Ga. Comp. R. & Regs. R. 290-2-3-.15 - Enforcement and Adverse Actions

Current through Rules and Regulations filed through April 4, 2022

(1) Enforcement and Adverse Actions. Under Georgia law, the Department, after considering the seriousness of the violation(s), including but not limited to the circumstances, extent and gravity of the prohibited act(s), the severity of the rule violation, the duration of non-compliance, the License Holder's prior Licensure or history, the voluntary reporting of the violation(s) for which an Adverse Action is being imposed and the hazard(s) or potential hazard(s) to the health or safety of the public, may take any of the following actions when a Home, Permit Applicant or License Applicant violates any of the rules for Family Child Care Learning Homes:
(a) Refuse to grant a License or Permit;
(b) Administer a public reprimand;
(c) Suspend any License or Permit;
(d) Prohibit any License Applicant, License Holder, Permit Applicant or Permit Holder from allowing a person who previously was involved in the management or control of any program which has had its License or Permit revoked or denied within the past 12 months to be involved in the management or control of such program;
(e) Revoke any License or Permit;
(f) Impose a fine, not to exceed a total of $25,000, of up to $500 per day for each violation of the law, rule, regulation or formal order related to the initial or ongoing licensing requirement of any program. If any violation is a continuing one, each day of such violation will constitute a separate violation for the purpose of computing the applicable enforcement fine;
(g) Impose a late fee of up to $250 for failure of a program to pay the annual License fee within 30 days of the due date;
(h) Limit or restrict any License or Permit, including but not limited to, restricting some or all services of or admissions, into a Home;
(i) Seek an injunction against an early care and education program operating without a License or Permit or in willful violation of these rules;
(j) Make application for an inspection warrant to a court of competent jurisdiction to gain entry into a Home that is believed to be subject to licensure;
(k) Order the emergency placement of a monitor or monitors in a Home at the expense of the Home; and
(l) Order the emergency closure of a Home.
(2) Adverse Actions Subject to the Compliance and Enforcement Chart. In the majority of cases when a rule violation is found, the Department will determine the appropriate action in accordance with the Compliance and Enforcement Chart below. A Home will receive points based on the frequency and severity of citations and will land in the corresponding box. Accordingly, Prevention, Intermediate or Closure Actions will be imposed as outlined in the Enforcement Categories, Levels and Action Chart below. The Department will consider mitigating and aggravating factors to determine which action is appropriate and will have sole discretion in making this determination. The guidelines for determining the Violation History Level and Violation Class shall be posted on the Department website and updated as needed. Note that if a rule violation is not found, the chart will not be applied, and no citations will be issued.

COMPLIANCE AND ENFORCEMENT CHART

V

I

O

L

A

T

I

O

N

C

L

A

S

S

Incident results in or

could result in:

VIOLATION HISTORY LEVEL

I

0 Points

II

1-3 Points

III

4-9 Points

IV

10 + Points

D

Extreme Harm or

Risk of Harm

Imminent Danger

I3-C

D

D

C

High Harm or

Risk of Harm

I1-I2

CI

GS

I1-I3

CII

S

I2-C

CIII

D

I3-C

CIV

D

B

Medium Harm or

Risk of Harm

N/A

P2-P3

BII

GS

I1-I2

BIII

S

I2-C

BIV

D

A

Low Harm or

Risk of Harm

P1-P2

AI

GS

P1-P3

AII

GS

P2-P3

AIII

GS

I1-I2

AIV

S

ENFORCEMENT CATEGORIES, LEVELS AND ACTIONS

PREVENTION ACTION CATEGORY (P)

INTERMEDIATE ACTION CATEGORY (I)

(Includes Citation and Prevention Actions)

CLOSURE ACTION CATEGORY (C)

(Includes Citation and Prevention and/or Intermediate Actions)

Prevention 1 (P1)

Intermediate 1 (I1)

Closure (C)

Technical Assistance

Fine

Suspension of License (More than 1 week)

Prevention 2 (P2)

Intermediate 2 (I2)

