Code of Virginia

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Code of Virginia
Title 22.1. Education
Chapter 14.1. Early Childhood Care and Education
12/7/2022

Article 3. Licensure.

§ 22.1-289.010. Application fees; regulations and schedules; use of fees; certain facilities, centers and agencies exempt.

The Board is authorized to adopt regulations and schedules for fees to be charged for processing applications for licenses to operate child day programs and family day systems. Such schedules shall specify minimum and maximum fees and, where appropriate, gradations based on the capacity of such facilities, centers, and agencies. Fees shall be used for the development and delivery of training for operators and staff of child day programs and family day systems. Fees shall be expended for this purpose within two fiscal years following the fiscal year in which they are collected. These fees shall not be applicable to facilities, centers, or agencies operated by federal entities.

The Board shall develop training programs for operators and staffs of licensed child day programs. Such programs shall include formal and informal training offered by institutions of higher education, state and national associations representing child care professionals, local and regional early childhood educational organizations, state agencies and other trainers designated by the Board, and licensed child care providers. Training provided to operators and staffs of licensed child day programs shall include training and information regarding shaken baby syndrome, its effects, and resources for help and support for caretakers. To the maximum extent possible, the Board shall ensure that all provider interests are represented and that no single approach to training shall be given preference.

2020, cc. 860, 861.

§ 22.1-289.011. Licenses required; issuance, expiration, and renewal; maximum number of participants or children; posting of licenses.

A. As used in this section, "person" means any individual; corporation; partnership; association; limited liability company; local government; state agency, including any department, institution, authority, instrumentality, board, or other administrative agency of the Commonwealth; or other legal or commercial entity that operates or maintains a child day program or family day system.

B. Every person who constitutes, or who operates or maintains, a child day program or family day system shall obtain the appropriate license from the Superintendent, which may be renewed. The Superintendent, upon request, shall consult with, advise, and assist any person interested in securing and maintaining any such license. Each application for a license shall be made to the Superintendent, in such form as he may prescribe. It shall contain the name and address of the applicant and, if the applicant is an association, partnership, limited liability company, or corporation, the names and addresses of its officers and agents. The application shall also contain a description of the activities proposed to be engaged in and the facilities and services to be employed, together with other pertinent information as the Superintendent may require.

C. The licenses shall be issued on forms prescribed by the Superintendent. Any two or more licenses may be issued for concurrent operation of more than one child day program or family day system, but each license shall be issued upon a separate form. Each license for a family day home or family day system and renewals thereof may be issued for periods of up to three successive years, unless sooner revoked or surrendered. Licenses issued to child day centers under this chapter shall have a duration of two years from date of issuance.

D. The Superintendent may extend or shorten the duration of licensure periods for a child day program or family day system whenever, in his sole discretion, it is administratively necessary to redistribute the workload for greater efficiency in staff utilization.

E. Each license shall indicate the maximum number of persons who may be cared for in the child day program or family day system for which it is issued.

F. The license and any other documents required by the Superintendent shall be posted in a conspicuous place on the licensed premises.

G. Every person issued a license that has not been suspended or revoked shall renew such license prior to its expiration.

2020, cc. 860, 861.

§ 22.1-289.012. Local government to report business licenses issued to child day centers and family day homes.

The commissioner of the revenue or other local business license official shall report to the Department on a semiannual basis the name, address, and contact information of any child day center or family day home to which a business license was issued.

2020, cc. 860, 861.

§ 22.1-289.013. Investigation on receipt of application.

Upon receipt of the application, the Superintendent shall cause an investigation to be made of the activities, services, and facilities of the applicant and of his character and reputation or, if the applicant is an association, partnership, limited liability company, or corporation, the character and reputation of its officers and agents, and upon receipt of the initial application, an investigation of the applicant's financial responsibility. The financial records of an applicant shall not be subject to inspection if the applicant submits an operating budget and at least one credit reference. The character and reputation investigation upon application shall include background checks pursuant to § 22.1-289.036. Records that contain confidential proprietary information furnished to the Department pursuant to this section shall be exempt from disclosure pursuant to subdivision 4 of § 2.2-3705.5.

