Haw. Code R. § 17-892.1-3

Current through September, 2024

Section 17-892.1-3 - Inspection and issuance of license

(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.

Haw. Code R. § 17-892.1-3

[Eff 4/11/92; am and comp DEC 19 2002] (Auth: HRS § 346-162) (Imp: HRS. §§ 346-154, 346-156, 346-163, 346-161, 346-165, 346-166; 42 U.S.C. §§2002, 2005, 5751, 9833 )