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Rule: 37.95.176 Prev     Up     Next    
Rule Title: DAY CARE FACILITIES: NEGATIVE LICENSING ACTION
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Department: PUBLIC HEALTH AND HUMAN SERVICES, DEPARTMENT OF
Chapter: LICENSURE OF DAY CARE FACILITIES
Subchapter: General Requirements
 
Latest version of the adopted rule presented in Administrative Rules of Montana (ARM):

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37.95.176    DAY CARE FACILITIES: NEGATIVE LICENSING ACTION

(1) After written notice to the applicant, licensee, or registrant, the department shall deny, suspend, restrict, revoke, or reduce to a provisional or probationary status a registration certificate or license upon finding that:

(a) the applicant, licensee, registrant, or a member of the applicant's, licensee's, or registrant's household or any person staying in the facility on a regular or frequent basis has a conviction for a serious crime, such as but not limited to homicide, sexual intercourse without consent, sexual assault, aggravated assault, assault on a minor, assault on an officer, assault with a weapon, kidnapping, aggravated kidnapping, prostitution, robbery, or burglary;

(b) the applicant, licensee, registrant, or a member of the applicant's, licensee's, or registrant's household or any person staying in the facility on a regular or frequent basis has a conviction for a crime pertaining to children or families, including but not limited to child abuse or neglect, incest, child sexual abuse, ritual abuse of a minor, felony partner or family member assault, child pornography, child prostitution, internet crimes involving children, felony endangering the welfare of a child, felony unlawful transactions with children, or aggravated interference with parent-child contact;

(c) the applicant, licensee, registrant, or member of the applicant's, licensee's, or registrant's household has within the previous five years had a felony conviction for a drug related offense, including but not limited to use, distribution, or possession of controlled substances, criminal possession of precursors to dangerous drugs, criminal manufacture of dangerous drugs, criminal possession of imitation dangerous drugs with the purpose to distribute, criminal possession, manufacture of delivery of drug paraphernalia, or driving under the influence of alcohol or other drugs;

(d) the applicant, licensee, registrant, or member of the applicant's, licensee's, or registrant's household, or anyone staying in the facility on a frequent or regular basis has been convicted of abuse, sexual abuse, neglect, or exploitation of an elderly person or a person with a developmental disability.

(2) The department, after written notice to the applicant, licensee, or registrant may deny, suspend, or revoke a registration certificate license or registration certification or may restrict or reduce to a provisional, or probationary status a registration certificate license or registration certification upon a finding that:

(a) the applicant, licensee, registrant, or member of the applicant's, licensee's, or registrant's household, or anyone staying in the facility on a frequent or regular basis has a conviction for misdemeanor partner/family member assault, misdemeanor endangering the welfare of a child, misdemeanor unlawful transaction with children, or a crime involving an abuse of the public trust;

(b) the day care is not in compliance with fire safety standards imposed by these rules, or by the state fire marshal or other authority having jurisdiction;

(c) the day care has not met or is no longer meeting the requirements for licensure or registration set forth in these rules;

(d) the provider has made any material misrepresentations to the department, either negligent or intentional, including an omission of information the provider is obligated to disclose to the department, regarding any aspect of the day care or its operations;

(e) the provider, any staff member, volunteer, or any person residing in the day care or anyone staying in the facility on a frequent or regular basis has been named as the perpetrator in a substantiated report of abuse or neglect;

(f) upon referral of suspected child abuse or neglect regarding an operating day care facility, the initial investigation by the department, or by a law enforcement agency determines that there is probable cause to believe that a child in the facility may be in danger of harm;

(g) the provider or any staff member has failed to report an incident of suspected abuse or neglect of any child to the department as required by 41-3-201 , MCA, within 24 hours of receiving information pertaining to the incident;

(h) the results of a psychological or medical examination provided reasonable grounds for the department to believe that the provider, any staff member, or volunteer in the day care is not an appropriate caretaker for a child;

(i) the provider, any staff member, or any volunteer, may pose any risk or threat to the safety or welfare of a child in the day care;

(j) the day care has failed to protect the health, welfare, or safety of a child, or the day care presents a reasonably foreseeable serious hazard to the health, safety, or welfare of a child;

(k) a director, care-giver, volunteer, or adult residing in the facility or staying in the facility on a regular or frequent basis has violated a licensing regulation which resulted in harm to a child as defined in 41-3-102 , MCA or knowingly allowed harm to occur to a child as defined in 41-3-102 , MCA, whether or not that person was prosecuted or convicted of child abuse or neglect; or

(l) a day care license or registration may be suspended, restricted, or revoked at the discretion of the department if the licensee's child is removed from the licensee by the department.

(3) Suspension or revocation may be immediate upon a determination by the department that public health, safety, or welfare imperatively requires emergency action. Such a determination may be based on findings including, but not limited to the following situations:

(a) upon referral of suspected child abuse or neglect regarding an operating day care facility, the initial investigation reveals that there are reasonable grounds to believe that a child in the facility may be in danger of harm;

(b) the department requests and is denied access to the licensed or registered facility;

(c) the provider has made any material misrepresentation to the department, either negligently or intentionally, regarding any information requested on the application form or necessary for registration or licensing purposes;

(d) the provider, a member of the provider's household, or staff has been named as the perpetrator in a substantiated report of child abuse or neglect as defined in ARM 37.95.1016; or

(e) through a child care licensing investigation, it is determined that the provider, provider's staff, or member of the provider's household has violated a licensing regulation that has resulted in harm to a child which falls within the definitions of child abuse and neglect set out in 41-3-102 , MCA, whether or not a criminal prosecution is initiated.

(4) If a licensee is placed on a probationary or other provisional status, the department shall notify all parents and guardians of all children attending the facility of the status of the license, the basis for the reduced status and the time period for which the license is reduced. The department may do so by personal notice, by written notice, or by posting notice on the day care license, which is required to be posted in plain view at the facility.

(5) If a license or registration certificate has been denied to an applicant, or negative licensing action is proposed against a license or registration certificate based upon a conviction identified in (1) (a) through (d) or (2) (a) , and the applicant, licensee, or registrant requests a fair hearing and establishes by clear and convincing evidence that the convicted person has been sufficiently rehabilitated to warrant the public trust, the department may issue the license or registration certificate or may withdraw the proposed negative licensing action.

History: 52-2-704, MCA; IMP, 52-2-704, 52-2-723, 52-2-726, 52-2-731, MCA; NEW, 2006 MAR p. 1424, Eff. 6/2/06.


 

 
MAR Notices Effective From Effective To History Notes
6/2/2006 Current History: 52-2-704, MCA; IMP, 52-2-704, 52-2-723, 52-2-726, 52-2-731, MCA; NEW, 2006 MAR p. 1424, Eff. 6/2/06.
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