Owning an operating a family child care home is one of the most selfless, difficult licensed professions in California. Not only do child care providers assume the responsibility for children every day, but they do so under the supervision of a regulatory scheme that rivals the Department of Motor Vehicles in its complexity and bureaucracy. The agency that regulates family child care homes in California is the Department of Social Services (DSS), and when they seek to discipline a child care home, they draw on an enormous body of codes, rules, and regulations that govern each person who works in a California-licensed day care. Here are the four most common causes for discipline in our state—we often see all of these causes for discipline in the same accusation.
- Conduct Inimical
Conduct inimical is shorthand for “conduct that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility.” This catch-all definition is not further defined in the law, nor do any cases define it more clearly, but the dictionary definition of “inimical” is “tending to obstruct or harm,” and the Department considers “conduct inimical” to be tantamount to child abuse. If a licensee is accused of “conduct inimical,” it is practically impossible to save the license if the judge agrees with the Department, so it is vitally important to develop an effective defense to allegations like these. A licensee is prohibited from striking a child for any reason, including corporal punishment (which is also, see below, a Personal Rights violation), and if the Department can prove abuse, the license is in jeopardy.
However, the Department will also allege that acts that do not constitute child abuse, such as temporary understaffing or overcapacity allegations, constitute “conduct inimical.” It is important for a child care provider to have effective counsel that can explain and contrast abusive or harmful conduct—conduct that is truly “inimical”—with conduct that merely violates a different regulation.
- Personal Rights
Unlike “Conduct Inimical,” which has a short, specific definition and unavoidable consequences, “Personal Rights” violations refer to a long list of rights that each child in the care of a licensed provider has, at all times, in California. Under the applicable Code of Regulations section, each child shall be:
- Accorded dignity in his/her personal relationships with staff.
- Accorded safe, healthful and comfortable accommodations to meet his/her needs.
- Free from corporal or unusual punishment, infliction of pain, humiliation, ridicule, coercion, threat, or other actions of a punitive nature.
- Informed of how to contact the Department.
- Free to attend religious services of his/her choice.
- Not locked in any room, building or premises.
- Not placed in any restraining device except a supportive restraint.
These seven subsections cover a broad range of potential misconduct, and they allow Licensing Program Analysts (also called LPAs, the employees of the Department who conduct regulatory visits) to discipline for perceived shortcomings all over the facility. The regulations obviously prohibit many potentially dangerous conditions within facilities, such as exposed wiring or dangerous chemicals in the presence of children. They also regulate licensee behavior, making it a violation to treat a child with disrespect or to ridicule or harass children. But, along with these understandably serious prohibitions, the regulations can also allow the Department to seek discipline for an ungated stairway, or an uncomfortable old chair, or keeping a child in a playpen even when he wants to leave.
Not every Personal Rights violation is equally serious in the judgment of an Administrative Law Judge, and not every Personal Rights violation warrants outright revocation of a license. If a licensee is accused of a multitude of personal rights violations, knowing what to concede and what to challenge is how he/she can keep the license in the face of discipline by the agency.
- Staffing Ratio and Capacity
Staffing ratio (number of providers per child) and Capacity (total number of allowed children) problems can plague a licensee for years before they have any idea that the Department is upset. In our experience, the most common staffing ratio problems occur when a parent or guardian is late to pick a child up, or when an assistant (perhaps an older school-age child or a part-time employee) has to leave before parents arrive. For facilities who have regular afternoon clients, schedule overlap can sometimes involve three or four extra children in the facility for a few minutes. If the LPA shows up that day and observes the overcapacity problem, it will be written up and it will become a part of the licensee’s disciplinary history.
Usually, a staffing problem or a capacity problem on its own will not trigger license discipline. The Department may appear to “overlook” as many as two or three violations. However, if a more serious violation is alleged and the Department moves ahead with an Accusation, suddenly every single over-capacity or understaffing allegation is resurrected and finds its way into a long disciplinary pleading, suddenly used as “evidence” that the licensee’s facility is dangerous or non-compliant.
- Criminal Convictions and Lack of a Clearance or Exemption
Aside from the conditions of the facility and the ratios discussed above, the Department also requires that every person who is present in the facility, at any time, be properly cleared by the Department. That means that all relatives who live inside a child care home need to be disclosed to the Department, and it can mean immediate consequences for relatives who are convicted of a crime if they live in the home. If a worker or relative has a criminal conviction, DSS must grant them a criminal record exemption. The following situation is very common: a wife and mother of three runs a very successful day care facility inside of her home, where she lives with her husband and one 19-year-old child. If either the husband or the adult son is convicted of a crime—drug possession, DUI, shoplifting, etc.—the Department of Social Services may insist that the offending person immediately move out of the residence. Imagine the disruption to a long-term marriage if a husband either has to move out of the residence or the family business has to shut down! Addressing any contact with the criminal justice system by a licensee or any family member in the home is critical to prevent this kind of disruption.
Ray & Bishop, PLC defends child care centers, centers that provide care for the elderly (RCFE), adult homes, and those who own, work in, and may live with the owners. If you receive an accusation against your license, we can help.