HB 1584

HB 1584-FN - AS INTRODUCED

AN ACT relative to the licensing and regulation of child day care agencies.

SPONSORS: Rep. Patricia Cote, Rock 9

This bill transfers authority for licensing, regulation, and administration of child day care agencies from the department of health and human services to the department of education.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to the licensing and regulation of child day care agencies.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Intent. This bill transfers the authority to regulate child day care agencies from the department of health and human services to the department of education. In making this transfer, the general court recognizes that child day care agencies should be regulated by the same state department which regulates children in the public schools.

I. All existing rules, regulations, and procedures in effect, in operation, or adopted in or by the department of health and human services relative to the licensing of child day care agencies pursuant to RSA 170-E:1 through RSA 170-E:23 are declared in effect and shall continue in effect until rescinded, revised, or amended by the commissioner of the department of education.

II. All of the functions, powers, duties, and responsibilities of the department of health and human services relative to the licensing of child day care agencies pursuant to RSA 170-E:1 through RSA 170-E:23 are transferred to the department of education. The transfer provided for in this section shall include all of the personnel, books, papers, records, equipment, unexpended appropriations, or other available funds in any account or subdivision of an account of the department of health and human services and authorized for use by said department for the purposes established in RSA 170-E:1 through RSA 170-E:23.

3 New Subparagraph; Department of Education; State Board of Education Rulemaking. Amend RSA 21-N:9, II by inserting after subparagraph (bb) the following new subparagraph:

(cc) The regulation and administration of all child day care agencies as set forth in RSA 200-M.

4 New Paragraph; Duties of State Board of Education; Administration of Child Day Care Agencies Added. Amend RSA 186:11 by inserting after paragraph XXXV the following new paragraph:

XXXVI. CHILD DAY CARE AGENCIES. Adopt rules, pursuant to RSA 541-A, relative to the regulation and administration of child day care agencies as set forth in RSA 200-M.

5 New Chapter; Child Day Care Agencies. Amend RSA by inserting after chapter 200-L the following new chapter:

200-M:1 Purpose. The purpose of this chapter is to provide for the regulation and administration of child day care agencies.

I. "Applicant" means a person, institution or agency who intends to receive for child day care one or more children unrelated to the operator and who indicates that intent to the department by filling out the forms prescribed by rule adopted by the commissioner pursuant to RSA 541-A.

III. "Child day care" means the care and supervision of a child away from the child's home and apart from the child's parents.

IV. "Child day care agency" means any person, corporation, partnership, voluntary association or other organization, either established for profit or otherwise, which regularly receives for child day care one or more children, unrelated to the operator or staff of the agency. The total number of hours in which a child may remain in child day care shall not exceed 13 hours per day, except in emergencies. The types of child day care agencies are defined as follows:

(a) "Family day care home" means an occupied residence in which child day care is provided for less than 24 hours per day, except in emergencies, for up to 6 children from one or more unrelated families. The 6 children shall include any foster children residing in the home and all children who are related to the caregiver except children who are 10 years of age or older. In addition to the 6 children, up to 3 children attending a full day school program may also be cared for up to 5 hours per day on school days and all day during school holidays.

(b) "Family group day care home" means an occupied residence in which child day care is provided for less than 24 hours per day, except in emergencies, for 7 to 12 children from one or more unrelated families. The 12 children shall include all children related to the caregiver and any foster children residing in the home, except children who are 10 years of age or older. In addition to the 12 children, up to 5 children attending a full day school program may also be cared for up to 5 hours per day on school days and all day during school holidays.

(c) "Group child day care center" means a child day care agency in which child day care is provided for preschool children and up to 5 school-age children, whether or not the service is known as day nursery, nursery school, kindergarten, cooperative, child development center, day care center, center for the developmentally disabled, progressive school, Montessori school, or by any other name.

(d) "Day care nursery" means a child day care agency in which child day care is provided for any part of a day, for 5 or more children under the age of 3 years.

