If you own a daycare facility in Hawaii, run the place, or are part of the fantastic staff, you are an integral part of your community. You've put in hard work to get your childcare license and the community's respect. Childcare work isn't easy, to say the least, and comes at the cost of physically demanding days and constant government intervention.
As a licensed care provider, you know that obtaining licensure at the state, county, and city levels is a rigorous and challenging process. This journey involves navigating through extensive paperwork, undergoing continuous inspections, and meeting stringent requirements that demand constant adherence. Staying informed of the countless federal, state, and local laws can seem impossible.
If mistakes or misunderstandings have placed your Hawaii childcare license at risk and you are being investigated by the Hawaii Department of Human Services (the “Department”), there is a path forward, and our Professional License Defense Team can help! We have experience navigating complex childcare laws and regulations in Hawaii and know the work it takes to tackle misconduct claims. Call us today for a quick, confidential consultation at 888-535-3686 or fill out our convenient online contact form.
The Hawaii Department of Human Services
State-issued licenses for childcare providers and daycare centers are issued by the Hawaii Department of Human Services, Benefit, Employment, and Support Services Division, the state agency tasked with monitoring childcare centers within the state. Aside from issuing licenses, the Department is also charged with overseeing compliance with laws and regulations. In instances of misconduct, the Department can initiate proceedings to deny, suspend, or revoke a daycare license.
Hawaii's Childcare Laws on Licensure
Chapter 892.1 of the state's Administrative Rules defines childcare organizations as those that have agreed to assume the responsibility of a child's “supervision, development, safety, and protection apart from the parent or guardian for any part of a twenty-four-hour day.”
Within these statutes, applicants must adhere to specific requirements when submitting their application(s) for childcare licensure. Specifically, some of the most essential requirements include:
- A written statement of operation policies.
- Verification that the facility meets and has passed the applicable county codes.
- Completed criminal history background checks for all employees. Employees with a criminal conviction or history of child abuse and neglect may be denied employment by the Department.
- Successful marks during unannounced inspections.
- All centers must also comply with proper health and safety requirements by complying with local ordinances, demonstrating an appropriate fire warning system, and maintaining a first-aid kit and emergency plan, which is practiced regularly. Potentially hazardous issues such as pets, electrical outlets, play areas, and pools must also be safely maintained.
If the Department fails to respond formally to the request for licensure, the license will be deemed approved after 90 days.
In addition to these requirements, the state's administrative rules routinely emphasize compliance with the Department. Applicants are expected to make their records, facilities, and staff accessible to the Department and the public throughout and after licensure. Failure to comply with any reasonable requests that the Department may have can result in license denial, suspension, or revocation.
How Long Are Childcare Licenses Active?
Under Hawaii Administrative Laws, childcare licenses must be renewed annually for the first four years that a childcare provider is licensed. After the fourth year, licenses must be renewed every other year as long. Providers active for four or more years may be required to renew licenses on an annual basis in the case of misconduct.
What Providers Are Required To Have a License in Hawaii?
Childcare licenses are necessary to protect the public and ensure that the government adequately screens providers so parents can feel safe leaving their children in these facilities. Therefore, most facilities in Hawaii will need some form of a license to operate. The following types of childcare centers must have active licenses to operate in Hawaii.
These types of centers provide full or part-time care for three or more children in a non-residential, commercial setting. Some examples of these programs may include religious programs, preschools, pre-kindergartens, toddler programs, and nursery programs.
Group Childcare Homes
A group childcare home provides full or part-time care for children in a residential setting for at least seven and no more than twelve children.
Family Care Homes
Family care homes provide full or part-time care for children in a residential setting for at least three but no more than six children.
What Qualifications Must Staff Have to Work At A Childcare Center?
Under Hawaii Law, directors, teachers, and all other assistants must hold specific qualifications to work at state-licensed childcare centers in Hawaii.
Directors of childcare centers must be at least 18 years old and have a bachelor's degree. While the state does not mandate directors to hold a child development degree, their coursework in their bachelor's program must include a minimum of 30 hours of coursework in child development. Before becoming a director, directors must also have worked with children for at least one year. Directors of preschool centers must be able to demonstrate two years of experience. Directors of Group Childcare Homes must reside in the home.
Teachers at childcare centers must also be at least 18 years old, have a degree in early childhood education or development, and have six months of experience working with the appropriate age range. Teachers can also qualify through various other tracks, including an associate degree, credential program, or relevant experience.
Assistants must hold either a credential or associate degree in child education or development and six months of experience. They are not required to be 18 years old.
Although every staff member is not required to have a CPR or first aid license, the center must ensure that at least one member trained in both is always present. All staff must complete a physical exam, background check, fingerprinting, and TB test.
What Types of Childcare Providers Don't Need a License?
