Attachment 2 - Colorado Childcare Regulations_21 July 23.pdf

DEPARTMENT OF HUMAN SERVICES

Social Services Rules

CHILD CARE FACILITY LICENSING

12 CCR 2509-8

[Editor’s Notes follow the text of the rules at the end of this CCR Document.]

7.700 CHILD CARE FACILITY LICENSING

7.701 GENERAL RULES FOR CHILD CARE FACILITIES

7.701.1 INTRODUCTION

All rules in Section 7.701, et seq., shall be known and hereinafter referred to as the General Rules for Child Care Facilities and will apply to all child care applicants and licensees subject to the Child Care Licensing Act, Sections 26-6-101 to 26-6-119, C.R.S.

7.701.11 Licensing Exemptions

A. A license must be obtained before care begins unless such care is exempt as set forth below.

B. A license is not required for:

1. A special school or class in religious instruction. Religious instruction is defined as instruction in religion as a subject of general education, or instruction in the principles of a particular religious faith. Faith-or spiritually-based programs which offer religious instruction combined with early childhood education, child care or child development activities as a part of the daily routine must obtain a child care license.

2. A special school or class operated for a single skill-building purpose. Single skill building includes activities or instruction in one subject area. A single skill program includes the development of an individual skill which does not include naptime periods or overnight care, or any other time children are not engaged in that specific activity. Any time activities other than the identified single skill are provided; the program is no longer considered a single skill program and must obtain the appropriate license. Meals and snacks may be incorporated into the single skill request.

3. A child care center operated in connection with a church, shopping center, or business where children are cared for during short periods of time, not to exceed three hours in any twenty-four (24) hour period of time, while parents or persons in charge of such children, or employees of the church, shopping center, or business whose children are being cared for at such location are attending church services at such location, shopping, patronizing or working on the premises of the business. This facility must be operated on the premises of the church, business, or shopping center. Only children of parents or guardians who are attending a church activity; patronizing the business or shopping center or working at the church, shopping center or business can be cared for in the center.

4. Occasional care of children with or without compensation, which means the offering of child care infrequently and irregularly that has no apparent pattern.

CODE OF COLORADO REGULATIONS 12 CCR 2509-8

Social Services Rules

5. A family care home that provides less than 24-hour care. Care must only be provided using one (1) of the options below at any one time:

a. Care of children who are directly related to the caregiver by blood, marriage or adoption. The relationship between the caregiver and child includes biological child(ren), step-child(ren), grandchild(ren), niece, nephew, sibling, or first cousin and provide care for children who are siblings from the same family household which is unrelated to the provider; or

b. Care of up to four (4) children, related or unrelated to the caregiver. No more than two (2) children under the age of two years may be cared for at any one time.

6. A child care facility that is approved, certified, or licensed by any other state department or agency, or by a federal government department or agency, which has standards for operation of the facility and inspects or monitors the facility.

7. The medical care of children in nursing homes.

8. Ski area guest child care facilities as defined at Sections 26-6-102(16) and 26-6-103.5, C.R.S.

9. Neighborhood Youth Organizations as defined at Sections 26-6-102(5.8) and 26-6-103.7, C.R.S.

7.701.12 Civil Penalties and Injunctions

A. Violation of any provision of the Child Care Licensing Act or intentional false statements or reports made to the State Department or to any agency lawfully delegated by the State Department to make an investigation or inspection may result in fines assessed of not more than $100 a day to a maximum of $10,000:

1. A civil penalty will be assessed by the State Department only in conformity with the provisions and procedures specified in Article 4 of Title 24, C.R.S. No civil penalty will be assessed without a hearing conducted pursuant to the Child Care Licensing Act and Article 4 of Title 24, C.R.S., before an Administrative Law Judge acting on behalf of the State Department.

2. Prior to receipt of a cease and desist order from the Department or from any agency delegated by the STATE Department to make an investigation or inspection under the provision of the Child Care Licensing Act, any unlicensed child care facility may be fined up to $100 a day to a maximum of $10,000 for providing care for which a license is required.

3. For providing child care for which a license is required after receipt of a cease and desist order, an unlicensed facility will be fined $100 a day to a maximum of $10,000.

4. Assessment of any civil penalty under this section will not preclude the State Department from initiating injunctive proceedings pursuant to Section 26-6-111, C.R.S.

5. A licensed child care facility may be fined up to $100 a day to a maximum of $10,000 for each violation of the Child Care Licensing Act or for any statutory grounds as listed at Section 26-6-108(2), C.R.S.

6. Assessment of any civil penalty does not preclude the State Department from also taking action to deny, suspend, revoke, make probationary, or refuse to renew that license.

7. Any person intentionally making a false statement or report to the Department or to any agency delegated by the State Department to make an investigation or inspection under the provisions of the Child Care Licensing Act may be fined up to $100 a day to a maximum of $10,000.