(e) "Night care agency" means a center or family home in which child day care is provided during the evening and night hours. A child day care agency may be licensed for day care, night care, or both.

(f) "Preschool program" means a child day care agency providing care and a structured program for children 3 years of age and older who are not attending a full day school program. The total amount of hours a child may be enrolled in a preschool program shall not exceed 5 hours per day.

(g) "School-age program" means a child day care agency providing child day care for up to 5 hours per school day, before or after, or before and after, regular school hours, and all day during school holidays and vacations, and which is not licensed under RSA 149, for 6 or more children who are 4 years and 8 months of age or older. The number of children shall include all children present during the period of the program, including those children related to the caregiver.

(h) "Dual licensure" means the issuance of 2 licenses by the department of education to operate both a child day care agency and a family foster care agency, as provided by RSA 200-M:13, II.

VI. "Corrective action plan" means a written proposal setting forth the procedures by which a child day care agency will come into compliance with the standards set by rules adopted by the commissioner under RSA 541-A, and subject to the approval of the department. The proposal shall include the time needed to assure compliance and the steps proposed by the agency to reach compliance.

VIII. "Guardian" means the guardian of the person of a minor, as defined in RSA 463.

IX. "License" means an authorization granted by the commissioner to provide one or more types of child day care.

X. "Monitoring visit" means a visit made to the child day care agency by department personnel for the purpose of assessing compliance with the standards set by rule adopted by the commissioner pursuant to RSA 541-A.

XI. "Permit" means the initial authorization to operate issued to an operator of a child day care agency, which shall not be renewable except for good cause shown.

XII. "Regularly" or "on a regular basis" means supervision and care up to and including 7 days a week, whether paid or unpaid, for the following as defined in RSA 200-M:2, IV: (a) family day care home, (b) family group day care home, (c) group child day care center, (d) day care nursery, (e) night care agency, (f) preschool program, and (g) school-age program.

XIII. "Related" means any of the following relationships by blood, marriage, or adoption: parent, grandparent, brother, sister, stepparent, stepgrandparent, stepbrother, stepsister, uncle, aunt, niece and nephew, first cousin, or second cousin.

(a) Programs offering instruction to children, including but not limited to athletics, crafts, music, or dance, the purpose of which is the teaching of a skill.

(b) Private homes in which any number of the provider's own children, whether related biologically or through adoption, and up to 3 additional children are cared for regularly for any part of the day, but less than 24 hours, unless the caregiver elects to comply with the provisions of this chapter and be licensed.

(c) Child care services offered in conjunction with religious services attended by the parent or offered solely for the purpose of religious instruction.

(d) Facilities operated as a complimentary and limited service for the benefit of the general public in connection with a shopping center, ski area, bowling alley, or other similar operation where the parents or custodians of the serviced children are on the premises or in the immediate vicinity and are readily available.

(f) Any recreation program of the Boys Club; Girls Club; Girls, Inc.; YMCA; YWCA; and any school or church group.

(g) Private homes in which the only children in care are the provider's own children, children related to the provider, and children residing with the provider.

II. Persons administering programs exempted from licensing pursuant to this section shall be subject to the provisions of RSA 200-M:5.

200-M:4 Criminal Records and Central Registry Check of Child Day Care Providers Exempt From Licensing. Any child day care providers exempt from licensing under RSA 200-M:3 which receive state funds or subsidies in payment for the provision of child day care shall, as a condition of receiving state funds or subsidies, provide their names, birth names, birth dates and addresses, and the same information for any individual residing in the child day care provider's household who may be responsible for the care of, or is in regular contact with children, to the department prior to the receipt of state funds or subsidies on or before July 1, 1999, and every 3 years thereafter. The department shall conduct criminal records and central registry checks on these names in accordance with the provisions of RSA 200-M:12.

I. No person shall establish, maintain, operate or conduct any child day care agency without a license or permit issued by the department under this chapter.

