14 Del. Admin. Code § 933-II-13.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 933-II-13.0 - Enforcement Actions

13.1 To maintain licensure, a licensee shall follow these regulations and applicable federal, State, and local laws and regulations. Failure to do so will result in a corrective action plan or an enforcement action.

13.1.1 An enforcement action, such as warning of probation, probation, suspension, revocation, or denial of a license application, may be initiated by OCCL when a licensee fails to comply with a corrective action plan or agreement of understanding, or has been cited for serious non-compliance.

13.1.2 A licensee may appeal an enforcement action by requesting a hearing within 10 business days of notification of OCCL's decision to impose the action.

13.1.2.1 This appeal request may be written or verbal for warning of probation or probation. All other appeal requests must be provided by the applicant or licensee in writing.

13.1.2.2 A licensee may provide evidence that the facility was wrongly cited.

13.2 License Suspension

13.2.1 OCCL may immediately suspend a license if the health, safety, or well-being of children in care is in serious or imminent danger.

13.2.1.1 A suspension order requires the licensee to immediately stop providing child care. Absent extenuating circumstances, a suspension order shall be in writing.

13.2.1.2 If a verbal suspension order is provided, it will be followed by a hand-delivered written suspension order by 11 AM the following business day.

13.2.1.3 A written suspension order must state the reason or reasons for the enforcement action.

13.2.2 Within 10 business days of OCCL issuing the written order, the licensee may choose to close permanently, remain suspended until the reason for the suspension has been corrected, or remain suspended and request a hearing in writing.

13.2.3 A hearing must be scheduled and held within 10 business days of the licensee's written request for a hearing.

13.2.3.1 A hearing officer with no previous involvement in the matter must be assigned by the Associate Secretary of Early Childhood Support.

13.2.3.2 The hearing officer may allow delays in the hearing only for good cause.

13.2.3.3 After a hearing officer makes a recommendation, the Secretary determines whether to adopt the recommendation and issues a final decision.

13.2.3.4 The licensee will be notified in writing of the decision of the Secretary. The decision will become final 10 business days after it is mailed or delivered to the licensee.

13.2.4 A licensee dissatisfied with the Department's decision for suspension may file an appeal within 30 business days after the mailing or delivery of the decision notice.

13.2.4.1 A licensee appeals to the Delaware Superior Court in the county where the center is located, by filing the appeal in the Office of the Prothonotary for the Superior Court.

13.2.4.2 A licensee shall supply a copy of the appeal to the Department.

13.2.4.3 The licensee pays any costs for this appeal that Superior Court rules require to be paid by the filing party.

13.2.4.4 The final decision of the Secretary will remain in place during the appeal process unless otherwise ordered by the court pursuant to 29 Del.C. § 10144.

13.3 Warning of Probation or Probation

13.3.1 OCCL may place a center on warning of probation or probation when serious non-compliance is cited.

13.3.1.1 OCCL shall notify the licensee in writing of the reasons it intends to place the center on warning of probation or probation.

13.3.1.2 This letter will describe how a licensee may appeal the decision by requesting a hearing to present information that the cited violations are not valid.

13.3.1.3 Warning of probation may initially last up to six months and may be renewed. Probation may initially last up to one year and may be renewed.

13.3.2 Within 10 business days of receiving the written notice, the licensee shall request a hearing or accept the enforcement action.

13.3.3 A hearing must be held within 30 calendar days of the hearing request.

13.3.3.1 The Department will assign a hearing officer with no previous involvement in the matter.

13.3.3.2 A hearing officer may allow delays in the hearing only for good cause.

13.3.4 After a hearing officer makes a recommendation regarding warning of probation, OCCL's director determines whether to adopt the recommendation and makes a final decision. After a hearing officer makes a recommendation regarding probation, the Associate Secretary of Early Childhood Support determines whether to adopt the recommendation and makes a final decision. OCCL shall notify the licensee in writing of the decision.

13.3.5 A licensing specialist shall conduct unannounced visits during the enforcement period to ensure compliance with these regulations is maintained.