8. Civil penalties assessed by the State Department must be made payable to the Colorado Department of Human Services.

B. In addition to civil penalties that may be assessed under Section 7.701.12.A, when an individual operates a facility after a license has been denied, suspended, revoked, or not renewed, or before an original license has been issued, injunctive proceedings may be initiated to enjoin the individual from operating a child care facility without a license.

C. Within ten (10) working days after receipt of a notice of final agency action with regard to a negative licensing action or the imposition of a fine, or when the State Department identifies and documents in a report of inspection serious violations of any of the standards that could impact the health, safety or welfare of a child cared for at the facility or family child care home, each child care center, facility or family child care home must provide the State Department with the names and mailing addresses of the parents or legal guardians of each child cared for at the facility so that the State Department can notify the parents or legal guardians of the negative licensing action taken or the serious violation impacting the health, safety or welfare of a child. The facility will be responsible for paying a fine to the State Department that is equal to the direct and indirect costs associated with the mailing of the notice.

7.701.13 Appeals and Waivers

The State Department is authorized to hear and decide three kinds of appeal or waiver requests by applicants or licensees: hardship appeals in this rule set, also referred to as hardship waivers, stringency appeals, and materials waiver requests, according to the following procedures. For purposes of this Section 7.701.13, a county department of human/social services that certifies foster homes under § 26-6- 106.3, C.R.S., is a “licensee.”

A. Hardship Waivers

1. Any applicant or licensee who has applied for or been issued a license to operate a child care facility or child placement agency has a right to appeal, pursuant to § 26-6-106(3), C.R.S., any rule or standard which, in his or her opinion, poses an undue hardship on the person, facility, or community.

a. “Undue hardship” is defined as a situation where compliance with the rule creates a substantial, unnecessary burden on the applicant or licensee’s business operation or the families or community it serves, which reasonable means cannot remedy. An undue hardship does not include the normal cost of operating the business.

b. Emergency hardship appeals are requests by applicants or licensees to excuse noncompliance with a specific child care licensing rule due to urgent, significant, and unexpected situations outside the applicant’s or licensee’s control. Specific situations that may be considered “emergencies” under this paragraph include, but are not limited to:

1) Natural disasters;

2) Infectious disease outbreaks;

3) Mold outbreaks;

4) Acts of nature or an accident resulting in structural damage to the child care facility; or

5) For foster care homes and residential child care facilities, an immediate, child(ren)-specific, emergency placement, situation which may disrupt placement, or situation posing a safety risk to a child(ren) in out-of-home placement.

2. Such appeal must be submitted to the State Department in writing within sixty (60) calendar days from the date on which the rule, standard, or emergency situation allegedly created the hardship. The applicant or licensee or their designated representative must send an appeal on the state-prescribed form to the appropriate division. Each rule appealed requires an individual appeal and applicable fee. If the appeal is an emergency hardship appeal, the applicant or licensee must mark it as such on the state-prescribed form.

3. When submitting an appeal, the applicant or licensee must consider the impact on the health, safety, and wellbeing of any children in care and include a proposed alternate compliance plan.

4. The State Department must consider the impact of an appeal on the health, safety, and wellbeing of the children in care, which must take priority over any undue hardship alleged, when determining whether an appeal should be granted.

5. If the State Department grants an appeal for undue hardship, it will issue the applicant or licensee an official decision notification letter temporarily excusing the applicant or licensee from compliance with the appealed rule or standard and accepting the alternate compliance plan.

B. Stringency Appeals

1. Any applicant or licensee who has applied for or been issued a license to operate a child care facility or child placement agency has a right to appeal, pursuant to § 26-6-106(3), C.R.S., any violation of a child care licensing rule cited in a report of inspection, on the basis that the rule has been too stringently applied by a representative of the State Department. “Stringency,” as used in this Section 7.701.13, means the child care licensing representative applied rules too strictly, improperly, or unfairly. Disputes over the factual accuracy of a cited violation are not reviewable under this provision and must be resolved with the licensing representative’s supervisor.

2. Such appeal must be submitted to the State Department in writing within sixty (60) calendar days from the date of the report of inspection at issue. The applicant or licensee or their designated representative must send an appeal on the state-prescribed form to the appropriate division. Each rule citation requires an individual appeal and applicable fee.

3. When submitting an appeal, the applicant or licensee must provide all evidence that it believes shows the rule was applied too stringently.

4. The State Department must consider the impact of an appeal on the health, safety, and wellbeing of the children in care.

5. If the State Department finds a licensing rule was too stringently applied in the appealed citation, it will issue the applicant or licensee a new report of inspection with that citation removed, which shall for all purposes supersede the original report of inspection.