Revocation of License

Citation

Per Rule Fine

Emergency Closure

Prevention 3 (P3)

Per Day Fine

Formal Notice Letter

Intermediate 3 (I3)

Office Conference

Public Reprimand

Fine and Restrictions

Restricted License

Restricted License & Per Rule/Per Day Fine

Emergency Monitor & Per Rule/Per Day Fine

Short-term Suspension (Less than 1 week)

(3) Adverse Actions Not Subject to the Compliance and Enforcement Chart. In the event that any of the rule violations described below are identified, the Department will not apply the Compliance and Enforcement Chart, but will take Adverse Action as follows:
(a) The Department shall refuse to issue a License or shall otherwise restrict a License or Permit for any applicant who has had a License denied, suspended or revoked within one year of the date of the application.
(b) The Department shall refuse to issue a License or shall otherwise restrict a License for any applicant, alter ego or agent of the applicant who has transferred ownership or governing authority of a program when such transfer was made in order to avert payment of an enforcement fine, denial, revocation or suspension of such License.
(c) The Department shall refuse to issue a License upon a showing of non-compliance with rules and regulations, flagrant and continued operation of an unlicensed facility, or failure to pay the License fee.
(d) The Department shall refuse to issue a License or Permit if the applicant or the operation or management of a Home knowingly or intentionally makes or causes another to make any false statement of material information in connection with the application for a License or Permit, or in statements made, records maintained, or on documents submitted to the Department as part of an inspection, survey, or investigation.
(e) The Department shall refuse to issue a License or Permit if the applicant or Home fails to provide the Department with information pertinent to an investigation, or the initial or continued licensing of a program within the time specified by the formal notice provided by the Department.
(f) The Department shall refuse to issue a License or Permit if a Home repeatedly fails or refuses to allow the Department access to the Home for the purpose of determining whether the Home is in compliance with these rules.
(g) The Department shall refuse to issue a License or Permit if a Home knows or should reasonably know that any actual or potential Provider, Employee (including Independent Contractors, Students-in-Training, and Volunteers) or Provisional Employee has a Criminal Record, an unsatisfactory Fingerprint Records Check Determination or an unsatisfactory Comprehensive Records Check Determination and allows such individual to either reside at the Home or be present at the Home while any Child is present for care.
(h) The Department may revoke a License or Permit if a Home displays a multi-year pattern of failure to correct a correctable abuse, dereliction or deficiency in the operation or management of a Home within a reasonable time after having received notice from the Department.
(i) The Department shall revoke a License or Permit if a non-correctable abuse, dereliction or deficiency exists in the operation or management of the Home.
(j) The Department shall revoke a License if a Home fails to pay the annual License fee within a reasonable time after the Department provides formal notice of such fee.
(k) The Department shall revoke a License or Permit if a Home knows or should reasonably know that any actual or potential Provider, Employee (including Independent Contractors, Students-in-Training, and Volunteers) or Provisional Employee has a Criminal Record, an unsatisfactory Fingerprint Records Check Determination or an unsatisfactory Comprehensive Records Check Determination and allows such individual to either reside at the Home or be present at the Home while any Child is present for care.
(l) The Department shall revoke a License or Permit if a Home knowingly or intentionally violates other provisions relating to Criminal Records or Comprehensive Background Checks.
(m) The Department shall revoke a License if a Home fails to pay an enforcement fine within the time specified by the formal notice provided by the Department.
(n) The Department shall revoke a License or Permit if the operation or management of a Home knowingly or intentionally makes or causes another to make any false statement of material information in connection with the application for a License or Permit, or in statements made, records maintained, or on documents submitted to the Department as part of an inspection, survey, or investigation.
(o) The Department shall revoke a License or Permit if a Home fails to provide the Department with information pertinent to an investigation, or the initial or continued licensing of a program within the time specified by the formal notice provided by the Department.
(p) The Department shall revoke a License or Permit if a Home repeatedly fails or refuses to allow the Department access to the Home for the purpose of determining whether the Home is in compliance with these rules.
