S 1004 General Bill, By Lourie, Ceips and Jackson

Similar(H 4567)
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE
 "CHILDCARE SAFETY ENHANCEMENT ACT OF 2008" BY AMENDING SECTION 20-7-2720, AS
 AMENDED, RELATING TO THE REQUIREMENT THAT CERTAIN FACILITIES PROVIDING
 CHILDCARE MUST BE LICENSED BY THE DEPARTMENT, SO AS TO FURTHER SPECIFY THAT
 PERSONS PROVIDING CHILDCARE FOR SEVEN TO TWELVE CHILDREN MUST BE LICENSED AS A
 GROUP CHILDCARE HOME; BY AMENDING SECTION 20-7-2770, AS AMENDED, RELATING TO
 THE REQUIREMENT THAT CHILDCARE CENTERS AND GROUP CHILDCARE HOMES MAINTAIN A
 REGISTRY OF CHILDREN ENROLLED IN THEIR FACILITIES, SO AS TO REQUIRE FAMILY
 CHILDCARE HOMES TO MAINTAIN SUCH A REGISTRY; BY AMENDING SECTION 20-7-2840, AS
 AMENDED, RELATING TO THE DEFINITION OF FAMILY CHILDCARE HOMES, SO AS TO
 FURTHER CLARIFY THAT PERSONS PROVIDING CHILDCARE FOR SIX OR FEWER CHILDREN
 MUST REGISTER WITH THE DEPARTMENT OF SOCIAL SERVICES; BY AMENDING SECTION
 20-7-2870, AS AMENDED, RELATING TO VISITS TO AND INSPECTIONS OF FAMILY
 CHILDCARE HOMES, SO AS TO REQUIRE THE DEPARTMENT TO CONDUCT AT LEAST ONE
 INSPECTION OF SUCH HOMES EVERY THREE YEARS; BY AMENDING SECTION 2O-7-2980, AS
 AMENDED, RELATING TO THE DEPARTMENT OBTAINING THE ADVICE AND CONSENT OF THE
 STATE ADVISORY COMMITTEE ON THE PROMULGATION OF REGULATIONS FOR CHILDCARE
 FACILITIES, SO AS TO PROVIDE THAT THE DEPARTMENT SHALL ONLY OBTAIN THE ADVICE
 OF THE COMMITTEE ON THE PROMULGATION OF REGULATIONS; BY AMENDING SECTION
 20-7-3040, AS AMENDED, RELATING TO THE ESTABLISHMENT OF THE STATE ADVISORY
 COMMITTEE ON THE REGULATION OF CHILDCARE FACILITIES AND THE MEMBERSHIP OF THE
 COMMITTEE, SO AS TO INCREASE THE NUMBER OF PARENT MEMBERS ON THIS COMMITTEE BY
 ONE AND TO DECREASE THE NUMBER OF OWNERS AND OPERATORS OF CHILDCARE FACILITIES
 ON THIS COMMITTEE BY ONE; BY AMENDING SECTION 20-7-3050, AS AMENDED, RELATING
 TO THE DUTIES OF THE STATE ADVISORY COMMITTEE ON THE REGULATION OF CHILDCARE
 FACILITIES, SO AS TO DELETE THE PROVISION THAT NO REGULATION MAY BE
 PROMULGATED IF DISAPPROVED BY THE COMMITTEE; BY AMENDING SECTION 20-7-3090, AS
 AMENDED, RELATING TO CRIMINAL PENALTIES FOR VIOLATIONS OF CHILDCARE
 REQUIREMENTS, SO AS TO ESTABLISH MISDEMEANOR AND FELONY CRIMES FOR CERTAIN
 CHILDCARE VIOLATIONS; BY ADDING SECTION 20-7-3035, SO AS TO SPECIFY THE TYPE
 OF VIOLATIONS SUBJECT TO FINES AND THE MAXIMUM FINE AMOUNT FOR EACH TYPE
 VIOLATION AND TO PROVIDE PROCEDURES FOR NOTIFICATION OF VIOLATIONS, FOR
 IMPOSITION OF FINES, FOR CORRECTION OF VIOLATIONS, FOR PAYMENT OF FINES, AND
 FOR APPEALING FINES; AND BY REPEALING SECTION 20-7-3055, AS AMENDED, RELATING
 TO THE WAIVER OF CERTAIN PROVISIONS CONCERNING THE PROMULGATION OF REGULATIONS
 FOR CHILDCARE FACILITIES.

