SECTION 340:110-1-9.3. Non-compliance with requirements

(a)   Non-compliance documentation. Licensing staff clearly and concisely documents areas of non-compliance on the monitoring checklist and summary, including operator discussion.

(1)   A plan of correction, including a specific agreed-on time period for non-compliance correction is documented on the monitoring summary. When a previous non-compliance was not corrected by the agreed-on time period, the non-compliance is documented again with a shorter plan of correction date.

(2)   Immediate correction is required when the non-compliance directly impacts children's health, safety, or well-being.

(3)   Licensing staff requests the operator's signature on the monitoring summary, explaining the signature indicates acknowledgment of recorded information.

(4)   When the operator or individual in charge refuses to sign, the refusal is documented on the monitoring summary.

(5)   The operator is provided a monitoring summary copy.

(6)   Timeframes for filing a grievance are provided on the monitoring summary. Refer to grievance procedures, per Oklahoma Administrative Code (OAC) 340:110-1-15.

(b)   Referrals to fire and health officials. When non-compliance regarding fire or health requirements places children at risk or remains uncorrected, Licensing staff requests an inspection by a fire, health, or Oklahoma Department of Environmental Quality official. When there is non-compliance regarding smoke detectors, the child care provider is provided a copy of the Smoke Detector Law, Section 324.11A of Title 74 of the Oklahoma Statutes (74 O.S. § 324.11A). When the non-compliance is not corrected by the third monitoring visit or is repeated, copies of the monitoring summaries are provided with a cover letter to the appropriate fire official.

(c)   Numerous, repeated, and serious non-compliance.

(1)   Numerous non-compliance is monitoring visits with:

(A)   five or more Licensing requirement sections documented as non-compliant on the monitoring checklist for a family child care home or large child care home;

(B)   six or more Licensing requirement sections documented as non-compliant on the monitoring checklist for a child care center, day camp, drop-in, out-of-school time, part-day program, or program for sick children with a licensed capacity of less than 60; or

(C)   seven or more Licensing requirement sections for a child care center, day camp, drop-in, out-of-school time, part-day program, or program for sick children with a licensed capacity of 60 or more.

(2)   Repeated non-compliance is three or more documented incidents of non-compliance with the same requirement within the last 12 months. Missing immunizations are considered a repeated non-compliance when regarding the same child.

(3)   Serious non-compliance is non-compliance with Licensing requirements exposing children to conditions presenting an imminent risk of harm based on the child's age, the amount of time the operator was out of compliance, and the operator's efforts to mitigate the risk. Serious non-compliance is identified through Licensing observations, confirmed complaint investigations, and/or self-reported incidences. Failure to comply with licensing requirements that may be considered as serious non-compliance include:

(A)   staff-child ratio;

(B)   child supervision;

(C)   infant sleep environments and safe-sleep training;

(D)   prohibited disciplinary actions;

(E)   licensed capacity;

(F)   transportation;

(G)   water activities;

(H)   pools and other water hazards;

(I)   multiple hazards;

(J)   weapons;

(K)   failure to report child abuse or human trafficking;

(L)   knowingly permitting access to children by individuals identified as restricted or Restricted Registry registrants;

(M)   failure to obtain background investigations or Restricted Registry searches;

(N)   medication administration;

(O)   room temperatures;

(P)   heat sources and/or loss of any utility service; and

(Q)   cardio-pulmonary resuscitation and first aid training.

(d)   Case management responses to non-compliant facilities. One or more responses in this subsection are used when there is numerous, repeated, or serious non-compliance.

(1)   Technical assistance. Licensing staff offers technical assistance, including referrals to consultants or professional development resources, assisting the operator in meeting and maintaining Licensing requirements.

(2)   Follow-up phone call to the program. Phone calls are documented on Form 07LC080E, Licensing Services Supplemental Information, and a copy provided to the program.

(3)   Non-compliance letters. A non-compliance letter may be written to the operator. Licensing staff provides a monitoring summary copy with the non-compliance letter to the owner or registered agent, when applicable.

(4)   Return monitoring visit. A return monitoring visit may be conducted when there is numerous, repeated, or serious non-compliance with Licensing requirements or when non-compliance places children at imminent risk of harm. When the non-compliance is associated with a specific time of day, such as understaffing after school or a lack of early morning supervision, the return monitoring visit is conducted at the approximate time.

(5)   Use of witnesses. A witness may accompany Licensing staff when the program had numerous, repeated, or serious non-compliance or is considered for request for license denial or license revocation. The witness may be an Oklahoma Department of Human Services (DHS) employee or a representative from the health or fire department, or law enforcement. The witness signs the monitoring summary.

(6)   Increased monitoring visits. Licensing staff may increase monitoring frequency plans when there were numerous, repeated, or serious non-compliance or when the need for additional technical assistance is indicated.

(7)   Notice to comply. Licensing staff provides the operator with Form 07LC037E, Notice to Comply, and the operator documents the plan of correction. Immediate correction may be required when the non-compliance places children's health, safety, or well-being at risk.

(A)   When the plan submitted is unacceptable to Licensing staff, Licensing staff negotiates a revised plan, and requests resubmission within 10-calendar days.

(B)   When Form 07LC037E, Notice to Comply, is not submitted within the specified time period, Licensing staff contacts the operator and documents the conversation.