2020, cc. 860, 861.

§ 22.1-289.014. Variances.

The Superintendent may grant a variance to a regulation when the Superintendent determines that (i) a licensee or applicant for licensure as a child day program or family day system has demonstrated that the implementation of a regulation would impose a substantial financial or programmatic hardship and (ii) the variance would not adversely affect the safety and well-being of children in care. The Superintendent shall review each allowable variance at least annually. At a minimum, this review shall address the impact of the allowable variance on persons in care, adherence by the licensee to any conditions attached, and the continuing need for the allowable variance.

2020, cc. 860, 861.

§ 22.1-289.015. Voluntary registration of family day homes; inspections; investigation upon receipt of complaint; revocation or suspension of registration.

A. Any person who maintains a family day home serving fewer than five children, exclusive of the provider's own children and any children who reside in the home, may apply for voluntary registration. An applicant for voluntary registration shall file with the Superintendent, prior to beginning any such operation and thereafter biennially, an application which shall include, but not be limited to, the following:

1. The name, address, phone number, and social security number of the person maintaining the family day home;

2. The number and ages of the children to receive care;

3. A sworn statement or affirmation in which the applicant attests to the accuracy of the information submitted to the Superintendent; and

4. Documentation that the background check requirements for registered family day homes in Article 5 (§ 22.1-289.034 et seq.) have been met.

B. The Board shall adopt regulations for voluntarily registered family day homes that include, but are not limited to:

1. The criteria and process for the approval of the certificate of registration;

2. Requirements for a self-administered health and safety guidelines evaluation checklist;

3. A schedule for fees to be paid by the providers to the contract organization or to the Department if it implements the provisions of this section for processing applications for the voluntary registration of family day homes. The charges collected shall be maintained for the purpose of recovering administrative costs incurred in processing applications and certifying such homes as eligible or registered;

4. The criteria and process for the renewal of the certificate of registration; and

5. The requirement that upon receipt of a complaint concerning a registered family day home, the Superintendent shall cause an investigation to be made, including on-site visits as he deems necessary, of the activities, services, and facilities. The person who maintains such home shall afford the Superintendent reasonable opportunity to inspect the operator's facilities and records and to interview any employees and any child or other person within his custody or control. Whenever a registered family day home is determined by the Superintendent to be in noncompliance with the regulations for voluntarily registered family day homes, the Superintendent shall give reasonable notice to the operator of the nature of the noncompliance and may thereafter revoke or suspend the registration.

C. Upon receiving the application on forms prescribed by the Superintendent, and after having determined that the home has satisfied the requirements of the regulations for voluntarily registered family day homes, the Superintendent shall issue a certificate of registration to the family day home.

D. The Superintendent shall contract in accordance with the requirements of the Virginia Public Procurement Act (§ 2.2-4300 et seq.) with qualified local agencies and community organizations to review applications and certify family day homes as eligible for registration, pursuant to the regulations for voluntarily registered family day homes. If no qualified local agencies or community organizations are available, the Superintendent shall implement the provisions of this section. For the purposes of this subsection, "qualified" means demonstrated ability to provide sound financial management and administrative services including application processing, maintenance of records and reports, technical assistance, consultation, training, monitoring, and random inspections.

E. The scope of services in contracts shall include:

1. The identification of family day homes which may meet the standards for voluntary registration provided in subsection A; and

2. A requirement that the contract organization shall provide administrative services, including, but not limited to, processing applications for the voluntary registration of family day homes; certifying such homes as eligible for registration; providing technical assistance, training and consultation with family day homes; ensuring providers' compliance with the regulations for voluntarily registered family day homes, including monitoring and random inspections; and maintaining permanent records regarding all family day homes which it may certify as eligible for registration.

F. The contract organization, upon determining that a family day home has satisfied the requirements of the regulations for voluntarily registered family day homes, shall certify the home as eligible for registration on forms prescribed by the Superintendent. The Superintendent, upon determining that certification has been properly issued, may register the family day home.

