A.R.S. tit. 36 ch. 7.1 — Arizona Revised Statutes Title 36 Chapter 7.1 — Child Care Programs

36-881. Definitions In this article, unless the context otherwise requires: 1. "Child" means any person through the age of fourteen years. Child also means a person who is under eighteen years of age if the child has a developmental disability as defined in section 36-551 or has at least one of the disabilities listed in section 15-761, paragraph 2 and requires special education as defined in section 15-761. 2. "Child care" means the care, supervision and guidance of a child or children, unaccompanied by a parent, guardian or custodian, on a regular basis, for periods of less than twenty-four hours per day, in a place other than the child's or the children's own home or homes. 3. "Child care facility" means any facility in which child care is regularly provided for compensation for five or more children not related to the proprietor. 4. "Controlling person" means a person who: (a) Through ownership, has the power to vote at least ten per cent of the outstanding voting securities. (b) If the applicant or licensee is a partnership, is the general partner or a limited partner who holds at least ten per cent of the voting rights of the partnership. (c) If the applicant or licensee is a corporation, an association or a limited liability company, is the president, the chief executive officer, the incorporator, an agent or any person who owns or controls at least ten per cent of the voting securities. (d) Holds a beneficial interest in ten per cent or more of the liabilities of the applicant or the licensee. 5. "Department" means the department of health services. 6. "Director" means the director of the department of health services. 7. "Person" means an individual, partnership, corporation, limited liability company, association, day nursery, nursery school, day camp, kindergarten, child care agency, school governing board, charter school or child care center that operates a child care facility. 8. "Substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of an applicant for licensure or a licensed child care facility does not pose a direct risk to the life, health or safety of children. 36-882. License; posting; transfer prohibited; fees; provisional license; renewal; exemption from rule making A. A child care facility shall not receive any child for care, supervision or training unless the facility is licensed by the department of health services. B. An application for a license shall be made on a written or electronic form prescribed by the department and shall include: 1. Information required by the department for the proper administration of this chapter and rules adopted pursuant to this chapter. 2. The name and business or residential address of each controlling person. 3. An affirmation by the applicant that no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children. C. An application for an initial license shall include: 1. The form that is required pursuant to section 36-883.02, subsection C and that is completed by the applicant. 2. A copy of a valid fingerprint clearance card issued to the applicant pursuant to section 41-1758.07. 3. If the applicant's facility is located within one-fourth mile of any agricultural land, the names and addresses of the owners and lessees of the agricultural land and a copy of the agreement required pursuant to subsection D of this section. D. The department shall deny any license that affects agricultural land regulated pursuant to section 3-365, except that the owner of the agricultural land may agree to comply with the buffer zone requirements of section 3-365. If the owner agrees in writing to comply with the buffer zone requirements and records the agreement in the office of the county recorder as a restrictive covenant running with the title to the land, the department may license the child care facility to be located within the affected buffer zone. The agreement may include any stipulations regarding the child care facility, including conditions for future expansion of the facility and changes in the operational status of the facility that will result in a breach of the agreement. This subsection shall not apply to the issuance or renewal of a license for a child care facility located in the same location for which a child care facility license was previously issued. E. On receipt of an application for an initial license, the department shall inspect the applicant's physical space, activities and standards of care. If the department determines that the applicant and the applicant's facility are in substantial compliance with this chapter and rules adopted pursuant to this chapter and the applicant agrees to carry out a plan acceptable to the department to eliminate any deficiencies, the department shall issue an initial license to the applicant. F. Beginning January 1, 2010, subject to the availability of monies, the department may establish a discount program for licensing fees paid by child care facilities, including a public health discount. G. The director, by rule, may establish and collect fees for child care facilities and a fee for late filing of applications. Beginning January 1, 2010, ninety per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the health services licensing fund established by section 36-414 and ten per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. H. Pursuant to available funding, the department shall collect annual fees. I. A license is valid from the date of issuance unless it is subsequently revoked or suspended or the licensee does not pay the licensure fee and shall specify the following: 1. The name of the applicant. 2. The exact address where the applicant will locate the facility. 3. The maximum number and age limitations of children that shall be cared for at any one time. 4. The classification of services that the facility is licensed to provide. J. The department may issue a provisional license, not to exceed six months, to an applicant or a licensed child care facility if: 1. The facility changes director. 