   01/17/08  Senate Introduced and read first time SJ-3
   01/17/08  Senate Referred to Committee on Judiciary SJ-3
   01/29/08  Senate Referred to Subcommittee: Ritchie (ch), Rankin,
                     Lourie, Scott, Ceips

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "CHILDCARE SAFETY ENHANCEMENT ACT OF 2008" BY AMENDING SECTION 20-7-2720, AS AMENDED, RELATING TO THE REQUIREMENT THAT CERTAIN FACILITIES PROVIDING CHILDCARE MUST BE LICENSED BY THE DEPARTMENT, SO AS TO FURTHER SPECIFY THAT PERSONS PROVIDING CHILDCARE FOR SEVEN TO TWELVE CHILDREN MUST BE LICENSED AS A GROUP CHILDCARE HOME; BY AMENDING SECTION 20-7-2770, AS AMENDED, RELATING TO THE REQUIREMENT THAT CHILDCARE CENTERS AND GROUP CHILDCARE HOMES MAINTAIN A REGISTRY OF CHILDREN ENROLLED IN THEIR FACILITIES, SO AS TO REQUIRE FAMILY CHILDCARE HOMES TO MAINTAIN SUCH A REGISTRY; BY AMENDING SECTION 20-7-2840, AS AMENDED, RELATING TO THE DEFINITION OF FAMILY CHILDCARE HOMES, SO AS TO FURTHER CLARIFY THAT PERSONS PROVIDING CHILDCARE FOR SIX OR FEWER CHILDREN MUST REGISTER WITH THE DEPARTMENT OF SOCIAL SERVICES; BY AMENDING SECTION 20-7-2870, AS AMENDED, RELATING TO VISITS TO AND INSPECTIONS OF FAMILY CHILDCARE HOMES, SO AS TO REQUIRE THE DEPARTMENT TO CONDUCT AT LEAST ONE INSPECTION OF SUCH HOMES EVERY THREE YEARS; BY AMENDING SECTION 2O-7-2980, AS AMENDED, RELATING TO THE DEPARTMENT OBTAINING THE ADVICE AND CONSENT OF THE STATE ADVISORY COMMITTEE ON THE PROMULGATION OF REGULATIONS FOR CHILDCARE FACILITIES, SO AS TO PROVIDE THAT THE DEPARTMENT SHALL ONLY OBTAIN THE ADVICE OF THE COMMITTEE ON THE PROMULGATION OF REGULATIONS; BY AMENDING SECTION 20-7-3040, AS AMENDED, RELATING TO THE ESTABLISHMENT OF THE STATE ADVISORY COMMITTEE ON THE REGULATION OF CHILDCARE FACILITIES AND THE MEMBERSHIP OF THE COMMITTEE, SO AS TO INCREASE THE NUMBER OF PARENT MEMBERS ON THIS COMMITTEE BY ONE AND TO DECREASE THE NUMBER OF OWNERS AND OPERATORS OF CHILDCARE FACILITIES ON THIS COMMITTEE BY ONE; BY AMENDING SECTION 20-7-3050, AS AMENDED, RELATING TO THE DUTIES OF THE STATE ADVISORY COMMITTEE ON THE REGULATION OF CHILDCARE FACILITIES, SO AS TO DELETE THE PROVISION THAT NO REGULATION MAY BE PROMULGATED IF DISAPPROVED BY THE COMMITTEE; BY AMENDING SECTION 20-7-3090, AS AMENDED, RELATING TO CRIMINAL PENALTIES FOR VIOLATIONS OF CHILDCARE REQUIREMENTS, SO AS TO ESTABLISH MISDEMEANOR AND FELONY CRIMES FOR CERTAIN CHILDCARE VIOLATIONS; BY ADDING SECTION 20-7-3035, SO AS TO SPECIFY THE TYPE OF VIOLATIONS SUBJECT TO FINES AND THE MAXIMUM FINE AMOUNT FOR EACH TYPE VIOLATION AND TO PROVIDE PROCEDURES FOR NOTIFICATION OF VIOLATIONS, FOR IMPOSITION OF FINES, FOR CORRECTION OF VIOLATIONS, FOR PAYMENT OF FINES, AND FOR APPEALING FINES; AND BY REPEALING SECTION 20-7-3055, AS AMENDED, RELATING TO THE WAIVER OF CERTAIN PROVISIONS CONCERNING THE PROMULGATION OF REGULATIONS FOR CHILDCARE FACILITIES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as the "Childcare Safety Enhancement Act of 2008".

