Indiana Child Care Provider Defense

As a child care provider in Indiana, you're probably aware of some of the many rules and regulations that the state's Family and Social Services Administration (FSSA) expects you to follow, whether you operate a licensed Child Care Center or Child Care Home, or are responsible for a Child Care Ministry. The FSSA has a webpage that gathers links to many of these rules and regulations in one place, but navigating through the links to find the information you need can be difficult simply because there is so much information available. That's why the Lento Law Firm Professional License Defense Team has put together this summary of some of the major issues you can encounter as a childcare provider in Indiana. If, after reviewing it, you have questions about your situation, call us at 888.535.3686 or use our online contact form to set up a confidential consultation with one of our experienced attorneys.

Categories of Child Care Facilities in Indiana

Indiana's child care laws cover three main types of child care: Licensed Child Care Centers, Licensed Child Care Home Providers, and Unlicensed Child Care Ministry Providers. Each category has its own set of rules and regulations that must be followed, and even an unlicensed Child Care Ministry can lose its registration if it's found to be in violation of the FSSA laws that apply to that type of care facility.

A Child Care Center is defined as a “nonresidential building” where one or more children are cared for by someone other than their parent, guardian, or custodian in return for “regular compensation;” and for more than four but less than 24 hours for at least ten consecutive business days per year. There is a specific set of rules that apply to the operation of a Child Care Center.

A Child Care Home is defined as a “residential structure” where “at least six” children under the age of 14 (other than the care provider's own children) are cared for, again for regular compensation and for between 4 and 24 hours for ten consecutive business days per year. Child Care Homes have their own set of rules that they are expected to follow.

There are two categories of Child Care Homes. A “Class I Child Care Home” cares for up to 12 children plus 3 children who are in full-time kindergarten. (The daycare provider's own children aged 7 and over and other children aged 14 or over are not included in this count.) A “Class II Child Care Home” can care for 13 to 16 children in any combination of full-time and part-time care. Here, too, the provider's own children aged 7 or over and any child aged 14 or over are not included in the count.

A Child Care Ministry is defined as “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation” under the Internal Revenue Code. Child Care Ministries have fewer rules to follow than Child Care Centers or Child Care Homes but are still required to follow certain standards. They must also apply to the FSSA for registration as a Child Care Ministry.

Some childcare providers are officially “exempt” under Indiana law from licensing requirements. These include pre-K and K-12 programs operated by a local department of education or a public or private school; care facilities that provide less than four hours of child care per day; recreation and social programs for kids; in-home care for fewer than six children not related to the care provider, where the care provider doesn't receive “regular compensation;” and other exceptions. The remainder of this guide will focus on licensed and registered daycare providers, but if you are an exempt unlicensed provider and have questions about your status or a FSSA enforcement action, the Lento Law Firm Professional License Defense Team can help.

Understanding the type of childcare organization you are involved with is important to making sure that you follow the proper rules and regulations for that type of care facility, and will help you avoid running into situations where a FSSA enforcement proceeding could jeopardize your daycare operations, your reputation, and your livelihood.

Ways the State of Indiana Can Discipline Child Care Providers

There are a number of ways that the FSSA can discipline Care Centers, Care Homes, and Care Ministries. For licensed facilities, discipline can begin at the licensing stage if, for example, there has been a finding of child abuse or neglect in connection with the facility or if someone affiliated with the facility is convicted of a serious crime, particularly one related to the safety or the welfare of a child. False statements made on a license application can also doom a license request, as may a finding that the applicant illegally operated a daycare facility without a license in the past. Similar issues can cause the FSSA to reject the registration application of a Child Care Ministry.

Once the care facility is licensed (for centers and homes) or registered (for ministries), the FSSA can impose the following penalties on childcare providers for violating applicable FSSA regulations.

• Suspension of the license or registration. The FSSA may suspend the care facility's license or registration for any period of time up to six months. The facility will typically be required to submit a detailed plan addressing how it intends to avoid violating FSSA rules and regulations in the future before the suspension will be lifted.
• Revocation of the license or registration. For more serious violations, the FSSA may revoke the facility's license or registration. When a license is revoked, the person who had applied for the license must wait at least one year before applying for a new license; however, this one-year period may be waived at the discretion of the FSSA.
• Civil penalties in the form of a fine of up to $1000 may be assessed against license holders for violating FSSA regulations.
• Criminal liability can apply in situations where a licensed care provider “knowingly or intentionally” violates the regulations that apply to licensed care facilities. Individuals can be prosecuted for a Class B misdemeanor, which carries a potential prison term of up to 180 days and a fine of up to $1000.

What Standards Does the State of Indiana Expect Child Care Providers to Uphold?

