N.H. Admin. Code § He-C 4002.44

Current through Register No. 44, October 31, 2024

Section He-C 4002.44 - Enforcement Action and Right to Appeal

(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.

N.H. Admin. Code § He-C 4002.44

#2664, eff 3-30-84, EXPIRED 3-30-90; New. #4871, eff 7-24-90; ss by #5203, eff 8-16-91; ss by #6558, INTERIM, eff 8-16-97, EXPIRED: 12-14-97; New. #6719, eff 3-25-98; ss by #7294, eff 5-26-00; ss by #9160, INTERIM, eff 5-26-08, EXPIRES: 11-22-08; ss by #9310, eff 11-23-08 (from He-C 4002.10); ss by #9605, eff 11-26-09; ss by #12046, INTERIM, eff 11-19-16, EXPIRES: 5-18-17; ss by #12174, EMERGENCY RULE, eff 5-17-17, EXPIRES: 11-13-17; Derived from Volume XLII Number 19, Filed May 12, 2022, Proposed by #13373, Effective 4/22/2022, Expires 4/22/2032 (formerly He-C 4002.09)