SECTION    2.    Section 20-7-2720 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-2720.    (A)    No A person, corporation, partnership, voluntary association, or other organization may not operate a private childcare center or group childcare home unless licensed to do so by the department pursuant to this subarticle.

(B)    A person may not provide childcare regularly for more than six children but fewer than thirteen children unless the person is licensed by the department as a group childcare home pursuant to this subarticle."

SECTION    3.    Section 20-7-2770 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-2770.    Every childcare center or, group childcare home, or family childcare home shall maintain a register setting forth essential facts concerning each child enrolled under the age of eighteen years."

SECTION    4.    Section 20-7-2840 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-2840.    (A)    As used in this subarticle, 'family childcare home' means a facility within a residence occupied by the operator in which A person may not provide childcare regularly is provided for no more than six or fewer children, unattended by a parent or legal guardian, including those children living in the home and the children received for childcare who are related to the resident caregiver. However, an occupied residence in which childcare is provided only for a child or children related to the resident caregiver or only for the child or children of one unrelated family, or only for a combination of these children, is not a family childcare home unless the person is registered with the department as a family childcare home pursuant to this subarticle.

(B)    An operator of a family childcare home shall register with the department within six months of June 13, 1977.

(C)    A family childcare home which elects to participate in a federal program which requires licensing as a prerequisite to participation may elect to be licensed under the procedures in Section 20-7-2850 20-7-2730. A family childcare home electing licensing shall demonstrate compliance with the suggested standards developed by the department under Section 20-7-2980 and shall comply with provisions of Sections 20-7-2730 and 20-7-2740 relating to criminal history conviction records checks upon original licensing and upon renewal. Operators and caregivers of licensed family childcare homes are held to the standards in Sections 20-7-2730 and 20-7-2740 regarding criminal convictions."

SECTION    5.    Section 20-7-2870 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-2870.    (A)(1)    The department shall visit the a facility when concerns are expressed by the community regarding the health and safety of the children, child abuse, or enrollment beyond the limits set forth in this subarticle.

a.(2)    If the concern is in regard to the health and safety of the children, the department may call on other appropriate agencies (i.e., State including, but not limited to, the Department of Health and Environmental Control, and the Office of the State Fire Marshal), as necessary, to conduct an inspection.

b.(3)    If the concern indicates that the child has been abused, the department shall carry out its responsibility as authorized under Article 7 of this chapter.

c.(4)    If the visits and inspections verify conditions detrimental to the health and safety of the children or over enrollment, the department shall carry out its responsibility as authorized by Section 20-7-2860(C) and Section 20-7-3010.

(B)    In addition to the visits and inspections authorized in subsection (A), the department shall conduct at least one inspection of each family childcare home every three years."

SECTION    6.    Section 20-7-2980a. of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"a.    The department shall with the advice and consent of the Advisory Committee develop and promulgate regulations depending upon the nature of services to be provided for the operation and maintenance of childcare centers and group childcare homes. The department with the advice of the Advisory Committee shall develop suggested standards which shall serve as guidelines for the operators of family childcare homes and the parents of children who use the service. In developing these regulations and suggested standards, the department shall consult with:

(1)    other state agencies, including the State Department of Health and Environmental Control, the Office of the State Fire Marshal, and the Office of the Attorney General.;

(2)    parents, guardians, or custodians of children using the service.;

(3)    child advocacy groups.;

(4)    the State Advisory Committee on the Regulation of Childcare Facilities established by this subarticle.;

(5)    operators of childcare facilities from all sectors.;

(6)    professionals in fields relevant to childcare and development.;

(7)    employers of parents, guardians, or custodians of children using the service.

Draft formulations must be widely circulated for criticism and comment."

SECTION    7.    Section 20-7-3040 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-3040.    a.(A)    A State Advisory Committee on the Regulation of Childcare Facilities is established. It consists of seventeen members appointed by the Governor, in accordance with the following:

(1)    Five Six of the members appointed must be parents of children who are receiving childcare services at the time of appointment, with no less fewer than three representing the entrepreneurial facilities.

