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[Utah Code Table of Contents]
[TITLE 26. Table of Contents]
26-39-101 Title.
This chapter is known as the "Utah Child Care Licensing
Act."
1997
26-39-102 Definitions.
As used in this chapter:
(1) "Child" means:
(a) a child of a person other than the provider of child care;
(b) a child of a licensed or certified residential child care provider who is under the age of four; and
(c) a child of an employee or owner of a licensed child care center who is under the age of four.
(2) "Child care" means continuous care and supervision of five or more children through age 12 and children with disabilities through age 18, in lieu of care ordinarily provided by parents in their own home, for less than 24 hours a day, for direct or indirect compensation.
(3) "Child care program" means a child care facility or program operated by a person who holds a license issued in accordance with this chapter.
(4) "Residential child care" means child care provided
in the home of a provider.
2003
26-39-103 Child Care Licensing Advisory Committee.
(1) There is established the Child Care Licensing Advisory Committee to advise the department on rules promulgated by the department pursuant to this chapter. It shall be composed of the following 13 members who shall be appointed by the executive director:
(a) two child care consumers;
(b) two licensed residential child care providers;
(c) one certified residential child care provider;
(d) five representatives of licensed child care center programs;
(e) one individual with expertise in early childhood development; and
(f) two health care providers.
(2) Appointments shall be for four-year terms, except for those members who have been appointed to complete an unexpired term. Appointments and reappointments may be staggered so that 1/4 of the committee changes each year. The committee shall annually elect a chairman from its membership.
(3) The advisory committee shall meet at least quarterly, or more frequently as determined by the executive director, the chairman, or three or more members of the committee. Seven members constitute a quorum and a vote of the majority of the members present constitutes an action of the committee.
(4) Advisory committee members shall be reimbursed for
their actual and necessary expenses incurred in the performance
of their duties as established by the director of the Division
of Finance, pursuant to Section
63A-3-107
. Advisory committee members may decline reimbursement.
1999
26-39-104 Duties of the department.
(1) With regard to child care programs licensed under this chapter, the department may:
(a) make and enforce rules to implement this chapter and, as necessary to protect children's common needs for a safe and healthy environment, to provide for:
(i) adequate facilities and equipment; and
(ii) competent caregivers considering the age of the children and the type of program offered by the licensee;
(b) make and enforce rules necessary to carry out the purposes of this chapter, in the following areas:
(i) requirements for applications, the application process, and compliance with other applicable statutes and rules;
(ii) documentation and policies and procedures that providers shall have in place in order to be licensed, in accordance with Subsection (1)(a);
(iii) categories, classifications, and duration of initial and ongoing licenses;
(iv) changes of ownership or name, changes in licensure status, and changes in operational status;
(v) license expiration and renewal, contents, and posting requirements;
(vi) procedures for inspections, complaint resolution, disciplinary actions, and other procedural measures to encourage and assure compliance with statute and rule; and
(vii) guidelines necessary to assure consistency and appropriateness in the regulation and discipline of licensees; and
(c) set and collect licensing and other fees in accordance with Section 26-1-6 .
(2) (a) The department may not regulate educational curricula, academic methods, or the educational philosophy or approach of the provider.
(b) The department shall allow for a broad range of educational training and academic background in certification or qualification of child day care directors.
(3) In licensing and regulating child care programs, the department shall reasonably balance the benefits and burdens of each regulation and, by rule, provide for a range of licensure, depending upon the needs and different levels and types of child care provided.
(4) Notwithstanding the definition of "child" in Subsection 26-39-102 (1), the department shall count children through age 12 and children with disabilities through age 18 toward the minimum square footage requirement for indoor and outdoor areas, including the child of:
(a) a licensed residential child care provider; or
(b) an owner or employee of a licensed child care center.
(5) Notwithstanding Subsection (1)(a)(i), the department may not exclude floor space used for furniture, fixtures, or equipment from the minimum square footage requirement for indoor and outdoor areas if the furniture, fixture, or equipment is used:
(a) by children;
(b) for the care of children; or
(c) to store classroom materials.
