Section 1240-04-05-.04 - VIOLATIONS OF LICENSING REGULATIONS(1) Right of Inspection(a) It is the duty of the Department, through its duly authorized agents, to inspect at regular intervals, without previous notice, all child care agencies or suspected child care agencies, as defined in T.C.A. § 71-3-501.(b) The Department is given the right of entrance, privilege of inspection, access to accounts, records, and information regarding the whereabouts of children under care for the purpose of determining the kind and quality of the care provided to the children and to obtain a proper basis for its decisions and recommendations.(c) If refused entrance for inspection of a licensed, approved or suspected child care agency, the chancery or circuit court of the county where the licensed, approved or suspected child care agency may be located may issue an immediate ex parte order permitting the Department's inspection upon a showing of probable cause, and the court may direct any law enforcement officer to aid the Department in executing such order and inspection. Refusal to obey the inspection order may be punished as contempt.(d) Except where court orders prohibit or otherwise limit access, parents or other caretakers of children in the care of a child care agency licensed pursuant to T.C.A. § 71-3-501 et seq. shall be permitted to visit and inspect the facilities and observe the methods for the care of their children at any time during which the children are in the care of the agency and, except those records of other children in the care of the agency and their parents or caretakers, shall further be permitted to inspect any records of the agency which are not privileged, or are not otherwise confidential, as provided by law or regulation, and the parents' or caretakers' access for these purposes shall not be purposely denied by the agency.(e) Any violation of the rights given in this paragraph is a Class A misdemeanor.(2) Probation. (a) If, during the licensing period, the Department determines that a child care agency is not in compliance with the laws or regulations governing its operation, and, if after reasonable written notice to the child care agency of the non-compliance, the Department determines that the violation or related violations remain uncorrected, the Department may place the licensed child care agency on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days as determined by the Department. The Department shall provide the child care agency a written notice describing the violation of the licensing rules that support the basis for the probationary status.(b) If placed on probation, the agency shall immediately post a copy of the probation notice, together with a list provided by the Department of the violations which were the basis for the probation, in a conspicuous place as directed by the Department and with the agency's license, and the agency shall immediately notify in writing the custodians of each of the children in its care of the agency's status, the basis for the probation and of the agency's right to an informal review of the probationary status.(c) If the child care agency requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing, an informal review of the probationary status shall be conducted by Department licensing personnel who were not involved in the decision to impose the probation. The child care agency may submit any written or oral statements as argument to the licensing supervisor or designee within five (5) business days of the imposition of the probation. Written and oral statements may be received by any available electronic means. The licensing supervisor or designee shall render a decision in writing upholding, modifying or lifting the probationary status within seven (7) business days of the imposition of the probation.(d) If the licensing supervisor or designee did not lift the probation under subparagraph (c), the agency may also appeal such action in writing to the Commissioner within five (5) business days of the receipt of the notice of the licensing supervisor or designee's decision regarding the agency's probationary status as determined in subparagraph (c). If timely appealed, the Department shall conduct an administrative hearing pursuant to the contested case provisions of T.C.A. §§ 4-5-301 et seq. concerning the Department's action within fifteen (15) business days of receipt of the appeal and shall render a decision in writing within seven (7) business days following conclusion of the hearing. The hearing officer may uphold, modify or lift the probation.(e) The imposition of probation pursuant to the provisions of this paragraph (2) shall be discretionary with the Department, and shall not be a prerequisite to any licensing action, to impose a civil penalty or to suspend, deny or revoke a license of a child care agency.(3) Civil Penalties. (a) General Provisions 1. If the Department determines that there exists any violation with respect to any person or entity required to be licensed pursuant to T.C.A. §§ 71-3-501 et seq., the Department may assess a civil penalty against such person or entity for each separate violation of a statute, rule or order pertaining to such person or entity in an amount ranging from Fifty Dollars ($50.00) for minor violations up to a maximum of One Thousand Dollars ($1,000.00) for major violations or violations resulting in death or injury to a child. Each day of continued violation constitutes a separate violation.2. Any recommendation made by licensing staff for a civil penalty shall be reviewed and approved by the Department's state office management and the Department's legal staff before being imposed.