(C)   When non-compliances continue to place children at risk, Licensing staff provides a letter stating the non-compliances and/or continued failure to correct non-compliances may result in request for license denial, license revocation, filing of an injunction, or Emergency Order.

(8)   Office conference. Licensing staff may schedule an office conference with the owner and/or operator. The Licensing supervisor is present at the office conference. The regional programs manager (RPM) is informed of the office conference and may be present, when necessary.

(A)   Program status, areas of non-compliance and progress toward meeting the plan(s) of correction are reviewed and technical assistance is offered.

(B)   The office conference is documented on Form 07LC080E, Licensing Services Supplemental Information, and is signed by Licensing staff, the operator, and witnesses. This documentation includes a list of individuals present, conference purpose, and re-verification of ownership documentation.

(C)   Form 07LC037E, Notice to Comply, is completed when one addressing these issues was not previously completed.

(9)   Consent agreement. Child Care Services (CCS) and the program owner may enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-9.5.

(10)   Revocation or denial. Licensing staff may recommend the request for license be denied or license revoked when numerous, repeated, or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-10.

(11)   Voluntary cease care. With CCS State Office approval, the owner is asked to voluntarily cease caring for children. The RPM is notified of every situation involving a request for voluntary cease care.

(12)   Voluntary closure. With CCS State Office approval, the owner is asked to voluntarily close the facility, per OAC 340:110-1-11.

(e)   Case management responses when children are at risk. When Licensing staff documents non-compliance with requirements or is investigating a complaint that may place children's health, safety, or well-being at imminent risk of harm, options to consider with the operator and licensing supervisor are outlined in this subsection.

(1)   The operator is asked to immediately correct the non-compliance, such as, program personnel will not be present or work alone with children at the facility pending the outcome of an investigation.

(2)   With CCS State Office approval, the owner is asked to voluntarily cease child care until the non-compliance is corrected or the investigation is complete.

(3)   With CCS State Office approval, the owner is asked to voluntarily close the facility.

(4)   When immediate action is needed to protect children, Licensing staff requests an Emergency Order, per OAC 340:110-1-9.4.

(5)   The owner and CCS agrees to enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-9.5.

(6)   Licensing staff may recommend the request for license be denied or license be revoked when numerous, repeated, or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-10.

(7)   An injunction may be requested when a child care program is:

(A)   unlicensed;

(B)   on request for license status;

(C)   licensed;

(D)   violating an Emergency Order;

(E)   operating during an appeal following request for license denial or license revocation and children are at risk; or

(F)   violating the notice to cease and desist care following request for license denial or license revocation.

(f)   Notification to supervisor when children are at risk. During a monitoring visit when Licensing staff is concerned children's health, safety, or well-being is at imminent risk, the Licensing supervisor or CCS State Office staff is contacted immediately.

(g)   Alternative method of compliance. CCS may approve an alternative method of compliance to a minimum Licensing requirement. An alternative method of compliance may be authorized when Licensing determines the alternative method of compliance offers equal protection of children's health, safety, and well-being, meets the requirement's basic intent for the requested alternative compliance, and does not violate statutory requirements.

(1)   An applicant or licensee submits a written request with supporting documentation on Form 07LC061E, Alternative Compliance Request, to Licensing staff. A separate alternative method of compliance request is submitted for each requirement identified.

(2)   Licensing staff completes Form 07LC105E, Alternative Compliance Referral, and submits all documentation to the statewide licensing coordinator or designee.

(3)   Approval of an alternative method of compliance does not set a precedent, and is independently evaluated on the merits of each request.

(4)   The program's compliance record is considered when determining approval.

(5)   An alternative method of compliance is not authorized for requirements affecting children's health and safety, such as exceeding licensed capacity or staff-child ratios, fire safety, or behavior and guidance.

(6)   Form 07LC075E, Notice of Alternative Compliance, stating the nature of the exception, is posted with the license.

[Source: Added at 13 Ok Reg 499, eff 11-14-95 (emergency); Added at 13 Ok Reg 2663, eff 6-28-96; Amended at 16 Ok Reg 2527, eff 7-1-99; Amended at 18 Ok Reg 2144, eff 6-11-01; Amended at 19 Ok Reg 221, eff 11-1-01 (emergency); Amended at 19 Ok Reg 2274, eff 6-27-02; Amended at 20 Ok Reg 1259, eff 6-1-03; Amended at 21 Ok Reg 910, eff 6-1-04; Amended at 22 Ok Reg 1304, eff 6-1-05; Amended at 23 Ok Reg 1092, eff 6-1-06; Amended at 24 Ok Reg 1351, eff 7-1-07; Amended at 25 Ok Reg 1962, eff 7-1-08; Amended at 26 Ok Reg 415, eff 11-20-08 (emergency); Amended at 26 Ok Reg 2239, eff 7-1-09; Amended at 27 Ok Reg 1869, eff 7-1-10; Amended at 28 Ok Reg 1669, eff 7-1-11; Amended at 29 Ok Reg 1229, eff 7-1-12; Amended at 30 Ok Reg 1376, eff 7-1-13; Amended at 34 Ok Reg 1640, eff 9-15-17; Amended at 36 Ok Reg 1907, eff 11-1-19]