RELATES TO: KRS Chapter 13B, 194A.030, 199.011(3), 199.894(1),
(3), 199.896, 199.990,
42 U.S.C.
9857-9858q
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.050(1) requires the
Secretary for the Cabinet for Health and Family Services to promulgate
administrative regulations necessary to operate programs and fulfill
responsibilities vested in the cabinet, qualify for the receipt of federal
funds, and cooperate with other states and federal agencies for the proper
administration of the cabinet and its programs.
KRS
199.896(2) authorizes the
secretary to promulgate administrative regulations to establish procedures for
enforcement of penalties. This administrative regulation establishes the
cabinet procedures for a civil penalty and appeal resulting from a child-care
center's violation.
Section 1.
Definitions.
(1) "Cabinet" is defined by
KRS
199.011(3) and
199.894(1).
(2) "Child-care center" is defined by
KRS
199.894(3).
(3) "Licensee" means the owner or operator of
a child-care center to include:
(a) Sole
proprietor;
(b)
Corporation;
(c) Limited liability
company;
(d) Partnership;
(e) Association; or
(f) Organization, such as:
1. Board of education;
2. Private school;
3. Faith-based organization;
4. Government agency; or
5. Institution.
(4) "Office of Inspector General"
or "OIG" means the organizational unit of the cabinet established in accordance
with
KRS
194A.030(1)(c) or its
designee.
(5) "Statement of
deficiency" means a finding of a regulatory noncompliance issued in accordance
with 922 KAR
2:090, Section 14.
Section 2. Types of Violations. The cabinet
shall issue a licensee a:
(1) Type A
violation if:
(a) A child-care center
violates a standard or a requirement specified in
KRS
199.896,
KRS
199.990(4), 922 KAR
2:090,
922 KAR
2:120, or 922 KAR
2:280; and
(b) The violation creates harm, an imminent
threat, or an imminent danger to the health, safety, or welfare of a child in
the center's care, such as the center:
1.
Failing to:
a. Provide for the health, safety,
or welfare of a child in care that results in injury to the child, the child's
hospitalization, or death of the child;
b. Complete a background check required in
accordance with 922 KAR
2:280;
c.
Remove a person with a disqualifying offense from contact with a child in care
in accordance with 922 KAR
2:280;
d. Comply with a suspension of services;
or
e. Administer discipline in
accordance with 922 KAR
2:120, Section 2(8), 2(10), or 9(2);
2. Falsifying records;
3. Operating contrary to approved licensed
services; or
4. Changing location
without prior approval of the cabinet; or
(2) Type B violation if:
(a) A child-care center violates a standard
or requirement specified in
KRS
199.896,
KRS
199.990(4), 922 KAR
2:090,
or 922 KAR
2:120; and
(b) The
violation presents a concern or risk to the health, safety, or welfare of a
child in care, but does not create harm, an imminent threat, or an imminent
danger to the child, such as the center:
1.
Failing to:
a. Respond to a child's first aid
and medical needs in accordance with 922 KAR
2:120, Section 7;
b. Have staff currently certified in
cardiopulmonary resuscitation and first aid in accordance with 922 KAR
2:090,
Sections 11(3) through 11(5);
c.
Provide adequate supervision in accordance with 922 KAR
2:120, Section
2(3);
d. Make toxic supplies
inaccessible to a child in accordance with 922 KAR
2:120, Section 3(7) or 3(8);
or
e. Maintain sufficient records
on a child in accordance with 922 KAR
2:090, Section 9;
2. Releasing a child to a person who is not
designated by the child's parent to pick up the child;
3. Leaving a child alone with an underage
caregiver; or
4. Exceeding the
staff-to-child ratios in 922 KAR
2:120, Section 2 by fifty (50) percent or
more.
Section
3. Assessment of a Civil Penalty.
(1) The cabinet shall assess a civil penalty
in accordance with
KRS
199.896(8) and
KRS
199.990(4).
(2) A statement of deficiency shall be issued
prior to, or concurrent with, the notice established in Section 4 of this
administrative regulation.