There is a wide range of standards that the FSSA requires both unlicensed and licensed care homes to follow. The FSSA publishes lengthy and detailed “Interpretative Guides” for Child Care Centers, Child Care Homes, and Child Care Ministries that provide comprehensive details of how childcare providers are to care for children. Some of the main standards are set forth in Indiana law and include the following:

• Drug testing. Licensed facilities (but not unlicensed ministries) are required to follow FSSA drug testing guidelines for caregivers (including volunteers) and are required to provide those records to the FSSA upon request. In addition, Childcare Homes must also provide drug testing results for all adults who live with the care provider in the home. Childcare Ministries, by contrast, are not required to test their caregivers for drugs.
• Tobacco, alcohol, and illegal drug policy. Licensed facilities (but not unlicensed ministries) must have a written policy against the use of alcohol, tobacco, or illegal drugs “in the childcare center when child care is being provided.”
• Safe sleeping requirements. All childcare facilities must implement a specific set of “safe sleeping” practices. These apply to children under the age of 12 months. Violations of this requirement can result in an increasing level of fines, and after five violations, can result in the suspension of the facility's license or registration.
• Child supervision. Licensed facilities (but not unlicensed ministries) must make sure that each child is “continually supervised by a caregiver.”
• Immunization. All childcare facilities are required to confirm that children placed in their care have received certain immunizations, depending on the child's age. Exemptions exist in situations where parents object in writing to the immunization requirement based on religious grounds and where the child's physician advises that there is a medical reason the child has not received one or more of the required immunizations.
• Fire safety requirements. Care Centers, Class II Care Homes, and Care Ministries must meet specific fire safety requirements.
• Criminal history reporting. Employees or volunteers who have been convicted of certain crimes, in particular sex crimes or crimes related to the health or safety of a child, must be reported to the FSSA and may not be employed or allowed to volunteer at the childcare facility. In addition, employees and volunteers must submit to a national criminal background check, and care homes must report any police investigations, arrests, and criminal convictions involving the care home applicant or their spouse.
• Missing child reports.Care Centers and Care Homes (but not Care Ministries) are required to “thoroughly inspect” every missing child report they receive. If they believe a child in their care is the one listed in the report, they must notify the Indiana clearinghouse for information on missing children and adults and must mark the child's file accordingly.
• CPR. Someone trained in CPR must be present at all times when children are being cared for in any licensed or registered childcare facility in Indiana.

Grounds for Childcare Provider Discipline in Indiana

Violation of any of the FSSA rules or regulations relating to childcare can result in an “enforcement action” against the facility and the applicant for the facility's license or registration. In serious situations where the FSSA determines that there is a violation that poses an “immediate threat to the life or well-being of a child” being cared for, the FSSA may issue an emergency order shutting down the care facility.

Aside from those extreme situations, the FSSA has broad authority to bring enforcement action against any licensed or registered childcare facility that does not comply with the FSSA rules and regulations.

Don't Assume the Truth Will Protect You From Sanctions in Indiana

If you learn that the FSSA has filed an enforcement action against you or your care facility, your immediate reaction may be to contact the FSSA to explain the situation, the very natural hope being that if they just understood what really happened, it would all go away.

As much as we all would like that to be the case, it's extremely unlikely to work. Once an enforcement action has begun, there are procedures that need to be followed before it can be terminated. Volunteering information to the FSSA is unlikely to trigger a termination. In fact, it may prompt the FSSA to ask more questions and to dig even deeper into your facility's records and background.

While there may be opportunities to negotiate with the FSSA during the enforcement proceeding process, this is best done with the help of an experienced professional license defense attorney. The attorneys who are part of the Lento Law Firm Professional License Defense Team understand how FSSA enforcement actions work, and they can help you communicate with the FSSA when it's appropriate to do so in a way that helps you and your care facility most.

The Process for Disciplining Child Care Violations in Indiana

The typical FSSA enforcement action process includes the following steps:

