Section 0250-04-07-.01 - LEGAL BASIS FOR LICENSING(1) GENERAL: The legal basis for licensing is contained in T.C.A. §§71-3-501 through 71- 3-531.(2) DEFINITIONS: For the purpose of clarification the following definitions are given and will hereafter be used:(a)Maternity home shall mean any place in which any person, society, agency, corporation, or facility receives, treats or cares for more than one (1) illegitimately pregnant woman, either before, during, or within two (2) weeks after childbirth. Provided, however, that licensed child-placing agencies and licensed maternity homes may use family boarding homes approved and supervised by the agency, as a part of its work, for as many as three (3) pregnant women in each home and provided, further, that the provisions of this definition shall not include women who receive maternity care in the home of a relative within the sixth degree of kindred computed according to civil law or general, or special hospitals licensed according to law, in which maternity treatment and care is part of the medical services performed and the care of children only brief and incidental. T.C.A. §71-3-501.(b)Department - The Tennessee Department of Children's Services.(c)Commissioner - The Commissioner of the Department of Children's Services.(d)Staff - Full-time and part-time employees.(e)Law - T.C.A. §§ 71-3-501 through 71-3-531.(f)License - A yearly permit issued to a maternity home. Licensing is based on achievement in meeting minimum standards developed and published by the department.(3) BASIS FOR APPROVAL FOR LICENSE: All child welfare agencies, as defined in T.C.A. §71-3-501, shall be licensed annually by the department, said license to be based on standards developed and published for each child welfare agency in accordance with the following six (6) points of excellence:(a) The present need for the proposed child welfare agency;(b) The good character and intention of the applicant;(c) The adequate financing of the organization;(d) The capability, training and experience of the workers;(e) The facilities for and the methods of care provided and the consideration of the best interest of the child and the welfare of society in any placements of children to be made; and(f) The probability of permanence of the child welfare agency. (4) LICENSING PROCEDURE: (a) Conditional License Fees: Application for license shall be made to the department upon blanks furnished by it. Upon receipt of the application for a license, the department shall issue the applicant agency a conditional license which shall be valid for a period of ninety (90) days from the date of issuance; provided, that the staff and facility do not present any apparent hazards to any children that may be in care and that the facility has received fire safety and environmental sanitation approval. A processing fee of ten dollars ($10) shall be submitted with the application.(b) Issuance of Annual License. If at the end of the ninety (90) day period set forth above, evidence is provided by the applicant/licensee that the child welfare agency is suitable and properly managed as such, the department shall issue such agency a license which shall be valid for a period of one (1) year; provided, however such license may at any time be revoked by the department on ninety (90) days notice being given to the licensee, or such license may be immediately suspended by the department, as provided by law, if the public health, safety, or welfare imperatively so requires. The notice shall contain the cause of the revocation. The licensee may upon written request filed with the commissioner within ten (10) days of the mailing of the notice of revocation, receive a hearing before the board of review, with such hearing to be held within the ninety (90) day period set out in the notice of revocation.(c) When an application for a license has been denied or a license has been revoked on one occasion, the agency may not reapply for a period of sixty (60) days from the date of the denial or revocation. If such license has been denied or revoked on two (2) occasions, the agency may not reapply for a period of six (6) months. If such license has been denied or revoked on three (3) or more occasions, the agency may not reapply for a period of twelve (12) months. The department may waive the time restrictions herein upon a showing by the agency to the satisfaction of the department that the agency has corrected the deficiencies which led to the denial or revocation.(d) Upon written notice to the applicant that a request for license has been denied, such applicant may request a hearing before the board of review. Such request must be made in writing and must be filed with the commissioner within ten (10) days of the mailing date of the notice of denial. Such hearing must be granted at the next regular meeting of said board of review provided, however, that no longer than sixty (60) days shall elapse after such request and before such hearing.(e) Any child welfare agency, as defined in T.C.A.§71-3-501 operating without being so licensed by the department, shall be guilty of a misdemeanor and shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200) for each such offense. Each day of operation without a license shall constitute a separate offense.(f) It shall be the duty of the department, through its duly authorized agents, to inspect at regular intervals without previous notice all child welfare agencies, as defined in T.C.A. §71-3-501, within the state. It is given right of entrance, privilege of inspection, access to accounts and records, information regarding the whereabouts of children under care for the purpose of ascertaining the kind and quality of work done to obtain a proper basis for its decisions and recommendations. Any violation of the rights given in this section shall be a misdemeanor.