2. The department determines that an applicant for an initial license or a licensed child care facility is not in substantial compliance with this chapter and rules adopted pursuant to this chapter and the immediate interests of children, families and the general public are best served if the child care facility or the applicant is given an opportunity to correct deficiencies. K. A provisional license shall state the reason for the provisional status. L. On the expiration of a provisional license, the department shall issue a regular license if the department determines that the licensee and the child care facility are in substantial compliance with this chapter and rules adopted pursuant to this chapter and the applicant agrees to carry out a plan acceptable to the department to eliminate any deficiencies. M. The licensee shall notify the department in writing within ten days of any change in the child care facility's director. N. The license is not transferable from person to person and is valid only for the quarters occupied at the time of issuance. O. The license shall be conspicuously posted in the child care facility. P. The licensee shall conspicuously post a schedule of fees charged for services and the established policy for a refund of fees for services not rendered. Q. The licensee shall keep current department inspection reports at the child care facility and shall make them available to parents on request. The licensee shall conspicuously post a notice that identifies the location where these inspection reports are available for review. R. The department of health services shall notify the department of public safety if the department of health services receives credible evidence that a licensee who possesses a valid fingerprint clearance card either: 1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B. 2. Falsified information on any form required by section 36-883.02. S. Licensees may pay licensure fees by installment payments based on procedures established by the department. T. The department shall review its actual costs to administer this article at least once every two years. If the department determines that its administrative costs are lower than the fees it has collected pursuant to this section, it shall adjust fees. U. If the department lowers fees, the department may refund or credit fees to licensees. V. Fee reductions are exempt from the rule making requirements of title 41, chapter 6. 36-883. Standards of care; rules; classifications A. The director of the department of health services shall prescribe reasonable rules regarding the health, safety and well-being of the children to be cared for in a child care facility. These rules shall include standards for the following: 1. Adequate physical facilities for the care of children, such as building construction, fire protection, sanitation, sleeping facilities, isolation facilities, toilet facilities, heating, ventilation, indoor and outdoor activity areas and, if provided by the facility, transportation safely to and from the premises. 2. Adequate staffing per number and age groups of children by persons who are qualified by education or experience to meet their respective responsibilities in the care of children. 3. Activities, toys and equipment to enhance the development of each child. 4. Nutritious and well-balanced food. 5. Encouragement of parental participation. 6. Exclusion of any person from the facility whose presence may be detrimental to the welfare of children. B. The department shall adopt rules pursuant to title 41, chapter 6 and section 36-115. C. Any rule that relates to educational activities, physical examination, medical treatment or immunization shall include appropriate exemptions for children whose parents object on the ground that it conflicts with the tenets and practices of a recognized church or religious denomination of which the parent or child is an adherent or member. D. The department of health services shall conduct a comprehensive review of its rules at least once every two years. Before conducting this review, the department shall consult with agencies and organizations that are knowledgeable about the provision of child care facilities to children, including: 1. The department of economic security. 2. The department of education. 3. The office of the state fire marshal. 4. The league of Arizona cities and towns. 5. Citizen groups. 6. Licensed child care facility representatives. 7. The department of child safety. E. The department shall designate appropriate classifications and establish corresponding standards pertaining to the type of care offered. These classifications shall include: 1. Facilities offering infant care. 2. Facilities offering specific educational programs. 3. Facilities offering evening and nighttime care. F. Rules for the operation of child care facilities shall be stated in a way that clearly states the purpose of each rule. 36-883.01. Statement of services Each child care facility shall annually furnish to the department, and make available to parents on request, an explicit and up-to-date written statement of the services it offers. 36-883.02. Child care personnel; fingerprints; exemptions; definition A. Except as provided in subsection B of this section, child care personnel, including volunteers, shall submit the form prescribed in subsection C of this section to the employer and shall have valid fingerprint clearance cards issued pursuant to section 41-1758.07 before starting employment or volunteer work. B. Exempt from the fingerprinting requirements of subsection A of this section are parents, including foster parents and guardians, who are not employees of the child care facility and who participate in activities with their children under the supervision of and in the presence of child care personnel. C. Applicants, licensees and child care personnel shall attest on forms that are provided by the department that: 1. They are not awaiting trial on or have never been convicted of or admitted in open court or pursuant to a plea agreement committing any of the offenses listed in section 41-1758.07, subsection B in this state or similar offenses in another state or jurisdiction. 2. They are not parents or guardians of a child adjudicated to be a dependent child as defined in section 8-201. 3. They have not been denied or had revoked a certificate to operate a child care group home or a license to operate a child care facility in this or any other state or that they have not been denied or had revoked a certification to work in a child care facility or child care group home. D. Employers of child care personnel shall make documented, good faith efforts to contact previous employers of child care personnel to obtain information or recommendations that may be relevant to an individual's fitness for employment in a child care facility. E. The forms required by subsection C of this section are confidential. F. A child care facility shall not allow a person to be employed or volunteer in the facility in any capacity if the person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55, subsection I. G. The employer shall notify the department of public safety if the employer receives credible evidence that any child care personnel either: 1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B. 2. Falsified information on the form required by subsection C of this section. H. For the purposes of this section, "child care personnel" means any employee or volunteer working at a child care facility. 