In-Home Child Care Homes - North Dakota Early Childhood Services Chapter 75-03-07 (1-1-87)
The purpose of this chapter is to establish minimum standards of in-home care and to assure that those standards are maintained.
75-03-07-02. Objective of rules.
Under the authority vested in the department pursuant to North Dakota Century Code section 50-11.1-08, the department is empowered to prescribe and promulgate such rules as are necessary to carry out the provisions of North Dakota Century Code chapter 50-11.1.
Definitions used in this chapter are as defined in North Dakota Century Code chapter 50-11.1.
75-03-07-04. In-home registration and standards.
An application for a registration document shall be submitted to the county social service board in the county wherein the applicant proposes to provide in-home services. Application shall be made in the form and manner prescribed by the department.
Applicants for an in-home registration document shall be directly responsible for the care, supervision, and guidance of the child or children in the child or children's home and shall comply with the following standards, certifying in the application that the applicants shall:
a. Be at least fourteen years of age.
b. Be mentally, physically, and emotionally able to provide adequate care for the children in the applicant's charge.
c. Be able to devote adequate time and attention to the children in the applicant's charge.
d. Participate in specialized training related to child care as provided by or approved by the department.
e. Provide food of sufficient quantity and nutritious quality which satisfies the dietary needs of the children while in the applicant's charge.
f. Provide proper health care and protection for children in the applicant's charge.
g. Not use any drugs or alcoholic beverages except for medical purposes while children are in care.
h. Never leave children without supervision.
i. Discuss methods of discipline and child management with the parent or parents and shall not engage in any method of punishment which humiliates or frightens a child or causes more than minor transient physical or emotional discomfort, or both.
j. Provide care on a continuing basis for less than a twenty-four-hour period. If the physical or mental health capabilities of an in-home provider appear to be questionable, the department may request that the provider present evidence of capability based on a formal evaluation. In-home providers shall ensure safe care for the children in their care. If there exists a probable cause determination under North Dakota Century Code chapter 50-25.1 indicating that any child has been abused or neglected by the in-home provider, the person shall furnish information, satisfactory to the department, from which the department can determine the provider's current ability to provide care free of abuse or neglect. The determination of current ability will be furnished to the operator and to the regional director of the human service center or his designee for consideration and action on the in-home registration document.
The purpose of this chapter is to assure that children receiving early childhood services be provided food, shelter, safety, comfort, supervision, and learning experiences commensurate to their age and capabilities, so as to safeguard the health, safety, and development of those children.
As used in this chapter, unless the context or subject matter otherwise requires:
"Child care center" means an early ~ childhood facility where early childhood services are provided to nineteen or more children
"County agency" means the county social service board in each of the counties of the state.
"Department" means the department of human services.
"Early childhood facility" means any facility where early childhood services are provided, whether the facility is known as a child care center, day care home, day care center, day nursery, family child care home, group child care home, preschool educational facility nursery school, kindergarten, child play school, progressive school, child development center, preschool or known by any other name.
"Early childhood services" means the care, supervision, education, or guidance of a child or children, unaccompanied by the child's parent, guardian, or custodian, which is provided in exchange for money, goods, or other services and is, or is anticipated to be, ongoing for periods of two or more hours per day for a part of three or more days per week. Early childhood services does not include:
a. Substitute parental child care provided pursuant to chapter 50-11.
b. Child care provided in any educational facility, whether public or private, in grade one or above.
c. Child care provided in a kindergarten which has been established pursuant to chapter 15-45 or a nonpublic elementary school program approved pursuant to subsection 1 of section 15-34.1-03.
d. Child care provided to preschool age handicapped children in any educational facility through a program approved by the superintendent of public instruction.
e. Child care provided in facilities operated in connection with a church, shopping center, business, or other establishment where children are cared for during periods of time not exceeding four continuous hours while the child's parent, guardian, or custodian is attending church services, shopping, or engaged in other activities, other than employment, on or near the premises.
f. Schools or classes for religious instruction conducted by religious orders during tne summer months for not more than two weeks, Sunday schools, weekly catechism or other classes for religious instruction.
g. Summer resident or day camps for children which serve no preschool age children for more than two weeks.
h. Sporting events, practices for sporting events, or sporting or physical activities conducted under the supervision of an adult.
i. Head start programs that are federally funded and meet federal head start standards.
j. Child Care provided by a hospital by medical personnel within the physical structure of the hospital to children who are ill.