(b) Civil Penalties Schedule.1. Major Violations. (i) For any violation of any licensing laws or regulations that, due to negligence or intentional disregard of licensing law or regulations, results in serious injury to, or death of, a child, the Department may assess a civil penalty in a range from Seven Hundred Fifty Dollars ($750.00) up to One Thousand Dollars ($1,000.00). The Department shall determine the amount of the penalty based upon the extent of the injury to the child and whether the injury or death of the child was the result of negligence or intentional disregard of the licensing regulations. Consideration of the licensee's history of prior violations shall also be a factor in the determination of the amount of the civil penalty.(ii) For any violation of any licensing laws or regulations that, due to negligence or intentional disregard of licensing law or regulations, results in an injury to a child, the Department may assess a civil penalty in a range from Five Hundred Dollars ($500.00) up to Seven Hundred Dollars ($700.00). The Department shall determine the amount of the penalty based upon the extent of the injury and whether the injury to the child was the result of negligence or intentional disregard of the licensing regulations. Consideration of the licensee's history of prior violations shall also be a factor in the determination of the amount of the civil penalty.(iii) For any violation of any licensing laws or regulations that, due to negligence or intentional disregard of licensing law or regulations, results in children leaving the child care agency premises without supervision, or children left unsupervised that may result in imminent harm, the Department may assess a civil penalty in a range from Seven Hundred Fifty Dollars ($750.00) up to One Thousand Dollars ($1,000.00). The Department shall determine the amount of the penalty based upon the extent of the potential harm to the child and whether the potential harm to the child was a result of negligence or intentional disregard of the licensing regulations. Consideration of the licensee's history of prior violations shall also be a factor in the determination of the amount of the civil penalty.(iv) For violations of the following categories of regulations the Department may impose a civil penalty of Two Hundred Dollars ($200.00) for the first violation, Three Hundred Dollars ($300.00) for the second violation, and Four Hundred Dollars ($400.00) for the third and any subsequent such violation: (I) Failure to follow any rule related to the proper transportation of children by employees, substitutes, volunteers, agents or contractors of the child care agency;(II) Violation of adult:child ratio requirements;(III) Failure to complete required background checks on staff;(IV) Use of corporal punishment/inappropriate discipline;(VI) Failure to report suspicion of abuse or neglect;(VII) Falsification of documents required by the Department;(VIII) Failure to have CPR/first aid certification as required by the Department;(IX) Lack of proper supervision of children;(X) Failure to properly dispense or store medications;(XI) Failure to remove persons from access to children following notification of a prohibited criminal background or pending criminal charge or following notification of the person's validated status as a perpetrator of child abuse;(XII) Failure to properly store hazardous items such as, but not limited to, cleaning products, pesticides, hazardous chemicals, or other poisonous items; and(XIII) Failure to properly remove or secure firearms within the child care agency area which are under the ownership or control of the child care agency or its staff, substitutes, or other persons permitted access to the children; or failure to prevent exposure of children in the child care agency's care to firearms which are under the control of the child care agency or its staff, substitutes, or other persons who have been permitted by the child care agency to have access to the children.(v) The existence of six (6) or more minor violations of any type in any period of three (3) or more months shall constitute a major violation and may be subject to a civil penalty imposed by the Department of Two Hundred Dollars ($200.00) in addition to the penalty for each minor violation. Three (3) or more minor violations of the same regulation in any period of three (3) or more months shall constitute a major violation and may be subject to a civil penalty imposed by the Department of Two Hundred Dollars ($200.00) in addition to the penalty for each minor violation.2. Minor Violations. (i) A minor violation shall be any rule violation not described as a major violation in part 1.(ii) Each minor violation may subject the licensee to a civil penalty of Fifty Dollars ($50.00).(c) The Department shall assess any civil penalty that it imposes in an order that states the reasons for the assessment of the civil penalty and the amount of the penalty.(d) The order may be served on the licensee personally by an authorized agent of the Department who shall complete an affidavit of service, or the order may be served by certified mail, return receipt requested.(e) The licensee may appeal the penalty to the Child Care Agency Board of Review by filing a request for an appeal in writing with the Commissioner within ten (10) days of the personal service of the order or mailing date of the order. The hearing on the appeal shall be heard within ninety (90) days unless continued for good cause shown.(f) Civil penalties assessed pursuant to this subsection shall become final ten (10) days after the date an order of assessment is served if not timely appealed, or, if timely appealed, within seven (7) days following entry of the Board's order unless the Board's order is stayed.