C. Materials Waiver Requests

1. A child care center that is applied for or has been issued a license may request a waiver, pursuant to § 26-6-105.7, C.R.S., to use certain hazardous materials in its program or curriculum that would otherwise violate child care licensing rules.

2. The child care center must submit a materials waiver request in writing on the state-prescribed form to the appropriate division. Each rule for which waiver is requested requires an individual request and applicable fee. If the request also seeks to remove a citation on a report of inspection involving the materials, it must be submitted within sixty

(60) calendar days from the date of the report of inspection; otherwise, it may be submitted at any time.

3. A child care center requesting a materials waiver must adopt a safety policy, included with the waiver request, that provides that:

a. Early childhood teachers are trained in the use of the specific material(s) in a way that provides reasonable, developmental-and age-appropriate safety provisions for children;

b. Current training certificates are provided for each staff/classroom where the materials waiver is being sought. Training must be completed through nationally recognized programs related to the curriculum or philosophy, or through other State Department-approved training, curriculum, or program validation; and,

c. Parents are notified in writing regarding the use of the hazardous materials in the child care center. The notice must include all of the potential safety risks associated with the materials. The child care center must obtain signed parental consent forms acknowledging awareness of the risks in using the materials in the child care center prior to implementing use of the identified materials and prior to any newly enrolled children attending the center after the waiver is implemented.

4. The State Department must consider the impact of a materials waiver request on the health, safety, and wellbeing of the children in care.

5. If the State Department grants a materials waiver request, it will issue the child care center an official decision notification letter allowing the use of the requested materials according to the provided safety policy. The applicant or licensee must post the decision letter next to the child care license until the letter’s expiration date. If there is no expiration date, the decision letter expires three (3) years from the date of the letter. The approved waiver must be in place before using materials that pose a risk to children.

D. Administrative Review and Appeal Panel Procedures

1. The applicant or licensee must comply with all child care licensing rules and standards, including the rule(s) subject to an appeal or materials waiver request, until the applicant or licensee has received a written decision granting the appeal or waiver.

2. The State Department will receive, review, and schedule all appeals and materials waiver requests for review by the appeal panel constituted under § 26-6-106(3), C.R.S.

a. For hardship appeals, the State Department may propose that the appeal panel grant one or more appeals as part of a consent agenda, which the appeal panel may approve with a single vote; except if any panel member objects to the consent agenda, the appeals on such agenda must be decided individually. The appeal panel may not deny appeals by consent agenda.

b. For emergency hardship appeals, the State Department may administratively grant the appeal if it meets the definition of an emergency situation and the proposed alternate compliance plan adequately protects the health, safety, and wellbeing of children in care. If the State Department does not administratively grant the emergency hardship appeal, it must schedule the appeal for review by the appeal panel.

c. For materials waiver requests, the State Department will administratively grant or deny the waiver request within sixty (60) days after receipt of the request. If it denies a waiver, the State Department must provide notice in its decision of the child care center’s right to appeal the denial within forty-five (45) days and the center’s right to meet with State Department personnel as part of that appeal.

d. If a child care center appeals the denial of a materials waiver request within forty-five (45) days of the denial, the State Department will schedule the appeal for review by the appeal panel within forty-five (45) days of the appeal. The entire appeal process must not last longer than one hundred (100) days from the date of the notice of denial.

3. The appeal panel will adopt a written decision recommending that the State Department grant, deny, or grant with modifications an appeal or materials waiver request. The State Department must send an official decision letter, including the written decision of the appeal panel, to the applicant or licensee, within ten (10) days from the date of the appeal panel meeting.

a. For hardship appeals and materials waiver requests, the official decision letter must be posted next to the child care license until its expiration date. If there is no expiration date, the letter expires three (3) years from its date.

b. If the State Department approves a hardship appeal or materials waiver request and the applicant or licensee wishes to make changes to the alternate compliance plan or safety policy submitted with the original appeal or request, the applicant or licensee must submit a new hardship appeal or materials waiver request.

c. If, after the State Department approves a hardship appeal or materials waiver request, the applicant or licensee violates the terms and conditions described in the approved alternate compliance plan, approved safety policy, or official decision letter, the State Department’s approval will immediately be rescinded and considered null and void. For purposes of this provision, any injuries, accidents, or founded complaints or investigations related to the appealed or waived licensing rule constitute a violation.

4. Hearing requests

a. For hardship or stringency appeals, if an applicant or licensee is aggrieved by the decision of the State Department, the applicant or licensee may request an administrative hearing pursuant to § 24-4-105, C.R.S. Written requests for an administrative hearing must be received in writing within 30 calendar days from the date the applicant or licensee received the State Department’s decision. In all such administrative hearings, the applicant or licensee will bear the burden or proof by a preponderance of the evidence.

b. For appeals from denials of materials waiver requests, the State Department’s decision is a final agency decision subject to judicial review pursuant to § 24-4- 106, C.R.S.

