Where is due process for Childcare Providers? When a Childcare Provider appeals a license revocation or suspension, the issue is heard before an Administrative Law Judge. Administrative Law Judges (ALJs) are employed by an independent state agency, however, ALJs are trained by the agency (The Department of Early Learning) that writes the rules, interprets the rules, and imposes the licensing action against licensed Childcare Providers. The Department of Early Learning employs the Board of Appeals Review Judges (who make the final order on an ALJ's decision if appealed). In our opinion, this current model of Administrative remedy is contrary to Constitutional liberties and the intent of the Administrative Procedures Act.

Advocates for Provider Rights and Education (APRE) is an organization that lobbies for regulatory change for licensed Childcare Providers. We are not attorneys. We are former Childcare Providers, now lay Advocates, who represent Childcare Providers in Administrative Hearings. Our combined fifty years of experience has left us with concerns and questions.

We recognize the challenge for Administrative Law Judges to balance the civil liberties of Washington State citizens with the expressed responsibility given to DEL, through legislation, to protect the health and safety of children in childcare. ALJs struggle with an interpretation that deference be given to the Department of Early Learning (DEL) even when there is no evidence to support an action by DEL; only allegation. It is our position as lay representatives that this is unconstitutional and our legislators must give ALJs some discretionary authority. Under the current proposed DEL Hearing rules (WAC 170-03), ALJs have no discretionary authority to rule on the issues of a case. The ALJ is confined to ruling on whether DEL has the right to impose a particular action on a Childcare Provider and if the Childcare Provider was properly notified. (By the by, licensors only have to submit a sworn statement that a Provider was properly notified to meet this requirement.)

Under current law, if a Childcare Provider intends to take a case to Superior Court all Administrative remedies must be exhausted first. This represents a large financial expense on the Childcare Provider as well as Washington State's taxpayers. Washington State's taxpayers bear the cost of the Administrative Law Judge's salary, his or her staff cost, the salary of the Assistant Attorney General representing the Department, and the salaries of the licensors and supervisors sitting outside the Hearing room waiting to testify against the Childcare Provider. Hearings are scheduled to last 1 to 5 days and sometimes longer. If there are multiple issues those costs can be multiplied two and three times.

Our biggest concern is that there is no visible/enforceable provision of accountability to ensure Washington State's Childcare Providers or the families they serve, which minimizes (or eliminates) the risk that DEL licensors and supervisors will not abuse their entrusted discretion through carelessness, bias or agenda. Administrative Law Judges must be able to rule and exert, at the very minimum, limited control over the Agency that has unlimited control over an expressed segment of Washington State's population.

By giving discretionary authority to Administrative Law Judges and putting restraints on the Agency's discretion, due process can be returned to Childcare Providers, their families, and Washington State working families who rely on childcare.

Should a Child Care Business be shut down on an allegation of imminent risk?

Should an Administrative Law Judge defer to the Department of Early Learning's determination that an allegation might eventually provide evidence supporting an emergency action to immediately close a childcare business or should the ALJ's decision be based on actual evidence of imminent risk?

Is it constitutional for the final decision on the closure of a Childcare business to be made by a Review Judge whose salary is paid by the agency who closed the childcare?

We encourage every childcare Provider in the State of Washington to ask their legislators these questions. We encourage every Washington State family who risks having to find emergency childcare when their childcare Provider is shut down on an allegation, to ask these questions of their legislators and to continue to ask these questions until they receive answers and the promise of reform.

Contact information on your legislators is found at
Find Your Legislator at href='http://apps.leg.wa.gov/DistrictFinder/Default.aspx
You can also contact us at advocates@apreweb.com.
Or call us at 360-574-7678 and 360-636-4289

WAC 170-296 contains the rules which govern your chosen licensed childcare Provider and has 134 WAC numbers, with an additional 863 sub sections and sub/sub sections for a total of 997 WAC regulations.

In addition to the 997 WAC sections there are 49 definitions that may or may not mean the same to Department of Early Learning ((DEL), the Agency which regulates your chosen childcare Provider), as they do in your every day life. There are many rules that govern your chosen childcare Provider which eliminate your parental rights and discretion. The confines of this newsletter only afford us space to list a few. Please discuss these and the many other restrictions with your childcare Provider. Violation of any one of the rules can result in your Provider being fined $75.00 per violation and/or losing their license.

