Requires any individual or
organization (such as day care agency, hospital, or school) having knowledge of
suspected child abuse or neglect to report it to a juvenile judge, the
Department of Human Services, or a law enforcement official. (Look in your
telephone book under "Child Abuse", or call the county DHS office or local law
enforcement.)
2. Requires the
identity of a reporting person to be kept confidential, subject to disclosure
only by consent of the person or by judicial process. Provides immunity from
civil or criminal liability if reports are made in good faith.
3. Gives DHS authority and responsibility to
investigate reports of abuse or neglect.
4. Requires that all written records and
information regarding investigations be confidential. Release of information is
permissible to certain specified persons and to those having responsibility for
administration of the law. Persons found not guilty of severe child abuse or
child sexual abuse shall have their names expunged from the TBI's abuse
registry.
5. Charges DHS with the
responsibility of conducting a continuing publicity and education program to
encourage reporting and to strengthen and improve child sexual abuse detection,
prevention, and treatment efforts.
(D) Federal Funding.
Section 504 of the Rehabilitation Act of 1973 and Title VI
of the Civil Rights Act of 1964 require agencies receiving federal funding to
employ nondiscriminatory policies and practices. Persons receiving federal
funding such as reimbursement from the USDA Child/Adult Care Food Program, DHS
vendor or Transitional Child Care payments, Social Services Block Grants
(SSBG), Dependent Care Grant funds for school-age child care, etc.; and persons
receiving federal support in the form of space, staff, services, equipment,
etc., are required to comply with the following.
1. Title VI of the Civil Rights Act of 1964
by ensuring that no person (child, parent, or employee) in your agency "shall,
on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal financial assistance"; and by
employing nondiscriminatory policies and practices and advertising
such.
2. Section 504 of the
Rehabilitation Act of 1973 by ensuring that no otherwise qualified handicapped
person shall be excluded from participation in, be denied the benefits of, or
be subjected to discrimination in any program activity solely on the basis of a
handicap (applies to children, parents, and employees); and by making
reasonable accommodations to serve or hire an otherwise qualified individual
with a handicapping condition.
(E) Child Passenger Protection and Safety
Belt Use (Transportation)
(TCA §
55-9-601 et seq.).
1. Requires any person transporting a child
under the age of four years in a motor vehicle to provide for children's
protection by providing and properly using a federally approved child restraint
system (manufactured after January 1, 1981). Violation is subject to a $50 fine
or 30 days in jail or both.
2.
Specifies that no one is to operate a motor vehicle unless all persons four and
older in the front seat are properly restrained by a safety belt.
3. Imposes a fine of $50 or 30 days in jail
or both for each violation after the first; however, the violator can be cited
or arrested only after being cited or arrested for another violation of
law.
4.
TCA §§
55-50-102(11) and
55-50-102(12)(B)
requires the driver of a vehicle designed to carry 15 or more passengers
(including the driver) to have a commercial driver's license.
(F) Administrative Rules and
Procedures
(TCA §
4-5-301 et seq. and Chapter
1240-5-11 et seq.).
1. Provides for
an administrative hearing of any contested cases (i.e., on denial or revocation
of licenses or on notice of intent to put an agency on probation) after proper
notice which includes references to particular statutes and rules
involved.
2. Requires that hearings
before the members of the Board of Review to be conducted by the administrative
judge or a hearing officer, who rules on admissibility of evidence and other
matters and otherwise ensures that proceedings are properly carried
out.
3. Allows the contesting
licensee to be represented (at licensee's own expense) by counsel.
4. Allows the judge or hearing officer at
his/her discretion or upon request of licensee or the Department of Human
Services to schedule a prehearing conference in order to simplify or expedite
the disposition of the appeal action.
5. Requires that the hearing be open to the
public.
6. Requires the final order
be entered by the Board of Review. The final order shall include conclusions of
law, factual findings, prescribed remedy, and procedures and time limits for
seeking judicial review.
7.
Provides that while an application for a license is pending, an existing
license does not expire until disposition of the application has been finally
determined, unless the license must be summarily suspended pending completion
of the proceedings because the Department determines that "public health,
safety, or welfare imperatively requires" emergency action, and notifies
licensee of that finding "pending proceedings for revocation or other
action".