G. The provisions of this section shall not apply to any family day home located in a county, city, or town in which the governing body provides by ordinance for the regulation and licensing of persons who provide child-care services for compensation and for the regulation and licensing of child-care facilities pursuant to the provisions of § 15.2-914.

2020, cc. 860, 861.

§ 22.1-289.016. Unlicensed and unregistered family day homes; notice to parents.

Every unlicensed, unregistered family day home shall provide written notice to the parents of every child receiving care, at the time the family day home begins providing care for the child, stating that the family day home is not regulated by the Department and referring parents to a website maintained by the Department for additional information regarding licensed, registered, and unlicensed, unregistered family day homes. The provisions of this section shall not apply to an unlicensed, unregistered family day home in which all of the children receiving care are related to the provider by blood or marriage.

2020, cc. 860, 861.

§ 22.1-289.017. Compliance with Uniform Statewide Building Code.

Buildings licensed as child day programs or family day systems shall be classified by and meet the specifications for the proper Use Group as required by the Virginia Uniform Statewide Building Code.

2020, cc. 860, 861.

§ 22.1-289.018. Inspections and interviews.

A. Applicants for licensure and licensees shall at all times afford the Superintendent reasonable opportunity to inspect all of their facilities, books and records, and to interview their agents and employees and any person living or participating in such facilities, or under their custody, control, direction, or supervision. Interviews conducted pursuant to this section with persons living or participating in a facility operated by or under the custody, control, direction, or supervision of an applicant for licensure or a licensee shall be (i) authorized by the person to be interviewed or his legally authorized representative and (ii) limited to discussion of issues related to the applicant's or licensee's compliance with applicable laws and regulations, including ascertaining if assessments and reassessments of residents' cognitive and physical needs are performed as required under regulations of the Board.

B. All licensed child day programs and family day systems shall be inspected not less than twice annually, and one of those inspections shall be unannounced.

C. The activities, services, and facilities of each applicant for renewal of his license as a child day program or family day system shall be subject to an inspection or examination by the Superintendent to determine if he is in compliance with current regulations of the Board.

D. The Superintendent may authorize such other announced or unannounced inspections as the Superintendent considers appropriate.

2020, cc. 860, 861.

§ 22.1-289.019. Inspections of child day programs and family day systems; prioritization.

The Superintendent shall prioritize inspections of child day programs and family day systems in the following order: (i) inspections conducted in response to a complaint involving a licensed, registered, license-exempt, or unlicensed child day program or family day system; (ii) inspections of licensed or registered child day programs and family day systems that are not conducted in response to a complaint; (iii) inspections of license-exempt or unlicensed child day programs and family day systems that have entered into a contract with the Department or its agents or designees or a local department of social services to provide child care services funded by the Child Care and Development Block Grant, other than inspections conducted in response to a complaint; and (iv) inspections of license-exempt and unlicensed child day programs and family day systems that are not conducted in response to a complaint.

2020, cc. 860, 861.

§ 22.1-289.020. Issuance or refusal of license; notification; provisional and conditional licenses.

Upon completion of his investigation, the Superintendent shall issue an appropriate license to the applicant if (i) the applicant has made adequate provision for such activities, services, and facilities as are reasonably conducive to the welfare of the children over whom he may have control; (ii) at the time of initial application, the applicant has submitted an operating budget and at least one credit reference; (iii) he is, or the officers and agents of the applicant if it is an association, partnership, limited liability company, or corporation are, of good character and reputation; and (iv) the applicant and agents comply with the provisions of this chapter. Otherwise, the license shall be denied. Immediately upon taking final action, the Superintendent shall notify the applicant of such action.

Upon completion of the investigation for the renewal of a license, the Superintendent may issue a provisional license to any applicant if the applicant is temporarily unable to comply with all of the licensure requirements. The provisional license may be renewed, but the issuance of a provisional license and any renewals thereof shall be for no longer a period than six successive months. A copy of the provisional license shall be prominently displayed by the provider at each public entrance of the subject facility and shall be printed in a clear and legible size and style. In addition, the facility shall be required to prominently display next to the posted provisional license a notice that a description of specific violations of licensing standards to be corrected and the deadline for completion of such corrections is available for inspection at the facility and on the facility's website, if applicable.