(g) Remedies for Failure to Pay Civil Penalty.1. If the violator fails to pay an assessment when it becomes final, the Department may apply to the Chancery Court of Davidson County, Tennessee for a judgment and seek execution of such judgment.2. No application for a new license or for renewal of an existing license will be accepted by the Department until a civil penalty that has become final has been paid in full. Failure to pay in full a civil penalty which has become final is grounds for denial of a pending application for a new annual license or a pending application for renewal or extension of an existing license, and, further, is grounds for revocation of an existing license.(h) The determination to impose a civil penalty shall be discretionary with the Department and shall not be a prerequisite to any other licensing action to suspend, deny or revoke a child care agency's license. Civil penalties may also be used in conjunction with the probation, suspension, denial or revocation of a license.(4) Denial and Revocation of Licenses. (a) If the Department determines that any applicant for a temporary license or for the renewal of an existing license has failed to attain, or an existing licensee has failed to maintain, compliance with licensing laws or regulations after reasonable notice, consistent with the safety of the children in the care of the child care agency, of such failure and a reasonable opportunity to demonstrate compliance with licensing laws or regulations, the Department may deny the application for the new or renewed license or may revoke the existing license; provided, however, the Department at any time may deny a temporary license if the applicant fails to meet the initial requirements for its issuance; and, provided, further, if the Department determines that repeated or serious violations of licensing laws or regulations warrant the denial or revocation of the license, then, notwithstanding any provisions of T.C.A § 4-5-320 or this paragraph to the contrary, the Department may seek denial or revocation of the license regardless of the licensee's demonstration of compliance either before or after the notice of denial of the application or before or after notice of the revocation of the license.(b) Notwithstanding the provisions of T.C.A. § 4-5-320, the notice of denial or revocation may be served personally by an authorized representative of the Department who shall verify service of the notice by affidavit, or the notice may be served by certified mail, return receipt requested.(c) If application for the temporary, initial, or renewal license is denied or if an existing license is revoked, the applicant may appeal the denial or revocation by requesting in writing to the Department a hearing before the Child Care Agency Board of Review within ten (10) days of the personal delivery or mailing date of the notice of denial or revocation. Failure to timely appeal shall result in the expiration of any existing license immediately upon the expiration of the time for appeal.(d) The hearing shall be held in accordance with the hearing procedures before the Child Care Agency Board of Review pursuant to the licensing law.(e) If timely appeal of the denial or revocation is made, then, pending the hearing upon the denial or revocation, the child care agency may continue to operate pending the decision of the Child Care Agency Board of Review unless the license is summarily suspended as provided in paragraph (5).(5) Summary Suspension of Licenses. (a) Subject to the following provisions of this section, if the Department determines at anytime that the health, safety or welfare of the children in care of the child care agency imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of the license may be ordered by the Department pending any further proceedings for revocation, denial or other action. Summary suspension may be ordered in circumstances that have resulted in death, injury or harm to a child or which have posed or threatened to pose a serious and immediate threat of harm or injury to a child based upon the intentional or negligent failure to comply with licensing laws or regulations.(b) Contents of the Order of Summary Suspension.1. The licensee shall be provided written notice of the issuance of the order of summary suspension and shall be notified that the licensee has the opportunity for an informal hearing before an administrative law judge or before a hearing officer who is not an employee of the Department (except as provided in part (e)3.) within three (3) business days of the issuance of the order of summary suspension.2. The Department shall set forth with specificity in its order the legal and factual basis for its decision, stating therein the specific laws or regulations which were violated by the agency, and shall state with specificity in the order the reasons that the issuance of the order of summary suspension is necessary to adequately protect the health, safety or welfare of children in the care of the child care agency.3. The order shall state the time, date and location of a show cause hearing to determine if the suspension is appropriate, shall state the issues involved as described in subparagraph (f) and shall notify the licensee of the right to be represented by counsel.(c) The notice may be personally delivered by any authorized representative of the Department to any person in charge of or reasonably believed to be in charge or who may be supervising the agency at the time of delivery. If such person is not the licensee, the order shall also be sent to the licensee by certified mail, return receipt requested, but the effect of the order shall not be delayed by mail delivery. The order shall contain a certificate of service or shall have attached to it a certificate verifying its service by personal delivery, and, if required, by certified mail service.