7.701.14 Civil Rights

All facilities licensed under the Child Care Licensing Act are subject to the following federal laws and regulations: the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000D ET SEQ. (2018), and its implementing regulation, 45 C.F.R. Part 80 (2018); the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-6017 (2018) and its implementing regulation, 45 C.F.R., Part 91 (2018); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2018), and its implementing regulation, 45 C.F.R. Part 84 (2018). All of which are hereby incorporated by reference. No later editions or amendments are incorporated. These statutes and regulations are available for public inspection and copying at the Colorado Department of Human Services 1575 Sherman St., 8th floor, Denver, Colorado 80203, during regular business hours. These statutes and regulations are also available at no cost at HTTP://USCODE.HOUSE.GOV AND HTTP://WWW.ECFR.GOV.

All facilities licensed under the Child Care Licensing Act are also subject to Titles I through V of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (2012), and it’s implementing regulation, 29 C.F.R., part 1630 (2018), which are hereby incorporated by reference. No later editions or amendments are incorporated. These statutes and regulations are available for public inspection and copying at The Colorado Department of Human Services 1575 Sherman St., 8th floor, Denver, Colorado 80203, during regular business hours. These statutes and regulations are also available at no cost at

HTTP://USCODE.HOUSE.GOV AND HTTP://WWW.ECFR.GOV.

Decisions related to the enrollment, placement, or dismissal of a child with a disability or chronic condition must be in compliance with the Americans with Disabilities Act. The facility must provide reasonable accommodations for the child with a disability who has special needs.

A lack of independent ambulation or the need for assistance in feeding, toileting, or dressing or in other areas of self-care cannot be used as sole criteria for enrollment or placement or denial of enrollment or denial of placement. Efforts must be made to accommodate the child's needs and to integrate the child with his/her peers who do not have disabilities.

7.701.2 DEFINITIONS

“Affiliate of a licensee,” means any person or entity that owns more than five (5) percent of the ownership interest in the business operated by the licensee or the applicant for a license; or any person who is directly responsible for the care and welfare of children served; or any executive, officer, member of the governing board, or employee of a licensee; or a relative of a license, which relative provides care to children at the licensee’s facility or is otherwise involved in the management or operations of the licensee’s facility.

“Annually” means the time frame from the initial date of hire, training, licensing, or certification, and the following twelve months

“Calendar year” means the time frame from January 1 to December 31.

“Child abuse,” and “child neglect” mean the same as in the definition of “child abuse or neglect” set forth in Section 19-1-103(1), C.R.S., unless otherwise indicated.

“Child Care Centers,” are defined at section 26-6-102(5), C.R.S.

Types of child care centers are further detailed at section 7.702, “Rules Regulating Child Care Centers”.

A “school-age child care center” (referred to as the “center” in this subsection c1) means a child care center that provides care for five (5) or more children who are between five (5) years of age and up to the age of eighteen (18) years of age. Children 4 years of age, who will turn 5 on or before October 15th of the current calendar year may attend the center as part of a “building-based school-age child care program” or “building-based day camp” summer program prior to their kindergarten year. The center’s purpose is to provide child care and/or an outdoor recreational experience using a natural environment.

The center operates for more than one week during the year. The term includes facilities commonly known as “day camps”, “summer camps”, “summer playground programs”, “before and after school programs”, and “extended day programs.” this includes centers operating with or without compensation for such care, and with or without stated educational purposes.

A “building-based school-age child care program” means a child care program that provides care for five

(5) or more children who are between five (5) years of age and up to the age of eighteen (18) years of age. Four (4) year old children may attend a building based school age child care center the summer prior to attending kindergarten and the child’s fifth (5th) birthday occurs on or before October 15th. The center is located in a building that is regularly used for the care of children.

A “mobile school-age child care program” provides care for five (5) or more children who are at least seven (7) years of age or have completed the first grade and up to the age of eighteen (18) years.

Children move from one site to another by means of transportation provided by the governing body of the program. The program uses no permanent building on a regular basis for the care of children.

An “outdoor-based school-age child care program” provides care for five (5) or more children who are at least seven (7) years of age or have completed the first grade and up to the age of 18 years. This program uses no permanent building on a regular basis for the care of children. Children are cared for in a permanent outdoor or park setting.

“Child Placement Agency,” is defined at section 26-6-102(7), C.R.S.

Child placement agencies are further detailed at section 7.710, “Rules and Regulations for Child Placement Agencies”.

To arrange for placement is to act as an intermediary by assisting a parent or guardian or legal custodian to place or plan to place a child with persons unrelated to the child for 24-hour care.

