Parents want to know that they're leaving their children with qualified childcare professionals. For individuals who go through Virginia's licensing requirements, the threat of having their license suspended or revoked affects not only their professional reputation but the children in their care. Even the threat of an investigation can undermine the relationship a provider has with families and the trust parents place in that provider.
For most of Virginia's families, child care is a significant percentage of their household budget. On top of that, like most of the country, the state continues to have childcare. These issues compound the problems a provider and their clients face when a provider's license is threatened.
Children's safety is paramount, and states should investigate allegations of abuse or misconduct that put children in jeopardy. When providers face false, misleading, or exaggerated allegations of misconduct, the risk of a suspension or loss of a license affects not just the provider's livelihood but also the well-being and trust of the families and children with whom they work.
The Lento Law Firm Professional License Defense helps and supports childcare providers nationwide. We protect their rights, counter false narratives, and defend their livelihood. If and when you face citations or allegations of misconduct, contact us by calling 888-535-3686 or fill out a form.
Child Care VA
As of 2023, the Virginia Department of Education handles child care and early education programs. The Virginia Department of Social Services previously handled these matters, and some government sites and information may still refer to this previous organizational system.
The best resource regarding child care in Virginia is Child Care VA. This state-operated site has resources for both families and providers.
For providers, resources include:
- Contact information for regional licensing offices
- Training and professional development
- Updates on changes to Virginia law, regulations, and/or policy
- Background checks
How to Become a Licensed Provider
Childcare providers should not confuse obtaining a local business license with a state-issued childcare license. Providers should also check with their local government, both city and county, to ensure they do not have any additional licensing requirements above and beyond what the state requires.
Anyone interested in obtaining a childcare license must first attend a training course provided by the Department of Education. The Pre-licensure Orientation-Phase 2 training provides a summary of both the application process to become a child care provider and the expectations and requirements for licensed providers. This training also provides information on regulations, requirements, inspections, and standards. Individuals who previously owned or managed a facility may be exempt from training.
The Office of Child Care Health and Safety, which has regional offices, can answer questions about the application process. The state also provides a PDF, General Procedures and Information for Licensure. These offices are also where individuals can pick up applications.
Licenses may be for either an individual or an organization. They will submit an application, available from a regional office, and pay the application fee. The schedule of fees can be found in the Code of Virginia. Fees cannot be refunded or returned. Individuals who submit incomplete applications will have 30 days to resubmit the application.
All applicants must include a valid certificate of occupancy. As part of the application process, a licensing inspector will tour the facility to ensure it complies with laws and regulations.
Transferability
Childcare licenses cannot be transferred. While providers may sell their business, their license does not transfer as part of the sale. The new owners will need to apply for a new license. Unlike new providers, individuals or organizations that take over an existing business may not apply for a conditional license.
Inspections
Virginia issues and regularly updates a Protocol for Inspections at Licensed Child Day Programs. Inspections occur:
- Before opening a child care center
- Bi-annually
- During program development
- Following a complaint
Bi-annual inspections are unannounced.
Each inspection has six components:
- Entrance conference
- Tour
- Interactions and interviews
- Observations
- Documentation review
- Exit meeting
The guide stresses that citations for violations need to be objective and based on evidence. Subjective or emotion-based reports are discouraged, including assigning a reason or emotion to another person's actions. If a citation has a weak basis in evidence, providers should use that to contest the citation. They should contest that citation in an objective and evidence-based manner - essentially, the approach the inspector should have taken.
Types of Child Care
Different types of childcare centers have different standards. Virginia recognizes different types of childcare centers, including:
Individuals need to know which regulations they fall under, as each center may have different requirements. For example, licensed childcare centers have different requirements for their staff than family day homes. They also have different ratios for how many children an adult can supervise.
In contrast, childcare centers operated by religious organizations may opt out of the licensing requirement. They can decide to become licensed, but even if they do not, they must still obey relevant Virginia laws to ensure children's safety. Except for child care centers run by religious organizations, in Virginia, it's a misdemeanor to operate a family daycare center without a license.
Knowing which type of child care center you operate or work for can help you follow the correct laws and regulations.
Types and Length of Licenses
Virginia provides different types of licenses that are valid for different lengths of time. Conditional licenses, available for new providers or facilities, are good for up to six months and may be renewed. Regular licenses are good for up to three years and may be renewed.
The length of a regular license's duration depends on how well a facility meets or exceeds the state's standards. In general, facilities that:
- Exceed standards may qualify for a three-year license
- Meet standards may qualify for a two-year license
- Have substantial but inconsistent compliance may qualify for a one-year license
For facilities that cannot meet the one-year requirement, they may qualify for a provisional license, good for up to six months. At the end of the provisional period, a facility must either show increased compliance or may lose its license.
Problem Solving Conferences
Licensees can request a problem-solving conference at any point when they have questions or concerns. A more informal resolution option, licensees can pursue this option for concerns ranging from licensing procedures to disagreeing with the findings of an inspection.