II. No child care provider, whether licensed as a child day care agency or exempted from licensing pursuant to RSA 200-M:3, shall care for a child in a manner which endangers the health, safety or welfare of the child. For purposes of this paragraph, endangerment shall mean the negligent violation of a duty of care or protection owed to such child or negligently inducing such child to engage in conduct which endangers his or her health or safety. Licensees in violation of this paragraph shall be subject to the provisions of RSA 200-M:17. Persons exempted from licensing who are in violation of this paragraph shall be enjoined by a court of competent jurisdiction in accordance with the provisions of RSA 200-M:28 from caring for such child and may be enjoined, as the court may determine, from caring for other children.

I. Any person who provides child day care services and receives state funds for such services, but is not required to be licensed under RSA 200-M:5 as a child day care agency, shall register with the department.

II. The department shall maintain a registry of all providers of child day care services who are not required to be licensed under RSA 200-M:5, but who receive state funds for their services.

200-M:7 Assistance From Department. The department, in applying the standards adopted by rule under this chapter, shall offer consultation through employed staff or other qualified persons to assist applicants and licensees in meeting and maintaining minimum requirements for a license.

200-M:8 Child Care Resource and Referral Services. The department shall develop and implement a plan, such plan to be fully funded by federal moneys for child care resource and referral services, which shall have the following responsibilities and duties to the public:

I. Provide referrals to a variety of licensed child care options which meet the parent's or guardian's child care needs.

II. Provide information on child care subsidies, including public and private program eligibility requirements and on tax credits and employer options.

III. Provide counseling on selecting quality child care and early childhood issues.

IV. Provide information on training opportunities for parents, guardians, and child care providers.

V. Provide assistance to state human service agencies in seeking child care for such agencies' clients.

VI. Provide information to parents, guardians and providers through workshops, provider groups, and library resources.

VII. Provide assistance in seeking funding for local providers to develop and improve child care services.

VIII. Provide start-up assistance to prospective center and family day care providers.

X. Provide technical assistance to employers and public and private sector decision-makers to support their efforts to expand and improve quality child care in New Hampshire.

XI. Establish a resource library for parents, providers, employers and the public which includes information on child development, child care options, licensing, model programs, employer options, and other related topics.

XII. Recruitment of, and technical assistance to, existing and prospective local child care providers to encourage the development of special needs child care, protective child care, subsidized child care, mildly ill child care and second-shift child care.

I. There is established the child day care loan program to provide low interest loans for nonprofit child day care providers. The primary purposes of these low interest loans include:

(a) To construct wheelchair and handicap access ramps, van conversions, and bathroom renovations to accommodate children with disabilities.

(b) To pay for expansion or construction costs to serve more children under the state voucher program for low-income families to meet the expected increase of families receiving temporary assistance to needy families entering the work force.

(d) To renovate or expand facilities to serve priority populations, such as infants and toddlers, and families in need of night, weekend, drop-in, and mildly-ill care.

(e) To allow after-school programs to expand and purchase startup supplies, including storage, for school-age children.

(f) To enable child day care providers to secure a more stable environment and continuity of services through ownership or extended lease arrangements.

II. Criteria for consideration of loan applicants shall include the provider's commitment to enroll low-income children, children subsidized through the Child Care and Development Fund, and children with disabilities, or legally-operating providers who provide services to these populations. In addition, applicants shall:

(b) Meet or exceed state and local operating and zoning regulations, including public health, fire, and safety requirements, or present a local exemption from regulations.

(3) Enrollment in the United States Department of Agriculture food program (Child and Adult Food Program).

(4) Documentation of training in the Child Care Basics program or other training approved by the department.

(d) Address a geographic or community need for projected child day care services.

III.(a) The department may, after consultation with the state child care advisory committee established in RSA 126-A:17, adopt rules pursuant to RSA 541-A, relative to the implementation and administration of the child day care loan program under this section.

(b) The department shall have the responsibility for notifying providers of the availability of the loans and shall provide guidelines for loan application. Notification shall be made publicly, as well as through child care associations and the child care resource and referral network of New Hampshire.

