As a professional daycare provider, your entire business hinges on your license to operate a childcare center in your state. You had to meet stringent requirements to receive that certification or license, and you have to go through extra steps to ensure ongoing compliance with state regulations. Your active license also conveys a sense of trust for your customers—parents who choose to leave their children in your care. Suffice it to say if someone lodges a complaint with the regulatory board—whether or not the allegations are true—the very prospect of having your license suspended or revoked can put your entire career into jeopardy.
State regulatory agencies treat childcare as a very serious public trust, and if they are likely to suspend or revoke the license of any daycare provider whom they believe may have violated that trust. If you have received notice that you are being investigated for a complaint and your daycare license is in jeopardy, you are probably experiencing a lot of emotions and uncertainty about what is going to happen next and how it will affect your business. As an experienced professional license defense attorney, Joseph D. Lento has helped protect the careers of many licensed professionals in New Jersey and New York, whose right to work has come under scrutiny. The Lento Law Firm has compiled the following important information so you can be prepared and informed if your license is in danger.
What are the most common reasons for daycare providers to lose their license?
Every state licensing board has specific requirements when it comes to qualifying as a licensed or certified daycare provider. Most instances in which a license is suspended or revoked will involve some failure to meet those requirements on an ongoing basis. Examples of specific offenses may include, but are not limited to:
- Child abuse or neglect. If someone claims that physical, emotional, or sexual abuse occurred while a child was in your care, or that your center failed to provide for basic needs, your license could be revoked if the investigation finds corroborating evidence.
- Failure to meet basic sanitation requirements. Daycare facilities are expected to meet minimum standards of sanitation. If you fail to do so, your facility could be deemed unsafe.
- Inadequate supervision. If you don't have the required number of staff for the number of children in your care, you could lose your license over inadequate supervision. You can also be penalized or lose your license if you hire staff who are unqualified to provide child care.
- Unsafe facilities. Violating fire codes or capacity limits, or operating in a facility that is deemed unsafe, can result in a loss of license.
- Caring for more children than your certification allows. Certain states have different certifications for daycare centers of various sizes. If you're licensed for 7-12 children (a Group Child Care Home, in PA), and you take in more children than your license allows, you could lose your license.
- Conviction for a “disqualifying crime.” To qualify for your license, you had to pass a criminal background check. If you are convicted of a felony or violent misdemeanor level crime—especially one involving children—you may be disqualified from licensure in your state.
- Failing a scheduled or unannounced inspection. Regulatory boards conduct regular inspections of daycare facilities. If you fail an inspection, your license could be suspended until you come into compliance, or if violations are egregious, you may be shut down completely.
Can I be penalized in other ways without losing my license? What other penalties could I face?
Not every violation or complaint results in losing a daycare license. While revoking a license is perhaps more common among daycare providers than with other licensed professionals, regulatory boards have been known to take other disciplinary actions that may allow you to keep your license. Examples may include:
- License suspension—restricting your ability to operate for a certain period of time, or until you meet certain requirements.
- Fines. The board may impose a monetary fine.
- Operational restrictions. If the board deems your facility safe, you may be allowed to continue operations under certain restrictions (e.g., a limited number of children or children of certain age groups).
Can disciplinary actions hurt my daycare center business even if I get to keep my license?
Yes. Even if you are allowed to continue operations, any disciplinary marks on your license may be a matter of public record. If a potential customer looks up your record online and sees disciplinary actions, they may be less inclined to leave their children with you. Hiring an attorney when your license is endangered can improve your chances of saving your license as well as your public record.
What does the disciplinary process look like for daycare providers?
While every state has different protocols for disciplinary action, in most cases, daycare providers face a much stricter and swifter disciplinary process than other professionals do. With doctors and medical professionals, for example, the regulatory board may go through an expanded process of investigation, reviews, and hearings before rendering a determination. For daycare providers, license revocation may occur with much fewer steps. Ask your attorney about the rules in your state, but generally speaking, you can expect the process to follow a similar path to this one:
Complaint or Inspection
For daycare providers, the disciplinary process starts in one of two ways:
- An inspector visits your facility (usually unannounced) and finds violations of the rules; or
- Some files a formal complaint against you with the regulatory board.
Investigation
Once the board has been notified of possible violations, whether by complaint or by a failed inspection, it will conduct an investigation. This usually involves making an unannounced visit to your facility, looking at your records, interviewing parents and employees, etc.
Determination and Action
Once the board has concluded its investigation, it will decide either to dismiss the complaint or confirm that you are in violation, and decide on a penalty if it's the latter. If the board believes your facility is safe enough, you may be allowed to continue with restrictions or a lesser penalty. Otherwise, your license may be suspended or revoked.
Request for Administrative Hearing
Here's where the disciplinary process for daycare providers is markedly different from that of other licensed professionals. In other professions, a hearing will usually occur before any penalty is invoked. With daycare providers, the penalty is invoked, and then you are allowed to request a hearing to dispute the results. In other words, the board decides unilaterally whether to penalize you, and you get to appeal the decision before it becomes final.
What happens if I don't cooperate with an investigation?
