Library: Policy

340:110-1-9.3. Non-compliance with requirements

Revised 11-1-19

(a) Non-compliance documentation. Licensing staff clearly and concisely documents areas of non-compliance on the monitoring checklist and summary, including operator discussion. • 1

(1) A plan of correction, including a specific agreed-on time period for non-compliance correction is documented on the monitoring summary. When a previous non-compliance was not corrected by the agreed-on time period, the non-compliance is documented again with a shorter plan of correction date. • 2

(2) Immediate correction is required when the non-compliance directly impacts children's health, safety, or well-being.

(3) Licensing staff requests the operator's signature on the monitoring summary, explaining the signature indicates acknowledgment of recorded information.

(4) When the operator or individual in charge refuses to sign, the refusal is documented on the monitoring summary.

(5) The operator is provided a monitoring summary copy.

(6) Timeframes for filing a grievance are provided on the monitoring summary. Refer to grievance procedures, per Oklahoma Administrative Code (OAC) 340:110-1-15.

(b) Referrals to fire and health officials. When non-compliance regarding fire or health requirements places children at risk or remains uncorrected, Licensing staff requests an inspection by a fire, health, or Oklahoma Department of Environmental Quality official. When there is non-compliance regarding smoke detectors, the child care provider is provided a copy of the Smoke Detector Law, Section 324.11A of Title 74 of the Oklahoma Statutes (74 O.S. § 324.11A). When the non-compliance is not corrected by the third monitoring visit or is repeated, copies of the monitoring summaries are provided with a cover letter to the appropriate fire official.

(1) Numerous non-compliance is monitoring visits with:

(A) five or more Licensing requirement sections documented as non-compliant on the monitoring checklist for a family child care home or large child care home; • 3

(B) six or more Licensing requirement sections documented as non-compliant on the monitoring checklist for a child care center, day camp, drop-in, out-of-school time, part-day program, or program for sick children with a licensed capacity of less than 60; or • 3

(C) seven or more Licensing requirement sections for a child care center, day camp, drop-in, out-of-school time, part-day program, or program for sick children with a licensed capacity of 60 or more. • 3

(2) Repeated non-compliance is three or more documented incidents of non‑compliance with the same requirement within the last 12 months. Missing immunizations are considered a repeated non‑compliance when regarding the same child.

(3) Serious non-compliance is non-compliance with Licensing requirements exposing children to conditions presenting an imminent risk of harm based on the child's age, the amount of time the operator was out of compliance, and the operator's efforts to mitigate the risk. Serious non-compliance is identified through Licensing observations, confirmed complaint investigations, and/or self-reported incidences. Failure to comply with licensing requirements that may be considered as serious non-compliance include:

(A) staff-child ratio;

(B) child supervision;

(D) prohibited disciplinary actions;

(E) licensed capacity; • 5

(F) transportation; • 6

(G) water activities; • 7

(H) pools and other water hazards;

(I) multiple hazards;

(J) weapons;

(K) failure to report child abuse or human trafficking;

(L) knowingly permitting access to children by individuals identified as restricted or Restricted Registry registrants;

(M) failure to obtain background investigations or Restricted Registry searches;

(N) medication administration; • 8

(O) room temperatures;

(P) heat sources and/or loss of any utility service; and

(Q) cardio-pulmonary resuscitation and first aid training. • 9

(d) Case management responses to non-compliant facilities. One or more responses in this subsection are used when there is numerous, repeated, or serious non-compliance. • 10

(1) Technical assistance. Licensing staff offers technical assistance, including referrals to consultants or professional development resources, assisting the operator in meeting and maintaining Licensing requirements.

(2) Follow-up phone call to the program. Phone calls are documented on Form 07LC080E, Licensing Services Supplemental Information, and a copy provided to the program.

(3) Non-compliance letters. A non-compliance letter may be written to the operator. Licensing staff provides a monitoring summary copy with the non-compliance letter to the owner or registered agent, when applicable. • 11

(4) Return monitoring visit. A return monitoring visit may be conducted when there is numerous, repeated, or serious non-compliance with Licensing requirements or when non-compliance places children at imminent risk of harm. • 12 When the non-compliance is associated with a specific time of day, such as understaffing after school or a lack of early morning supervision, the return monitoring visit is conducted at the approximate time.

(5) Use of witnesses. A witness may accompany Licensing staff when the program had numerous, repeated, or serious non-compliance or is considered for request for license denial or license revocation. The witness may be an Oklahoma Department of Human Services (DHS) employee or a representative from the health or fire department, or law enforcement. The witness signs the monitoring summary.