(c) The department shall have the authority to designate a statewide, nonprofit community development financial institution as recipient of the funds, or a portion of the funds, to be used as a loan loss reserve or interest subsidy, or both.

(d) The department may elect to contract with a statewide, nonprofit community development financial institution for provision of the following services:

(2) To establish a mechanism for making lending decisions related to project feasibility.

(3) To maintain documentation on the borrower's organization, collateral, and on-going repayment ability.

(4) To collect and report the number of day care slots retained, created, or improved and the number of low-income families served through the child day care loan program or related activities.

IV. The terms and conditions of the loan shall be contained in a binding agreement between the child day care provider and the lender and may include provisions for a lien on the property. Loans subsidized by an interest-rate subsidy shall carry a term of no more than 15 years and shall, to the extent possible and consistent with this section, be determined to match the useful life of the improvements funded by the loan. The department shall annually, on or before July 1, account for any subsidy or loss reserve expended, as well as for the repayment status of all loans made under this program.

200-M:10 Applications; Compliance With Local Codes Required. Any person who intends to operate a child day care agency as defined in RSA 200-M:2, IV, shall apply for a license to operate one or more types of child day care agencies. Application for a license to operate a child day care agency shall be made to the department in the manner and on forms prescribed by rules adopted by the commissioner pursuant to RSA 541-A. Such forms shall provide for the names, birth names, birth dates, and addresses of all persons having responsibility for care of or regular contact with children at the agency. The applicant shall obtain approvals in accordance with state and local requirements pertaining to health, safety and zoning, as applicable. School age programs located in currently operating public or private schools shall be exempt from the requirement to provide documentation of approval pertaining to fire, health, and zoning.

200-M:11 Insurance Disclosures. Every licensed child day care agency and every child day care provider required to be registered under RSA 200-M:6 shall either maintain liability insurance or provide a disclosure to parents that the facility is uninsured.

200-M:12 State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds.

I. Child day care providers who are required to be licensed or registered according to the provisions of this chapter shall, within 30 days of adding new staff members responsible for the care of, or having regular contact with children, and within 30 days of adding new household members or other individuals who will have regular contact with children, submit to the department, the names, birth names, birth dates, and addresses of such individuals and other information required by the department as prescribed by rules adopted by the commissioner under RSA 541-A.

II. The department shall, for every name submitted on an application, in the registration process, and for each individual for whom information is required to be submitted pursuant to paragraph I, review the names, birth names, birth dates, and current and previous addresses of such persons against the state registry of founded abuse and neglect reports. The department shall submit the names, birth names, birth dates, and addresses to the state police files to obtain information about criminal convictions.

III. If any individual whose name has been submitted for a check under this section has been convicted of a violent or sexually-related crime against a child, or of a crime which shows that the person might be reasonably expected to pose a threat to a child, such as a violent crime or a sexually-related crime against an adult, the department shall:

(a) If the individual is the applicant or owner, revoke or deny the license or permit, or withhold state funds if the child day care provider is not required to be licensed.

(b) If the individual is a board member, household member, or child day care personnel, or any other individual having regular contact with the enrolled children, inform the child day care agency or registered provider that the individual poses a threat to children and give the agency or registered provider an opportunity to take immediate corrective action to remove the individual from the agency, and, in conjunction with the department, to develop a corrective action plan, approved by the department, which shall ensure that the individual will not be on the premises of the child day care program and shall have no contact with children enrolled in the child day care program.

(c) Suspend, deny, or revoke the license or permit if the child day care program refuses to take corrective action as indicated in subparagraph (b), or subsequently fails to comply with the corrective action plan approved by the department.

(d) Upon a finding of criminal activity as described in this paragraph, withhold state funding to registered child day care providers that are exempt from the licensing requirements of RSA 200-M:3 if the provider refuses to take corrective action as indicated in subparagraph (b), or fails to comply with the corrective action plan approved by the department.