Any agency from out-of-state placing a child within Colorado must be licensed as a child placement agency by the State Department unless the placement services are coordinated with and provided by a county department of social services, human services or a child placement agency licensed by the State Department.

“Children's Habilitation Residential Program (CHRP) Waiver provides services for children and youth, ages birth (0) through twenty (20) years of age, who have an intellectual or developmental disability and very high needs. Their needs for support put them at risk of, or in need of, out-of-home placement.

Waiver services help children and youth learn and maintain the skills needed to live in their communities.”

“Children's Residential Camp,” is defined at section 26-6-102(8), C.R.S.

Types of children’s resident camps are further detailed at section 7.711, “Rules Regulating Children’s Resident Camps”.

“Citizen/legal resident” means a citizen of the united states, current legal resident of the united states, or a person lawfully present in the united states.

“Consumer Product Safety Commission”, as referred to in rules Regulating Child Care Facilities, means the National Commission that establishes standards for the safety of children’s equipment and furnishings and for playground safety.

“Convicted” means a conviction by a jury or by a court and shall also include a deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred adjudication agreement, an adjudication, and a plea of guilty or nolo contendere.

“Critical incident” is a serious incident or concern or potential incident or concern that poses a danger to a child or children at the facility or of a staff member at the facility.

“Cultural Responsiveness” means that an organization designs and implements services and practices that consider the unique culture of the individuals, families, and communities served.

“Day Treatment Center,” is defined at section 26-6-102(10), C.R.S.

Day treatment centers are further detailed at section 7.706, 12 CCR 2509-8, “Rules Regulating Day Treatment Centers”.

“Employee” or “applicant for employment,” for the purpose of the child abuse or neglect records check required in Section 7.701.32, is defined as: an individual (other than an individual who is related to all children for whom child care services are provided):

Who is employed by a licensed or qualified exempt child care provider for compensation, including contract employees or self-employed individuals;

Whose activities involve the care or supervision of children for a licensed or qualified exempt child care provider or unsupervised access to children who are cared for or supervised by a licensed or qualified exempt child care provider; or

Any individual residing in a licensed or qualified exempt family child care home who is age 18 and older.

“Facility” is any business or operation established for the purpose of providing child care services that are required to be licensed pursuant to the Child Care Licensing Act, Section 26-6-101 et seq., C.R.S.

“Family Child Care Home,” is defined at section 26-6-102(13), C.R.S

Types of family child care homes are further detailed at section 7.707, “Rules Regulating Family Child Care Homes”.

“Final Agency Action” means the determination made by the State Department, after opportunity for hearing to deny, suspend, revoke, or demote to probationary status a license issued pursuant to the Child Care Licensing Act or an agreement between the State Department and the licensee concerning the demotion of such a license to a probationary license.

“Foster Care Home,” is defined at section 26-6-106(14) C.R.S

Types of foster care homes are further detailed at section 7.708, “Rules Regulating Family Foster Care Homes”.

“Governing Body” is the individual, partnership, corporation, or association in whom ultimate authority and legal responsibility are vested for the administration and operation of the child care facility.

“Health Department” is the Colorado Department of Public Health and Environment (CDPHE) or the local county department of health.

“Licensee” is the entity or individual to whom the license is issued and has the legal capacity to enter into agreements or contracts, assume obligations, incur and pay debts, sue and be sued in its own right, and to be held responsible for its actions. The licensee may be a governing body.

“Licensing Specialist” is the authorized representative of the State Department who inspects and audits child care facilities to ensure compliance with licensing requirements and to investigate possible violations of those requirements.

“Negative licensing action” is defined at Section 26-6-102(25), C.R.S. Neighborhood Youth Organization,” is defined at section 26-6-102(26)(a), C.R.S.

Neighborhood youth organizations are further detailed at section 7.720, “Rules Regulating Neighborhood Youth Organizations”.

“Relative” is defined at SECTION 26-6-102(32), C.R.S.

“Residential Child Care Facility” (RCCF) is defined at section 26-6-102(33), C.R.S.

Residential child care facilities are further detailed at section 7.705, “Rules Regulating Residential Child Care Facilities”.

A “Transition Program” may be a component of an RCCF program in which the child is residing in the RCCF part of the time and in a living situation that the child is expected to move to after treatment in the RCCF is completed. The purpose of transition is to enable the child to transition to the home or a less restrictive setting in a manner that prepares the child for success in the new setting.

“Secure Residential Treatment Center,” is defined at section 26-6-102(35), C.R.S.

Secure residential treatment centers are further detailed at section 7.713, “Minimum Rules and Regulations for Secure Residential Treatment Centers”.

“Serious emotional disturbance” means a diagnosable mental, behavioral, or emotional disorder that is of sufficient duration and has resulted in a functional impairment that substantially interferes with or limits a child’s role or functioning in family, school, or community activities. Serious emotional disturbances do not include developmental disorders, substance-related disorders, or conditions or problems that may be a focus or clinical attention unless they occur with another diagnosable serious emotional disturbance.

