The Department of Social Services and Community Care licensing and Child Care Centers

By: Christopher Hartzog Clamon, Esq.
The Law Offices of Shapiro & Clamon

This following is a discussion of California's Community Care Licensing known as "CCL" which is a part of the Department of Social Services. This report is informational, is not legal advice and is only a brief informational discussion. This report may not be copied, duplicated or used without the express written permission of the Law Offices of Shapiro & Clamon.

I. CALIFORNIA COMMUNITY CARE LICENSING POLICY

The stated policy of California Community Care Licensing ("CCL") is to develop plans of correction and assist in correcting deficiencies at child care centers.

As a general rule, administrative action is not to be pursued as a matter of law, policy and common sense after a plan of correction is developed and implemented. This policy is not always followed.

Health &Safety Code section1596.775 states, in part, as follows: "The Legislature finds and declares all of the following: (a) There is a severe shortage of child care for school age children throughout California, with many school age children going home to an empty, unsupervised setting after school." (Emphasis added). The CCL Division has the same internal policy: "(1.) The goal of regulatory enforcement is to gain compliance and closing a facility is an action of last resort. (2.) The policy of the Community Care Licensing Division is to ensure that all licensees are afforded an opportunity to correct deficiencies prior to initiating an administrative action."

Child care licensees and their employees are being prosecuted by way of administrative Accusations and Temporary Suspension Orders, fines and criminal prosecutions contrary to California's policy. (See the related discussion of self-reporting below.)

II. THE SERVICES WE OFFER

Shapiro & Clamon offers comprehensive compliance reviews for all CCL and Headstart regulated child care facilities. Our experts can prepare all of the materials your facility needs to ensure compliance with both California and Federal law including applications, appeals, exemptions, plans of correction, facility monitoring and quality assurance review.

Shapiro & Clamon is experienced in administrative and trial court hearings and appeals challenging the validity of Accusations, Temporary Suspension Orders, citations, fines and criminal prosecutions. We have successfully resolved cases in which child care facilities licenses were revoked, suspended or applications have been denied for alleged walkaways, family domestic abuse, child abuse, Type "A" citations and/or other "serious deficiencies."

III. ACCUSATIONS AND TEMPORARY SUSPENSION ORDERS

The purpose of an administrative proceeding concerning the revocation or suspension of a license is to protect the public from dishonest, immoral, disreputable or incompetent practitioners and never to punish the individual. CCL may, therefore, revoke a license by an Accusation or Temporary Suspension Order ("TSO") only to protect the public but never to punish a licensee.

IV. TIME LIMITS FOR HEARINGS AND CONTINUANCES

Health &Safety Code section 1596.887(c) limits proceedings for the suspension, revocation, or denial of a license, registration, or special permit for child care facilities as follows: " . . . [T]he hearing "shall" be held within 90 days after receipt of the notice of defense, unless a continuance of the hearing is granted by the department or the administrative law judge." Continuances are granted sparingly only on a showing of "good cause." When a matter has been set for hearing, only the administrative law judge may grant a continuance of the hearing.

California case law states that the statutory time limits for administrative hearings are personal privileges and must be treated the same as statutes of limitations. The courts have decided that the word "shall" is to be given its' plain dictionary meaning. "Shall" means "mandatory." If you have been denied a timely hearing, case law holds that administrative charges should be dismissed if the hearings have not been continued and the time limit for your hearing has elapsed.

CCL asks licensees to sign forms waiving the statutory time limits for administrative hearings and states that the licensee has sought the advice of an attorney or the licensee is waiving the right to an attorney. Most licensees sign this form under duress from CCL. Please seek the advice of an attorney before signing this form. Signing this form could cause you irreparable harm. The constitution guarantees a right to counsel during the administrative hearing process. A party is entitled to be represented by retained counsel where the administrative proceeding is of a nature that the party's interests may be prejudiced.

V. THE "BLACKLISTING" PROBLEM

The rights to due process, a fair hearing and liberty require an impartial administrative hearing before "blacklisting" a child care center. If the state damages a party's professional reputation without first providing a noticed hearing then due process requires a court finding that the injured party has "no adequate legal remedy"and that the state has acted "arbitrarily." The licensee is entitled to a permanent injunction to stop future damaging statements.

The "blacklisting" problem is that CCL, frequently, orders child care facilities closed and blacklists child care facilities without providing the licensee with a noticed hearing before closing the facility.

The remedies are that the licensee may: (1) Demand an administrative hearing before the Office of Administrative Hearings; and/or (2) Demand a hearing before the California Superior Court by a special action called a Writ of Mandate heard by a California Superior Court Judge.

VI. CONFUSION REGARDING THE CONSEQUENCES OF A "WALKAWAY"

Children walkaway from public and private schools and child care centers every day. How many parents have been at a mall closely watching their child only to have the child walkaway? The question is what is the legal sanction for a walkaway that does not amount to a "serious deficiency?"

Different CCL Regional Offices are citing walkaways differently because LPA's are reportedly not receiving statutorily mandated training. Walkaways are cited differently depending on the LPA and the Region.

Some LPA's are issuing:(1) The $150.00/day fine authorized by law (see discussion below); (2) Accusations seeking license suspensions or revocations; and/or (3) Temporary Suspension Orders ("TSO"s) ordering the immediate closure of child care facilities.

Nothing in the Health and Safety Code grants CCL the power to seek revocation or suspension of licensed child care facilities for a "walkaway" that does not result in a "serious deficiency." A "serious deficiency" means any deficiency that presents an immediate or substantial threat to the physical health, mental health or safety of the children in a child care center.

In recognition of this rule, on February 9, 2009, Chief of the Child Care Policy and Support Bureau at the Department of Social Services (DSS) transmitted to CCL, a summary of 2008 legislation affecting Child Care Centers and Family Child Care Homes.

Chief Inglett's transmittal discusses discussing the punishment for "walkaways" under AB978. According to Chief Inglett, AB978 limits DSS to imposing $150.00 fines for "walkaways". The transmittal states in relevant part: "For CCCs only: defines violations warranting an immediate civil penalty assessment of $150 per day, per violation, as follows: . . . (b) Absence of supervision, including: a child left unattended, supervision of a child by a person under 18 years of age, and lack of supervision resulting in a child wandering away."

VII. THE SELF-REPORTING REQUIREMENT

Child care providers are required to self-report alleged violations which may result in criminal, civil and administrative prosecutions because they are "mandated reporters." As "mandated reporters" Petitioners are supposedly immune from criminal or civil liability for reporting as required by law and entitled to confidentiality. (Penal Code sections11167(d)(1), 11172(a)). When the law requires a "mandated reporter" to answer potentially self-incriminating questions in violation of the constitutional privilege against self incrimination California's courts protect those statements by barring any use of the statements in any related criminal, civil or administrative proceedings.

Like many prophylactic constitutional rules self-incriminating statements are sometimes wrongly used in related criminal, civil and administrative proceedings to revoke licenses, bring criminal charges and to pursue civil actions.