(g) Notwithstanding the provisions of T.C.A. § 71-3-527, the department shall have the following authority and responsibilities in any case in which the department receives a report of harm in accordance with chapter 4 or chapter 6 of Title 37 of T.C.A..1. The department shall have the authority and responsibility to fully investigate in accordance with the provisions or chapter 4 or chapter 6 of Title 37 any allegation of abuse, neglect, or sexual abuse which it receives regarding any child or children in the care of any agency or person whether or not such agency or person is subject to licensure hereunder. In the conduct of such investigation, the department shall be granted access to the records of all children in the care of the person or agency and personnel files of-the director and all employees of the person or agency, shall be allowed to inspect all premises in which children are kept or cared for and shall be allowed to interview any and all children in the care of such person or agency if the department determines such interviews are necessary.2. If the department determines that abuse, neglect, or sexual abuse has occurred and the person or agency fails to take appropriate action to prevent future abuse, neglect, or sexual abuse, the department shall take such action as may be necessary to revoke, suspend, or deny the agency's license. If the person or agency is not licensed or not subject to licensure, the department may proceed to bring an action in the Chancery Court of the county of the defendant's residence or the county in which the abuse, neglect, or sexual abuse occurred to enjoin the person or agency or any individual found by the department to have been responsible for the abuse, neglect, or sexual abuse from continuing to provide care for children on a full-time or part-time basis.(5) PUBLIC AGENCIES: Any child welfare agency, as defined in T.C.A. § 71-3-501, which is under the direct management of an administrative department of the state, a county or a municipality, or any combination of these three, shall not be subject to license, but shall meet the minimum standards of program and care as required of such child welfare agencies. Through his authorized agent, the commissioner of the department shall make periodic inspections of such public administrative child welfare agencies. The report of such inspections and recommendations shall be made privately to the executive head of the public administrative child welfare agency, the board of directors, if any, and/or the division of the state, county or municipal government which has the duty under the law to operate such agency. It shall be the duty of the department to cooperate with the public administrative agencies herein referred to, to the end that such recommended changes in program and policies can be adopted. If within a reasonable time, such standards and recommendations are not met, it shall be the duty of the commissioner of the department to make public in the community in which this agency is located, the report of the above-mentioned inspections. If any serious abuses, derelictions, or deficiencies are found and are not corrected within a reasonable time, the same shall be reported in writing to the next session of the legislature.(6) REPORTING OF BRUTALITY, ABUSE, NEGLECT, OR CHILD SEXUAL ABUSE (T.C.A. § 37-1-403) (a) Any person, including but not limited to any:1. Physician, osteopath, medical examiner, chiropractor, nurse, or hospital personnel engaged in the admission, examination, or treatment of persons;2. Health or mental health professional other than one listed in subdivision (a)(1);3. Practitioner who relies solely on spiritual means for heating;4. School teacher or other school official or personnel;5. Judges of all courts of the state;6. Social worker, day care center worker, or other professional child care, residential, or institutional worker;7. Law enforcement officer; or8. Neighbor, relative, friend, or any other person who knows or has reasonable cause to suspect, that a child has been sexually abused or having knowledge of or called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition which is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect or which on the basis of available information reasonably appears to have been caused by brutality, abuse, or neglect, shall report such harm immediately by telephone or other- wise to the local office of the Department of Children's Services or the judge having juvenile jurisdiction or to the county office of the sheriff or the chief law-enforcement official of the municipality where the child resides. Any person, including judges of all courts of this state, who knows or has reasonable cause to suspect that a child has been sexually abused shall report such information in accordance with Acts 1985, chapter 478, relative to the sexual abuse of children, regardless of whether such person knows or believes that the child has sustained any apparent injury as a result of such abuse.(b) If a hospital, clinic, school, or any other organization responsible for the care of children has a specific procedure, approved by the director of the county office of the department, for the protection of children who are victims of brutality, abuse, or neglect, any member of its staff whose duty to report under the preceding sentence arises from the performance of his services as a member of the staff of the organization may, at his option, fulfill that duty by reporting instead to the person in charge of the organization or his designee who shall make the report in accordance with the preceding sentence.