• Notice. The FSSA will notify you that an enforcement action is being started against you or your facility, and you will have 30 calendar days to prepare for a hearing if you wish to fight it. The notice will come by email to the email address the FSSA has on file in connection with your license or registration, so it's important to make sure this address is up to date and uses an account that is regularly checked. If you don't confirm receipt of the FSSA notice within 3 working days, the FSSA will follow up by certified mail or by having a process server deliver the notice to you or your facility personally.
• Contents of the Notice. The enforcement action notice will describe the type of action that the FSSA is proposing to take against you or your childcare facility. It will also explain the procedures available to you and the deadlines for seeking an administrative hearing of the proposed enforcement action.
• Informal meeting. You will have the “opportunity for an informal meeting” with the FSSA. But you have to request this and must do so quickly, within 10 working days after you confirm that you've received the enforcement action notice or after the FSSA mails or delivers the notice to you if you don't confirm receipt by email.
• Hearing request.You'll have the opportunity to have an administrative hearing of your case, but only if you request one. You have to make that request within 30 calendar days after you receive the enforcement action notice, and your request for a hearing must be separate from your request for an informal meeting.
• the FSSA receives your hearing request, it's required to hold a hearing within 60 calendar days from when it receives your written request. Your hearing request needs to include certain information; working with an experienced professional license defense attorney from the Lento Law Firm Professional License Defense Team will help you make sure your hearing request and all other materials submitted in connection with the hearing meet the legal requirements.
• Prehearing conferences. The hearing will take place before an administrative law judge, who may require you and the FSSA to participate in one or more prehearing conferences. These are typically designed to help streamline the hearing proceeding and may cover topics ranging from scheduling, to witness lists, to exploration of settlement opportunities, to objections to proposed evidence, and other hearing-related issues. Prehearing conferences may take place remotely, by phone, or by online video meetings.
• Hearing. The administrative law judge is responsible for conducting the hearing, for allowing each side to present their witnesses and evidence, and for providing opportunities for the opposing side to cross-examine witnesses and object to proposed evidence. The hearing will be recorded so that if there are any issues with the hearing or the judge's decision, there is a record for the appeal tribunal to review.
• Decision. The administrative law judge is required to issue a decision within 60 calendar days of the hearing. That decision must include the judge's findings of fact – what evidence the judge is relying on to come to a decision – and conclusions of law – what law the judge is applying to the evidence to reach the decision. In some cases, the judge may ask both sides to submit proposed findings of fact and conclusions of law for the judge to review before making a final decision.
• Appeal. The decision of the administrative law judge may be appealed by way of what is called a “petition for review.” The petition must be filed within 30 days of when the FSSA notifies you that it is moving forward with the enforcement order. The petition needs to include specific information so that the reviewing court is aware of exactly what is being appealed and what your reasons are for appealing it.

Appeals typically won't consider new evidence but will review the hearing, the evidence introduced at and excluded from the hearing, and the judge's findings of fact and conclusions of law and will determine whether mistakes were made during the hearing process. Not every mistake will result in a reversal; however, the mistake needs to be one that would make a difference in the judge's decision. In some cases, the remedy may be for the administrative law judge to redo all or parts of the hearing, following the guidance issued by the appeal court.

What Happens if You Are Disciplined by the State of Indiana in Connection With Your Child Care Facility?

If your childcare facility license or registration is suspended, you will not be able to care for any children until it's reinstated. Essentially, your business will be dead in the water until you have your license back. And while you may be tempted to skirt the rules and watch people's children anyway, doing so can put your future as a licensed (or registered) childcare provider at serious risk.

You will also have to prepare and submit – within 30 days of the suspension – a “plan of corrective action” to the FSSA. This plan must be detailed; it needs to describe the steps you'll take and the timeframe for correcting the violation or violations that resulted in the suspension. The FSSA must approve your plan before the suspension can be lifted.

If your license is revoked, the FSSA will notify each of the parents or guardians of the children you've been caring for that your license has been revoked. The FSSA will also publish the revocation notice. As noted above, unless the FSSA permits an exception, you must wait at least one year before you can reapply for a childcare license.

How the Lento Law Firm Professional License Defense Team Can Help

Childcare providers are a hugely important part of our nation's economy. Providing children with safe and enriching environments where they can socialize and learn helps parents who must earn a living but also want the best for their children. Whether your care facility is in Gary or Evansville, Terre Haute or Fort Wayne, South Bend or Bloomington, or in the Indianapolis area, you're providing hard-working families with a vitally important service. And if you're like most childcare providers, you also love what you do.

All of this can come to a screeching halt, however, if you receive a notice that an enforcement action has been filed against you. This is when you need the help of an experienced professional license defense attorney, someone who is part of the Lento Law Firm Professional License Defense Team. We understand the complicated regulations and rules that apply to childcare providers in Indiana, and we can help you understand what's happening and determine the best way to protect your ability to continue to care for children. Our experienced attorneys have helped childcare providers all over the country and are ready to help you – but you have to reach out to us before we can do so. We can even help in situations where you think it's too late; where your license or registration has already been suspended or even revoked, we can review the situation and determine whether an appeal is possible and, if not, what the best steps are to work to get your child care license or registration back.

What's important is that you don't delay. Call us today at 888.535.3686, or use our online contact form to set up a confidential consultation with one of our professional license attorneys. We have helped hard-working people in your situation all over the country, including Indiana, and we understand how difficult this is for you. We're here to listen – and to help.