If your chosen Provider does not follow licensing requirements or is accused of not following the licensing regulations she/he can lose their license and you would be forced to find alternate care. Sometimes the loss of a license is without warning; sometimes it comes with a 28 day notice.

Under the rules your chosen childcare Provider must follow, "child" means a person who has not yet reached the age of twelve years. Children twelve and older may not be enrolled in a licensed childcare. If your child has been in care, even since infancy, and turns twelve, your child is no longer able to be on the premises during childcare hours. Your child could return as an assistant at age 14.

If you are a parent with a developmentally disabled child who is in care and turns 12, the Provider must seek a waiver for your child to remain enrolled. These waivers are not automatically granted.

WAC 170-296-1360 (6) ...sleeping or napping infants must be in the main child space...
You have no choice where your infant sleeps. If you prefer a quiet darkened room a licensed childcare Provider will not be able to accommodate you without risking a fine or losing his or her license.

WAC 170-296-1050 (5) Children must not sleep in car seats, swings or other similar equipment.
If your child has fallen asleep in their car seat and/or falls asleep in a swing or infant chair and you want your baby to remain sleeping, your childcare Provider can not accommodate your request without risking a fine or losing his or her license.

WAC 170-296-1340 (1) {The Provider and/or} staff must report immediately to {the} local children's administration intake staff (CPS) and {the} licensor:(h) Unexpected or emergent health problems that require off-site professional medical treatment;
These reporting requirement initiate CPS referrals. Your family's confidentiality would be compromised. If your child has an expected seizure, to be in compliance with this requirement, your Provider would have to a call (CPS). Do you want to be interviewed by CPS when your epileptic child has an expected seizure? Do you want your child interviewed after every seizure?

The rules which govern your childcare Provider are being reviewed and rewritten. Parents are invited to participate in that process. Contact Gary Burris, DEL Assistant Director/Quality Division at Gary.Burris@del.wa.gov for more information or call him at 360-725-4679

The FLICA or the Facility Licensing Compliance Agreement is an agreement that you have violated a WAC requirement and agree to correct the violation with the implied promise of never violating that WAC requirement again. The department is given the authority to fine Providers $75.00 per violation. (Read the bottom of the "Compliance Agreement".) This "agreement" is a citation.

WAC 170-296-0370 requires the Provider to sign the citation whether or not they "agree" with the citation. There is a box to check if the Provider does not agree (it is a good idea to write across the citation "I do Not Agree") It is identified as a request for a supervisory review. In our experience, no supervisory review request has resulted in a Compliance Agreement citation being reversed, however it is a Provider's only "proof" that they did not agree with the citation. If the Provider is ever in front of an Administrative Law Judge, that proof may serve invaluable and preserve the license and the right to earn a living as a Family Home Child Care Provider.

It has been reported to us that Providers do not request the supervisory review for two reasons.
  1. They are not aware of the option.
  2. They believe it means the supervisor will come to the Provider's home. The review is paper only. This does not guarantee that the supervisor will not come to the home. In many instances the Provider has requested the supervisor come to the Provider's home and the supervisor has refused.

Signing a FLICA is a BIG DEAL. Do not agree that you are in violation of a WAC if in fact you are not. A FLICA is a legal binding document whereby you agree that the content of the FLICA is correct. An intimidation defense is not effective in an Administrative Hearing.

In some cases a Provider may agree that they are in violation of a WAC but there were extenuating circumstances. The only way to document those circumstances is to request a supervisory review and submit a letter of explanation.

A Compliance Agreement is really an Agreement of being out of compliance with Washington State law. It is a CITATION without explanation. Protect yourself from future licensing actions. The department can use the signed FLICA as evidence against you…as evidence of your unwillingness to comply with the laws of Washington State. WAC is an acronym for Washington Administrative Codes. Administrative codes are the regulations to enforce RCW. RCW is the acronym for Revised Code of Washington, which are our State's law.

A citation by any other name is deceptive. Know it for what it is.

Facility
Licensing
Citation
Action

We hope the readers of this posting will be as outraged as we are.