At the discretion of the Superintendent, a conditional license may be issued to an applicant to operate a new facility in order to permit the applicant to demonstrate compliance with licensure requirements. Such conditional license may be renewed, but the issuance of a conditional license and any renewals thereof shall be for no longer a period than six successive months.

2020, cc. 860, 861.

§ 22.1-289.021. Records and reports.

Every licensed or registered child day program and family day system shall keep such records and make such reports to the Superintendent as he may require. The forms to be used in the making of such reports shall be prescribed and furnished by the Superintendent.

2020, cc. 860, 861.

§ 22.1-289.022. Enforcement and sanctions; child day programs and family day systems; revocation and denial.

A. The Superintendent may revoke or deny the renewal of the license of any child day program or family day system that violates any provision of this chapter or fails to comply with the limitations and standards set forth in its license.

B. Pursuant to the procedures set forth in subsection C, and in addition to the authority for other disciplinary actions provided in this title, the Superintendent may issue a notice of summary suspension of the license of any child day program or family day system, in conjunction with any proceeding for revocation, denial, or other action, when conditions or practices exist in the child day program or family day system that pose an immediate and substantial threat to the health, safety, and welfare of the children receiving care, and the Superintendent believes the operation of the child day program or family day system should be suspended during the pendency of such proceeding.

C. A notice of summary suspension issued by the Superintendent to a child day program or family day system shall set forth (i) the summary suspension procedures; (ii) hearing and appeal rights as provided in this subsection; (iii) facts and evidence that formed the basis for the summary suspension; and (iv) the time, date, and location of a hearing to determine whether the summary suspension is appropriate. Such notice shall be served on the child day program or family day system or its designee as soon as practicable thereafter by personal service or certified mail, return receipt requested, to the address of record of the child day program or family day system.

The summary suspension hearing shall be presided over by a hearing officer selected by the Superintendent from a list prepared by the Executive Secretary of the Supreme Court of Virginia and shall be held as soon as practicable, but in no event later than 15 business days following service of the notice of summary suspension; however, the hearing officer may grant a written request for a continuance, not to exceed an additional 10 business days, for good cause shown. Within 10 business days after such hearing, the hearing officer shall provide to the Superintendent written findings and conclusions, together with a recommendation as to whether the license should be summarily suspended.

Within 10 business days of the receipt of the hearing officer's findings, conclusions, and recommendation, the Superintendent may issue a final order of summary suspension or an order that such summary suspension is not warranted by the facts and circumstances presented. The Superintendent shall adopt the hearing officer's recommended decision unless to do so would be an error of law or Department policy. In the event that the Superintendent rejects the hearing officer's findings, conclusions, or recommendation, the Superintendent shall state with particularity the basis for rejection. In issuing a final order of summary suspension, the Superintendent may choose to suspend the license of the child day program or family day system or to suspend only certain authority of the child day program or family day system to operate, including the authority to provide certain services or perform certain functions that the Superintendent determines should be restricted or modified in order to protect the health, safety, or welfare of the children receiving care. A final order of summary suspension shall include notice that the licensee may appeal the Superintendent's decision to the appropriate circuit court no later than 10 days following service of the order. The sole issue before the court shall be whether the Superintendent had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.

A copy of any final order of summary suspension shall be prominently displayed by the child day program or family day system at each public entrance of the facility, or in lieu thereof, the child day program or family day system may display a written statement summarizing the terms of the order in a prominent location, printed in a clear and legible size and typeface, and identifying the location within the facility where the final order of summary suspension may be reviewed.

The willful and material failure to comply with the final order of summary suspension constitutes a violation of subdivision 3 of § 22.1-289.027.

The provisions of this subsection shall not apply to any child day program or family day system operated by an agency of the Commonwealth, which shall instead be governed by the provisions of subsection D.