36-883.03. Employer-subsidized child care; immunity from liability A. An employer that subsidizes child care on a nondiscriminatory basis to its employees through a child care facility licensed pursuant to this article or through a person or facility exempt from licensure pursuant to this article but screened pursuant to section 41-1964 or 46-321 is not liable for damages as a result of an act or omission by the child care facility, person or exempt facility unless the employer is guilty of gross negligence in recommending the child care facility, person or facility or unless the employer is acting as the owner or has an ownership interest in or is an operator of the child care facility or exempt facility. B. For purposes of this section, an employer is deemed to be subsidizing an employee's child care costs if the employer pays, either directly or indirectly, at least twenty-five per cent of the cost of the child care service rendered to the employee by the child care facility, person or exempt facility described in subsection A of this section. 36-883.04. Standards of care; rules; enforcement The director shall prescribe reasonable rules and standards regarding the health, safety and well-being of children cared for in any public school child care program. These rules shall be comparable to the rules and standards prescribed pursuant to section 36-883. The director shall also prescribe rules regarding the enforcement of the standards of care including penalties for noncompliance with these standards. These enforcement and penalty provisions shall be comparable to those existing for private child care facilities. 36-883.05. Child care facilities; infants; floor bedding; requirements; emergency evacuation; notice; definitions A. A child care facility that provides child care services utilizing the practice of a documented educational philosophy including least restrictive environment for infants and meets the requirements of this section may use floor bedding in the facility instead of cribs. B. Floor bedding pursuant to subsection A of this section must meet all of the following requirements: 1. Be a mat that meets the following dimensions: (a) Is not less than two inches and not more than three inches thick. (b) Is not less than three feet and not more than four feet long. (c) Is not less than two feet and not more than three feet wide. 2. Not be elevated or raised in any way. 3. Be covered with a waterproof and washable mattress pad, a washable zip cover and an individually assigned sheet. 4. Be assigned to an individual infant and not shared with another infant. 5. Be turned over at least once a week. 6. Be placed at least eighteen inches apart, eighteen inches from any wall and two feet from any other object. 7. Be placed on a floor that is vacuumed and sanitized every day and, if the floor is carpeted, is shampooed at least twice a month. C. The ratio of staff members to resting infants in the resting area must be at least one staff member to every four infants. A staff member in the resting area must be supervised for the first ninety days of employment to ensure the staff member's proper use of the floor bedding pursuant to this section. Any staff member in the resting area shall have current certification in cardiopulmonary resuscitation and first aid. D. If an emergency requiring evacuation occurs, the infant nursery staff shall place the infants in an evacuation crib and move the infants in the crib to a designated evacuation assembly area. Evacuation cribs must be stored not more than ten feet from the exterior exit. If stored on the outside of the building, an evacuation crib must be protected from weather. On arrival at the designated evacuation assembly area, all infants must be physically accounted for against the sign-in log and the results reported to the director of the child care facility immediately. The infant nursery supervisor is responsible for bringing all attendance sheets, child rosters and information sheets to the evacuation assembly area. The child care facility staff shall take appropriate supplies during the evacuation to protect the children, if possible, during inclement weather. E. A facility shall provide the department written notice thirty days before implementing the use of floor bedding pursuant to this section. F. If a licensed facility does not comply with the requirements of this section, the department may require the installation of cribs. G. For the purposes of this section: 1. "Infant" means either: (a) A child who is twelve months or younger. (b) A child who is eighteen months or younger if not walking. 2. "Resting area" means a space within the classroom that is separate from the activity area and that contains only the floor bedding, infants and staff members. 36-884. Exemptions This article does not apply to the care given to children by or in: 1. The homes of parents or blood relatives. 2. A religious institution conducting a nursery in conjunction with its religious services or conducting parent-supervised occasional drop-in care. 3. A unit of the public school system, including specialized professional services provided by school districts for the sole purpose of meeting mandated requirements to address the physical and mental impairments prescribed in section 15-771. If a public school provides child care other than during the school's regular hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school that provides child care is subject to standards of care prescribed pursuant to section 36-883.04. 4. A regularly organized private school engaged in an educational program that may be attended in substitution for public school pursuant to section 15-802. If the school provides child care beyond regular public school hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school providing such care shall be considered a child care facility and is subject to this article. 5. Any facility that provides training only in specific subjects, including dancing, drama, music, self-defense or religion and tutoring provided by public schools solely to improve school performance. 6. Any facility that provides only recreational or instructional activities to school age children who may enter into and depart from the facility at their own volition. The facility may require the children to document their entrance into and departure from the facility. This documentation does not affect the exemption under this paragraph. The facility shall post a notice stating it is not a licensed child care facility under section 36-882. 7. Any of the Arizona state schools for the deaf and the blind. 8. A facility that provides only educational instruction for children who are at least three and not older than six years of age if all the following are true: (a) The facility instructs only in the core subjects of math, reading and science. (b) The facility does not accept state-subsidized tuition for the children. (c) A child is present at the facility for not more than two and one-quarter hours a day and not more than three days a week. (d) The instruction is not provided in place of care ordinarily provided by a parent or guardian. (e) The facility posts a notice that the facility is not licensed under this article. (f) The facility requires fingerprint cards of all personnel pursuant to section 36-883.02. 