“Specialized Group Facility,” is defined at section 26-6-903(33), C.R.S. and includes “Specialized Group Homes” and “Specialized Group Centers”.

Specialized group facilities are further detailed at section 7.709, “Rules Regulating Specialized Group Facilities”.

SPECIALIZED GROUP FACILITY MAXIMUM CAPACITY

CHRP NON-CHRP TOTAL CHILDREN

0 11 11 1 7 8 2 6 8 3 5 8 4 4 8 5 3 8 6 2 8

Specialized Group Homes Or Group Centers who are serving children enrolled in the Children's Habilitation Residential Program (CHRP) waiver must be in compliance with rules contained within the Department Of Health Care Policy And Financing's Medical Assistance Manual at 10 CCR 2505-10 section 8.508 (2019), which is hereby incorporated by reference. No later additions or amendments incorporated. These regulations are available at https://www.sos.state.co.us/CCR.

Specialized Group facilities that provide services for one or more children enrolled in the CHRP waiver must be staffed with a sufficient number of qualified staff members to ensure the needs of all children/youth residing in the facility are met. Ongoing assessments of the needs of all children/youth shall be conducted by the sponsoring agency during visits to the specialized group facility.

A Specialized Group Home is located in a house owned or otherwise controlled by the group home parents who are primarily responsible for the care of the children and reside at the home.

A Specialized Group Center is located in a facility owned or controlled by a governing body that hires the group center parents or personnel who are primarily responsible for the care of the children.

“State Department” is the Colorado Department of Human Services.

“Trails” means the State Department’s confidential information system which maintains abuse and neglect referrals, investigations, and the investigation outcomes.

“Trauma-Informed” means that the services or programs to be provided to or on behalf of the child/youth are provided under an organizational framework that involves understanding, recognizing, and responding to the effects of all types of trauma and in accordance with recognized principles of a trauma-informed approach and trauma-specific interventions to address trauma’s consequences and facilitate healing.

7.701.3 APPLICATION PROCESS

7.701.31 Original Application

A. A completed original application accompanied by the appropriate fee and proof of lawful presence in the United States (see Section 3.140.11) must be submitted to the State Department a minimum of sixty (60) days prior to the proposed opening date for the facility. For 24-hour agencies or facilities, the addendum with specific requirements must be completed and submitted with the application.

B. A licensing evaluation will occur only after the State Department has received the complete application and appropriate fee.

C. If a county or agency establishes and plans to sponsor a Specialized Group Facility, the governing body for the Specialized Group Facility is the licensee. A written plan for the supervision of the Specialized Group Facility must accompany the application.

7.701.32 Use of Records and Reports of Child Abuse or Neglect for Background and Employment Inquiries

A. An operator of a licensed facility, guest child care facility as defined in Section 26-6-102(16), C.R.S., or an exempt family child care home provider must submit a request to determine if an operator, applicant for employment or current employee has been found responsible for a confirmed report of child abuse or neglect in the State Department's automated system (Trails).

B. Foster Homes must also obtain a child abuse or neglect records check for each adult eighteen

(18) years of age or older living in the home in every state where the adult has resided in the five 5 years immediately preceding the date of application.

C. An child abuse or neglect records check is not necessary regarding out-of-state employees of a children’s resident camp or school-age child care center for a camp or center that is in operation for fewer than ninety (90) calendar days; out-of-state employees operating under this exemption must be supervised at all times by a staff member who has successfully completed all background checks.

D. The Trails child abuse or neglect records request must be made on the State prescribed form, accompanied by the required fee (for fee assessment see Section 7.000.73) within the following required time frames:

1. Child care centers (less than 24-hour care), school-aged child care facilities, family child care homes, and qualified exempt providers must meet the following:

a. For all individuals whose activities involve the care or supervision of children or who have unsupervised access to children, requests must be submitted and successfully completed prior to caring for children or allowing unsupervised access to children.

1) Individuals who have obtained a successfully completed CBI or FBI record check may care for children, for no longer than ninety (90) calendar days, while waiting for all other required background checks to be completed. The individual must be supervised at all times by an individual who has successfully completed all required background checks.

b. For each adult eighteen (18) years of age or older, residing in a licensed family child care home or a qualified exempt provider home, requests must be submitted at time of application.

c. For each adult eighteen (18) years of age or older, who begin residing in the home after care begins, requests must be submitted within five (5) calendar days of when he or she begins residing in the home, and these adults must not be allowed unsupervised access to children in care until all background checks have been successfully completed.

2. All other requests except those specified in Section 7.701.32.D.1 must be submitted within ten (10) calendar days of the first day of employment for each employee or facility.

