Kentucky Childcare License Defense

Childcare facilities and workers across Kentucky provide vital services, and parents rely on these professionals to provide good care. Many caregivers run their childcare businesses out of their home residences and have invested large amounts of money and energy to make their programs a success. These home providers and members of their households must go through elaborate background checks and frequent inspections. Other childcare providers own or work in licensed centers. Licensure is important, and the ability to hold licensure is vital for a childcare business.

Childcare programs and workers face the following types of licensing issues most often:

Initial licensure issues.
Criminal record issues.
Insufficiency notices following inspections.
Allegations of abuse or neglect.
A drug or alcohol charge after licensure.
Compliance Issues.

The Lento Law Firm Team can represent you or your daycare business, whether for an initial licensure or Background Check issue or with regard to allegations of noncompliance or abuse and neglect. Whatever your circumstance, if you are being challenged in terms of daycare licensure, we can help. Call the Lento Law Firm today at 888-535-3686 or provide your details online, and we will contact you.

Kentucky Division of Regulated Care/Cabinet

Childcare providers in Kentucky are licensed by the Kentucky Division of Regulated Childcare. In rules and regulations, this Division is referred to as the “Cabinet.” Childcare is either regulated or unregulated.

Unregulated vs. Regulated Childcare

Childcare is covered by a large number of rules and regulations, the exact nature of which will depend on the type of childcare provided and whether it is regulated. Unregulated care is not covered by the majority of the body of law regarding childcare, but this does not mean there is no law governing unregulated childcare. If any type of governmental funding is involved in a program, there will often be some type of oversight. But as a basic rule, care for three or fewer children is unregulated in Kentucky.

Beyond that, a Family Childcare is certified, while a Type I or Type II Childcare Center is licensed.

Family Childcare

In Certified Family Childcare, the certificate holder provides care in their home residence. The size of such a childcare facility is limited to no more than six unrelated children (i.e., not related to the caregiver) and no more than four related children at any time. This means that a total of up to 10 children may be in Certified Family Childcare. In a similar category, a family member who cares for children in their own home may also be a Registered Relative Provider. A registered relative provider may care for related children but may not care for more than 6 children that are related to the caregiver or more than eight children, inclusive of their own children.

Child Care Centers

Childcare Centers in Kentucky will generally fall into Type I or Type II.

A Type I childcare center.

This type of center may provide care for 4+ children in a setting that is not residential.
Care may be provided for 13 or more children if the facility is dedicated and is separate from the home of the licensee.

A Type II childcare center.

Unlike Type I, the primary residence or home of the licensee is also the Type II childcare center.
A Type II center may provide regular care for at least 7 children, but no more than twelve children.
Please note this is distinct from Certified Family Care, although some regulations apply to both programs.
The child totals may include children related to the licensee.

Exempt Childcare Settings. “Exempt” means that a program is not required to be certified or licensed. The following settings are exempt from childcare certification or licensure requirements in Kentucky:

Summer camps that serve school-age children.
Private schools (k-12) while school is in session.
Summer camps and programs offered by churches and religious organizations, if under 2 weeks.
Parental childcare or care provided by parents, other than the employment and educational site of parents.
Armed services childcare on base or post.
Childcare involving parental involvement.
Care provided by churches or religious organizations while religious services take place.
Any program providing classes that operates for fewer than 20 hours a week, which no child attends more than 10 hours a week.

Childcare Staff Requirements

Childcare center staff shall have one of the following:

High school diploma.
GED or qualifying documentation from a comparable educational entity.
Commonwealth Childcare Credential as described in 922 KAR 2:250.

Minimum Staff

The minimum number of adult workers in a childcare center shall be sufficient to ensure that:

Minimum staff-to-child ratios under Kentucky regulations are followed.
Any staff person under 18 or in training is fully supervised by a qualified staff supervisor.
A person under 18 is not counted in the staff ratio.

Background Check Requirements for Childcare Staff

If an individual seeks to have a Family Daycare certified or a Center licensed, or even if they simply wish to work at a childcare Center, they will need to submit to a Background check. Federal law requires all states to ensure that all staff in regulated childcare programs pass state and federal criminal background checks. If you apply for a job, the program will submit a request for a background check for you, and they must repeat the check every 5 years.

What does this Background Check involve? It will involve a check against all federal and state registries and databases for sex offenders, child abuse databases, federal and state fingerprint databases, and other registries and databases. Certain convictions involve mandatory disqualification—such as murder or child abuse. Other convictions are discretionary—they will not absolutely disqualify you, but they may require you to file for rehabilitative review and explain the circumstances. If you need sound advice on how a particular criminal issue in your past might be handled, call the Lento Law Firm. We will be able to guide you through the process for the best result possible.