According to Hawaii Revised Statutes §346-152, some childcare providers are not required to be licensed under Hawaii law. Some of these providers include:
- Childcare provided in a child's home by relatives.
- Family childcare homes that provide full or part-time care in a residential setting for 1 or 2 children unrelated to the provider.
- Programs for school-aged children that a community organization operates.
- Any program that operates less than 6 hours a week or for no more than two consecutive weeks in three months.
- Programs for specialized training or specific skills development.
Conduct That Places a Hawaii Childcare License At Risk
Daycare facilities should have a working knowledge of the various state and federal laws they must consistently meet to maintain a proper Hawaii-issued license. Although failure to comply with any applicable state or federal law can result in a license investigation, some serious allegations of misconduct can result in license suspension or revocation.
A past or current history of committing certain criminal offenses can place your Hawaii license at risk. Under the state's Administrative Rules (referenced above), employees may be disqualified from working in a childcare facility for the following types of convictions:
- First or second-degree murder.
- First or second-degree negligent homicide.
- First-degree assault, reckless endangerment, terroristic threats, negligent injury, unlawful imprisonment, burglary, robbery, custodial interference, and sexual assault.
- Promoting child abuse in the first or second degree.
- First, second-, or third-degree incest.
- First or second-degree extortion, extortion with a firearm.
- Child endangerment
- Compensation by an adult or juvenile for completion of criminal activity.
- Promoting prostitution, pornography, intoxication, and drug use of minors,
- Endangerment of incompetent people.
If an employee is disqualified due to an assault conviction in the second degree, they may seek employment after five years.
Operating Without a Valid License
Operating a childcare facility without a proper license is a serious breach that can be punished to the maximum extent of the law. In its' Administrative regulations, the state defines operation without a license as any of the following:
- Caring for more children than allowed under an operator's license.
- Operating a facility without the proper staff ratios.
- Falsely certifying staff credentials or hiring staff not adequately certified for their position.
- Failure to comply with criminal history checks.
- negligently operating the facility disputes conditions that constitute an “imminent danger to the health, welfare, or safety of the children.”
Health and Safety Violations
As addressed above, daycare establishments in Hawaii must adhere to a range of health and safety regulations as dictated by federal and state legislation. Non-compliance with these stipulated standards may lead to severe consequences, including the suspension or revocation of operating licenses. Some of the health and safety violations that can affect licensure include:
- Failure to keep a clean environment.
- Failure to post emergency protocol and follow proper procedures for smoke alarms, fire extinguishers, secured areas, etc.
- Failure to comply with proper food storage and preparation requirements.
Inadequate Staffing Levels or Poorly Trained Staff
Daycare centers also jeopardize their licensing status if they do not uphold the requisite staff-to-child ratios. Additionally, it's essential that these centers continuously verify that their staff possess the necessary qualifications, which may encompass certifications in first aid, CPR, or food handling.
Improper Supervision of Children, Abuse, and Neglect
Allegations of suspected child abuse and neglect can have severe consequences for your business. Even if the allegations are later deemed unfounded, the public may hesitate to send their children to your center out of fear that you cannot meet child safety standards.
Some allegations of suspected abuse or neglect may include improper punishment techniques, emotional abuse, or employing staff that are not legally allowed to work at the center due to past criminal conduct.
Allegations of improper supervision can also result from injuries on the playground, not maintaining proper allergy procedures for children, and failure to ensure that toys are age-appropriate and safe.
In addition to adhering to standards that safeguard the health and safety of children, daycare centers must maintain financial transparency with parents and exhibit integrity in their accounting practices. Parents have a right to receive itemized breakdowns of their charges and understand the nature of the costs. A failure to demonstrate fiscal responsibility can result in misconduct violations.
Failure to Maintain Proper Paperwork
Under Hawaii law, daycare centers must remain operationally compliant by keeping up-to-date records on staff and clients. Daycare operators must ensure that staff records are current and include documentation showing their qualifications, training, and background checks. Any instances of misconduct or poor performance should also be documented along with the chosen method of response to these issues.
Centers must also ensure that they track their health and safety inspections, as the Department and the public have a right to review these records upon request. It's also essential to have safety plans posted in accordance with the law, as well as any other employee paperwork that is required under federal and state law.
Finally, centers must have organized and accurate files for their clients where they can easily reference a child's health records, emergency contact info, etc. Consistent failure to gross negligence to maintain proper paperwork can result in license suspension or revocation.
The Disciplinary Process in Hawaii for License Suspensions and Revocations
The Hawaii Department of Human Services, Benefit, Employment & Support Services Division is responsible for receiving and investigating complaints regarding misconduct in Hawaii Childcare violations.