IV. If any individual whose name has been submitted for this check has been convicted of crimes against minors or adults, except crimes as provided in paragraph III, or is the subject of a founded complaint of child abuse or neglect, the department may deny, revoke, or suspend a license, permit, or registration pending the development and implementation of a corrective action plan approved by the department. In addition, the department may, upon a finding of criminal activity or a founded complaint of child abuse or neglect as described in this paragraph, withhold state funding to registered child day care providers that are exempt from the licensing requirements of RSA 200-M:3 pending the development and implementation of a corrective action plan approved by the department. The department shall conduct an investigation in accordance with rules adopted under this chapter to determine whether the individual poses a present threat to the safety of children. The investigation shall include an opportunity for the individual to present evidence on his behalf to show that the individual does not pose a threat to the safety of children.

V. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the confidentiality of information collected under this section and to the release, if any, of such information.

I. Licenses shall be issued in such form and manner as prescribed by rules adopted by the commissioner under RSA 541-A and shall be valid for 3 years from the date issued unless revoked or suspended by the department or voluntarily surrendered by the licensee. Licenses shall not be transferable and shall be surrendered in the event of change of ownership.

II. The department may provide dual licensure to operate a child day care agency and a family foster care agency. Such licensure shall be granted only upon application and shall be contingent upon a determination that the standards of both programs have been met without compromising any licensing requirements.

III. The department shall make monitoring visits a minimum of once yearly during each licensing period. At least one such visit during the licensing period shall be unannounced. Clear and comprehensive records shall be maintained by the department on each licensed agency showing the dates and findings of each such visit. Such records shall be made available to the child day care agency. If the child day care agency is found not to be in compliance with the statute or with rules adopted by the commissioner, a corrective action plan shall be submitted to the department. Failure to submit an acceptable plan shall result in license suspension, denial, or revocation.

IV. The department may, in lieu of a license, issue a permit to a newly established facility for child day care for the purpose of demonstrating compliance with this chapter and the rules adopted under it during actual operation. At the end of the permit period, the department shall renew the permit for good cause, issue a license for the balance of the license period, or deny the license.

I. A licensed child day care agency shall file for renewal of its license or permit no later than 3 months prior to the expiration date of the license or permit on forms prescribed by rules adopted by the commissioner under RSA 541-A.

II. The department shall reexamine every child day care agency for renewal of its license or permit, including examination of the premises, program and such records of the agency as the department considers necessary to determine that minimum standards for licensing continue to be met. If the department is satisfied that the agency continues to comply with the minimum standards established by rule for that category of care, it shall renew the license to operate.

III. The commissioner may designate an agency or person to carry out the reexamination specified in paragraph II.

I. The department shall keep in a central depository records of licenses issued under this chapter and all monitoring reports that have been made relative to licensees. When a license is issued to a child day care agency, the department shall give notice to the health officer and fire department of the city or town in which the licensee is located stating the granting of such license and its terms. A like notice shall be given of any suspension or revocation of such license.

II. The license itself, and the findings of monitoring visits, and final decisions relative to licensure of the child day care agency shall be considered public information, available for review by members of the public; information submitted in the application process, however, shall be private, confidential, and not available for review.

200-M:16 Rulemaking. The commissioner, in consultation with the state board of education, shall adopt rules, under RSA 541-A, relative to:

I. Minimum standards for licensing which apply to the various types of child day care agencies. The department shall seek the advice and assistance of persons representative of the various types of child day care agencies in adopting rules. The standards prescribed shall include:

(a) The operation and conduct of the agency and the responsibility it assumes for child day care.

(b) The character, qualifications, mental and physical ability and competence of the applicant as well as all persons directly responsible for the care and welfare of children served, or of persons who will be providing necessary care for children and maintaining prescribed standards, or of persons who will do both.