E. The Trails child abuse and neglect records request must be made within ten (10) calendar days of the first day of employment for each employee or facility on the State prescribed form, accompanied by the required fee paid by check or money order (for fee assessment see Section 7.000.73).

F. The Trails child abuse and neglect records request must be accompanied by the individual’s written authorization to obtain such information from the State automated system, if applicable.

G. The State Department will inform the requesting party in writing of whether the individual has been confirmed to be a person responsible for an incident of child abuse or neglect.

1. If the result of the inquiry is that the individual has been confirmed as responsible for an incident of child abuse or neglect, the State Department must provide the requesting party with information regarding the date of the reported incident, the type of abuse or neglect with the severity level, and the county department that confirmed the report.

2. If the result of the inquiry is that the individual has not been confirmed to be responsible for an incident of child abuse or neglect, the State Department must notify the requesting party of this fact.

H. The information provided by the State Department must serve only as the basis for further investigation. The director or operator may inform an applicant or employee that the report from the State Department’s automated system was a factor in the director or operator's decision with regard to the applicant or employee's employment.

I. Any person who willfully permits or who encourages the release of data or information related to child abuse or neglect contained in the State Department’s automated system to persons not permitted access to such information commits a Class 1 misdemeanor and must be punished as provided in Section 18-1.3-501, C.R.S.

J. Every five (5) years, all child abuse and neglect inquiry background checks must be renewed by resubmitting an inquiry form and current fee to the State Department for processing. An updated clearance letter or verification of the submission of the inquiry form must be obtained before five

(5) years from the date reflected on the current clearance letter.

K. The results of the abuse and neglect inquiry must be maintained at the center, facility, or agency and must be available for review upon request by a Licensing Specialist.

7.701.33 Criminal Record Check

A. Criminal records checks are required under the following circumstances:

1. In order to obtain any Colorado bureau of investigation (CBI) and/or Federal Bureau of Investigation (FBI) fingerprint criminal history records, each applicant listed below must have their fingerprints taken and processed at a vendor approved by CBI. Approved vendors may be located using the CBI website at Colorado.gov/cbi. Payment of the fee for the criminal record check is the responsibility of the individual being checked, identified as follows:

a. Each applicant for an original license for a center, facility, or agency and any adult eighteen (18) years of age or older who resides in the licensed center, facility or agency.

b. Each exempt family child care home provider who provides care for a child and each individual who provides care for a child who is related to the individual (referred collectively in this section as a “qualified provider”), if the child's care is funded in whole or in part with money received on the child's behalf from the publicly funded Colorado Child Care Assistance Program; and, any adult eighteen (18) years of age or older who resides with a qualified provider where the care is provided.

c. Applicants for an original certificate for a foster care home, and any adult eighteen (18) years of age or older who resides in the foster care home.

d. Any person working in a twenty-four (24) hour child care agency or facility.

2. Each applicant for an original license for a Neighborhood Youth Organization must comply with the criminal background check requirements found at Section 26-6-103.7(4), C.R.S.

The applicant must ascertain whether the person being investigated has been convicted of felony child abuse as specified in Section 18-6-401, C.R.S., or a felony offense involving unlawful sexual behavior as defined in Section 16-22-102(9), C.R.S. The Neighborhood Youth Organization must not hire a person as an employee or approve a person as a volunteer after confirmation of such a criminal history.

B. Only in the case of a children's resident camp or school-age child care center, out-of-state persons employed in a temporary capacity for less than ninety (90) days are not required to be fingerprinted to obtain a criminal record check. Each person exempted from fingerprinting and being checked with the State Department's automated system must sign a statement which affirmatively states that she/he has not been convicted of any charge of child abuse or neglect, unlawful sexual offense, or any felony. Out-of-state employees operating under this exemption must be supervised at all times by a staff member who has successfully completed all background checks.

Prospective employers of such exempted persons must conduct reference checks of the prospective employees in order to verify previous work history and must conduct personal interviews with each such prospective employee.

C. At the time the annual declaration of compliance (see Section 7.701.35.B) is submitted to the Department, except as required per Section 7.701.33.C.1 and 7.701.33.C.2, a criminal record check is required only for adults living at the licensed facility who have not previously obtained one. Because the CBI provides the Department with ongoing notification of arrests, owners, applicants, licensees, and persons who live in the licensed facility who have previously obtained a criminal record check, they are not required to obtain additional criminal record checks.

1. Any resident of the family child care home or qualified exempt provider home turning eighteen (18) years of age shall complete the fingerprint process at an approved vendor fourteen (14) calendar days prior to their 18th birthday.

2. The fingerprint process shall be completed at an approved vendor within five (5) calendar days of when any new resident, eighteen (18) years of age or older, begins residing in a family child care home or qualified exempt provider home. Adults must not be allowed unsupervised access to children in care until all background checks have been successfully completed.