(6) Increased monitoring visits. Licensing staff may increase monitoring frequency plans when there were numerous, repeated, or serious non-compliance or when the need for additional technical assistance is indicated. • 12

(7) Notice to comply. Licensing staff provides the operator with Form 07LC037E, Notice to Comply, and the operator documents the plan of correction. Immediate correction may be required when the non-compliance places children's health, safety, or well-being at risk. • 13

(A) When the plan submitted is unacceptable to Licensing staff, Licensing staff negotiates a revised plan, and requests resubmission within 10-calendar days.

(B) When Form 07LC037E, Notice to Comply, is not submitted within the specified time period, Licensing staff contacts the operator and documents the conversation.

(C) When non-compliances continue to place children at risk, Licensing staff provides a letter stating the non-compliances and/or continued failure to correct non-compliances may result in request for license denial, license revocation, filing of an injunction, or Emergency Order.

(8) Office conference. Licensing staff may schedule an office conference with the owner and/or operator. The Licensing supervisor is present at the office conference. The regional programs manager (RPM) is informed of the office conference and may be present, when necessary.

(A) Program status, areas of non-compliance and progress toward meeting the plan(s) of correction are reviewed and technical assistance is offered.

(B) The office conference is documented on Form 07LC080E, Licensing Services Supplemental Information, and is signed by Licensing staff, the operator, and witnesses. This documentation includes a list of individuals present, conference purpose, and re-verification of ownership documentation.

(9) Consent agreement. Child Care Services (CCS) and the program owner may enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-9.5.

(10) Revocation or denial. Licensing staff may recommend the request for license be denied or license revoked when numerous, repeated, or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-10. • 14

(11) Voluntary cease care. With CCS State Office approval, the owner is asked to voluntarily cease caring for children. The RPM is notified of every situation involving a request for voluntary cease care.

(12) Voluntary closure. With CCS State Office approval, the owner is asked to voluntarily close the facility, per OAC 340:110-1-10.

(e) Case management responses when children are at risk. When Licensing staff documents non-compliance with requirements or is investigating a complaint that may place children's health, safety, or well-being at imminent risk of harm, options to consider with the operator and licensing supervisor are outlined in this subsection. • 15

(1) The operator is asked to immediately correct the non-compliance, such as, program personnel will not be present or work alone with children at the facility pending the outcome of an investigation.

(2) With CCS State Office approval, the owner is asked to voluntarily cease child care until the non-compliance is corrected or the investigation is complete.

(3) With CCS State Office approval, the owner is asked to voluntarily close the facility.

(4) When immediate action is needed to protect children, Licensing staff requests an Emergency Order, per OAC 340:110-1-9.4.

(5) The owner and CCS agrees to enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-9.5.

(6) Licensing staff may recommend the request for license be denied or license be revoked when numerous, repeated, or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-10.

(7) An injunction may be requested when a child care program is:

(A) unlicensed;

(B) on request for license status;

(D) violating an Emergency Order;

(E) operating during an appeal following request for license denial or license revocation and children are at risk; or

(F) violating the notice to cease and desist care following request for license denial or license revocation.

(f) Notification to supervisor when children are at risk. During a monitoring visit when Licensing staff is concerned children's health, safety, or well-being is at imminent risk, the Licensing supervisor or CCS State Office staff is contacted immediately. • 16

(g) Alternative method of compliance. CCS may approve an alternative method of compliance to a minimum Licensing requirement. An alternative method of compliance may be authorized when Licensing determines the alternative method of compliance offers equal protection of children's health, safety, and well-being, meets the requirement's basic intent for the requested alternative compliance, and does not violate statutory requirements.

(1) An applicant or licensee submits a written request with supporting documentation on Form 07LC061E, Alternative Compliance Request, to Licensing staff. A separate alternative method of compliance request is submitted for each requirement identified. • 17

(2) Licensing staff completes Form 07LC105E, Alternative Compliance Referral, and submits all documentation to the statewide licensing coordinator or designee.

(3) Approval of an alternative method of compliance does not set a precedent, and is independently evaluated on the merits of each request.

(4) The program's compliance record is considered when determining approval.

(5) An alternative method of compliance is not authorized for requirements affecting children's health and safety, such as exceeding licensed capacity or staff-child ratios, fire safety, or behavior and guidance.

(6) Form 07LC075E, Notice of Alternative Compliance, stating the nature of the exception, is posted with the license. • 18

INSTRUCTIONS TO STAFF 340:110-1-9.3

Revised 11-1-19

1. When documenting non-compliance on the monitoring checklist, Licensing staff:

(1) documents what is observed rather than what is needed, such as, Licensing staff documents "milk was not served with lunch" instead of "milk must be served at lunch";

(2) does not document personnel names associated with non-compliance on the monitoring checklist. Personnel names may be included in the monitoring summary discussion area and in the plan of correction when provided by the operator; and

(3) provides a monitoring summary copy to the operator and governing board or owner, when applicable.

