SB 268: "An Act relating to facilities for the care of children; to child placement agencies; to maternity homes; to certain residential facilities for adults; and to foster homes for adults; and providing for an effective date."
00SENATE BILL NO. 268 01 "An Act relating to facilities for the care of children; to child placement 02 agencies; to maternity homes; to certain residential facilities for adults; and to 03 foster homes for adults; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 44.47.305(b) is amended to read: 06 (b) To qualify for a grant under (a) or (d) of this section, the child care facility 07 must 08 (1) be currently licensed under AS 47.35 [AS 47.35.010 - 47.35.075] 09 and applicable municipal licensing requirements; 10 (2) participate in the day care assistance program under AS 44.47.250 - 44.47.310; 11 (3) provide care under a payment system as provided in (g) of this 12 section. 13 * Sec. 2. AS 44.47.310(2) is amended to read: 14 (2) "child care facility" means an establishment licensed under
01 AS 47.35 [AS 47.35.010 - 47.35.075], including [BUT NOT LIMITED TO] day care 02 centers, family day care homes, and schools for preschool age children, which provides 03 care for children not related by blood, marriage, or legal adoption to the owner, 04 operator, or manager of the facility; 05 * Sec. 3. AS 44.47.310(4) is amended to read: 06 (4) "day care facility" means a center or home licensed in accordance 07 with the provisions of AS 47.35 [AS 47.35.010 - 47.35.075] or recognized by the 08 federal government for the care of children; 09 * Sec. 4. AS 44.62.330(a)(24) is amended to read: 10 (24) Department of Health and Social Services, relating to denial, 11 involuntary conditioning, or revocation of a license issued under AS 47.35, or 12 suspension of operations or admissions or assessment of an administrative fine 13 under AS 47.35 [RELATING TO BOARDING AND FOSTER HOMES FOR 14 CHILDREN]; 15 * Sec. 5. AS 47.35 is amended by adding a new section to read: 16 CHAPTER 35. COMMUNITY CARE LICENSING [PRIVATE INSTITUTIONS]. 17 Sec. 47.35.005. PURPOSE; APPLICABILITY. (a) The purpose of this 18 chapter is to establish and maintain standard levels for services offered to children in 19 child care facilities, foster homes, and residential child care facilities; services offered 20 by child placement agencies; and services offered to pregnant individuals in maternity 21 homes. The legislature recognizes the responsibility of parents to select and monitor 22 caregivers for their children in order to assure a reasonably safe and developmentally 23 appropriate child care environment. The community care licensing procedures in this 24 chapter are intended to reduce predictable risk of harm to children and to provide 25 support services to those providing child care or services. 26 (b) This chapter and regulations adopted under this chapter apply to facilities 27 and agencies 28 (1) for which licensure is required by or under AS 47.35.015; and 29 (2) that are exempt under AS 47.35.015 from licensure but for which 30 a license is issued under AS 47.35.015(g). 31 * Sec. 6. AS 47.35.010 is amended to read:
01 Sec. 47.35.010. POWERS OF DEPARTMENT. (a) The department may 02 (1) license and supervise [BOARDING HOMES,] foster homes, child 03 care facilities, residential child care facilities, child placement agencies, and 04 maternity homes [GROUP HOMES, NURSERIES, INSTITUTIONS CARING FOR 05 CHILDREN AND FOSTER HOMES, GROUP HOMES AND INSTITUTIONS 06 CARING FOR DEPENDENT ADULTS]; 07 (2) investigate applicants, licensees, and persons that the department 08 reasonably believes are operating a facility without a license in violation of this 09 chapter [AND SUPERVISE LICENSEES]; 10 (3) adopt regulations to implement the provisions of this chapter, 11 including regulations establishing licensure and renewal procedures, standards, 12 and fees; establishing requirements for operation of facilities or agencies licensed 13 under this chapter; and distinguishing between types of child care facilities 14 [ENFORCE THE STANDARDS ESTABLISHED BY IT]; 15 (4) enter into agreements [CONTRACT] with private entities, 16 municipalities, or individuals [OR MUNICIPAL AGENCIES] to investigate and 17 make recommendations to the department for the licensing and supervision of 18 [BOARDING HOMES,] foster homes, child care facilities, residential child care 19 facilities, child placement agencies, and maternity homes [GROUP HOMES, 20 NURSERIES, INSTITUTIONS CARING FOR CHILDREN AND FOSTER HOMES, 21 GROUP HOMES AND INSTITUTIONS CARING FOR DEPENDENT ADULTS] 22 under procedures and standards of operation established by the department[; 23 CONTRACTS WITH PRIVATE AGENCIES UNDER THIS PARAGRAPH ARE 24 GOVERNED BY AS 36.30 (STATE PROCUREMENT CODE)]. 25 (b) The department shall, within 90 days after receiving a written request that 26 it do so, delegate its powers relating to child care facilities [NURSERIES] under this 27 chapter [SECTION AND UNDER AS 47.35.040 - 47.35.060] to a municipality that 28 has adopted an ordinance providing for child [DAY] care licensing under home rule 29 powers under AS 29.10.010 or as authorized under AS 29.35.200 - 29.35.210. A 30 municipality to which these powers have been delegated may adopt, by ordinance, 31 additional requirements for child care facilities operating within its boundaries