D. Whenever the Superintendent issues a summary order of suspension of the license to operate a child day program or family day system operated by an agency of the Commonwealth:

1. Before such summary order of suspension shall take effect, the Superintendent shall issue to the child day program or family day system a notice of summary order of suspension setting forth (i) the procedures for a hearing and right of review as provided in this section and (ii) facts and evidence that formed the basis on which the summary order of suspension is sought. Such notice shall be served on the licensee or its designee as soon as practicable thereafter by personal service or certified mail, return receipt requested, to the address of record of the licensee. The notice shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the notice of the summary order of suspension and shall be convened by the Superintendent or his designee. After such hearing, the Superintendent may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented.

2. A final order of summary suspension shall include notice that the licensee may request, in writing and within three business days after receiving the Superintendent's decision, that the Superintendent refer the matter to the Secretary of Education for resolution within three business days of the referral. Any determination by the Secretary shall be final and not subject to judicial review. If the final order of summary suspension is upheld, it shall take effect immediately, and a copy of the final order of summary suspension shall be prominently displayed by the licensee at each public entrance of the facility. Any concurrent revocation, denial, or other proceedings shall not be affected by the outcome of any determination by the Secretary.

2020, cc. 860, 861.

§ 22.1-289.023. Enforcement and sanctions; special orders; civil penalties.

A. Notwithstanding any other provision of law, following a proceeding as provided in § 2.2-4019, the Superintendent may issue a special order (i) for violation of any of the provisions of this chapter, § 54.1-3408, or any regulation adopted under any provision of this chapter which violation adversely affects, or is an imminent and substantial threat to, the health, safety, or welfare of the person cared for therein, or (ii) for permitting, aiding, or abetting the commission of any illegal act in a child day program or family day system. Notice of the Superintendent's intent to take any of the actions enumerated in subdivisions B 1 through 6 shall be provided by the Department, and a copy of such notice shall be posted in a prominent place at each public entrance of the licensed premises to advise consumers of serious or persistent violations. The issuance of a special order shall be considered a case decision as defined in § 2.2-4001. Actions set forth in subsection B may be appealed by (a) a child day program or family day system operated by an agency of the Commonwealth in accordance with § 22.1-289.025 or (b) any other child day program or family day system in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The Superintendent shall not delegate his authority to impose civil penalties in conjunction with the issuance of special orders.

B. The Superintendent may take the following actions regarding child day programs and family day systems through the issuance of a special order and may require a copy of the special order provided by the Department to be posted in a prominent place at each public entrance of the licensed premises to advise consumers of serious or persistent violations:

1. Place a licensee on probation upon finding that the licensee is substantially out of compliance with the terms of its license and that the health and safety of children are at risk;

2. Reduce licensed capacity or prohibit new admissions when the Superintendent concludes that the licensee cannot make necessary corrections to achieve compliance with regulations except by a temporary restriction of its scope of service;

3. Mandate training for the licensee or licensee's employees, with any costs to be borne by the licensee, when the Superintendent concludes that the lack of such training has led directly to violations of regulations;

4. Assess civil penalties of not more than $500 per inspection upon finding that the child day program or family day system is substantially out of compliance with the terms of its license and the health and safety of children are at risk; however, no civil penalty shall be imposed pursuant to this subdivision on any child day program or family day system operated by an agency of the Commonwealth;

5. Require licensees to contact parents, guardians, or other responsible persons in writing regarding health and safety violations; and

6. Prevent licensees who are substantially out of compliance with the licensure terms or in violation of the regulations from receiving public funds.

C. The Board shall adopt regulations to implement the provisions of this section.

2020, cc. 860, 861.

§ 22.1-289.024. (Effective January 1 2022) Appeal from refusal, denial of renewal, or revocation of license.