Disqualifying Background Check Result

The following are disqualifying Background Check results under federal or Kentucky law:

1. Is on a state or federal sex offender registry.

Has a Felony Conviction, or a related plea, for the following crimes:

Murder.
Child abuse or neglect.
Any felony against a child.
Spousal abuse.
Rape.
Kidnapping.
Arson.
Assault.
Burglary.
Firearm offense.
Torture of a dog or cat, even if a misdemeanor.
Cruelty to animals, even if a misdemeanor.
A drug-related conviction in the previous 5 years.

3. Has an open warrant or a pending charge for an offense listed above.

The Cabinet must notify an applicant found to have a disqualifying background check.

The Meaning of a Disqualifying Result

A disqualifying result on a Background Check:

Prevents initial licensure.
Prevents hiring as a staff member or necessitates termination within 10 days.
Forces an adult household member (if care is in the provider's home) to move to a different residence within 15 days.
If a person with a license or certification has a disqualifying Background Result on a recheck, it might lead to a loss of license or certification.

The licensee in question must provide affirmation that it has followed these rules, and any misrepresentation might lead to loss of license or certification.

Options After a Disqualifying Background Check

After a disqualifying Background Check result, an applicant has the following options:

Challenge the accuracy of the Background Check result.
type of request is sometimes referred to as an “informal” review. This might be helpful in a situation for a clearly erroneous match—like a criminal conviction for a place you have never lived during a period you were serving in the Army in Iraq. Unfortunately, the regulations provide that the Cabinet will essentially refer you to the database you are challenging, but they don't take action for you. In a case such as this, it would be essential to call a firm such as the Lento Law Firm and get the issue fixed before the mistake causes further damage to your reputation.
Request a Formal Review.
formal review would again challenge the accuracy of results. This is done by contacting the Dept. of Community Based Service, Division of Child Care, in Frankfort, Kentucky.
Request a Rehabilitative Review.
type of Review is suited to an applicant with a disqualifying event that is not an absolute bar. The applicant will argue that the conviction or other disqualifying event is too far removed in time to prevent current licensing. The disqualifying event may have occurred prior to a long-established sobriety. In the event of the need for a Rehabilitative Review, call the Lento Law Firm. We can assist you in arguing that mistakes in an earlier stage of your life should not prevent you from being a productive provider of childcare in the future.
Additionally, you may request a Hearing.
you seek Formal or Rehabilitative Review, and the Cabinet initially upholds the earlier finding, you may request a hearing. The Lento Law Firm is able to represent your interests at this type of hearing.

Rehabilitative Review Process Does Not Apply in Some Situations

While a Rehabilitative Review can be helpful for a remote conviction or other past event, there are certain convictions that cannot be addressed through a rehabilitative review, regardless of when they occurred. A Rehabilitative Review shall not apply to:

A felony in the previous 10 years.
Any felony or misdemeanor for abuse or neglect of a child.
Registration as a sex offender.
Rape or any violent sexual crime.
A child abuse and neglect substantiated finding that:

Occurred in the past 7 years.
Involved sex abuse of a child.
Involved in the death or near death of a child.
Involved in the involuntary termination of parental rights.

Rehabilitative Review Request

A Request for Rehabilitative Review must include:

A written explanation of each background check result, to include:

A description of the events.
The number of years since the occurrence.
The age of the individual at the time of the occurrence.
Any other circumstances relevant to the issue.

Documents showing that all fines have been paid.
The date probation or parole was completed, if any.
Employment and character references.
Evidence that the individual has pursued or achieved rehabilitation.

Rehabilitative Review Criteria

A group of 3 employees of the Cabinet will review the Request for Rehabilitative Review and will consider the information in light of the following criteria:

The amount of time that has passed since the disqualifying background check result.
The lack of commonality between the disqualifying background check result and the childcare business or profession.
Rehabilitation of the person with regard to the disqualifying background check result.

This committee will issue a determination, which will be sent to the applicant within 30 days. The applicant may appeal the decision of the committee. If the committee finds in favor of the applicant, it will grant a Rehabilitative Waiver, and the applicant will pass the Background Check.

Denial of Application for Certification (Family Childcare)

An initial certification for Family Childcare may be denied if:

A disqualifying event is present in the application or in the Background Check of the applicant or member of the household.
The applicant knowingly submits false information in a filing with the Department.
The applicant refuses to allow inspection or official access.
The applicant has been placed on a directed plan of correction more than twice in 3 years.
The applicant has a history of fraud with regard to public benefits.
The applicant has a history of revocation of license or certification in the previous 7 years. In other words, if you have a childcare license revoked, 7 years must lapse before you are entitled to apply for future licensure without possible denial on that basis.

Because of the long waiting period after a revocation and the harm done by a history of corrective action plans, it is vital that allegations and deficiencies be addressed as they arise. The Lento Law Firm can represent you in your initial licensure and any issues that arise. But remember that we can most effectively address compliance issues as they occur.