" Family child care home" means an occupied private residence in which early childhood services are provided for no more than seven children at any one time.
"Group child care home" or "group child care facility" means a child care facility where early childhood services are provided for eight through eighteen children or a facility, other than an occupied private residence, which serves fewer than eight children.
"In-home provider" means any person who provides early childhood serves to children in the children's home.
''License" means the right, authority, or permission granted by the department to operate a family child care home, group child care facility, child care center, or preschool educational facility.
"Multiple licensed facility" means an early childhood facility that provides more than one type of early childhood services.
"Preschool educational facility" means a facility that offers early childhood services and follows a preschool curriculum and course of study designed primarily to enhance the educational development of the children enrolled in the facility and that serves no child for more than three hours per day.
"Registrant" means the holder of a registration document issued by the department in accordance with this chapter.
"Registration" means the process whereby the department maintains a record of all in-home providers who have stated that they nave complied or will comply with the prescribed standards and adopted rules.
"Registration document" is a written instrument issued by the department to publicly document that the registrant has complied with this chapter .and the applicable rules and standards as prescribed by the department.
50-11.1-02.1. Number of children in program - How determined.
For the purpose of determining the number of children in an early childhood facility, all children of the operator or employees, present in the facility and under the age of twelve years, shall be counted except for purposes of determining fire, safety, or zoning requirements.
50-11.1-03. Operation of family child care home, group child care facility, preschool educational facility, and child care center - License required - Fees.
1. A license for a family child care home is required early childhood are provided for four or more children ages twenty-four months and under or six or more children at any time. Those persons not required by this subsection to hold a family child care license may voluntarily apply for and receive such a license.
2. No person, partnership, firm, corporation, association, or nongovernmental organization may establish or operate a group child care facility, preschool educational facility, or child care center unless licensed to do so by the department. No governmental organization may establish or operate a group child care facility, preschool educational facility, or child care center without first certifying, to the department, that it has complied with all rules applicable to group child care facilities, preschool educational facilities, or child care centers.
3. An applicant for a license must submit the following nonrefundable fees with the application:
a. The operator of a family child care home applying for a license shall pay an annual license fee of twenty dollars or if the license is issued for a two-year period, a tee of thirty-five dollars.
b. The operator of a group child care home applying for a license shall pay an annual license fee of twenty-five dollars or if the license issued for a two-year period, a fee of forty-five dollars.
c. The operator of a preschool educational facility applying for a license shall pay an annual license fee of thirty dollars or if the license is issued for a two-year period, a fee of fifty-five dollars.
d. The operator of a child care center applying for a license shall pay an annual license fee of forty dollars or if the license is issued for a two-year period, a fee of seventy-five dollars.
e. The operator of a multiple licensed facility applying for a license shall pay an annual license fee of fifty dollars or if the license is issued for a two-year period, a fee of ninety-five dollars.
4. In addition to any criminal sanctions or other civil penalties which may be imposed pursuant to law, the operator of an early childhood facility who, after being given written notice by a representative of the department, continues to provide early childhood services without a license as required by this section is subject to a civil penalty of fifty dollars per day for each day of operation without such license. The civil penalty may be imposed by the courts or by the department through an administrative hearing pursuant to chapter 28-32.
5. All fees collected under subsection 3 must be paid to the county social service board and must be used to defray the cost, to that board, of investigating, inspecting, and evaluating the applications or to provide training to providers of early childhood services.
50-11.1-04 Application for license- Prerequisites for issuance- License granted- Term.
Applications for early childhood facility licenses must be made on forms provided, in the manner prescribed, by the department. The county agency shall investigate the applicant's activities and proposed standards of care and shall make an inspection of all facilities applying for a license. The applicant for a license and the applicant's employees, and if the license is for an occupied private residence every person living or working in that residence, may be investigated in accordance with the rules adopted by the department to determine whether any of them has a criminal record or has had a finding or probable cause for child abuse or neglect filed against them. Except as otherwise provided, the department shall grant a license for the operation of an early childhood facility upon a showing that:
1. The premises to be used are in fit sanitary condition and properly equipped to provide for the health and safety for all children who may be received;
2. The persons in charge of the facility and their assistants are qualified to fulfill the duties required of them according to the provisions of this chapter and standards prescribed for their qualification by the rules and regulations of the department;
3. The facility will be maintained according to the standards prescribed for its conduct by the rules and regulations of the department.