To ensure that the applicant or licensee receives Due Process, a legal term that affords them the right to be notified about the allegations against them and present their side of the story to a neutral decision-maker, the disciplinary process will typically take place in the following steps:
The Investigation Phase
Complaints for misconduct, such as financial abuse, negligence, health and safety violations, etc., are first reported to the Department by parents, members of the community, and even staff members at the daycare facility. If the allegations also involve the abuse or neglect of a child, the complainant will also be directed to call the Child Abuse and Neglect Hotline at (808) 832-5300. After complaints are reported to the department, the “licensing unit will determine whether there is a child care law or licensing rule violation that needs to be investigated.”
If the Department determines that an investigation is warranted, they will start by visiting the facility or the childcare home unannounced. Daycare providers should always be ready for this investigation and be able to show the Department records for the current year as well as two previous years.
As part of the investigation, the Department may also ask to speak to employees, members of the public, or parents during their investigation to determine if there is any merit to the allegations against the provider. After concluding the investigation, the Department has a short window of time to assess whether or not to pursue a complaint against the provider. If the Department finds no basis for the allegations, they will drop the investigation and close the matter. The matter will proceed to a hearing if the Department determines there is enough basis to pursue a complaint.
The Hearing Phase
If the matter proceeds to an administrative hearing, both sides can present facts, evidence, and arguments before a neutral third-party decision-maker. While administrative hearings are not as dramatic as jury trials, participants should not be fooled into thinking they are not severe. In fact, these hearings operate like small bench trials and require an astute understanding of federal and state childcare laws, administrative regulations, civil procedures, and laws of evidence.
Should you proceed to the hearing, you will have to craft an opening and closing argument, submit admissible evidence, draft briefs, send subpoenas, respond to discovery, prepare witnesses, and conduct cross-examinations. After the hearing, the decision-maker will issue a decision. Decisions can range from case to case but can include dismissal of the case, license suspension or revocation, or other penial actions such as fines or the mandatory completion of retributory programs such as substance abuse counseling, health and safety classes, or continuing education units.
While it may be tempting to represent yourself at these hearings, they require much legal knowledge and skill, even for practicing attorneys. You are best equipped to fight the state's bureaucracy when you come to the hearings equally matched and represented by a member of our Lento Law Firm Professional License Defense Team.
The Appeal Phase
If a hearing officer does not give you a favorable outcome, you may be able to file an appeal for a review of their decision. Appeals are very nuanced and require strict adherence to timeframes and procedures to ensure that your appeal is even accepted for preliminary review.
Consequences of Losing Your Hawaii Childcare License
Losing a Hawaii childcare license can wreak havoc in your personal and professional life, making it incredibly challenging to navigate a path forward and feel hope. Some of the consequences of losing your Hawaii childcare license may include the following.
During or after an investigation, a facility may be shut down until the issues leading to license suspension or revocation are remedied. Throughout this timeframe, your facility may not be able to survive the hit of halted operations. Without income, you may struggle to pay rent or property taxes. To make matters worse, you may also be required to pay financial fines or remedy safety hazards, which may feel impossible if the business does not have a nest egg to lean on.
There is nothing parents take more seriously than their children's safety. Even if your daycare facility is deemed safe after an investigation is closed or a license is reinstated, winning back the public's opinion may prove impossible. This type of reputational damage can quickly spread throughout a community, and parents may never feel comfortable returning or recommending others to your care.
From a credibility standpoint, reputational damage can also affect your professional future. Sometimes, directors may try to relocate or seek employment in different areas of childcare only to realize later that their misconduct allegations have followed them.
While a facility is closed, staff may seek employment elsewhere to make ends meet. In a smaller community, which is often the case in Hawaii, staff serious about pursuing a career in childcare may also decide to avoid working at a facility with a tarnished reputation. Even if and when a license is reinstated, the facility may open back up to find that they have lost all of their staff, which can prevent them from operating profitably.
How the Professional License Defense Team at the Lento Law Firm Can Help
Our Professional License Defense Team routinely represents daycare facilities fighting license misconduct claims from the Hawaii Department of Human Services. We know how to work with and challenge the state's bureaucratic framework to your defense. Working with our Team gives you peace of mind knowing that you are presenting the best possible strategy for your future. You don't need to feel like you are unmatched in this battle before you begin.
Fighting for your Hawaii Day Care License? Contact the Lento Law Firm Today!
As an owner, operator, director, or staff member of a childcare center in Hawaii, you likely feel like giving up if you are being investigated for misconduct violations. Although it can feel intimidating to fight allegations when your reputation is tarnished, your career and dedication to your clients are worth it. Not every investigation has to end in license suspension or revocation, and there is a path forward. Fortunately, The Lento Law Firm is well-versed in Hawaii state daycare facility law and will help you navigate the steps ahead. Contact our Professional License Defense Team anytime, day or night, for a consultation by calling 888-535-3686 or using our online contact form.