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April 2, 2001
TO: Child Placing Agencies and Juvenile Courts Which Certify Foster Homes for Licensure
SUBJECT: The Bureau of Regulatory Services? New Adverse Action Process
EFFECTIVE DATE: Upon receipt or as stated
In January 2001, the Bureau of Regulatory Services redesigned its process for taking adverse actions. This change was necessitated by the fact that the previous procedure was not in compliance with the Administrative Procedures Act (APA) due process requirements. Additionally, my review of the practices of the Divisions of Adult Foster Care Licensing, Child Day Care Licensing and Child Welfare Licensing revealed a far-too-prevalent practice of allowing a licensee?s voluntary closure or an applicant?s withdrawal of application, when there was substantiated rule non-compliance at the time of the closure action. The objective of the Bureau?s new adverse action process is two-fold: 1.) To bring the process into compliance with the APA, particularly as to the licensee?s right to a compliance conference after a notice of intent is issued; and 2.) To maintain the integrity of the regulatory process, by no longer allowing a license to be ?closed in lieu of adverse action?.
There is a third objective, which applies specifically to a child placing agency?s role in adverse actions brought against foster homes. Because the Bureau, and not the child placing agency, brings an adverse action, Bureau staff, rather than that of the child placing agency, will be conducting the compliance conference. Further, the previous practice of leaving the child placing agency staff in the position of defending the Bureau?s notice of intent at an administrative hearing was an improper burden on child placing agencies. In most cases, the child placing agency staff is a necessary witness to the action. Placing them in the dual positions of witness and case presenter also creates a potential conflict for them in the rare instances where the child placing agency does not agree with the Bureau?s action. Therefore, unless an assistant attorney general represents the Bureau, Bureau staff will present the case.
A. Complaint and Investigation Process
1. Child placing agency (CPA) becomes aware of alleged rule noncompliance.
2. Pursuant to R 400.12316(1)(a), CPA completes the top portion of the Special Investigation Record (BRS-259) and submits it to their assigned CWL licensing consultant within 5 working days.
3. CWL licensing consultant enters BRS-259 on computer.
4. Pursuant to R 400.12316(1)(b), CPA initiates the special evaluation of the foster home within 7 calendar days after receipt.
5. Pursuant to R 400.12316(3), CPA completes their evaluation within 45 calendar days after receipt of information, and prepares a report.
6. CPA completes bottom of BRS-259 and submits to CWL licensing consultant.
7. CWL licensing consultant enters BRS-259 on computer.
8. Pursuant to R 400.12316(6)(a), CPA presents a copy of the special evaluation to the licensee within 10 calendar days after the report is completed.
B. POST-REPORT Process BASED ON Agency?s Recommendation:
1. Regular Licensure Continues - [R 400.12314(3)] - If non-compliance is determined, but is not serious and the licensee presents an acceptable Corrective Action Plan (CAP) addressing the non-compliance, the regular license may continue.
2. Provisional Licenses ? [R 400.12314(4)] - The process has not changed the handling of provisional licenses, where an acceptable Corrective Action Plan can be acquired through consensus between the child placing agency and the licensee. CPA forwards Licensing Transaction Record (BRS-3706) requesting provisional action, with a copy of the CAP signed by all licensees and the agency, to field CWL consultant.
3. IF SIGNIFICANT NON-COMPLIANCE WAS FOUND AND THE AGENCY?S RECOMMENDATION IS NEITHER ?1? NOR ?2? ABOVE, THE MATTER MAY NO LONGER BE RESOLVED BY ANY OF THE FOLLOWING ACTIONS:
a. Withdrawal in lieu of adverse action
b. Closed in lieu of adverse action
c. ?Lack of response? or ?loss of interest?
** If in the course of investigating non-compliance, the licensee indicates they would rather voluntarily close (or, in the case of an applicant, withdraw), than cooperate with the investigation, they are to be informed that this is not an option. The CPA then handles the action as a revocation or denial of issuance. The licensee or applicant may then demonstrate their desire to close or withdraw by simply not appealing or contesting the Bureau?s notice of intent when it is issued.