(d) The appropriateness, safety, environmental health, and general adequacy of the premises, including maintenance of adequate fire prevention and health standards conforming to state laws and municipal codes, to provide for the physical comfort, health and care of children received; provided that, health and safety requirements with regard to school-age children shall be no more stringent than those required for the public schools.

(e) Provisions for food, clothing, educational opportunities, program, equipment and individual supplies to assure the health and the physical and mental development of children served.

(g) Maintenance of records pertaining to the admission, progress, health and discharge of children.

(h) Filing of reports with the department, including format, frequency and content of such reports.

(j) Protection and fostering of the particular religious faith of the children served, where applicable.

(k) Provisions to provide for a report of any new staff, paid or unpaid, or resident of the facility which shall include the name, birth name, date of birth and previous addresses of the person, or other information as required by rules of the department.

(m) The process and forms for requesting waivers to minimum standards and for placing conditions on licenses.

II. The confidentiality of information collected pursuant to RSA 200-M:12, 200-M:15, 200-M:22, and 200-M:24.

IV. Policy and procedures concerning monitoring visits, investigation of complaints and disciplinary proceedings, including corrective action plans, against licensees.

VI. A schedule of administrative fines which may be imposed under RSA 200-M:27 for a violation of this chapter or the rules adopted pursuant to it.

VII. Procedures for notice and hearing prior to the imposition of an administrative fine imposed under RSA 200-M:27.

VIII. Administration and enforcement of the registration process and maintenance of the registry established under RSA 200-M:12.

200-M:17 License or Permit Suspension, Revocation, or Denial. The department may suspend, revoke, deny or refuse to renew any license or permit if the licensee or permit holder:

II. Does not comply with this chapter or the rules adopted under this chapter relative to the supervision of children in his or her care;

III. Violates any provision of this chapter, or is unable to meet and maintain standards adopted by the commissioner;

IV. Substantially or repeatedly violates any provisions of the license or permit issued;

V. Furnishes or makes any misleading or any false statement or report to the department;

VI. Refuses or fails to submit any reports or to make available to the department any records required by it in making an investigation of the facility for licensing purposes;

VII. Refuses or fails to submit to an investigation or to the required visits by the department;

VIII. Refuses or fails to admit authorized representatives of the department at any time child care is being provided for the purpose of investigation or visit;

IX. Fails to provide, maintain, equip, and keep in safe and sanitary condition premises established or used for child day care as required under standards prescribed by rules adopted by the commissioner under RSA 541-A or as otherwise required by any law, rule, ordinance, or term of the license applicable to the location of such facility;

X. Retaliates against an employee who in good faith reports a suspected violation of the provisions of this chapter and rules adopted under it;

XII. Fails to comply with the corrective action plan submitted by the child day care agency and approved by the department; or

I. Should the department determine to suspend, revoke, deny, or refuse to renew a license or permit, it shall send to the applicant, licensee or permittee, by registered mail, an order setting forth the particular reasons for the determination. The suspension, revocation or denial shall become final 10 days after receipt of such order unless the applicant, licensee or permittee requests a hearing under paragraph II of this section.

II. Any applicant, licensee or permittee aggrieved by a decision of the department to suspend, revoke, deny or refuse to renew a license or permit may appeal to the commissioner. For purposes of carrying out the provisions of this section, the commissioner may, in accordance with the rules adopted by the division of personnel pursuant to RSA 541-A, appoint a hearings officer or officers, as necessary, to preside over such hearings. A hearings officer may affirm, deny or modify the decision of the department. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to procedures for the appeal process provided under this paragraph.

III. When the department decides to suspend, revoke, deny, or refuse to renew a license or permit, and it expressly finds that the continued operation of a child day care agency violates any minimum standard prescribed by law or rule, or otherwise jeopardizes the health, safety, morals or welfare of children served by the agency, the department shall include in its order issued under paragraph I an order of closure directing that the operation of the agency terminate immediately. In this event, the agency shall not operate during the pendency of any proceeding for the review of the decision of the department, except under court order.