(c) The report shall include, to the extent known by the reporter, the name, address, and age of the child, the name and address of the person responsible for the care of the child, and the facts requiring the report. The report may include any other pertinent information.(d) If a law enforcement official or judge becomes aware of known or suspected child abuse, through personal knowledge, receipt of a report, or otherwise, such information shall be reported to the department immediately and where appropriate the child protective team shall be notified to investigate the report for the protection of the child in accordance with the provisions of this part. Further criminal investigation by such official shall be appropriately conducted in coordination with the team or department to the maximum extent possible.(e) Any person required to report or investigate cases of suspected child abuse who has reasonable cause to suspect that a child died as a result of child abuse shall report his suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report his findings, in writing, to the local law enforcement agency, the appropriate district attorney, and the department. Autopsy reports maintained by the medical examiner shall not be subject to the confidentiality requirements provided for in T.C.A. § 37-1-409.(f) Reports involving known or suspected institutional child sexual abuse shall be made and received in the same manner as all other reports made pursuant to Acts 1985, chapter 478 relative to the sexual abuse of children. Investigations of institutional child sexual abuse shall be conducted in accordance with the provision of T.C.A. §37-1-606.(g) Every physician or other person who makes a diagnosis of, or treats, or prescribes for any venereal disease set out in T.C.A. § 68-10-101, or venereal herpes and chlamydia, in children thirteen (13) years or younger, and every superintendent or manager of a clinic, dispensary or charitable or penal institution, in which there is a case of any of the diseases, as set out in this subsection, in children thirteen (13) years of age or younger shall report the case immediately, in writing on a form supplied by the Department of Health and Environment to that department. If the reported cases are confirmed and if sexual abuse is suspected, the Department of Health and Environment will report the case to the Department of Children's Services. The Department of Children's Services will be responsible for any necessary follow-up.(7) VIOLATIONS PENALTIES (a) Any person required to report known or suspected child abuse or child sexual abuse who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor.(b) Any person who knowingly and willfully makes public or discloses any confidential information contained in the abuse registry or in the records of any child sexual abuse case, except as provided in Acts 1985, chapter 478, is guilty of a misdemeanor. (Acts 1985, chapter 478, §16).(c) All staff of the agency whether paid, contracted or volunteer, must report any suspected child abuse or neglect of any child enrolled in the agency, in conformance with parts 4 and 6 of chapter 1, Title 37 of the T.C.A. Failure to do so will, standing alone, be sufficient basis for denial or revocation of the agency's license.(8) PLACEMENT IN TEMPORARY HOMES OR FOR ADOPTION Private individuals including midwives, physicians, nurses, hospital officials, lawyers, and the officials of any non-chartered and/or non-licensed child-caring institution, child-placing agency- or maternity home, are forbidden to engage in placing children for temporary care or for adoption. Violation of this restriction shall be punishable by fine of not less than one hundred dollars ($100) and no more than five hundred dollars ($500) for each offense.
(9) AMENDED ADOPTION LAW No person, corporation, or agency except the Department of Children's Services or an agency licensed by the department as a child-placing agency shall engage in placing children for adoption; provided however, this section shall not be construed to prohibit any person from advising a natural or prospective adoptive parents of the availability of adoption or from acting as an agent for the natural or prospective adoptive parents in making necessary arrangements for adoption so long as no fees are charged for such service other than usual and customary legal and medical fees in connection with the birth of the child and the legal proceedings relative to adoption. Any court of competent jurisdiction, upon the filing of a verified bill for injunction, by the State of Tennessee, on behalf or the State Department of Children's Services or by an agency, or by any person aggrieved, may temporarily enjoin or restrain any person, corporation, or agency, from engaging or attempting to engage in placing children for adoption in violation or threatened violation, of the chapter of the T.C.A. relative to adoption, and upon final hearing, if the court determines that there has been a violation or threatened violation, thereof, the injunction shall be made permanent.
Tenn. Comp. R. & Regs. 0250-04-07-.01
Original rule certified June 10, 1974. Repealed and new rule filed April 15, 1977; effective May 16, 1977. Amendment filed March 17, 1980; effective June 29, 1980. Repealed and new rule filed February 28, 1983; effective May 16, 1983. Repealed and new rule filed August 14, 1990; effective September 28, 1990. Rule assigned a new control number, removed and renumbered from 1240-4-7-.01 filed and effective March 25, 1999.Authority: T.C.A. §§ 4-5-226(b)(2);4-5-320; 36-1-134; 37-1-403; 37-1-409; 37-1-605; 37-1-612; 37-1-616; 37-5-101;37-5-105; 37-5-106; 37-5-112(a); 71-1-105 and 71-3-501 through 71-3-531.