13.3.5.1 The findings will be reported to the licensee in writing.

13.3.5.2 A licensee found to be noncompliant with the regulations will be cited and given a corrective action plan.

13.3.5.2.1 Within five days of the citation, a licensee may dispute citations by contacting a licensing supervisor to request a conference or by discussing the citations over the phone.

13.3.5.2.2 A licensee may provide evidence that the facility was wrongly cited.

13.3.5.2.3 After the conference or phone conversation, the supervisor will then discuss the information with the licensing specialist and determine whether to remove the non-compliance from the corrective action plan.

13.3.6 Failure to comply with licensing regulations while on warning of probation or probation may result in having the enforcement action extended or heightened.

13.3.7 A licensee may not increase the licensed capacity or receive a new license at an additional site while on an enforcement action or when issued a notice regarding OCCL's intent to place the center on an enforcement action.

13.4 Denial of a License Application or Revocation

13.4.1 OCCL may deny a license application or revoke a license for good cause, including but not limited to the following:

13.4.1.1 Failure to comply with applicable provisions of federal, State, or local laws or of these regulations;

13.4.1.2 Violation of the terms or conditions of its license;

13.4.1.3 Fraud or misrepresentation in obtaining a license or in the subsequent operation of the center;

13.4.1.4 Refusal to furnish OCCL with files, reports, or records as required by the law;

13.4.1.5 Refusal to permit an authorized representative of OCCL to gain admission to the center during operating hours;

13.4.1.6 Engaging in any activity, policy, practice, or conduct by the governing body, licensee, or staff member that adversely affects or is deemed by OCCL to be detrimental to the education, health, safety, or well-being of children; or

13.4.1.7 Conduct that otherwise demonstrates unfitness by the governing body, licensee, or early childhood or school-age administrator to operate a center.

13.4.2 OCCL shall notify the applicant or licensee in writing of the reasons it intends to deny a license application or revoke a license. This letter will describe how an applicant or licensee may appeal the decision by requesting a hearing to present information that the cited violations or reasons for the denial are not valid.

13.4.2.1 Within 10 business days of receiving the written notice, the applicant or licensee shall request a hearing in writing or accept the denial or revocation and close within the time stated in the notice.

13.4.2.2 If an applicant or licensee does not make a timely request for a hearing as stated in subsection 13.4.2.1, the denial or revocation will take effect 30 business days after receiving the written notice from OCCL.

13.4.3 A hearing will be held within 30 calendar days of the hearing request.

13.4.3.1 The Department will assign a hearing officer with no previous involvement in the matter.

13.4.3.2 A hearing officer may allow delays in the hearing only for good cause.

13.4.4 If an applicant or licensee requests a hearing in a timely manner, its existing license will be valid until the Department provides a written decision after the hearing. However, OCCL may suspend a license immediately whenever the health, safety, or well-being of children in care is in serious or imminent danger.

13.4.5 After a hearing officer makes a recommendation, the Secretary determines whether to adopt the recommendation and issues a final decision. The applicant or licensee will be notified in writing of the decision. The decision will become final 10 business days after it is mailed or delivered to the applicant or licensee.

13.4.6 An applicant or licensee who is dissatisfied with the Department's decision regarding revocation or denial may file an appeal within 30 business days after the mailing or delivery of the decision notice.

13.4.6.1 The applicant or licensee appeals to the Delaware Superior Court in the county where the center is located, by filing the appeal in the Office of the Prothonotary for the Superior Court.

13.4.6.2 The applicant or licensee shall supply a copy of the appeal to the Department.

13.4.6.3 The applicant or licensee pays any costs for this appeal that Superior Court rules require to be paid by the filing party.

13.4.6.4 The final decision of the Secretary will remain in place during the appeal process unless otherwise ordered by the court pursuant to 29 Del.C. § 10144.

13.4.7 When a license has been revoked or an application has been denied, the licensee or applicant may not apply for a license from OCCL for three years from the date that the revocation or denial was upheld. A facility's designated representative, early childhood administrator, school-age administrator, or person in a leadership role will not be issued a license during this three-year period.

14 Del. Admin. Code § 933-II-13.0

24 DE Reg. 267 (9/1/2020)
25 DE Reg. 1115 (6/1/2022) (Final)