D. Each owner, employee of a facility or agency shall complete the fingerprint process at an approved vendor. Payment of the fee for the criminal record check is the responsibility of the individual being checked or the facility or agency. The results of the criminal record check, the CBI and FBI response letters, must be maintained at the home, center, facility, or agency and must be available for review upon request by a Licensing Specialist.

1. Employees and volunteers who are transferring from one child care facility to another may have their CBI, but not their FBI, fingerprints transferred if they complete the following process:

a. Employees must contact CBI to determine if they are eligible for transfer. If eligible, employees must visit a CBI approved vendor and indicate they are completing a criminal background check (CBC) transfer per C.R.S. 26-6- 107(1)(a)(I)(C.7). Employees must pay the current transfer fee.

b. When an individual leaves employment, the facility must submit to the Department a completed Notification of Name Removal form to request the removal of the individual's name from their facility license number in the CBI database.

c. School district employees who currently work at a child care facility must have their criminal history report linked to the license number of the child care facility.

2. Except as required per Section 7.701.33.D.3, any adult volunteer, working as a staff member to meet the required staff-child ratio or staff qualifications, who works fourteen

(14) days (112 hours) or more in a calendar year shall complete the fingerprint process at an approved vendor. The results of the criminal record check must be maintained at the facility or agency and must be available for inspection by a Licensing Specialist. An employee operating as a volunteer to meet required staff-child ratio that does not have a completed background check on file must be supervised at all times by a qualified staff member who has successfully completed all background checks.

3. Criminal background check requests for volunteers, whose activities involve the care and supervision of children; or who have unsupervised access to children, must be submitted and successfully completed prior to caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-aged child care facilities, family child care homes, and qualified exempt provider homes.

4. Requests for a criminal record check, other than those required per Section 7.701.33.D.4.a, b must be completed at an approved vendor within five (5) working days of the day that the individual begins to work at the facility or agency.

a. Criminal background check requests must be successfully completed prior to an individual caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-aged child care facilities, family child care homes, and qualified exempt provider homes.

b. A National Sex Offender Registry check request must be submitted and successfully completed prior to an individual caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-aged child care facilities, family child care homes, and qualified exempt provider homes.

5. Every five (5) years, requests for FBI criminal record checks must be renewed by completing the fingerprint process at an approved vendor. An updated clearance letter or verification of the submission of the request must be obtained prior to five (5) years from the date reflected on the current clearance letter.

6. Facilities and agencies that hire individuals who have been convicted of any felony, except those listed in Subsection 8.a.-f below, unlawful sexual behavior, or any misdemeanor, the underlying factual basis of which has been found by the court on record to include an act of domestic violence must inform the State Department of that hiring within fifteen (15) calendar days of receiving knowledge of the conviction.

7. A child care facility shall not employ, or a child placement agency shall not employ or certify, an individual who has been convicted of:

a. Child abuse, as specified in Section 18-6-401, C.R.S.

b. A crime of violence, as defined in Section 18-1.3-406, C.R.S.

c. An offense involving unlawful sexual behavior, as defined in Section 16-22- 102(9), C.R.S.

d. A felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in Section 18-6-800.3, C.R.S.

e. A felony involving physical assault, battery, or a drug-related offense within the five years preceding the date of application for a license or certificate.

f. A pattern of misdemeanor convictions within the ten (10) years immediately preceding submission of the application. “Pattern of misdemeanor” shall include consideration of Section 26-6-108(2), C.R.S., regarding suspension, revocation and denial of a license, and shall be defined as:

1. Three (3) or more convictions of third (3rd)degree assault as described in Section 18-3-204, C.R.S., and/or any misdemeanor, the underlying factual basis of which has been found by any court on the record to include an act of domestic violence as defined in Section 18-6-800.3, C.R.S.; or

2. Five (5) misdemeanor convictions of any type, with at least two (2) convictions of third (3rd) degree assault as described in Section 18-3- 204, C.R.S., and/or any misdemeanor, the underlying factual basis of which has been found by any court on the record to include an act of domestic violence as defined in Section 18-6-800.3, C.R.S. or,

3. Seven (7) misdemeanor convictions of any type.

g. Any offense in any other state, the elements of which are substantially similar to the elements listed in this Subsection a-f.

E. Payment of the fee for the FBI check is the responsibility of the individual who is obtaining the check or the facility or agency. Certified foster parent(s) or any person eighteen (18) years of age or older who resides with a certified foster parent must obtain a criminal record check from the FBI regardless of the length of residence in Colorado.

F. The Department may deny, revoke, suspend, change to probationary or fine a child care facility or child placement agency if the applicant(s), an affiliate of the applicant, or any person living with or employed by the applicant has been found to…