4. The facility has not had a previous license revoked within the one hundred eighty days prior to the date of the current application.
5. The facility has paid its license fees and any penalties assessed against the facility as required by section 50-11.1-03; and
6. The group child care or child care center facility maintains at all times during which supplemental parental care is provided at least one person who has received training and is currently certified in rescuer cardiopulmonary resuscitation by the American heart association American red cross or other similar cardiopulmonary resuscitation training programs that are approved by the department.
The license issued to the operator of an early childhood facility shall be in force and effect for a period of not more than two years.
50-11.1-04.1. Operation of child care home- License. Repealed by S.L. 1985, ch.526, S18
50-11.1-05. Operation of family day care home
Registration required-Issuance of registration certificate - Term. Repealed by S.L. 981, ch. 491, § 19.
Registration voluntary - Issuance of registration certificate - Term. In-home providers may apply for a registration certificate from the department. The county agency shall determine whether the standards have been met and shall issue or deny a registration certificate based upon that determination. Registration certificates for in-home providers shall be in force and effect for not more than one year.
50-11.1-06.1 Conviction not bar to licensure - Exceptions.
Conviction of an offense shall disqualify a person from ;-ensure under this chapter unless the department determines that the offense has a direct bearing upon a person's ability to serve the public as the owner or proprietor of an early childhood facility or as an in-home provider, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.l-33-02.1.
50-11.1-07. Investigation of applicants, licensees, and registrants-Maintenance of records - Confidentiality of records.
1. The department and the county agency at any time may investigate and inspect the conditions of the facility, the qualifications of the providers of early childhood services in any early childhood facility, and the qualifications of any in-home provider seeking or holding a license or registration document under this chapter. Upon request of the department or the county agency, the state department of health and consolidated laboratories or the state fire marshal, or his designee, shall inspect any facility for which a license is applied for or issued and shall report its findings to the county agency.
2. Licensees and registrants shall:
a. Maintain such records as the department may prescribe regarding each child in their care and control, and shall report to the department, when requested, such facts as the department may require with reference to the children upon forms furnished by the department; and
b. Admit for inspection authorized agents of the department or the county agency and open for examination all records, books, and reports of the home or facility.
3. All records and information maintained with respect to children receiving early childhood services are confidential and must be properly safeguarded and shall not be disclosed except:
b. To officers of the law or other legally constituted boards or agencies; or
c. To persons having a definite interest in the well-being of the child or children concerned and who, in the judgment of the department, are in a position to serve their interests should that be necessary.
After each inspection or re-inspection, the county agency shall, by certified mail, send copies of any correction order or notice of compliance, to the early childhood facility.
50-11.1-07.2. Correction orders.
Whenever the county agency finds, upon inspection of an early childhood facility, that the facility is not in compliance with the provisions of this chapter, or the rules and regulations promulgated there under, a correction order shall be issued to the facility. The correction order shall cite the specific statute or regulation violated, state the factual basis of the violation, state the suggested method of correction, and specify the time allowed for correction. The correction order shall also specify the amount of any fiscal sanction to be assessed if the correction order is not complied within a timely fashion. The department shall, by rule promulgated pursuant to subsection 2 of subsection 50-11.1-08, establish a schedule of allowable time periods for correction of deficiencies.
An early childhood facility issued a correction order under section 50-11.1-07.2 shall be re-inspected at the end of the period allowed for correction. If, upon re-inspection, it is determined that the facility has not corrected a violation identified in the correction order, a notice of noncompliance with the correction order shall be mailed by certified mail to the facility. The notice shall specify the violations not corrected and the penalties assessed in accordance with section 50-11.1-07.5.
50-11.1-07.4. Fiscal sanctions.
An early childhood facility, if issued a notice of noncompliance with a correction order, shall be assessed fiscal sanctions in accordance with a schedule of fiscal sanctions established by rules promulgated pursuant to subsection 2 of section 50-11.1-08. The fiscal sanction shall be assessed for each day the facility remains in noncompliance after the al allowable time period for the correction of deficiencies ends and shall continue until a notice of correction is received by the county agency in accordance with section 50-11.1-07.6. No fiscal sanction for a specific violation may exceed twenty-five dollars per day of noncompliance.