IV. Rehearings and appeals from a decision of the hearings officer shall be in accordance with rules adopted under RSA 541-A.

200-M:19 Appeal. Any person aggrieved by any decision rendered after a rehearing held or an appeal brought under RSA 200-M:18, IV may appeal the decision to the superior court.

200-M:20 Operation Without a License. Whenever the department is advised, or has reason to believe, that any person is operating a child day care agency without a license or permit, or in violation of any of the provisions of this chapter, it may make an investigation to ascertain the facts. If it finds that such person is operating or has operated without a license or permit, or in violation of any of the provisions of this chapter, the department shall issue by certified mail a notice informing such person of the violation and requesting that it cease operating within 24 hours of the date notice is received. The department may report the results of its investigation to the attorney general or to the appropriate county attorney for prosecution.

200-M:21 Advertising. A child day care agency licensed or operating under a permit issued by the department may publish advertisements of the services for which it is specifically licensed or issued a permit under this chapter. No person who is required to obtain a license or permit under this chapter may advertise or cause to be published an advertisement soliciting a child for child day care unless the person has obtained the requisite license or permit.

I. If the department has reason to believe that state or federal funds solicited and received by a corporation for conduct of a child day care agency are not being used for the purpose for which the funds were awarded, or are being fraudulently used by the corporation or its members, or purportedly are being used for a facility or agency which is actually defunct, or are being used by or for an agency which no longer carries a valid license or permit, the department shall report these facts to the attorney general and request an investigation of the corporation to determine if the corporation should be dissolved or whether other action should be taken against the corporation or its members.

II. The department shall conduct an investigation of any complaint of violations of any licensing or operating standards against permitted or licensed child day care agencies. All investigations shall be conducted at reasonable times, with the cooperation of other state or municipal authorities, if required, and may include unannounced visits. The commissioner shall request an annual narrative summary of complaints received by the department.

III. Records compiled during an investigation shall be confidential and shall not be made public by the department.

I. The department shall have the power to administer oaths in any disciplinary proceedings.

II. Upon request of the commissioner, the attorney general shall be authorized, for good cause shown, to subpoena witnesses and to compel, by subpoena duces tecum, the production of papers and records in any disciplinary proceedings under this chapter.

200-M:24 Records. Every child day care agency shall keep and maintain such records as the department shall prescribe by rule pertaining to the admission, progress, health and discharge of children under the care of the child day care agency and shall report relative to such matters to the department whenever called for, upon forms prescribed by rule. All records regarding children and all facts learned about children and their relatives shall be kept confidential both by the child day care agency and by the department.

200-M:25 Notice of Death. If any child under the control of any licensed child day care agency dies, the licensee shall give notice of such event to the department within 24 hours.

(a) Conducts, operates or acts as a child day care agency without a license or permit to do so in violation of RSA 200-M:5, I;

(d) Is required to obtain a license or permit under this chapter and who advertises or causes to be published an advertisement soliciting a child for child day care which is not authorized by any license or permit held;

(e) Violates any other provision of this chapter or any rule adopted under RSA 541-A by the commissioner for the enforcement of this chapter.

II. Each day a violation continues to exist shall constitute a separate offense.

200-M:27 Administrative Fines. The commissioner, after notice and hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person who violates any provision of this chapter or rules adopted under this chapter. Rehearings and appeals from a decision of the commissioner shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The commissioner shall adopt rules in accordance with RSA 541-A relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the general fund.

200-M:28 Injunctive Relief. Any person may institute in any court of competent jurisdiction an action to prevent, restrain, correct or abate any violation of this chapter or of the rules adopted under RSA 200-M:16; and the court shall adjudge relief, by way of injunction, which may be mandatory or otherwise as may be proper under all the facts and circumstances of the case, in order fully to effectuate the purpose of this chapter and the rules adopted under it. In a prosecution under this chapter, a defendant who relies upon the relationship of any child to himself or herself has the burden of proof as to that relationship.