9. A facility that operates a day camp that provides recreational programs to children if all of the following are true: (a) The day camp is accredited by a nationally recognized accrediting organization for day camps as approved by the department. (b) The day camp operates for less than twenty-four hours a day and less than ten weeks each calendar year. (c) The day camp posts a notice at the facility and on its website that it is not licensed under the laws of this state as a child care facility. (d) The day camp provides programs only to children who are at least five years of age. (e) The day camp requires fingerprint cards of all personnel pursuant to section 36-883.02. 36-885. Inspection of child care facilities A. The department or designated local health departments or its agents may at any time visit during hours of operation and inspect a child care facility to determine if it complies with this article and rules adopted under this article. B. The department shall visit each child care facility as often as necessary to assure continued compliance with this article and department rules. The department shall make at least one unannounced visit annually. 36-886. Operation without a license; classification A. If it appears that any person is maintaining or operating a child care facility without a license, the department shall notify the facility's operator either by mail, by certified mail with return receipt requested or by delivery in person. The person affected by the notice shall, within ten days from its receipt, cease and desist operation or show proof of having a valid license. The person may, within ten days, request in writing a hearing before the director. B. On application of the department, a magistrate shall issue a warrant to the department authorizing inspection of a child care facility if there is probable cause to believe that a person is operating the facility without a license. C. If a person does not comply with this section the department shall notify the county attorney of the county in which the child care facility is being operated of the violation and request that criminal prosecution be commenced against the violator. The department may request the attorney general to apply for injunctive relief. D. Any person who continues to maintain or operate a child care facility without a license ten days after receipt of notice from the department is guilty of a class 1 misdemeanor. 36-886.01. Injunctions If the department believes that a child care facility is operating under conditions that present possibilities of serious harm to children, the department shall notify the county attorney or the attorney general who shall immediately seek a restraining order and injunction against the facility. 36-887. Procedure for inspection of records A. Records maintained by the department for child care facilities are available to the public for review and copying. B. Personally identifiable information that relates to a child, parent or guardian is confidential. The department shall disclose this information only as follows: 1. Pursuant to a court order. 2. Pursuant to a written consent signed by the parent or guardian. 3. To a law enforcement officer who requires it for official purposes. 4. To an official of a governmental agency who requires it for official purposes. C. The department shall enter into the child care facility's case file, contiguous to the form containing the reported violation, those documents that verify correction of reported violations. 36-888. Denial, revocation or suspension of license A. The department may deny, suspend or revoke a license for a violation of this article or department rules. At least thirty days before the department denies, revokes or suspends a license it shall mail the applicant or licensee a notice of that person's right to a hearing. The department shall issue this notice by registered mail with return receipt requested. The notice shall state the hearing date and the facts constituting the reasons for the department's action and shall cite the specific statute or rule that the person is not conforming to. B. If the person does not respond to the written notice the department, at the expiration of the time fixed in the notice, shall take the action prescribed in the notice. If the person, within the period fixed in the notice, conforms the application or the operation of the child care facility to the applicable statute or rule, the department may grant the license or withdraw the notice of suspension or revocation. 36-889. Licensees; applicants; residency; controlling persons; requirements A. Each licensee, other than a corporation, a limited liability company, an association or a partnership, shall be a citizen of the United States who is a resident of this state, or a legal resident alien who is a resident of this state. A corporation, association or limited liability company shall be a domestic entity or a foreign entity that is qualified to do business in this state. A partnership shall have at least one partner who is a citizen of the United States and who is a resident of this state, or who is a legal resident alien and who is a resident of this state. B. The department shall not issue or renew a license unless a list of each of the applicant's or licensee's controlling persons is on file with the department and no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or other state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children. C. The applicant or licensee shall notify the department within thirty days after the election of any new officer or director or of any change in the controlling persons and shall provide the department the name and business or residential address of each controlling person and an affirmation by the applicant that no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children. D. Each applicant or licensee shall designate an agent who is authorized to receive communications from the department, including legal service of process, and to file and sign documents for the applicant or licensee. The designated agent shall be all of the following: 1. A controlling person. 2. A citizen of the United States or a legal resident alien. 3. A resident of this state. 36-890. Decisions All decisions rendered by the director, pursuant to the applicable law and regulations, shall be in writing and filed of record in the office of the department. Notice of such decisions shall be given to the affected person or licensee. If no appeal is taken by any such person or licensee within the time provided by law, the decision of the director shall be final and conclusive. 36-891. Civil penalty; inspection of centers; training program A. The director may impose a civil penalty on a person who violates this article or rules adopted pursuant to this article in an amount of not more than one hundred dollars for each violation. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department. B. In determining the civil penalty pursuant to subsection A, the department shall consider the following: 1. Repeated violations of statutes or rules. 