(4) Rights and Responsibilities of a License Holder or Permit Holder
(a) A License Holder or Permit Holder has the right to submit a written statement within ten (10) days of the receipt of notice of the Departmental intent to impose an Adverse Action as to why the Department should not take the Adverse Action. If the licensee submits a written statement, it will be placed in the facility's state file.
(b) The imposition of any Enforcement Action by the Department shall not preclude the Department from taking any additional action authorized by law or regulation.
(c) Right to a Hearing. The Department's Enforcement Actions shall be preceded by a notice and opportunity for a hearing and shall constitute a contested case in accordance with the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1et seq., except that only thirty (30) days' notice in writing from the Commissioner's designee shall be required prior to License or Permit revocation except that the hearing held relating to such action by the Department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at that hearing.
(d) The notice of revocation, suspension or restriction of a License or Permit becomes effective thirty (30) days from the day of notice unless the License Holder or Permit Holder requests a hearing. A request for a hearing must be made in writing within ten (10) days of receipt of the notice or of revocation, suspension or restriction.
(e) Payment of an enforcement fine must be made within thirty (30) days of receipt of the notice, unless otherwise specified in writing by the Department.
(f) The notice of the emergency closure of a Home becomes effective upon delivery of the order, unless otherwise provided in the order. A request for a hearing must be made in writing within 48 hours, excluding weekends and holidays, from the receipt of the emergency order.
(g) When the Department issues a revocation or emergency order that is based upon health and safety rule violations, the following actions shall be taken:
1. the Department shall both hand-deliver and send the formal notice to the Home by certified or registered mail;
2. the Home shall post the formal notice in an area that is visible to the Parents and others whose Children attend the Home;
3. the Department shall provide a brief notice of revocation or emergency action to the Home; and
4. the Home shall distribute the brief notice to all Parents or persons authorized to pick up Children from care for the Parents.
(h) When the Department issues a revocation or emergency order that is not based upon health and safety rule violations, the Department shall either hand-deliver or send the formal notice or both to the Home by certified or registered mail.
(i) The Department may post any notice of any Adverse Action on the Department's website.
(j) The Department may share any notice of any Adverse Action and any information pertaining thereto with any other agencies which may have an interest in the welfare of the children in care at the Home.
(k) When the Department has issued a notice of revocation or emergency action required to be posted in accordance with these rules, the Home shall ensure that the notice continues to be visible to the Parents and others throughout the pendency of the revocation or emergency action, including throughout any appeal period.
(l) When the Home transports Children in care to and from the Home and Parents do not come to the Home on a regular basis, the Home shall send home copies of the brief notice of the revocation or emergency action with the Children on the day that it is delivered by Department.
(m) When the Department has issued a notice of revocation or emergency order required to be posted in accordance with these rules, the Home shall post any inspection reports that are prepared by the Department during the pendency of any revocation or emergency action in an area that is readily visible to the Parents and others.
(n) A Home shall not permit the removal or obliteration of any notices of revocation, emergency action, resolution, or inspection survey report posted on the premises of the Home during the pendency of any revocation or emergency action.

Notes

Ga. Comp. R. & Regs. R. 290-2-3-.15
O.C.G.A. § 20-1A-1et seq. and 42 U.S.C. § 9857 et seq.
Original Rule entitled "Enforcement" adopted. F. Feb. 21, 1983; eff. Mar. 23, 1983, as specified by the Agency. Repealed: New Rule entitled "Enforcement and Penalties" adopted. F. Feb. 4, 1994; eff. Mar. 1, 1994, as specified by the Agency. Repealed: New Rule of same title adopted. F. Dec. 2, 2009; eff. Dec. 22, 2009. Amended: F. Dec. 13, 2013; eff. Jan. 2, 2014. Amended: F. Dec. 4, 2015; eff. Dec. 24, 2015. Amended: New title "Enforcement and Adverse Actions." F. June 2, 2016; eff. June 22, 2016. Amended: F. May 26, 2017; eff. June 15, 2017. Amended: F. Aug. 17, 2018; eff. Sept. 6, 2018.

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