We facilitated a 4 hour STARS Training in Zillah March 4, 2006 with SEIU and WSFCCA to discuss changes in WAC and how to remain in compliance. The training quickly turned into informing Providers of their rights. Maria-Consuelo Lopez - VP from WSFCCA and Maggie from SEIU translated when necessary. Fifty-six Providers attended from Toppenish, Granger, Zillah, Mabton, Yakima, Pasco, Sunnyside, Grandview, and Prosser. The abuses the Providers in these areas are enduring is outrageous. We have developed a complaint form for Providers to submit to DCCEL, Legislators and to us when licensors exhibit unprofessional conduct and attempt to go outside their jurisdiction. We will be posting the complaint form on the APRE web site. The State of Washington is mandated to investigate allegations of employee misconduct. Rachael Langen, the current director of DCCEL, has written that she takes allegations of employee misconduct very seriously. Lets find out just how seriously she in fact does take allegations of misconduct by her staff.

The following abuses are being reported. DCCEL licensors and supervisors have no legal authority to impose the following:

WAC 170-296-0020 gives the definition of a Facility Licensing Compliance Agreement as "Facility licensing compliance agreement" means a written notice of rule violations and the intention to initiate enforcement, including a corrective action plan.

WAC 170-296-0370 reads: How does the department notify me if I am in violation of the licensing rules and what am I required to do?

If you are in violation of the licensing rules we issue a notice to you called a facility licensing compliance agreement.
   (1) You are required, with technical assistance from your licensor if you request it, to write a
         corrective action plan stating:
         (a) How you plan to correct the violations; and
         (b) When the violations will be corrected.
   (2) You must:
         (a) Sign the agreement;
         (b) Return a copy of the completed agreement to us; and
         (c) Comply with the agreement.

If you refuse to sign the FLICA the Department can fine you $75.00 a day for each day of refusal.

In the event that you need time to come up with a plan of correction and/or do not agree that you are out of compliance with the WACs cited by your licensor, you can write on the FLICA that you are signing for receipt of the FLICA but deny the violations and request a Supervisory Review. The licensors are to provide you with the Supervisory Review form when they issue a FLICA . Not all of them do.

There is also the issue of some licensors giving Providers a very short time to implement the plan of correction on an issue that requires a financial investment and or the hiring of an outside contractor. If you are uncomfortable with the time frame or the plan of correction, sign the FLICA only as acknowledging receipt and make a notation that you ae requesting a Supervisory Review.

Notes of interest:

There has been an increase in adverse licensing actions against family childcare Providers for failure to report. There has also been an increase in adverse licensing actions against licensed childcare Providers as a result of self-reporting. These licensing actions come in the form of licenses being revoked and licenses being summarily suspended.

There have been reports that licensors are 'teaching' Providers at orientation meetings that Providers must report any injury to a child enrolled in their childcare's whether the injury occurred at the childcare or not. It is being reported that licensors are holding Providers accountable for reporting any/all illnesses or hospitalization and even deaths of an enrolled child even when the reason for such illness/death or hospitalization occurred away from the childcare. Does the WAC support such teaching? Was it the legislators intent that Providers report what goes on outside of the childcare setting other than suspected abuse and or neglect?

The danger of self-reporting is that the current information system does not allow for information only. A self-report from a Provider more often than not results in a referral. Every referral must be investigated often resulting in the immediate closure of a child care.

If you are faced with this dilemma you can refer to the current WAC governing Washington State Providers. By law, licensors and their supervisors may only require the licensee to follow WAC requirements. Those requirements are being interpreted differently in different areas of the State, differently by the same licensor to different Providers. Stay pro-active on this one. It is dangerous.

WAC 170-296-1340 What incidents involving children must I report?

   (1) You or your staff must report any of the following incidents immediately to your local
         children's administration intake staff, and your licensor:
         (a) Suspected child abuse, neglect or exploitation;
         (b) Death of a child;
         (c) Child's suicide attempt;
         (d) Use of physical restraint that is alleged to be improper, excessive, or results in injury;
         (e) Sexual contact between two or more children;
         (f) Disclosures of sexual or physical abuse by a child in care;
         (g) Injury requiring professional medical treatment;
         (h) Unexpected or emergent health problems that require off-site professional
               medical treatment
         (i) Medication that is given incorrectly.

   (2) You or your staff must report immediately, any of the following incidents to the child's
         parent or legal guardian:
         (a) Suicidal or homicidal ideation, gestures, or attempts;
         (b) Unexpected health problems;
         (c) Any incident of medication administered incorrectly;
         (d) Physical assaults that resulted in injury;
         (e) Runaways;
         (f) Missing children; and
         (g) Use of physical restraints for routine behavior management.