(6) (a) A child care center constructed prior to January 1, 2004, and licensed and operated as a child care center continuously since January 1, 2004, is exempt from the department for group size restrictions, if the child to caregiver ratios are maintained, and adequate square footage is maintained for specific classrooms.
(b) An exemption granted under Subsection (6)(a) is transferrable to subsequent licensed operators at the center if a licensed child care center is continuously maintained at the center.
(7) The department shall develop, by rule, a five-year
phased-in compliance schedule for playground equipment safety
standards.
2006
26-39-105 Licensure requirements - Expiration - Renewal.
(1) Except as provided in Section 26-39-106 , a person shall be licensed or certified in accordance with this chapter if he:
(a) provides or offers child care; or
(b) provides care to children and requests to be licensed.
(2) The department may issue licenses for a period not exceeding 24 months to child care providers who meet the requirements of this chapter and the department's rules governing child care programs.
(3) A license issued under this chapter is not assignable
or transferable.
2006
26-39-105.5 Residential child care certificate.
(1) (a) A residential child care provider of five to eight children shall obtain a Residential Child Care Certificate from the department unless Section 26-39-106 applies.
(b) The minimum qualifications for a Residential Child Care Certificate are:
(i) the submission of:
(A) an application in the form prescribed by the department;
(B) a certification and criminal background fee established in accordance with Section 26-1-6 ; and
(C) in accordance with Section 26-39-107 , identifying information for each adult person and each juvenile age 12 through 17 years of age who resides in the provider's home:
(I) for processing by the Department of Public Safety to determine whether any such person has been convicted of a crime;
(II) to screen for a substantiated finding of child abuse or neglect by a juvenile court; and
(III) to discover whether the person is listed in the Licensing Information System described in Section 62A-4a-1006 ;
(ii) an initial and annual inspection of the provider's home within 90 days of sending an intent to inspect notice to:
(A) check the immunization record of each child who receives child care in the provider's home;
(B) identify serious sanitation, fire, and health hazards to children; and
(C) make appropriate recommendations; and
(iii) annual training consisting of ten hours of department-approved training as specified by the department by administrative rule, including a current department-approved CPR and first aid course.
(c) If a serious sanitation, fire, or health hazard has been found during an inspection conducted pursuant to Subsection (1)(b)(ii), the department shall require corrective action for the serious hazards found and make an unannounced follow up inspection to determine compliance.
(d) In addition to an inspection conducted pursuant to Subsection (1)(b)(ii), the department may inspect the home of a residential care provider of five to eight children in response to a complaint of:
(i) child abuse or neglect;
(ii) serious health hazards in or around the provider's home; or
(iii) providing residential child care without the appropriate certificate or license.
(2) Notwithstanding this section:
(a) a license under Section 26-39-105 is required of a residential child care provider who cares for nine or more children;
(b) a certified residential child care provider may not provide care to more than two children under the age of two; and
(c) an inspection may be required of a residential child care provider in connection with a federal child care program.
(3) With respect to residential child care, the department
may only make and enforce rules necessary to implement this
section.
2006
26-39-106 Exclusions from chapter.
The provisions and requirements of this chapter do not apply to:
(1) a facility or program owned or operated by an agency of the United States government;
(2) group counseling provided by a mental health therapist, as defined in Section 58-60-102 , who is licensed to practice in this state;
(3) a health care facility licensed pursuant to Title 26, Chapter 21, Health Care Facility Licensure and Inspection Act;
(4) care provided to children by or in the homes of parents, legal guardians, grandparents, brothers, sisters, uncles, or aunts;
(5) care provided to children, in the home of the provider, for less than four hours a day or on a sporadic basis, unless that child care directly affects or is related to a business licensed in this state; or
(6) care provided as part of a course of study at or a
program administered by an educational institution that is
regulated by the boards of education of this state, a private
education institution that provides education in lieu of
that provided by the public education system, or by a parochial
education institution.
1998
26-39-107 Disqualified individuals - Criminal history checks - Payment of costs.
(1) (a) Each person requesting a residential certificate or to be licensed or to renew a license under this chapter shall submit to the department the name and other identifying information, which shall include fingerprints, of existing, new, and proposed:
(i) owners;
(ii) directors;
(iii) members of the governing body;
(iv) employees;
(v) providers of care;
(vi) volunteers, except parents of children enrolled in the programs; and
(vii) all adults residing in a residence where child care is provided.
