HD16 - Report on Penalty Recommendations for Individuals Operating a Child Day Center or Family Day Home Without a License (Chapter 758, 2015)


Executive Summary:
This report is submitted pursuant to Chapter 758 of the 2015 Acts of Assembly, which directs the Department of Social Services to develop recommendations related to appropriate criminal and civil penalties for individuals who operate or engage in the conduct of a child day center or family day home without first obtaining a license or after such license has been revoked or has expired and not been renewed or who operate or engage in the conduct of a child day center or family day home serving more children than the maximum number stipulated in the license but shall not develop recommendations related to penalties for failure to comply with § 63.2-1704.1, as created by this act, and the Department shall report its recommendations to the Governor and the General Assembly by December 1, 2015.

Recommendations

1. A civil injunction, pursuant to § 63.2-1711 of the Code of Virginia (Code), should continue to be considered by the Virginia Department of Social Services (Department) in cases where child care providers are operating without a license, if the provider does not take steps to come into compliance with the law once the Division of Licensing-Children's Programs has investigated and found the program to be subject to licensure. This injunction would require the provider to cease operations. The injunction would be at the suit of the Commissioner and pursued through the Office of the Attorney General.

2. The Division of Licensing-Children's Programs will develop processes to refer completed substantiated cases of illegal child care operations to the Office of the Commonwealth's Attorney for review for possible criminal prosecution for a Class 1 misdemeanor under § 63.2-1712 of the Code. These cases would include those where a child care program has been investigated, been found to be operating illegally, and has not complied with the law within ten days following being notified of the illegal operation; or when a provider is operating illegally due to a suspended or revoked license.

3. Pursuant to General Procedures and Information for Licensure (22VAC40-80-340) and §§ 63.2-1709.1 and 63.2-1709.2 of the Code, the Department currently has administrative sanctions and court proceedings available as penalties for child welfare agencies that fail to comply with the limitations and standards set forth in their license. These penalties may be imposed on child day centers or family day homes serving more children than the maximum number stipulated in their license. No further penalty for these providers operating over the threshold is recommended.

4. The Code should be amended to allow a felony charge for an illegally operating provider when a child dies or is injured, due to other than natural causes, while in that provider's care. Some work group members felt that the health and safety of children far outweighs any financial impact that would be incurred.

5. The Code should be amended in Chapter 17 and Chapter 18 of Title 63.2 to reflect licensing thresholds, so that it can be easily dete rmined when a child care program is required to be licensed. Currently, the licensing threshold for family day homes and child day centers is only found in § 63.2-100 of the Code. Workgroup members indicated that the requirement was difficult to locate in the current placement.

6. The Code should be amended to allow the Department to develop and implement an escalating fine structure for unlicensed illegal child care providers who are found to have repeated offenses. The fine could increase with each repeated offense.