(2)    Eight Seven of the members appointed must be representative of owners and operators of childcare facilities, one of which must be an operator of a childcare home. No less fewer than five other of the seven appointees must be operators of facilities subject to regulation who are actively engaged in the operation for profit.

(3)    One member appointed shall represent the educational community of the State.

Nominees for membership on the advisory committee pursuant to items (1), (2), and (3) must be made from lists furnished the Governor by South Carolina organizations representing the various types of childcare facilities defined in this subarticle.

(4)    One member appointed shall represent the business community of the State. Nominees for membership pursuant to this item must be made from lists furnished the Governor by the South Carolina Chamber of Commerce.

(5)    Two members appointed shall represent church-operated childcare centers, one of whom must be an operator of a church childcare center and one of whom must be a parent of a child who is receiving childcare services in a church-operated childcare center at the time of appointment.

b.(B)    Members shall serve for terms of three years and until their successors are appointed and qualify, except that of those initially appointed five shall serve for one year, five for two years, and five for three years. Vacancies must be filled in the manner of the original appointment for the unexpired portion of the term only. Reappointment to serve a full term may ensue at the discretion of the Governor,; however, no member may be permitted to succeed himself after serving a full term.

c.(C)    The chairman of the committee must be designated by the Governor from among the appointees selected pursuant to the provisions of items (1) and (2) of subsection a. of this section members of the committee."

SECTION    8.    Section 20-7-3050 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-3050.    The State Advisory Committee on the Regulation of Childcare Facilities shall:

a.(1)     review changes in the regulations and suggested standards proposed by the director or his designee and make recommendations on these changes to the director or his designee. The committee shall evaluate review the regulations and suggested standards at the three-year review period (, as provided for in subsection c. of Section 20-7-2980), and recommend necessary changes. No regulation may be promulgated if the standard has been disapproved by a simple majority of the committee.;

b.(2)     advise the department regarding the improvement of the regulation of childcare facilities.;

c.(3)     advise the department on matters of regulatory policy, planning, and priorities.;

d.(4)     as it considers necessary, hold a public hearing at least thirty days before adoption of the regulations. hearings;

e.(5)     plan consult with the department for regarding the procedures to be used in notifying licensees, approved operators, and registrants regarding regulatory changes sixty days before intended promulgation.;

f.(6)     maintain through the department the essential liaison with other departments and agencies of state and local government so as to preclude imposition of duplicate requirements upon operators subject to regulations under this subarticle.;

g.(7)     act to move the adoption of its recommendations and other pertinent disposition of matters before it by decision of a simple majority of those members present and voting, provided there is a quorum of eight members."

Section 9. Section 20-7-3090 of the 1976 Code, as amended by Act 2 of 2003, is further amended to read:

"Section 20-7-3090.    (A)    A person violating the provisions who violates a provision of this subarticle is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding fined not more than one thousand five hundred dollars or imprisonment not exceeding or imprisoned not more than six months, or both.

(B)    A person who violates Section 20-7-2720(A) or (B) or 20-7-2840(A) a second or subsequent time is guilty of a felony and, upon conviction, must be imprisoned not more than five years.

(C)    Provisional registration, licensure, or approval granted by the department pursuant to Section 20-7-3020 does not constitute a violation of this subarticle."

SECTION    10.    Subarticle 11, Chapter 7 of Title 20 of the 1976 Code is amended by adding:

"Section 20-7-3035.    (A)    As used in this section:

(1)    'Violation' means a violation of a provision of this subarticle or a regulation promulgated pursuant to this subarticle that:

(a)    constitutes an imminent danger to the health and safety of a child in a childcare facility;

(b)    endangers, or has the potential to endanger, the health, safety, or well-being of a child in a childcare facility;

(c)    does not directly endanger a child in a childcare facility but that could result in a threat of harm to the children in their care due to the consistency and frequency of the violation.

(2)    'Fine' means a monetary penalty.

(3)    'Imminent danger' means a situation that if not immediately corrected would be likely to cause bodily injury, pain, or death.

(4)    'Notice of noncompliance' means the official written communication from the department that includes specifics of the violation of a provision of this subarticle or a regulation promulgated pursuant to this subarticle and the fine, if any.

(B)(1)    An on-site deficiency citation on the appropriate department form may state whether the violation is a first violation or subsequent violation and must:

(a)    describe the violation;

(b)    cite the provision of this subarticle or the regulation that was violated.