(3) A
statement of deficiency with a Type A violation shall be:
(a) Corrected within five (5) working days in
accordance with 922 KAR
2:090, Section 14(3) and 14(9); and
(b) Subject to a civil penalty of no more
than $1,000 for each occurrence of a Type A violation.
(4) A statement of deficiency with a Type B
violation shall:
(a) Have a written corrective
action plan within fifteen (15) days in accordance with 922 KAR
2:090, Section
14(2) and 14(3); and
(b) Be subject
to a civil penalty of $250 for each occurrence of a Type B violation.
(5) In accordance with
KRS
199.896(8)(b) through (d), a
licensee shall receive a monetary credit applied towards a civil penalty in the
amount of:
(a) Fifty (50) dollars if a review
of the licensee's history finds no Type A or Type B violation cited during the
three (3) years prior to the date of the statement of deficiency;
(b) Fifty (50) dollars if the written
corrective action plan is:
1. Received by the
cabinet within the timeframe specified for the violation type pursuant to
subsection (3)(a) or (4)(a) of this section; and
2. Accepted by the cabinet; or
(c) Twenty-five (25) percent of
the civil penalty if the licensee waives appeal rights established in Section 5
of this administrative regulation.
(6) Treble penalties shall be assessed
pursuant to
KRS
199.990(3).
Section 4. Civil Penalty
Requirements. Notice that a civil penalty has been levied shall:
(1) Be hand delivered by cabinet staff or
delivered by certified mail, return receipt requested, to the:
(a) Licensee; or
(b) Director of the child-care center or the
director's designee in accordance with 922 KAR
2:090; and
(2) Specify:
(a) The violation for which a civil penalty
has been levied;
(b) The amount of
the civil penalty;
(c) That, in
accordance with
KRS
199.990(4), the civil
penalty shall:
1. Not exceed $1,000 for each
occurrence;
2. Be made payable to
the Kentucky State Treasurer; and
3. Be mailed to the Office of Inspector
General;
(d) That an
appeal of a civil penalty shall not act to stay correction of a violation,
pursuant to
KRS
199.896(7);
(e) That payment of a civil penalty shall be
stayed if an appeal is requested; and
(f) That the cabinet may:
1. Deny, suspend, or revoke a license for the
same offense for which a civil penalty is imposed; and
2. Take other action in accordance with
KRS
199.896(9).
Section 5.
Appeal Rights.
(1) A licensee shall have
appeal rights in accordance with
KRS
199.990(4) and 922 KAR
2:090, Section 18.
(2) An appeal
shall not limit the authority of the cabinet to:
(a) Issue an emergency order pursuant to
KRS
13B.125(2); or
(b) Take action pursuant to
KRS
199.896(9).
Section 6. Payment of
Civil Penalty.
(1) The cabinet shall deny an
application for child-care center licensure or revoke a child-care center's
license if:
(a) Sixty (60) days have lapsed
since the latter of either:
1. The notice in
accordance with Section 4 of this administrative regulation; or
2. Completion of the administrative appeal
process upholding the civil penalty; and
(b) A licensee fails to:
1. Pay the civil penalty levied against the
child-care center;
2. Enter into an
arrangement to pay a civil penalty that is approved by the cabinet;
or
3. Comply with the payment
arrangement for the civil penalty.
(2) The cabinet may approve an amendment to a
payment arrangement if:
(a) A request for an
amendment is received from the licensee; and
(b) The cabinet makes a determination that
the payment arrangement creates a hardship for the licensee or the child-care
center's operation with consideration given to:
1. The individual circumstances of the
licensee or child-care center; and
2. Factors specified in
KRS
199.896(8).
(3) The cabinet may
terminate collection of a civil penalty if the:
(a) Licensee dies;
(b) Cabinet is unable to locate the licensee;
or
(c) Cabinet's continued pursuit
of the civil penalty would exceed the:
1.
Amount of civil penalty; or
2.
Public benefit.