Failing to cooperate with any investigation into your daycare license is one of the quickest ways to get shut down. The board will almost always interpret this action as an admission of guilt, and since your license to operate a daycare center is treated as a privilege rather than a right, failure to cooperate typically results in a unilateral decision to revoke your license to operate.
What kind of attorney do I need if I want to defend my license?
You can obviously hire any attorney you choose to represent you, but it's highly recommended that you hire an attorney with specific knowledge and experience in professional license defense. A licensed defense attorney will have an understanding of how the licensing board operates in your state and how to negotiate the process with you to a more favorable outcome.
How can a professional license attorney help me?
Involving a professional license attorney can greatly increase your chances of keeping your daycare provider license if you are facing a complaint or an investigation. Your attorney can:
- Represent you and speak for you in all interactions with the board, as well as with investigators
- Advise you on the nature of the complaint against you, what is at stake, and your best course of action for defending yourself
- Negotiate for dismissal of the complaint, reduced penalties, and/or clearing your public record
- File a request for an administrative hearing in the event of disciplinary action
- Represent you during the hearing, presenting evidence and witnesses to defend against the charges
Do I have to hire an attorney, or can I represent myself at the hearing?
You always have the right to speak and act on your own behalf with the licensing board—but in most cases (if not all), you will fare much better with an attorney than without one. Here's why:
- The licensing board is not your friend. They exist not to protect you but to protect the public. As soon as a complaint is filed or an inspector files a negative report, the board acts as though you are a potential threat to the public trust until it is deemed otherwise. In other words, you don't have the same rights to “due process” or “presumed innocence” as you would even in criminal court. Therefore, anything you say or do during the investigation or hearing could be used against you. An attorney can help shield you from hurting your own defense.
- The board has the advantage in any disciplinary process. It's their job to investigate and enforce, and they know how to conduct themselves in a hearing better than you do. Hiring an attorney helps level the playing field, so to speak.
- License defense is a legal matter. Your daycare license constitutes a legal agreement with the state that you will comply with certain regulations in the care of other people's children. Any alleged violation is seen as a breach of that contract. When you are dealing with legal matters, it makes sense to hire a legal expert to help you.
Will hiring an attorney make me appear guilty?
No. Hiring an attorney does not create a presumption of guilt or of innocence where the board is concerned. What it does tell the board is that you take the matter seriously enough to hire an attorney—as well you should. Hiring an attorney cannot hurt you—it can only help you.
This is a simple misunderstanding. Why can't I just resolve it by talking to the board?
Again, the board is not looking out for your best interests, but the interests of the public. No matter how trivial you think the matter is, attempting to resolve it “casually” with the board is more likely to be viewed as an attempt to manipulate or interpreted that you do not take the matter seriously. They are more likely to rule against you if they believe you are trivializing the problem.
Can I still operate my daycare center while I'm under investigation?
Unless the board tells you otherwise, yes. In most cases, the investigation will occur in part as an unannounced visit because the investigator wants to see you in action, so it would be counterproductive to shut you down unless the board believes there is an ongoing and imminent threat to the children's safety. Even if you are notified of a complaint, assume you are okay to continue operations unless the board specifically issues a temporary suspension.
Do I have to tell my customers that I am being investigated?
No. If an investigator shows up at your facility, any parents may be able to infer that your daycare center is under scrutiny. However, you aren't required to make anything public unless you are required to cease operations.
Can a professional license attorney help me get my license reinstated if it is suspended or revoked?
Yes. Even if you are unable to reverse the decision with an administrative hearing, the board may provide conditions for your license to be reinstated, and your attorney can help you to meet those conditions. Specifically, the attorney can:
- Coordinate an official request for reinstatement on your behalf, including the reasons for the request
- Coordinate all associated paperwork
- Coordinate payment of any applicable fees and/or fines
- Help you come into compliance with any stated conditions required for reinstatement
- Act as your official representative with any interactions with the licensing board, including negotiation of terms
How soon should I hire an attorney if my daycare provider license is being investigated or reviewed?
The sooner you hire an attorney, the better. For best results, consider hiring an attorney as soon as you discover your license is in jeopardy. For some, this may be after receiving notice of a complaint against you. For others, it will be if you fail an unannounced inspection or if investigators come to your facility unannounced. The sooner an attorney gets involved, the better your chances of getting the complaint dismissed or finding an alternate solution to losing your license.
As a daycare provider, having your license revoked is one of the worst things that can happen to you professionally. It can instantly erase all the hard work you've done to comply with state regulations, build your business and attract customers, and it can immediately place a stigma on your business that can remain even if you get your license reinstated. With so much at stake, it simply makes no sense to go into any disciplinary process without experienced legal representation.
Attorney Joseph D. Lento has helped many licensed professionals in New Jersey and New York —including daycare providers—to keep their licenses and save their careers. He has a keen understanding of the licensing regulations and the disciplinary process, and his expertise can help give you a much-needed edge while ensuring your rights are protected. If your license is under fire, don't try to go it alone. Contact the Lento Law Firm at (888) 535-3686 today.