When a licensee disagrees with an inspection's findings, they must submit their request to enter into the problem-solving process within 15 days of receiving a compliance plan. This will result in a first-step review, which will be either a desk review or a meeting with the assigned representative's immediate supervisor.
If the licensee disagrees with the first-step review, they can request a second-step review in writing and within 15 days of receiving the first-step response. The written request should explain why they believe a review is necessary and include any relevant documents or additional information. Licensees will receive a response within 30 days from someone assigned by the Director of Child Care Licensing Programs.
Note that the problem-solving process does not pause or limit the Department of Education's powers or responsibilities. They may still enforce disputed resolutions and proceed with administrative sanctions.
Filing a Complaint in Virginia
Childcare providers should know when and how people may file a complaint against them. Virginia allows anyone to file a complaint against a childcare provider.
A complaint may be filed online or by phone. In other words, Virginia does not require that complaints be in writing. Calls may be made to the Office of Child Care Licensing or via the Child Abuse / Neglect Hotline.
Complaints may be made anonymously and do not have to cite a specific law or regulation. Someone does not have to know that a law has been broken and only needs to provide a description of the situation or behavior that they found disturbing.
In cases when the person filing a complaint does not know if a childcare provider or center has broken the law, as part of the initial investigation, the licensing inspector will decide whether any laws or regulations were broken. If someone does give their name and/or contact information, a licensing inspector may contact them for additional information and/or clarification.
Complaints are less about an individual child and more about protecting all children at that childcare center. Before contacting any state agency with a complaint, the state recommends knowing and/or being able to answer the following questions:
- What happened?
- Who was involved?
- When did it happen?
- Where did it happen?
- Why did it happen?
Whether there are additional witnesses and whether the situation occurred once or multiple times are also relevant. In some cases, how long a situation or behavior lasted may also be relevant for an investigation.
Unlicensed Child Care and Complaints
Complaints may also be filed against those operating unlicensed child care centers. The Department of Education handles all complaints regarding unlicensed childcare centers. That someone does not have a license to provide child care does not mean they are exempt from the law or that Virginia does not have an interest in ensuring child safety.
Investigating Complaints
The Virginia Department of Education handles investigation complaints. If a complaint involves allegations of child abuse, neglect, or exploitation, the Department of Education will jointly investigate with the local Department of Social Services. The Chesterfield-Colonial Heights Department of Social Services, for example, has an Adult, Family and Children's Services division that receives and investigates reports of child abuse or neglect.
Once the investigation is complete, the state will notify the licensee of the investigation's findings and any needed corrective actions. The licensee then has the responsibility to address the problem areas and ensure their child care center is in compliance.
Sanctions and Court Hearings
Virginia uses a similar procedure for challenging sanctions and other decisions for several government departments and agencies. For childcare licenses, the Superintendent of the Department of Education has the power to impose sanctions, require court hearings, or other actions. The superintendent may initiate these actions against any licensee who violates standards or statutes or abuses or neglects people in their car.
Administrative sanctions may be imposed when a licensee:
- Fails to maintain compliance with standards or violates Virginia law
- Permits, abets, or allows illegal acts within the licensed facility
- Engages in conduct or activities that violate statutes or standards about the abuse, neglect, or exploitation of children
- Deviates significantly from the purpose or services for which the license was issued, or fails to correct such changes
Who Can Investigate and Inspect
Sanctions or court hearings may result when any investigation or inspection uncovers noncompliance with state law or regulation or local building and safety codes. Sanctions may result when any of the following entities inspect or investigate:
- The Virginia Department of Education
- The Virginia Department of Health
- The Virginia Department of Behavioral Health and Developmental Services
- Any state and local building or fire prevention officials
In other words, licensees can face sanctions from the Department of Education even if the Department of Education was not involved in the inspection or investigation that uncovered the noncompliance.
Types of Administrative Sanctions
The State Superintendent may impose the following sanctions:
- Revoking or denying a license
- Issuing a notice of a summary, or immediate, suspension of a license "when conditions or practices exist ... that pose an immediate and substantial threat to the health, safety, and welfare of children receiving care
- Issuing a special order, such as:
- Probation
- Reducing a center's maximum capacity or banning new enrollment in situations when correcting the problem requires a temporary restriction on the scope of a licensee's services
- Requiring training, paid for by the licensee, for the licensee and/or employees when training would correct the issue
- Levying a financial penalty of up to $500 per inspection when a center is substantially out of compliance and/or children's health and safety is at risk
- Requiring a licensee to contact, in writing, parents, guardians, and families about the violations
- Banning a licensee who is substantially out of compliance from receiving any public funds
Appeals
For licensees facing an administrative sanction, they do not need to simply accept the findings. Virginia gives licensees the ability to appeal an administrative sanction. How they can appeal a sanction depends on the type of sanction.
Virginia provides three types of appeals: informal conferences, administrative hearings, and a circuit court review.