2. Patterns of noncompliance. 3. Types of violations. 4. Severity of violations. 5. Potential for and occurrences of actual harm. 6. Threats to health and safety. 7. Number of children affected by the violations. 8. Number of violations. 9. Size of the facility. 10. Length of time during which violations have been occurring. C. If a civil penalty imposed pursuant to subsection A is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred. D. Unless a license is revoked or suspended, the director shall place the license of a child care facility subject to a civil penalty pursuant to subsection A on provisional license status for a period of time not to exceed six months in addition to other penalties imposed pursuant to this article. E. Civil penalties collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. F. The department shall develop an instrument that documents compliance and noncompliance of child care facilities according to the criteria prescribed in its rules governing child care facility licensure. Blank copies of the instrument, which shall be in standardized form, shall be made available to the public. G. The director shall establish a child care facility training program to provide training for child care facilities and users of child care services, technical assistance materials for child care facilities and information to enhance consumer awareness. 36-891.01. Intermediate sanctions; notification of compliance; hearing A. If the director has reasonable cause to believe that a licensee is violating this article or rules adopted pursuant to this article and that the health or safety of the children is endangered, the director may impose, on written notice to the licensee, one or more of the following intermediate sanctions until the licensee is in substantial compliance with this article: 1. Immediate restrictions on new admissions to the child care facility. 2. Termination of specific services that the facility may offer. 3. Reduction of the facility's capacity. B. A child care facility sanctioned pursuant to this section shall notify the department in writing when it is in substantial compliance. On receipt of notification the department shall conduct an inspection. If the department determines that the facility is in substantial compliance the director shall immediately rescind the sanctions. If the department determines that the facility is not in substantial compliance the sanctions remain in effect. The facility may then notify the department of substantial compliance not sooner than fourteen days after the date of that inspection. If the department determines on the return inspection that the facility is still not in substantial compliance the sanctions remain in effect. Thereafter, a facility may notify the department of substantial compliance not sooner than thirty days after the date of the last inspection. A facility shall make all notifications of substantial compliance by certified mail. The department shall conduct all inspections required pursuant to this subsection within fourteen days after receipt of notification of substantial compliance. If the department does not conduct an inspection within this time period, the sanctions have no further effect. C. A person who has been ordered by the director to restrict admission, reduce capacity or terminate specific services may request a hearing to review the director's action. The person shall make this request in writing within ten days after the person receives notice of the director's action. The office of administrative hearings shall conduct an administrative hearing within seven business days after the notice of appeal has been filed with the office of administrative hearings. D. A hearing conducted pursuant to this section shall comply with the requirements of title 41, chapter 6, article 10. 36-892. Violation; classification Any person violating the provisions of the applicable law, or regulations, is guilty of a class 2 misdemeanor unless another classification is specifically prescribed in this article. 36-893. Legal action or sale; effect on licensure A. The department shall not act on an application for licensure of a currently licensed child care facility while any enforcement or court action related to child care facility licensure is pending against that facility's current licensee. B. The director may continue to pursue any court, administrative or enforcement action against the licensee even though the facility is in the process of being sold or transferred to a new owner. C. The department shall not approve a change in facility ownership unless it determines that there has been a transfer of all legal and equitable interests, control and authority in the facility so that persons other than the transferring licensee, that licensee's agent or other parties exercising authority or supervision over the facility's daily operations or staff are responsible for and have control over the facility. 36-894. Medical marijuana; child care facilities; prohibition (Added with a 1998 Prop. 105 clause pursuant to L12, Ch. 159) A person, including a cardholder as defined in section 36-2801, may not lawfully possess or use marijuana in any child care facility in this state. 36-894.01. Use of sunscreen in child care facilities A school-age child who attends a child care facility in this state may possess and use a topical sunscreen product without a note or prescription from a licensed health care professional. 36-894.02. Out-of-school time program providers; roster requirements; school-age children An out-of-school time program provider that opts to be licensed as a child care facility pursuant to this article is not required to keep a roster of school-age children for each room or activity area within the child care facility if both of the following apply: 1. The program provider keeps a roster of school-age children who are present at the child care facility on entry to and exit from the child care facility. 2. The school-age children are supervised by designated staff as required by department rule when moving from one activity area to another activity area with their respective cohort. 36-895. Licensing and monitoring of child care facilities; financial agreements A. The department of health services shall license child care facilities and monitor their operation to ensure that the level of care being provided is adequate. The department of economic security shall not duplicate the monitoring functions of the department of health services and shall accept the decisions of the department of health services concerning compliance with licensing standards. B. The department of economic security may prepare and enter into financial agreements with child care providers as defined in section 46-801. 