Required Reporting at Childcare Centers

Incidents that occur in childcare settings must be reported under Kentucky law, including infectious diseases, accidents or injuries to a child, incidents involving fire or other emergency services, or other accidents.

Statement of Deficiency

If the Cabinet representative believes that a program or center is not following regulations, they will complete a written statement of deficiency. Except for emergency suspension actions or issues involving an immediate threat, the program or center has 10 days to submit a written corrective action plan.

Corrective Action Plans.

In the corrective action plan, the program or facility describes, in writing, how it will address the statement of deficiency. A corrective action plan must include:

A statement of the specific action it plans to take to correct the deficiency or violation.
A timeline or a date the specific action will be completed.
A description of how the program or center will ensure ongoing compliance.

The Cabinet will review the plan and must notify the program or center within 30 days of receipt of the corrective action plan of its decision to:

Accept the plan.
Not accept the plan.
Deny, suspend, or revoke the childcare center's license.

If the Cabinet accepts the plan, the issue is closed. If the Cabinet chooses not to accept the plan, it must provide a notice of unacceptability. A notice of unacceptability shall state any and all reasons the plan is unacceptable. At this point, the center can submit an Amended Plan. No more than 3 plans can be submitted for the same deficiency. If that number is exceeded, sanctions are likely.

Intermediate Sanctions.

If the Cabinet determines that a childcare center is in violation of regulations or is otherwise out of compliance, the Cabinet may, depending on the severity of the violation:

Require the provider to participate in additional training.
Increase the frequency of monitoring by cabinet staff.
Enter into an agreement with the provider to remedy the violations and achieve compliance.
Require the notification of a parent of a child who may be affected.

An intermediate sanction shall result in a suspension or revocation of the license if a childcare center:

Fails to meet the condition of the intermediate sanction.
Violates a requirement of an intermediate sanction.

Emergency Suspension

The Cabinet can serve an emergency suspension action if the safety or health of a child is at issue. If a provider gets an Emergency Suspension notice, it must immediately cease operations and turn operations over to the Cabinet. The Cabinet will notify parents and close operations. A provider can request an emergency hearing within 20 days. The Cabinet oversees this emergency hearing within 10 days of the request. The standard at this hearing is “substantial evidence,” which is not a high or protective standard.

If you receive an Emergency Suspension notice, try not to panic. Call the Lento Law Firm immediately. Under the statute, we can see the evidence and defend your license at the hearing.

Denial, Suspension, or Revocation of License

The Cabinet may deny, suspend, or revoke a license if:

The program fails to follow rules and regulations. If a program or center has been placed on a directed action plan more than 2 times in 3 years, it is grounds for revocation.
The licensee has submitted false information knowingly.
The licensee has a conviction that “threatens health or safety.”
The licensee has engaged in fraud with regard to a public benefit.
The program refuses to allow inspection or entry to the Cabinet or a representative.
The licensee becomes unable to provide home care because of illness or medical condition.

Right of Appeal.

If the Cabinet denies an application or suspends or revokes a license or certification, it must inform the applicant or licensee. The applicant or licensee may file a Request for Appeal by filing form OIG-RCC-3, Request for Appeal, for a hearing. The request shall:

Be submitted to the Secretary of the cabinet within 20 days.
The Request should indicate whether the applicant or licensee wishes to engage in Informal Dispute Resolution.

Right to Hearing

The applicant or licensee has a right to a hearing, and upon receipt of the Request for Appeal, the Cabinet will appoint a Hearing Officer and proceed to prepare for the hearing. If an applicant or a licensee files a request for a hearing and a request for an informal dispute resolution, the Cabinet will abate the formal hearing until after completion of the informal dispute resolution process.

Informal Dispute Resolution.

Upon receipt of the written request for informal dispute resolution, the regional program manager will review the documentation submitted by the applicant and will schedule an informal dispute resolution meeting with the applicant.

The informal dispute resolution meeting will be held within ten days and will be conducted by the regional program manager and a childcare surveyor who did not participate in the deficiency finding. Within ten days, the regional program manager will issue a decision and will specify whether the adverse action has been rescinded.

An applicant or a licensee may accept the determination or may proceed to a hearing. A request for informal dispute resolution will not limit or suspend enforcement action against the applicant and will not delay the submission of a written plan of correction.

The Lento Law Firm Represents Childcare Providers, Staff, and Owners Throughout Kentucky

The Lento Law Firm represents childcare providers, staff, and owners from Louisville, Lexington, Paducah, and other areas of Kentucky. We can help whether you are denied an initial certification or license, or you are facing deficiency notices or allegations of abuse or neglect. The Lento Law Firm can advise you if you face a background check or criminal charge that might affect your childcare license. The Lento Law Firm's Professional License Defense Team will lead the defense of your license, negotiating with the State and otherwise seeking the best possible resolution to your case. Call us today at 888-535-3686 or submit your details online, and we will contact you.

Childcare License Defense in Kentucky