A. Whenever the Superintendent refuses to issue a license or to renew a license or revokes a license for a child day program or family day system operated by an agency of the Commonwealth, the provisions of § 22.1-289.025 shall apply. Whenever the Superintendent refuses to issue a license or to renew a license or revokes a license for any child day program or family day system other than a child day program or family day system operated by an agency of the Commonwealth, the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall apply, except that all appeals from notice of the Superintendent's intent to refuse to issue or renew, or revoke a license shall be received in writing from the child day program or family day system operator within 15 days of the date of receipt of the notice. Judicial review of a final review agency decision shall be in accordance with the provisions of the Administrative Process Act. No stay may be granted upon appeal to the Supreme Court or the Court of Appeals.

B. In every appeal to a court of record, the Superintendent shall be named defendant.

C. An appeal, taken as provided in this section, shall operate to stay any criminal prosecution for operation without a license.

D. When issuance or renewal of a license for a child day program or family day system has been refused by the Superintendent, the applicant shall not thereafter for a period of six months apply again for such license unless the Superintendent in his sole discretion believes that there has been such a change in the conditions on account of which he refused the prior application as to justify considering the new application. When an appeal is taken by the applicant pursuant to subsection A, the six-month period shall be extended until a final decision has been rendered on appeal.

2020, cc. 860, 861; 2021, Sp. Sess. I, c. 489.

§ 22.1-289.025. Right to appeal notice of intent; child day programs and family day systems operated by agencies of the Commonwealth.

Any child day program or family day system operated by an agency of the Commonwealth shall have the right to appeal any notice of intent as follows:

1. Within 30 days after receiving a notice of intent to impose a sanction, the licensee shall request in writing that the Superintendent review the intended agency action and may submit, together with such request, relevant information, documentation, or other pertinent data supporting its appeal. The Superintendent shall issue a decision within 60 days after receiving the request and shall have the authority to uphold the sanction or take whatever action he deems appropriate to resolve the controversy.

2. If the child day program or family day system disputes the Superintendent's decision, the licensee shall request, within 30 days of receiving the Superintendent's decision, that the Superintendent refer the matter to the Secretary of Education. The Secretary shall issue a decision within 60 days of receiving the request for review. The Secretary's decision shall be final and shall not be subject to review.

2020, cc. 860, 861.

§ 22.1-289.026. Injunction against operation without license.

Any circuit court having jurisdiction in the county or city where the principal office of any child day program or family day system is located shall, at the suit of the Superintendent, have jurisdiction to enjoin its operation without a license required by this chapter.

2020, cc. 860, 861.

§ 22.1-289.027. Offenses; penalty.

Any person, and each officer and each member of the governing board of any association or corporation that operates a child day program or family day system, shall be guilty of a Class 1 misdemeanor if he:

1. Interferes with any representative of the Superintendent in the discharge of his duties under this chapter;

2. Makes to the Superintendent or any representative of the Superintendent any report or statement, with respect to the operation of any child day program or family day system, that is known by such person to be false or untrue;

3. Operates or engages in the conduct of a child day program or family day system without first obtaining a license as required by this chapter or after such license has been revoked or suspended or has expired and not been renewed. No violation shall occur if the agency has applied to the Department for renewal prior to the expiration date of the license. Every day's violation of this subdivision shall constitute a separate offense; or

4. Operates or engages in the conduct of a child day program or family day system serving more persons than the maximum stipulated in the license.

2020, cc. 860, 861.

§ 22.1-289.028. Misleading advertising prohibited.

No child day program or family day system shall make, publish, disseminate, circulate, or place before the public or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public in this Commonwealth, in a newspaper or other publication; in the form of a book, notice, handbill, poster, blueprint, map, bill, tag, label, circular, pamphlet, or letter; or via electronic mail, website, automatic mailing list services (listservs), newsgroups, facsimile, chat rooms; or in any other way an advertisement of any sort regarding services or anything so offered to the public, which advertisement contains any promise, assertion, representation or statement of fact that is untrue, deceptive, or misleading.

2020, cc. 860, 861.

§ 22.1-289.029. Duty of attorneys for the Commonwealth.

It shall be the duty of the attorney for the Commonwealth of every county and city to prosecute all violations of this chapter.

2020, cc. 860, 861.