36-897. Definitions In this article, unless the context otherwise requires: 1. "Child care group home" means a residential facility in which child care is regularly provided for compensation for periods of less than twenty-four hours per day for not less than five children but no more than ten children through the age of twelve years. 2. "Department" means the department of health services. 3. "Provider" means the certificate holder or a person the certificate holder designates in writing who, pursuant to applicable statutes and rules, is to be responsible for direct daily supervision, operation and maintenance of the child care group home. 4. "Substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of an applicant for certification as a child care group home or a certified child care group home does not pose a direct risk to the life, health or safety of children. 36-897.01. Certification; application; fees; rules; fingerprinting; renewal; exemption from rule making A. A child care group home shall be certified by the department. An application for a certificate shall be made on a written or electronic form prescribed by the department and shall contain all information required by the department. B. If a child care group home is within one-fourth mile of agriculture land, the application shall include the names and addresses of the owners and lessees of any agricultural land within one-fourth mile of the facility. Within ten days after receipt of an application for a certificate, the department shall notify the owners and lessees of agricultural land as listed on the application. The department shall deny a certificate that affects agricultural land regulated pursuant to section 3-365, except that the owner of the agricultural land may agree to comply with the buffer zone requirements of section 3-365. If the owner agrees in writing to comply with the buffer zone requirements and records the agreement in the office of the county recorder as a restrictive covenant running with the title to the land, the department may issue a certificate to the child care group home to be located within the affected buffer zone. The agreement may include any stipulations regarding the child care group home, including conditions for future expansion of the facility and changes in the operational status of the facility that will result in a breach of the agreement. This subsection applies to the renewal of a certificate for a child care group home located in the same location if the child care group home certificate was not previously issued under this subsection. C. The director, by rule, may establish and collect fees for child care group homes and a late filing fee. Beginning January 1, 2010, ninety per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the health services licensing fund established by section 36-414 and ten per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. D. Pursuant to available funding the department shall collect annual fees. E. Beginning January 1, 2010, subject to the availability of monies, the department may establish a discount program for certification fees paid by child care group homes, including a public health discount program. F. The department shall issue an initial certificate if the department determines that the applicant and the applicant's child care group home are in substantial compliance with the requirements of this article and department rules and the facility agrees to carry out a plan acceptable to the director to eliminate any deficiencies. G. A certificate is valid unless it is revoked or suspended or the licensee does not pay the licensure fee and may be renewed by submitting the certification fee as prescribed by the department pursuant to subsection C of this section. H. In order to ensure that the equipment and services of a child care group home and the good character of an applicant are conducive to the welfare of children, the department by rule shall establish the criteria for granting, denying, suspending and revoking a certificate. I. The director shall adopt rules and prescribe forms as may be necessary for the proper administration and enforcement of this article. J. The certificate shall be conspicuously posted in the child care group home for viewing by parents and the public. K. Current department inspection reports shall be kept at the child care group home and shall be made available to parents on request. L. A certificate is not transferable and is valid only for the location occupied at the time it is issued. M. An application for an initial certificate shall include: 1. The form that is required pursuant to section 36-897.03, subsection B and that is completed by the applicant. 2. A copy of a valid fingerprint clearance card issued to the applicant pursuant to section 41-1758.07. N. The department of health services shall notify the department of public safety if the department of health services receives credible evidence that a person who possesses a valid fingerprint clearance card either: 1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B. 2. Falsified information on any form required by section 36-897.03. O. Certificate holders may pay fees by installment payments based on procedures established by the department. P. The department shall review its actual costs to administer this article at least once every two years. If the department determines that its administrative costs are lower than the fees it has collected pursuant to this section, it shall adjust fees. Q. If the department lowers fees, the department may refund or credit fees to licensees. R. Fee reductions are exempt from the rule making requirements of title 41, chapter 6. 36-897.02. Standards of care; monitoring A. The department by rule shall establish standards of care for child care group homes. These rules shall include minimum programmatic, personnel, supervision of children, training, physical environment and financial stability standards. B. At least two adults shall be present in the child care group home when six to ten children are cared for in the home. C. For purposes of certification of the child care group home, the provider's own children shall not be counted. D. The total number of children present in a child care group home at any given time for whom compensation is received shall not exceed ten. E. The total number of children present in a child care group home at any given time, including children related to the provider, shall not exceed fifteen. F. The department shall monitor the operation of a child care group home at least two times each year to ensure that the child care group home is meeting department standards of care. 36-897.03. Child care group homes; child care personnel; fingerprints; definition A. Child care personnel, including volunteers, shall submit the form prescribed in subsection B of this section to the employer and shall have valid fingerprint clearance cards issued pursuant to section 41-1758.07 before starting employment or volunteer work. B. Applicants, certificate holders and child care personnel shall attest on forms that are provided by the department that: 1. They are not awaiting trial on or have never been convicted of or admitted in open court or pursuant to a plea agreement committing any of the offenses listed in section 41-1758.07, subsection B or C in this state or similar offenses in another state or jurisdiction. 