200-M:29 Confidentiality and Investigations. State registry files and all other related confidential information kept by any state agency may be used by the department for the purpose of investigation and licensure. The department shall strictly observe the confidentiality requirements of the agency from which it receives information.

6 Public Health; Lead Paint Poisoning and Control; Definition Amended. Amend RSA 130-A:1, II to read as follows:

II. "Child care facility" means a facility required to be licensed under the provisions of RSA [~~170-E:4~~] 200-M:5.

7 Public Health; Communicable Diseases; Definition Amended. Amend RSA 141-C:2, IV-b to read as follows:

IV-b. "Child care agency" means "child day care agency" as defined in RSA [~~170-E:2, IV~~] 200-M:2, IV and "child care agency" as defined in RSA 170-E:25, II.

8 Child Protection Act; Definition Amended. Amend RSA 169-C:3, VI to read as follows:

VI. "Child care agency" means a "child day care agency" as defined in RSA [~~170-E:2, IV~~] 200-M:2, IV or a "child care agency" as defined in RSA 170-E:25, II.

9 New Hampshire Health and Education Facilities Authority; Definition Amended. Amend RSA 195-D:3, XVIII to read as follows:

XVIII. "Child care provider" means a provider of child day care as defined in RSA [~~170-E:2, III~~] 200-M:2, III, including a child day care agency as defined in RSA [~~170-E:2, IV~~] 200-M:2, IV, and any other not-for-profit or charitable institution, public or private, which is exempt from federal taxation pursuant to the Internal Revenue Code of 1986 as amended, 26 U.S.C. section 501 et seq., and which provides or otherwise assists in the provision of facilities, equipment, services, or economic assistance of any type to a child day care agency.

10 Department of Health and Human Services; Community Living Facilities. Amend RSA 126-A:19 to read as follows:

126-A:19 Community Living Facilities. The commissioner shall develop a statewide program of community living facilities for persons with developmental disabilities or mental illnesses. The commissioner shall be responsible for the selection, certification, and monitoring of such community living facilities in accordance with rules adopted by the commissioner pursuant to RSA 541-A. The commissioner shall also be responsible for prior approval of all individual residential placements and shall adopt rules relative to monitoring the care, treatment, and habilitation provided to all residents of community living facilities. Rates for enhanced family care residents shall be set according to the severity of the resident's disability. Placements of children shall be consistent with RSA 170-A, 170-C, and [~~170-E~~] 200-M, as appropriate. Approval by the commissioner of an individual for placement in a community living facility shall be based on a finding by the commissioner that the community living facility is the least restrictive environment appropriate to the needs of the individual. "Least restrictive environment" means the facility, program, or service which least inhibits a person's freedom of movement, freedom of choice, and participation in the community, while achieving the purposes of habilitation and treatment.

11 Public Health; Food Service Licensure. Amend RSA 143-A:5, VI to read as follows:

VI. Child care facilities inspected and licensed under RSA [~~170-E~~] 200-M.

12 Indoor Smoking Act; Smoking Prohibited; Exemptions. Amend RSA 155:66, III to read as follows:

III. Public educational facilities at any time, and in child care agencies licensed under RSA [~~170-E~~] 200-M during the hours of operation, except foster family homes and foster family group homes.

13 Child Day Care and Child Placing Agencies; Rulemaking. Amend RSA 170-E:34, I (h) to read as follows:

(h) Establishing, maintaining, and directing a system of child care resource and referral pursuant to RSA [~~170-E:5-a~~] 200-M:8.

14 Child Care Provider Guaranteed Loan Program; Reference Amended. Amend RSA 204-C:74, II(a) to read as follows:

(a) Agree to apply for or hold a child care provider license pursuant to RSA [~~170-E~~] 200-M.

15 Repeal. RSA 170-E:1 through RSA 170-E:23, relative to the licensing of child day care agencies, are repealed.

AN ACT relative to the licensing and regulation of child day care agencies.

The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill as it is awaiting information from an agency.