(b) A person seeking renewal of a residential certificate or license under this section is not required to submit fingerprints of an individual referred to in Subsections (1)(a)(i) through (vi), if:
(i) the individual has resided in Utah for the last five years;
(ii) the individual has:
(A) previously submitted fingerprints under this section for a national criminal history record check; and
(B) resided in Utah continuously since that time; or
(iii) as of May 3, 1999, the individual had one of the relationships under Subsection (1)(a) with a child care provider having a residential certificate or licensed under this section and the individual has resided in Utah continuously since that time.
(c) (i) The Utah Division of Criminal Investigation and Technical Services within the Department of Public Safety shall process the information required under Subsection (1)(a) to determine whether the individual has been convicted of any crime.
(ii) The Utah Division of Criminal Investigation and Technical Services shall submit fingerprints required under Subsection (1)(a) to the FBI for a national criminal history record check.
(iii) The applicant for the license or residential certificate shall pay the cost of conducting a record check under this Subsection (1)(c).
(2) (a) Each person requesting a residential certificate or to be licensed or to renew a license under this chapter shall submit to the department the name and other identifying information of any child age 12 through 17 who resides in the residence where the child care is provided. The identifying information required for a child age 12 through 17 does not include fingerprints.
(b) The department shall access the juvenile court records to determine whether the juvenile has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or misdemeanor.
(3) Except as provided in Subsection (4), a licensee under this chapter may not permit a person who has been convicted, has pleaded no contest, or is currently subject to a plea in abeyance or diversion agreement for any felony or misdemeanor, or who has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or a misdemeanor, to:
(a) provide child care;
(b) provide volunteer services for a licensed child care program or a child care program operating under a residential child care certificate;
(c) reside at the premises where child care is provided; or
(d) function as an owner, director, or member of the governing body of a licensed child care program or a child care program operating under a residential child care certificate.
(4) (a) The department may, by rule, exempt the following from the restrictions of Subsection (3):
(i) specific misdemeanors; and
(ii) specific acts adjudicated in juvenile court, which if committed by an adult would be misdemeanors.
(b) In accordance with criteria established by rule, the
executive director may consider and exempt individual cases
involving misdemeanors, not otherwise exempt under Subsection
(4)(a) from the restrictions of Subsection (3).
2006
26-39-108 License violations - Penalties.
(1) The department may deny or revoke a license and otherwise invoke disciplinary penalties if it finds:
(a) evidence of committing or of aiding, abetting, or permitting the commission of any illegal act on the premises of the child care facility;
(b) a failure to meet the qualifications for licensure; or
(c) conduct adverse to the public health, morals, welfare, and safety of children under its care.
(2) The department may also place a department representative as a monitor in a facility, and may assess the cost of that monitoring to the facility, until the licensee has remedied the deficiencies that brought about the department action.
(3) The department may impose civil monetary penalties in accordance with Title 63, Chapter 46b, Administrative Procedures Act, if there has been a failure to comply with the provisions of this chapter, or rules promulgated pursuant to this chapter, as follows:
(a) if significant problems exist that are likely to lead to the harm of a child, the department may impose a civil penalty of $50 to $1,000 per day; and
(b) if significant problems exist that result in actual
harm to a child, the department may impose a civil penalty
of $1,050 to $5,000 per day.
1997
26-39-109 Investigations - Records.
(1) The department may conduct investigations necessary to enforce the provisions of this chapter.
(2) For purposes of this section:
(a) "Anonymous complainant" means a complainant for whom the department does not have the minimum personal identifying information necessary, including the complainant's full name, to attempt to communicate with the complainant after a complaint has been made.
(b) "Confidential complainant" means a complainant for whom the department has the minimum personal identifying information necessary, including the complainant's full name, to attempt to communicate with the complainant after a complaint has been made, but who elects under Subsection (3)(c) not to be identified to the subject of the complaint.
(c) "Subject of the complaint" means the licensee or certificate holder about whom the complainant is informing the department.