2. They are not parents or guardians of a child adjudicated to be a dependent child as defined in section 8-201. 3. They have not been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children. C. The provider shall make documented, good faith efforts to contact previous employers of child care personnel to obtain information or recommendations that may be relevant to an individual's fitness to work in a certified child care group home. D. The director may adopt rules prescribing the exclusion from child care group homes of individuals whose presence may be detrimental to the welfare of children. E. The forms required by subsection B of this section are confidential. F. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.07, subsection B or subsection B, paragraph 2 or 3 of this section is prohibited from being employed in any capacity in a child care group home. G. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.07, subsection C shall not work in a child care group home without direct visual supervision unless the person has applied for and received the required fingerprint clearance card pursuant to section 41-1758 and is registered as child care personnel. A person who is subject to this subsection shall not be employed in any capacity in a child care group home if that person is denied the required fingerprint clearance card. H. The employer shall notify the department of public safety if the employer receives credible evidence that any child care personnel either: 1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B. 2. Falsified information on the form required by subsection B of this section. I. For the purposes of this section, "child care personnel" means all employees of and persons who are eighteen years of age or older and who reside in a child care group home that is certified by the department. 36-897.04. Exemptions A. This article does not apply to the care given to children by or in: 1. The homes of their own parents. 2. A religious institution conducting a nursery in conjunction with its religious services. 3. A unit of the public school system. 4. A regularly organized private school engaged in an educational program which may be attended in substitution for public school pursuant to section 15-802. 5. Any facility that provides training only in specific subjects, including dancing, drama, music, self-defense or religion. 6. Any facility that provides only recreational or instructional activity to school age children who may come to and go from that facility at their own volition. B. If regularly organized private schools exempt under subsection A, paragraph 4 of this section provide child care beyond public school hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school providing this care shall be considered a child care group home and is subject to this article. 36-897.05. Inspection of child care group homes A. The department or designated local health departments or its agents may at any time visit, during hours of operation, and inspect a child care group home in order to determine whether it is certified and is being conducted in compliance with applicable law, this article and rules adopted pursuant to this article. B. The department shall visit each child care group home as often as necessary to assure continued compliance with this article and the rules adopted pursuant to this article. At least one unannounced visit shall be made annually. 36-897.06. Civil penalty; collection A. The director may impose a civil penalty on a person who violates this article or rules adopted pursuant to this article in an amount of not more than one hundred dollars for each violation. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. A person may appeal the assessment by requesting an administrative hearing. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department. B. In determining the civil penalty pursuant to subsection A, the department shall consider the following: 1. Repeated violations of statutes or rules. 2. Patterns of noncompliance. 3. Types of violations. 4. Severity of violations. 5. Potential for and occurrences of actual harm. 6. Threats to health and safety. 7. Number of children affected by the violations. 8. Number of violations. 9. Size of the facility. 10. Length of time during which violations have been occurring. C. If a civil penalty imposed pursuant to subsection A of this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred. D. Civil penalties collected pursuant to subsection A of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. E. The department shall develop an instrument that documents compliance and noncompliance of child care group homes according to the criteria prescribed in its rules governing child care group home certification. Blank copies of the instrument, which shall be in standardized form, shall be made available to the public. 36-897.07. Training program The director shall establish a training program to provide training for child care group homes and users of child care group home services, technical assistance materials for child care group homes and information to enhance consumer awareness. 36-897.08. Intermediate sanctions; notification of compliance; hearing A. If the director has reasonable cause to believe that a child care group home is in violation of this article or a rule adopted pursuant to this article and that the health or safety of the children is endangered, on written notice to the child care group home the director may impose one or more of the following intermediate sanctions until the child care group home is in substantial compliance: 1. Immediately restrict admissions to the child care group home. 2. Terminate specific services that the child care group home may offer. 3. Reduce the child care group home's capacity. B. A child care group home sanctioned pursuant to this section shall notify the department in writing when it is in substantial compliance. On receipt of notification the department shall conduct an inspection. If the department determines that the child care group home is in substantial compliance the director shall immediately rescind the sanctions. If the department determines that the child care group home is not in substantial compliance the sanctions remain in effect. The child care group home may then notify the department of substantial compliance not sooner than fourteen days after the date of that inspection. If the department determines on the return inspection that the child care group home is still not in substantial compliance the sanctions remain in effect. Thereafter, a child care group home may notify the department of substantial compliance not sooner than thirty days after the date of the last inspection. A child care group home shall make all notifications of substantial compliance by certified mail. The department shall conduct all inspections required pursuant to this subsection within fourteen days after receipt of notification of substantial compliance. If the department does not conduct an inspection within this time period, the sanctions have no further effect. C. On written request by a person who has been sanctioned pursuant to this section the director or the director's designee shall conduct a hearing to review the sanctions. A request for a hearing shall be made by certified mail within ten days after receipt of notice of the sanctions. The office of administrative hearings shall conduct an administrative hearing within seven business days after the notice of appeal has been filed with the office of administrative hearings. D. A hearing conducted pursuant to this section shall comply with the requirements of title 41, chapter 6, article 10. 