All of the following sanctions can be appealed via an informal conference or circuit court review:
- Probation
- Reduced capacity
- Restricted admissions
- Mandated training
- Financial penalties
- Written contact with parents and families
- Banned from receiving public funds
- Denial of either a new license or renewal
The last option, denial of a license, may also use the administrative hearing option.
Informal Conferences
Informal Conferences are the first step of the appeals process. A conference chair will oversee the proceedings. Licensees may choose to bring their attorney to these meetings but are not required to have legal representation.
These conferences are about fact-finding and an opportunity for licensees to respond to the findings of an investigation or inspection. The licensee may show why sanctions are based on error, a misinterpretation of the facts, or insufficient information.
Informal hearings may be open to the public. When both sides agree and when the option of an administrative hearing is available, they may choose to waive the informal conference and go straight to the administrative hearing.
New Information
While neither side presents witnesses, licensees can provide documents and other evidence to disprove the allegations against them. This includes the introduction of new information.
When a licensee presents new information during an informal conference, the conference chair may request that this new information be verified. The conference chair may delay a report for up to 14 days to allow time for verification of new information. The chair may also require the licensee to be the one to provide verification.
Consent Agreements
If the two parties believe they can reach a resolution, they may submit a written proposal before the conference. While the general requirement is at least five days before the conference, they may make different arrangements with the chair. They cannot submit a consent agreement on the day of the conference.
Consent agreements should include:
- Relevant facts
- How the violations either have or will be corrected, including a timeline
- A detailed description of the solution, including how the licensee will prevent future occurrences of noncompliance
- The licensee agrees that the violations did occur and that the licensee waives future appeal options
- How long the consent agreement will last
- When the consent agreement may be terminated for cause and, if this occurs, whether the licensee will have any right to appeals
Inspections will be a regular part of the duration of the consent agreement. The goal of these inspections will be to check whether changes are being implemented and whether the licensee is meeting the goal, such as compliance with standards.
Written Report and Recommendation
Following the conference, the chair will create a written report and the recommended decision. This report should include:
- The relevant statutes or authority for remaining appeal options
- Conference summary
- The appealed issue
- The findings of fact
- An overview of the evidence
- The recommended decision and/or options
Within 90 days of the informal conference, the Department of Education will provide its written decision to the licensee. This written decision should include their additional options for appeal.
Administrative Hearings
Administrative hearings are similar to courtroom trials. Both sides present evidence, introduce witnesses, and cross-examine the other party's witnesses.
Virginia does not have an obligation to provide licensees with an attorney, and licensees are not required to have an attorney. Licensees can benefit from hiring an attorney for support in building and presenting their case as well as assembling and organizing evidence and other documents.
The hearing officer will base their decision on the facts and the preponderance of the evidence. The facts must be limited to those submitted during the hearing. The hearing officer must issue their recommendation within 90 days. The Superintendent, upon receiving the recommendation, will have 30 days to make a decision.
Circuit Court Review
Circuit court reviews are generally considered the final level of appeal. Licensees can request that a circuit court review their case within 10 days of receiving notice. A court will review the record and determine if reasonable grounds existed for the Department of Education's decision. Neither side will present new evidence or information.
City and County Information
While Virginia handles most childcare complaints and issues at the state level, providers and license holders should be aware of any additional local regulations or programs. Providers should check with both their city and county governments for any additional requirements.
Many local governments provide a list of licensed childcare providers. This is in addition to Virginia's state database. Providers should periodically check that their information is correct on these websites.
As of 2023, Arlington County, the City of Alexandria, and Fairfax County all have separate regulations for family day homes and center-based programs. The Virginia Department of Education does not regulate these centers, but these centers must still meet state requirements for non-Department of Education regulated programs.
Below are two examples of how some cities and counties handle child care at the local level.
City of Alexandria
The city's Department of Community and Human Services handles questions about child care. The city provides a list of licensed childcare providers within its boundaries.
Alexandria has its own requirements for family care homes and requires anyone caring for six or more children to have a Special Use Permit. Anyone caring for five or more children must be licensed with the state and have an assistant.
City of Richmond
Richmond is a more typical example of a local government's childcare resources. Most cities and countries provide basic resources or links to state resources. Richmond provides a list of licensed childcare providers. One way Richmond differs from other local governments is that, in 2022, Richmond provided more than $600,000 in grants to local childcare centers.
Protect Your License
Protecting the safety and security of children is important. Unfortunately, subjective inspections, inaccurate interpretation of the law, and other problems can damage childcare providers' licenses and their livelihood. Regardless of the reason you're facing potential sanctions or other accusations of noncompliance, you do not have to simply accept the Virginia Department of Education's decision.
You can contact the Professional License Defense Team at the Lento Law Firm at any point. We can help you navigate the complaint process and understand your options as you defend your license. If and when you face citations or allegations of misconduct, contact us by calling 888-535-3686 or fill out a form.