(d) The order shall be effective upon entry by the Commissioner, or the Commissioner's designee, at such time as directed by the order. Upon receipt of the order by any person to whom the order is delivered at the child care agency, the agency shall cease or limit its operations at such time and in such manner as the order directs.(e) Hearing Official and Authority. 1. Hearings on summary suspension orders shall be heard by an administrative law judge from the Administrative Procedures Division of the Secretary of State's Office, if the administrative law judge is available within the time frames for a summary suspension hearing.2. If the Administrative Procedures Division of the Secretary of State's Office informs the Department that an administrative law judge is unavailable, the Department may obtain an administrative law judge or hearing officer who is not an employee of the Department except as provided herein. The substitute administrative law judge or hearing officer may be obtained by the Department by contract with a private attorney or by contract or agreement with another state agency. If the Administrative Procedures Division of the Office of the Secretary of State informs the Department that the Division's contested case docket prevents the scheduling of a hearing on the issuance of a summary suspension order within the initial timeframes set forth in this subparagraph and if the Department is unable to obtain a private or state agency administrative law judge or hearing officer to hear the show cause hearing on the summary suspension order within the timeframes set forth in this part, the Department may utilize a hearing officer from the Department's Division of Appeals and Hearings.3. The administrative law judge or hearing officer shall have authority, as otherwise permitted in this section and subject to the provisions of subparagraph (h), to enter orders binding on the Department resulting from show cause hearings involving summary suspension orders.(f) Hearing Procedures. 1. The informal hearing described by this subdivision shall not be required to be held under the contested case provisions of T.C.A. §§ 4-5-301 et seq.2. The hearing is intended to provide an informal, reasonable opportunity for the licensee to present to the hearing official the licensee's version of the circumstances leading to the suspension order and any measures taken to correct the violations leading to the suspension.3. The only issues to be considered are whether the public health, safety or welfare imperatively required emergency action by the Department and what, if any, corrective measures have been taken by the child care agency following the violation of the licensing laws or regulations cited by the Department and prior to the issuance of the order of summary suspension, that would eliminate the danger to the health, safety or welfare of the children in the care of the agency.(g) Hearing Order. 1. Upon conclusion of the hearing, the administrative law judge or hearing officer shall render a decision immediately regarding the status of the agency's license and shall state the basis for the decision.2. The administrative law judge or hearing officer may lift, modify, or continue the suspension based upon the evidence presented and the stipulations and agreements of the parties.3. The hearing order containing findings of fact and conclusions of law to support the decision shall be reduced to writing within fifteen (15) days after the hearing and shall be sent to the parties and their counsel.(h) Revocation, Denial of the License Following Suspension or Modification of the Order of Summary Suspension by the Department. 1. Subsequent to the hearing on the summary suspension, the Department may proceed with revocation or denial of the license or other action as authorized by this part, regardless of the decision concerning summary suspension of the license, or the Commissioner, upon satisfactory proof that the conditions warrant, may by further order, lift or reduce the restrictions contained in the order of summary suspension without further order by the administrative law judge or hearing officer, or, may, upon agreement of the licensee, further modify the order by imposing new, additional or different restrictions or conditions upon the licensee or the licensee's operations. A summary suspension order entered by the Department may be lifted or modified by the Department following its entry by the Department as provided in this part, before, or after, a case is docketed with the Child Care Agency Board of Review, without further approval of the Board or a Board panel.2. If the Department determines that revocation or denial of the license is warranted following suspension, those proceedings shall be promptly instituted and determined as authorized by the licensing law.3. Unless extended by agreement of the licensee, the order of summary suspension shall be dissolved upon motion of the licensee unless the Department has issued a notice of denial or revocation of the license within thirty calendar (30) days of the summary suspension order's entry.Tenn. Comp. R. & Regs. 1240-04-05-.04
Chapter 1240-04-05 has been assigned a new control number, removed and renumbered to chapter 0250-04-05 filed and effective March 25, 1999 . New rule filed September 29, 2000; effective December 13, 2000. Amendments filed May 1, 2018; effective 7/30/2018.Authority: T.C.A. §§ 4-5-201, et seq.; 4-5-301, et seq.; 71-1-105; 71-3-501, et seq.; 71-3-509; and Acts 2000, ch. 981, §§ 10 and 14.