2. (a) When the time period suggested by the operator for correction of non-compliance is unacceptable, Licensing staff discusses the expectation and negotiates an acceptable time period. Correction due dates are realistic. The following statement may be utilized when facilities are not meeting plan of correction timeframes: "The program continues to be in non-compliance without an acceptable plan of correction." Licensing staff discusses concerns with the regional programs manager (RPM) or assistant licensing coordinator.

(b) The plan of correction may include an agreement with the operator to specific conditions, such as agreeing to restrict an individual, or agreeing not to allow certain personnel to transport children because of a prior conviction for driving under the influence (DUI). The agreement is placed in a prominent location in the program's file and includes conditions that must be complied with, but does not include confidential information.

3. Non-compliance.

(1) Each non-compliance documented under the same Licensing requirement section identified on the monitoring checklist is counted once, when there is more than one non-compliance within that section.

(2) A non-compliance may qualify as a numerous, repeated, and/or serious non-compliance.

(3) When a non-compliance is documented a second time during an agreed-on plan of correction, it is not considered again in determining numerous, repeated, or serious non-compliance.

4. Sleep environment may include:

(1) sleep equipment;

(2) bedding and blankets;

(3) infant sleep position; and

(4) infants in cribs with:

(A) bottles;

(B) soft products or toys; or

(C) other restricted items per Licensing requirements.

5. When a family child care home or large child care home exceeds licensed capacity, the program is also understaffed as staff-child ratio for capacities for seven or 12 children are not identified.Therefore, two non-compliances are documented.

6. Serious non-compliance includes passenger restraints, drivers without a valid driver license, transporting without parent permissions, and vehicle liability insurance.

7. Serious non-compliance includes requirements identified as water activities or water safety per Licensing requirements.

8. Serious non-compliance includes medication:

(1) permission and administration requirements, such as:

(A) incomplete parent permissions; or

(B) documentation; and

(2) storage, when accessible to children. However, medication labeling is not considered a serious non-compliance.

9. Serious non-compliance includes programs not having any personnel on facility premises or during transportation with current cardio-pulmonary resuscitation and first aid training.

10. Licensing staff assesses both the number and type of non-compliance observed during monitoring visits or substantiated complaint investigations. Response is based on the non-compliance seriousness and the operator's demonstrated ability and willingness to comply.

(1) Licensing staff responses go beyond non-compliance and plan of correction documentation for monitoring visits involving numerous, repeated, or serious non-compliance.

(2) Licensing staff advises the supervisor of the planned response and when the supervisor disagrees, the case history is reviewed and a different or additional response may be utilized.

11. Non-compliance letters are provided within10-agency business days, and include the monitoring visit date, areas of non-compliance, and grievance timeframes.When a non-compliance remains uncorrected at the next monitoring visit, a letter documenting both monitoring visits and a follow-up monitoring visit are required.

12. The timing of return monitoring visits is determined by the risk level to children, per OAC 340:110-1-9.2(e). A return monitoring visit does not routinely result in a change in the monitoring frequency plan. However, when subsequent monitoring visits require a follow-up:

(1) increased monitoring is discussed with the supervisor;

(2) Licensing staff conducts:

(A) a partial monitoring visit, per OAC 340:110-1-9(a), including documenting correction of previous non-compliances; or

(B) a full monitoring visit, per OAC 340:110-1-9(a) when numerous, repeated, and/or serious non-compliance are observed.

13. When Form 07LC037E, Notice to Comply, is completed, the plan of correction on the monitoring summary is also completed. When an acceptable Form 07LC037E is completed during a monitoring visit, it is not necessary to include this with the non-compliance letter. Form 07LC037E may be completed for numerous or repeated non-compliances; however, completion is necessary for:

(1) serious non-compliances;

(2) substantiated complaint allegations; and/or

(3) additional non-compliances found during a complaint investigation.

14. Procedure and documentation for request for license denial or license revocation. Licensing staff:

(1) ensures the non-compliance and a plan of correction are clearly documented on monitoring summaries and the program's action to implement previous plans of correction;

(2) documents on the monitoring summary failure to correct the non-compliance may result in request for license denial or license revocation, filing of an injunction, or issuance of an Emergency Order, as applicable; and

(3) conducts monitoring visits at least monthly when children are in care. Whenever possible, the same witness accompanies Licensing staff on monitoring visits.

15. The local resource and referral agency is notified, when the request for license is denied, or the license is revoked, or when an Emergency Order is issued, by the statewide licensing coordinator.

16. Examples warranting supervisory contact include severe overcapacity, an incapacitated caregiver, a caregiver appearing under the influence of alcohol or drugs, or children appear to be left alone.

17. Licensing staff reviews all submitted documentation and may request additional relevant information.

18. An alternative method of compliance does not replace plans of correction negotiated between Licensing staff and operators.Operators are not encouraged to request alternative methods of compliance when the non-compliance can feasibly be corrected in a reasonable time frame.