The next viewpoint submission was written to those persons in attendance at the 2/9/05 House Children and Family Services Committee/Workshop. If you have not had the opportunity to listen yet, it is worth the time to listen to what Ms. Langen has to say. Go to http://www.tvw.org. At the top left click on "audio & video." Then go to "archives." Then "House Committees 2005." Then "Child and Family Services"

APRE, Advocates for Provider Rights and Education reviewed the tape of the House Children and Family Services committee meeting held on February 9, 2005. We have comments to submit on issues addressed during the meeting in addition to the comments made in this email. For the purposes of this email we want to address the following:

It is troublesome that Rachael Langen, Director of Division of Child Care and Early Learning (DCCEL), does not appear to have a working knowledge of the Washington Administrative Code governing the State's Family Home Childcare Providers.

Ms. Langen stated that there was not a WAC which cites that a person could lose their license if anyone residing in the home has had their own license suspended, denied or revoked. For your information, and as well as Ms. Langen's, we have included the WAC which states otherwise.

WAC 170-296-0450 reads;
(2) We must deny, suspend or revoke your license if you:
(d) Or anyone residing at the same address as you had a license denied or revoked by an agency that provided care to children or vulnerable adults.

Our organization has had phone conversations and email dialog over this very issue with Ms. Langen on several occasions. Our organization has also submitted WAC amendments addressing this very serious issue.

Ms. Langen also stated that her division does not revoke licenses due to bookkeeping issues unless there is an allegation of fraud. She is correct in that statement; her agency attaches an allegation of fraud if there is a revocation as a result of a billing error. It is our position that the allegation of fraud is woven into the revocation to give support to the revocation.

Administrative Law Judges do not have the authority or discretion to place "severity" on a WAC violation. That is to say, a WAC violation is a WAC violation. The WAC reads if a Provider is repeatedly out of compliance with any WAC, the Division has the discretionary authority to revoke. Revocation does not have to meet a factual basis of risk to children. WAC 170-296-0460 Are there any other reasons that could potentially cause me to lose my license? (2) Repeatedly fail to comply with the licensing requirements set forth in this chapter or any provision of chapter 74.15 RCW

As an organization that represents Child Care Providers in Administrative Hearings we have documents to support that the Department's definition of "repeatedly" is any WAC broken more than once over any period of time, and in many cases decades in between violations, has been cited as discretionary grounds to revoke.

Newly appointed licensing policy administrator Joel Roalkvan's statement that character assessments of Providers is limited to background checks is incorrect. Our organization would support and embrace that statement if only it were accurate. We have submitted WAC amendments suggesting that character assessment be limited to those disqualifying factors listed on the ESA disqualifying list and disqualifying factors identified on background checks. As an example, we represented a Provider this week at an Administrative Hearing where the Provider's character was questioned because she did not practice what the Department determined was best practice in regards to termination notice of one of her client/families. The department's testimony was that the Provider was to accommodate the client's needs even if those needs were inconvenient for the Provider. Since the Provider inconvenienced a former client the Provider was found to be out of compliance with a business practice WAC and deemed to have questionable character.

Once a license is revoked there is no differentiation as to the reason for the revocation. The ramifications and consequences for a Provider having had a license revoked for a business practice is the same as if the license had been revoked for an assault against a child. This is a huge problem for Washington State. Citizens who might otherwise embrace licensure are embracing other careers or are finding license exempt methods of caring for children. For the most part these alternatives do not involve childcare subsidies by federal or state monies, creating a decline in available quality subsidized childcare.

RCW 74.15 is a good and necessary law. The Washington Administrative Code, 170-296 developed by DSHS to administrate that good and necessary law is flawed beyond repair. The intent of legislators could not have included or anticipated the official misconduct or abuse of power by the Division of Child Care and Early Learning. An agency or entity other than DCCEL should write the WACs that both Provider and DCCEL are accountable to.

An Opening Statement defending a former Provider's right to baby-sit.
Edited to provide the appellant anonymity.

Even though the issue being addressed at this Hearing concerns a $5,850.00 civil penalty against a former child care Provider for allegedly engaging in a business requiring a Division of Child Care and Early Learning license, the core issue is the parental right to choose the type of childcare best suiting the needs of their family; in this case, the rights of Washington State's citizens to choose friends to baby-sit their children.