(2)    A notice of noncompliance must:

(a)    describe the violation;

(b)    cite the provision of this subarticle or the regulation that was violated;

(c)    state whether the violation is a first violation or subsequent violation;

(d)    state the period of time the childcare facility has to correct the condition or practice that constituted the violation; and

(e)    state the amount of the fine, if any.

(C)(1)    Violations must be corrected immediately unless a fixed period of time for correction is stipulated by the department and stated in the citation.

(2)    An uncorrected violation may constitute a separate violation.

(D)(1)    A facility that violates a provision of this subarticle or a regulation promulgated pursuant to this subarticle is deemed to be in wilful violation of the subarticle or the regulation, and a fine may be imposed against the facility by the department as provided for in this section.

(2)    Before the department imposes a fine against a facility, a panel comprised of the state director of the Division of Childcare Licensing, or a designee, and four supervisors in the division, or their designees, shall review the circumstances of the violation. The panel shall evaluate whether the circumstances warrant imposing a fine and the amount of the fine, and shall make these recommendations to the director or the director's designee. The final decision to impose a fine and the amount of the fine must be determined by the director or the director's designee.

(3)    The department may not impose a fine against a facility if extenuating circumstances exist that prohibit the facility from immediately correcting a violation and the facility provides evidence to the satisfaction of the department proving that the facility has made a sufficient and reasonable attempt to correct the violation in a timely manner and has eliminated the possibility of imminent danger to the health and safety of children in the facility. If the violation is not corrected within a reasonable period of time, the department may impose a fine against the facility.

(E)(1)    Fines must be based on these factors:

(a)    wilful or negligent noncompliance by the facility;

(b)    history of noncompliance;

(c)    extent of deviation from the subarticle or regulation;

(d)    evidence of good faith effort to comply; and

(e)    other factors relevant to the unique situation.

(2)    A facility that commits a violation must be fined:

(a)    not more than one thousand dollars if it is substantiated that a child was abused or neglected while in care and the violation presents an imminent danger to the health and safety of children;

(b)    not more than five hundred dollars if a violation endangers, or has the potential to endanger, the children's health, safety, or well-being, including, but not limited to:

(i)        repeated incidents exceeding the number of children allowed;

(ii)    repeated incidents in which there has been a lack of supervision of the children; or

(iii)    wilful, repeated pattern of noncompliance with a childcare requirement;

(c)    not more than two hundred fifty dollars for a violation that does not directly endanger the children, including, but not limited to:

(i)     denial of entry to an authorized representative of the department;

(ii)    prior noncompliance with the number of children allowed;

(iii)    lack of supervision of the children in care; or

(iv)    failure to comply with a corrective action plan designed by the department to correct noncompliance with an applicable childcare requirement.

(F)    A fine imposed pursuant to this section must be paid in full not more than thirty days after receipt of the citation or notice of noncompliance. An entity that shows good faith in its intention to pay a fine, but which cannot pay the fine in full, may request that the department place the entity on a payment plan in accordance with departmental policy.

(G)(1)    Within thirty days of receiving a notice of noncompliance     imposing a fine, the childcare facility may file a written request with the Office of Administrative Hearings appealing the fine. The appeal stays the imposition of the fine and any conditions for additional citations for that violation.

(2)    The Office of Administrative Hearings shall give notice of a hearing no later than thirty days after receiving the request appealing the fine.

(3)    After the hearing a final decision regarding the fine must be rendered by the director of the department or the director's designee.

(4)    The director's designee does not have the authority to reduce a fine during the appeal process but in the final appeal order does have authority to revise the fine based on findings of fact.

(5)    When the result of the appeal is favorable to the department, the fine must be paid on or before the date specified in the final appeal order. Fines collected by the department must be remitted to the State Treasurer and credited to the general fund.

(6)    When the result of the appeal is favorable to the facility, any fines paid to the department must be returned to the facility and any reference to the citation removed from the department file.

(7)    Failure to pay a fine by the date specified in the final appeal order or failure to file a request appealing a fine within thirty days after receiving the notice of noncompliance may result in revocation of the childcare facility's license or registration.

(8)    The final appeal order is the final decision of the department and may be appealed to an administrative law judge pursuant to the Administrative Procedures Act."

SECTION    11.    Section 20-7-3055 of the 1976 Code is repealed.

SECTION    12.    This act takes effect one hundred and eighty days after approval by the Governor.