4. Revocation/Refusal to Renew/Denial of Issuance Process
[R 400.12314(5)]
a. CPA provides licensee with a copy of the special evaluation report. The special evaluation report to the licensee is to be accompanied by a cover letter, which states the agency?s recommendation and informs the licensee that the report is being submitted to the Bureau of Regulatory Services for further action. (See sample letter attached.)
b. Pursuant to R 400.12316(6)(b), the report or cover letter must advise the licensees that they have a right to prepare a written response and have it attached to the special evaluation report. Any response from the licensee is also to be forwarded to CWL Central Office.
c. The CPA is no longer required to meet with the licensee after the special evaluation report is forwarded to them. CWL Central Office will schedule a compliance conference. The CPA worker will be expected to attend the compliance conference.
d. CPA forwards the following to CWL Central Office:1. BRS-3706 requesting revocation, refusal to renew or denial of issuance.2. Copy of Special Evaluation Report signed by licensing worker and supervisor, with a copy of the cover letter sent to the licensee.3. Copy of any supporting documentation to Special Evaluation Report, such as: Protective Services report, police report, medical reports, psychological evaluation, previous Corrective Action Plans (if referred to in the report), etc.4. Copy of BRS-259 (turn-around, if available)
C. COMPLAINT PROCESS
1. CWL Central Office staff review CPA report and recommendation and prepare the appropriate Notice of Intent ? e.g. Denial of Issuance, Revocation, or Refusal to Renew ? for Bureau Director?s signature
2. CWL staff set date and location of a Compliance Conference
The Administrative Procedures Act requires this conference. It is the licensee?s due process opportunity to show compliance. The licensee may waive the right to this conference and proceed directly to hearing. Unless cancelled at the licensee?s request or written agreement, the conference will take place and the child placing agency staff must be present to factually respond to the licensee?s presentation. This is also an opportunity for discussion of resolving the matter short of hearing. This resolution may be for the licensee to accept a provisional license and provide a CAP. It might also be for the licensee to agree, in writing, to not contest the Bureau?s action. Any proposed settlement resulting from the compliance conference must then be presented to the Bureau Director for final decision. The attendees at the conference are:
§ CWL Area Manager and/or Division Director§ CPA staff person who has the most direct knowledge of the matter being charged (The licensing supervisor may also attend, if they choose)§ Licensees
3. Licensees must answer the Notice, in writing, within 30 days or the Bureau?s action will be finalized.
4. If resolution is not reached, the Notice is forwarded to the Bureau of Hearings for an administrative hearing. The CPA submits a list of necessary witnesses and records for proving a contested case. CWL staff prepare subpoenas.
D. HEARING PROCESS
The Bureau of Hearings sets the date and location of administrative hearing. If the licensees have an attorney, CWL will request an assistant attorney general to present the Bureau?s case. If the licensees appear without an attorney, a CWL staff will present the Bureau?s case.
The Division of Child Welfare Licensing has already begun preparing Notices of Intent under the above-described process. Compliance conferences are being scheduled approximately 45 days after the date the Notice is mailed. This will allow us to see if the licensee answers the action, in writing, within 30 days of receiving the Notice by certified mail. If the licensee does not respond to the Notice in writing, within this time frame, the Notice is final and the compliance conference will be cancelled. This is the licensee?s opportunity to agree to the action by not responding to contest the action.
If you have any questions about Child Placing Agency Letter #2001-02, please call your Child Welfare Licensing Consultant or the Child Foster Home Licensing Unit at (517) 335-6108.
Sincerely,
Carole Hakala Engle, Director
Bureau of Regulatory Services
Attachment
CERTIFYING AGENCY LETTERHEAD
DATE
NAME
ADDRESS
RE: Licensee Number
License Number
Dear
A(n) (initial evaluation, renewal evaluation, special evaluation) of your foster home was completed on (date). A copy of the report that summarizes the findings of the (initial evaluation, renewal evaluation, special evaluation) is attached to this letter. Based on the findings, we are recommending to the Department of Consumer and Industry Services that your foster home license be (denied, revoked, or not be renewed).
If the Department of Consumer and Industry Services supports our recommendation, you will be notified of any right to appeal the decision by the Department of Consumer and Industry Services.
You have the right to have your written response included as an attachment to the report identified above. Please forward a copy of any written response to (name of certification supervisor) at (agency name and address.)
Sincerely