The Department has assessed civil penalties against Washington State citizens under the authority of RCW 74. RCW 74's purpose and intent is to provide for the public welfare by making available state and federal funds to achieve such intent. It was not the intent of the Legislators to mandate all parents to place their children in licensed childcare or that Washington State should incur the cost of all childcare. It was not the Legislative intent to bring all parents requiring childcare under the control of the State. It further was not the intent of the Legislators that any person, who at some point in time agreed to be licensed by the State, remain under the jurisdiction of the State indefinitely.

We assert that it is the Legislature's intent that childcare is the parent's responsibility and that government will only participate in that responsibility if a parent accepts or is ordered to accept public assistance. The legislative decision, which excludes FFN Providers from State licensing requirements, was deliberate. Current law, under RCW 74, reflects State policy and intent. Clearly our Legislators recognize that the choice of childcare arrangement should be left exclusively to parents and the State should not be involved in childcare decisions.

It is an absurd proposition to suggest that it was Washington Legislator's intent that every child under the age of 11, with working parents, be placed in a licensed daycare. If such intent did exist Washington State would be eliminating the natural rights of parents, given to them under our Constitution.

Washington State families who choose childcare from a family member, friend or neighbor, who was once a licensed child care Provider, benefit by connecting their children to people they know, trust and support their family values and well as connect their children to a care giver who has received training in safety and heath and early childcare education. FFN Providers offer a familiarity to the family that an unknown licensed Provider cannot offer. "Seasoned" childcare Providers have received years of mandated trainings as well as hands on experience making them an attractive first choice over a newly licensed inexperienced Provider. Providers and former Providers nearing or surpassing the age of retirement, offer Washington State families a childcare choice, which also fills the need for third generation contact for a child who might otherwise not have contact with a grandparent. It was not the Legislatures intent, under RCW 74, (or any RCW) to regulate this segment of the population prohibiting them from babysitting the children of friends.

The December 8, 2003 Child Care Coordinating Committee with attending member, Rachael Langen, Director Division of Child Care and Early Learning (DCCEL), references the Department's involvement with "Sparking Connections" defining FFN care as a regularly occurring, non parental unlicensed choice of care (paid or unpaid). DSHS's Child Care Coordinating Committee, May 10, 2002, differentiates between FFN care and unlicensed care. FFN Providers and Licensed Providers are not mutually exclusive of each other. Some FFN Providers choose licensure allowing them the benefits afforded under RCW 74. The benefits to Providers include, but are not limited to, child care subsidy payments, Federal Food monies, Stars and TEACH scholarships, and business start up grants.

DSHS/DCCEL is involved in Project Lift Off Opportunity Fund for Family Friends and Neighbors. The Department is also involved in Project Lift Off Child Care A Countywide Collaboration, Enhancement of FFN care. DCCEL is participating in the $300,000 funding for outreach to Washington State's FFN caregivers sponsored by the University of Washington, although accounting of related outreach monies could not be identified.

The Division of Child Care and Early Learning (DCCEL) recognizes childcare provided by Family, Friends, and Neighbors (FFN) as a legitimate legal form of childcare. The Understanding Family Friend, and Neighbor Care in Washington State project completed by the Human Services Policy Center Evans School of Public Affairs University Of Washington was initiated and funded by DSHS/Division of Child Care and Early Learning. Rachael Langen, Director DCCEL, supported and guided the project in 2002. The report estimates that FFN Providers care for an average of 2 children and earn an average hourly wage of $4.22 per child. FNN Providers work an average of a 30 hour week. An estimated 295,000 FFN childcare Providers are identified in the report. FFN Providers do not solicit for business, entice strangers to enter into a contractual agreement or make themselves subject to anyone's schedule other than their own. Washington State to provide subsidized childcare nor do they contract with any other State or Federal Program. Under our constitutional rights, specifically the 10th Amendment, Washington State citizens have the right to have friends baby-sit their children.

RCW 74.15.125
Probationary licenses.

The words "may issue" are important.
The department "may issue" only after you agree.

(1) The department may issue (only after you consent) probationary license to a licensee who has had a license but is temporarily unable to comply with a rule or has been the subject of multiple complaints or concerns about noncompliance if:

RCW 42.30.010.The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.