(3) (a) If the department receives a complaint about a child care program or residential child care, the department shall:
(i) solicit information from the complainant to determine whether the complaint suggests actions or conditions which could pose a serious risk to the safety or well-being of a child;
(ii) as necessary:
(A) encourage the complainant to disclose the minimum personal identifying information necessary, including the complainant's full name, for the department to attempt to subsequently communicate with the complainant;
(B) inform the complainant that the department may not investigate an anonymous complaint;
(C) inform the complainant that the identity of a confidential complainant may be withheld from the subject of a complaint only as provided in Subsection (3)(c)(ii); and
(D) inform the complainant that the department may be limited in its use of information provided by a confidential complainant, as provided in Subsection (3)(c)(ii)(B); and
(iii) inform the complainant that a person is guilty of a class B misdemeanor under Section 76-8-506 if the person gives false information to the department with a purpose of inducing a change in that person's or another person's licensing or certification status.
(b) If the complainant elects to be an anonymous complainant, or if the complaint concerns events which occurred more than six weeks before the complainant contacted the department:
(i) shall refer the information in the complaint to the Division of Child and Family Services within the Department of Human Services, law enforcement, or any other appropriate agency, if the complaint suggests actions or conditions which could pose a serious risk to the safety or well-being of a child;
(ii) may not investigate or substantiate the complaint; and
(iii) may, during a regularly scheduled annual survey, inform the licensee or certificate holder who is the subject of the complaint of allegations or concerns raised by:
(A) the anonymous complainant; or
(B) the complainant who reported events more than six weeks after the events occurred.
(c) (i) If the complainant elects to be a confidential complainant, the department shall determine whether the complainant wishes to remain confidential:
(A) only until the investigation of the complaint has been completed; or
(B) indefinitely.
(ii) (A) If the complainant elects to remain confidential only until the investigation of the complaint has been completed, the department shall disclose the name of the complainant to the subject of the complaint at the completion of the investigation, but no sooner.
(B) If the complainant elects to remain confidential indefinitely, the department:
(I) notwithstanding Subsection 63-2-201 (5)(b), may not disclose the name of the complainant, including to the subject of the complaint; and
(II) may not use information provided by the complainant to substantiate an alleged violation of state law or department rule unless the department independently corroborates the information.
(4) (a) Prior to conducting an investigation of a child care program or residential child care in response to a complaint, a department investigator shall review the complaint with the investigator's supervisor.
(b) The investigator may proceed with the investigation only if:
(i) the supervisor determines the complaint is credible;
(ii) the complaint is not from an anonymous complainant; and
(iii) prior to the investigation, the investigator informs the subject of the complaint of:
(A) except as provided in Subsection (3)(c), the name of the complainant; and
(B) except as provided in Subsection (4)(c), the substance of the complaint.
(c) An investigator is not required to inform the subject of a complaint of the substance of the complaint prior to an investigation if doing so would jeopardize the investigation. However, the investigator shall inform the subject of the complaint of the substance of the complaint as soon as doing so will no longer jeopardize the investigation.
(5) If the department is unable to substantiate a complaint, any record related to the complaint or the investigation of the complaint:
(a) shall be classified under Title 63, Chapter 2, Government Records Access and Management Act, as:
(i) a private or controlled record if appropriate under Section 63-2-302 or 63-2-303 ; or
(ii) a protected record under Section 63-2-304 ; and
(b) if disclosed in accordance with Subsection 63-2-201 (5)(b), may not identify an individual child care program, licensee, certificate holder, or complainant.
(6) Any record of the department related to a complaint
by an anonymous complainant is a protected record under Title
63, Chapter 2, Government Records Access and Management Act,
and, notwithstanding Subsection
63-2-201
(5)(b), may not be disclosed in a manner that
identifies an individual child care program, licensee, certificate
holder, or complainant.
2006
26-39-110 Offering or providing care in violation of chapter - Misdemeanor.
Notwithstanding the provisions of Title 26, Chapter 23,
Enforcement Provisions and Penalties, a person who provides
or offers child care except as provided by this chapter is
guilty of a class A misdemeanor.
1997