50-11.1-07.5. Accumulation of fiscal sanctions.
An early childhood facility shall promptly notify the county agency in writing when a violation noted in a notice of noncompliance is corrected. Upon receipt of written notice by the county agency, the daily fiscal sanction assessed for the deficiency shall stop accruing. The facility; shall be re-inspected within three working days after receipt of the notification. If, upon re-inspection, it is determined that a deficiency has not been corrected, the daily assessment of fiscal sanction shall resume and the amount of fiscal sanction which otherwise would have accrued during the period prior to resumption shall be added to the total assessment due from the facility. The county agency shall notify the facility of the resumption by certified mail . Recovery of the resumed fiscal sanction shall be stayed if the operator of the facility makes a written request for an administrative hearing in the manner provided in chapter 28-32; provided. that written request for the hearing is made to the department within ten days of the notice of resumption.
50-11.1-07.6. Recovery of fiscal sanctions - Hearing.
Fiscal sanctions assessed pursuant to this chapter shall be payable fifteen days after receipt of the notice of noncompliance and at fifteen-day intervals thereafter, as the fiscal sanctions accrue. Recovery of an assessed fiscal sanction shall be stayed if the operator makes written request to the department for an administrative hearing within ten days after the facility's receipt of the notice.
50-11.1-07.7 Disposition of fiscal sanctions
Any fiscal sanction which is collected for any violation of the chapter or of rules adopted pursuant to this chapter, shall be paid into the state treasury for the general fund, after the costs of recovering the fiscal sanction are deducted there from.
50-11.1-08. Minimum standards - Rules and regulations
Inspection by a governmental unit. The department may:
1. Establish reasonable minimum standards for the operation of early childhood facilities, and the registration of in-home providers. In appropriate circumstances and upon good cause shown, specific minimum standards may be substituted by alternate, equivalent standards, approved by the department.
2. Take such action and make such reasonable rules and regulations for the regulation of early childhood services as may be necessary to carry out the purposes of this chapter and entitle the state to receive aid from the federal government.
3. Authorize a governmental unit to:
a. Inspect any home or facility for which a license is applied for or issued under this chapter; and
b. Certify to the department that the home or facility meets the requirements of this chapter and the minimum standards prescribed by the department.
50-11.1-09. Revocation of license or registration document.
The department may revoke the license of any early childhood facility, or the registration document of any in-home provider upon proper showing of any of the following:
1. Any of the applicable conditions set forth in section 50-11.1-04 as prerequisites for the issuance of the license no longer exist.
2. The licensee or registrant is no longer in compliance with the minimum standards prescribed by the department.
3. The license or registration document was issued upon fraudulent or untrue representation.
4. The licensee or registrant has violated any rules of the department.
5. The licensee or registrant has been guilty of an offense determined by the department to have a direct bearing upon a person's ability to serve the public as a licensee or registrant.
6. The licensee has been convicted of any offense and the department, acting pursuant to section 12.1-33-02.1, has determined that he has not been sufficiently rehabilitated.
50-11.1-10. Denial or revocation of license or registration certificate- Administrative hearing.
Before any application for a license or registration certificate under the provisions of this chapter shall be denied, or before revocation of any license or registration certificate shall take place, written charges as to the reasons there for shall be served upon the applicant, licensee, or registrant. The applicant, licensee, or registrant shall have the right to an administrative hearing in the manner provided in chapter 28-32 if written request for the hearing is made to the department within ten days after service of the written charges.
50-11.1-11. Public agency purchase of early childhood services.
No agency of state or local government may purchase early childhood services, including care provided by or in the home of a relative, unless the early childhood facility or early childhood services attendant is licensed, registered, or approved by the department.
50-11.1-12. Violation of chapter or regulations - Injunction.
The department may seek injunctive action against an early childhood facility in the district court through proceedings instituted by the attorney general on behalf of the department if:
1. There is a violation of this chapter or a rule adopted there under;
2. An early childhood facility, after notice and opportunity for hearing on the notice of noncompliance, or on the resumption of the fiscal sanction, or after administrative hearing confirming and upholding the fiscal sanction, does not pay a properly assessed fiscal sanction in accordance with section 50-11.1-07.6.
Any person, partnership, firm, corporation, association, or organization who violates any of the provisions of this chapter is guilty of a class B misdemeanor.