36-897.09. Operating without a certificate; notice; hearing; violation; classification A. If the department has reasonable cause to believe that a person is operating a child care group home without a certificate, it shall notify that person to cease operation within ten days of receiving the notice. The department shall give notice either by certified mail or by personal service. The notice shall state that the person may make a written request for a hearing before the director or the director's designee pursuant to title 41, chapter 6, article 10. B. If a person fails to cease operation, the department may request that the county attorney of the county in which the home is located enforce this article. The department may also notify the attorney general who shall immediately seek a restraining order and an injunction against the home. C. A person who continues to operate a child care group home without certification ten days after receiving notice pursuant to this section is guilty of a class 1 misdemeanor. 36-897.10. Pending action or sale; effect on licensure A. The department shall not act on an application for certification of a currently certified child care group home while any enforcement or court action related to child care group home certification is pending against that group home's current certificate holder. B. The director may continue to pursue any court, administrative or enforcement action against the certificate holder even if the group home is in the process of being sold or transferred to a new owner. C. The department shall not approve a change in group home ownership unless it determines that there has been a transfer of legal and equitable interests, control and authority in the group home so that persons other than the transferring certificate holder, that certificate holder's agent or other parties exercising authority or supervision over the group home's daily operations or staff are responsible for and have control over the group home. 36-897.11. Injunctions; definition A. If the department believes that a child care group home is operating under conditions that may cause serious harm to children, the department shall notify the attorney general or the county attorney of the county in which the child care group home is located who shall immediately seek a restraining order and injunction against the home. B. For the purposes of this section, "serious harm" means a substantial physical injury. 36-897.12. Inspection of records A. Records maintained by the department for child care group homes are available to the public for review and copying. B. Personally identifiable information that relates to a child, parent or guardian is confidential. The department shall disclose this information only as follows: 1. Pursuant to a court order. 2. Pursuant to a written consent signed by the parent or guardian. 3. To a law enforcement officer who requires it for official purposes. 4. To an official of a governmental agency who requires it for official purposes. C. The department shall enter into the child care group home's case file, contiguous to the form containing the reported violations, those documents that verify correction of reported violations. 36-897.13. Use of sunscreen in child care group homes A school-age child who attends a child care group home in this state may possess and use a topical sunscreen product without a note or prescription from a licensed health care professional. 36-898. Licensees; pesticide application; notice; definitions A. The director, in consultation with licensees, personnel of licensees, parents, guardians, administrators, members of the public, a qualifying party and at least one health professional, shall develop and adopt a policy to provide parents, guardians, children and personnel with at least forty-eight hours' notice before pesticides are applied on licensee property. B. The policy shall include at least the following: 1. Procedures for providing the notification, including: (a) Procedures for written notification to parents, guardians or an individual authorized by a parent or guardian during a regular child care session. (b) Procedures for requiring the licensee to post signs to identify pesticide application areas. 2. Procedures for requiring any contracted pest control applicator to provide detailed and sufficient information to licensees for the purpose of completing the posting materials. C. The policy shall include exemptions for the following pesticide applications: 1. Nonresidual pesticide applications performed or contracted by public health agencies for adult vector control. 2. Emergency pesticide applications of a pesticide that has a toxicity category of III or IV pursuant to 40 Code of Federal Regulations section 156.62 to control harmful pests that pose an immediate threat to the public health. 3. Disinfectants or swimming pool chemicals. 4. Block, gel or paste-type bait that is a toxicity category III or IV formulation of insecticide pursuant to 40 Code of Federal Regulations section 156.62 and that is either of the following: (a) Secured in an enclosed, tamper-resistant bait station and placed in an area that is inaccessible to children. (b) Applied to a crack or crevice inaccessible to children. 5. Block-type bait that is a toxicity level III or IV formulation of rodenticide pursuant to 40 Code of Federal Regulations section 156.62 and that is secured in an enclosed, tamper-resistant bait station placed in an area inaccessible to children. 6. Personal repellants. 7. Any pesticide exempt from regulation by the United States environmental protection agency pursuant to the federal insecticide, fungicide and rodenticide act (7 United States Code section 136w). D. Each licensee shall maintain written records of pesticide application notifications for a period of at least three years after the application. The licensee may delegate to the pest control applicator the duty to fill out and post notices required by department policy. A licensee is not required to maintain records of pesticides