W. Va. Code R. § 78-21-4

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 78-21-4 - Licensing Information and Provisions

4.1. Requirements for a License or Certificate of Approval.

4.1.a. Before establishing or operating a child care center:

4.1.a.1. The program director, the signatories on the application and at least one additional member of the governing body shall verify in writing that he or she has read this rule and is responsible for compliance with its requirements;

4.1.a.2. If operating an out-of-school-time program, other than one operated by the state, shall obtain a license from the Secretary; and

4.1.a.3. Operated by the state shall obtain a certificate of approval from the Secretary.

4.1.b. A license is valid for up to two years from the date of issuance, as determined by the Secretary, unless revoked or modified to provisional status.

4.1.c. A license is valid only for the program and its location named in the application and is not transferable.

4.1.d. A licensee shall post the license or certificate of approval in a conspicuous place in the program so that the public may view it.

4.1.e. If the ownership of a program changes, the new owner shall apply for a license and shall not operate until an initial license is issued.

4.1.f. Before the location of a program changes, the licensee shall:

4.1.f.1. Inform the Secretary of the planned change at least 60 days prior to the relocation; and

4.1.f.2. Apply for a new license and shall not operate at the new location until an initial license is issued.

4.1.g. A center receiving a license under this rule may include a child younger than school age in the program only if the child is a West Virginia Pre-K student and the center's statement of purpose addresses services to the Pre-K child.

4.2. Application for a License or Certificate of Approval.

4.2.a. For each facility to be licensed or approved, an applicant shall submit a completed application as prescribed by the Secretary.

4.2.b. A licensee shall submit an application for renewal of a license or certificate of approval to the Secretary not less than 60 days prior to the expiration of the current license.

4.3. Waivers and Variances.

4.3.a. A program shall comply with the provisions of W. Va. Code 49-2-101et seq., the requirements of this rule, terms of its license or certificate of approval, and any plan of correction, unless a written waiver or variance has been granted by the Secretary. A program may not obtain a waiver of the requirements of this rule on the basis of the inability to achieve compliance with the rule.

4.3.b. A request for a variance or waiver shall be submitted to the Secretary in writing. The request shall include:

4.3.b.1. The specific requirement of this rule requested to be waived or varied; and

4.3.b.2. The reason or reasons for seeking a waiver or variance.

4.3.c. A waiver or variance of a specific provision of this rule may be granted by the Secretary only if the following criteria are met:

4.3.c.1. The program has documented and demonstrated that the provision of the rule is inapplicable in a particular circumstance, or that the program complies with the intent of the provision in the rule in a manner not permitted by the rule;

4.3.c.2. The health, safety, and well-being of a child is not endangered; and

4.3.c.3. The waiver or variance agreement contains provisions for a regular review of the waiver or variance.

4.3.d. The waiver or variance agreement is subject to immediate cancellation if a program fails to comply with the stated terms of this rule.

4.4. Amendment of a License or Certificate of Approval.

4.4.a. A current licensee shall apply for an amendment of a license or certificate of approval when:

4.4.a.1. Implementing an additional program or changing a program described in the statement of purpose; or

4.4.a.2. Seeking to change the licensed capacity of the program.

4.4.b. In addition to an application requesting an amendment, a licensee shall submit to the Secretary in writing any of the following that apply to the change:

4.4.b.1. A copy of the program's revised statement of purpose as described in subsection 6.2. of this rule;

4.4.b.2. The qualifications of the director and staff members as they relate to the amendment;

4.4.b.3. A copy of the program's revised plan for meeting program requirements and staff: child ratios;

4.4.b.4. A floor plan reflecting changes to the structure being used by a school age program;

4.4.b.5. A positive inspection report from the State Fire Marshal following any changes to the program's facility;

4.4.b.6. A positive inspection from the county Health Department, including a current Department of Health Permit to operate a Child Care Center or a general sanitation permit, whichever applies;

4.4.b.7. The Department of Health Inspection Report for Food Service Establishments; and

4.4.b.8. A Pest Management Report as required by the West Virginia Department of Agriculture.

4.5. The Secretary may issue the following types of licenses:

4.5.a. An initial six-month license for applicants establishing a new service;

4.5.b. A regular or renewal license for a period of up to two years for a licensee in compliance with this rule;

4.5.c. A provisional license for a licensee not in full compliance with this rule who does not pose a significant risk to children. A provisional license expires six months from the date of issuance and may not be consecutively reissued.

4.6. Conditions of a License. As a condition of issuing a license the Secretary may:

4.6.a. Limit the age, problems, type of behaviors, physical or mental conditions of children allowed admission to a particular program;

4.6.b. Prohibit intake of any children; or

4.6.c. Reduce the number of children that the program is licensed to receive.

4.7. Denial or Revocation of a License.

4.7.a. The Secretary may deny, refuse to renew, or revoke a license if the program materially violates any provisions of W. Va. Code § 49-2-117, violates any terms or conditions of the license, or fails to maintain established requirements of child care.

4.7.b. When the Secretary denies, refuses to renew, or revokes a license, the licensee shall not operate the program without a court order pending administrative or judicial review.

4.8. Closing of Program by the Secretary.

4.8.a. If the Secretary finds that the operation of a school age program constitutes an immediate danger of serious harm to the children served by the program, the Secretary shall issue an order of closure terminating the operation of the program.

4.8.b. A program ordered closed by the Secretary shall not operate pending administrative or judicial review without a court order.

4.9. Administrative and Judicial Review.

4.9.a. Administrative and judicial review are subject to the provisions of W. Va. Code § 29A-5-1et seq.

4.9.b. A decision issued by the Secretary may be made effective from the date of issuance. Immediate relief may be obtained upon a showing of good cause made by a verified petition to the Circuit Court of Kanawha County or the circuit court of any county where the affected program is located.

4.9.c. The pendency of administrative or judicial review shall not prevent the Secretary from obtaining injunctive relief pursuant to the W. Va. Code § 49-2-120.

W. Va. Code R. § 78-21-4