01 if the requirements meet or exceed the requirements adopted [WAIVE OR 02 MODIFY ANY REGULATION OR STANDARD ESTABLISHED] by the department 03 [UNDER THE AUTHORITY OF AS 47.35.010 - 47.35.075 AS IT APPLIES TO 04 NURSERIES OR THE APPLICATION OF ANY SUCH REGULATION OR 05 STANDARD AS IT APPLIES TO A PARTICULAR DAY CARE LICENSEE BUT 06 MUST NOTIFY THE DEPARTMENT OF ANY WAIVER]. 07 * Sec. 7. AS 47.35 is amended by adding new sections to read: 08 Sec. 47.35.015. LICENSE REQUIRED; EXEMPTIONS. (a) A person may 09 not operate a child care facility without a license issued under this chapter unless that 10 facility is exempt from licensure. The following facilities are exempt: 11 (1) a facility in which child care is regularly provided and each child's 12 parent is on the premises within reasonable proximity and accessibility to the child; 13 (2) a facility located on a United States military installation; 14 (3) a recreational program in which the children are allowed to attend 15 and in which the program assumes no responsibility for their care; 16 (4) a daytime therapeutic program of supervised, educational, and 17 rehabilitative services for children with special needs or behavioral problems; 18 (5) a program that asserts exemption as primarily educational and that 19 either 20 (A) is certified as a pre-elementary school under Department of 21 Education regulations adopted under AS 14.07.020; or 22 (B) serves children three years of age or older and is exempt 23 from Department of Education regulation; 24 (6) a temporary facility providing care for less than five continuous 25 weeks; 26 (7) a facility regularly providing child care to four or fewer children. 27 (b) A person may not operate a foster home without a license issued under this 28 chapter unless that facility provides care only 29 (1) for relatives and the department does not require licensure under an 30 agreement for services; 31 (2) for one or more children nine years of age or older placed by a
01 parent with either 02 (A) authorization for emergency medical care; or 03 (B) a consent to temporary custody; 04 (3) for one or more exchange students placed by a sponsoring agency 05 in a home evaluated and approved by that sponsoring agency; 06 (4) for one or more children who are the subject of a petition for 07 adoption filed by the caregiver pending a final decree of adoption, if a home study has 08 been completed, or provides care only for children placed for adoption by a child 09 placement agency licensed under this chapter; 10 (5) for a child for up to 72 hours in a nonsecure attendant care setting 11 authorized by the department; or 12 (6) for a child on a 24-hour basis for a period of no more than 30 days 13 in a licensed child care facility meeting requirements for nighttime care adopted by the 14 department by regulation. 15 (c) A person may not operate a residential child care facility without a license 16 issued under this chapter unless that facility 17 (1) is a juvenile facility operated by the state under AS 47.10.150; 18 (2) is a medical facility licensed by the department under AS 18.20; or 19 (3) is a recreational camp providing recreational experiences of no more 20 than one month's duration for a child; or 21 (4) is exempt from licensure for a reason set out in (b)(5) or (6) of this 22 section. 23 (d) A person may not operate a maternity home without a license issued under 24 this chapter. 25 (e) A person may not arrange foster home, residential child care facility, 26 adoptive home, or guardianship placements without a child placement agency license 27 issued under this chapter. The requirement for licensure does not apply to 28 (1) state, federal, or municipal governments; 29 (2) school districts; 30 (3) an Indian organization, as defined in 25 U.S.C. 1903(7), that is 31 authorized to make placement decisions under 25 U.S.C. 1918 or 1919; or
01 (4) a person who places children for adoption by relatives. 02 (f) In addition to facilities and agencies that, under this section, are exempt 03 from licensure, the department, by regulation, may provide for additional exemptions 04 as the department considers appropriate. 05 (g) A person may apply for a license for a facility or agency that is exempt 06 from licensure under this section. The department may issue a license to an applicant 07 under this subsection if the applicant meets the requirements of this chapter and 08 regulations adopted under this chapter. 09 Sec. 47.35.017. APPLICATION FOR LICENSE. (a) Application for a license 10 to operate a foster home, child care facility, residential child care facility, child 11 placement agency, or maternity home, shall be made to the department on a form 12 provided by the department, and shall be accompanied by any applicable fees 13 established by the department under AS 47.35.010(a)(3). 14 (b) An application submitted under this section shall contain at least the 15 following information: 16 (1) the name and address of the applicant, and if the applicant is an 17 agency, corporation, partnership, association, or any other form of organization, the 18 name, address, and title of all individuals who have an ownership or management 19 interest in the facility; 20 (2) the name, physical location, and mailing address of the facility or 21 agency for which the license is sought; 22 (3) the name and address of the administrator of the facility or agency, 23 if any; 24 (4) evidence that the administrator or foster parent is an adult with 25 sufficient experience, training, or education to fulfill the duties of an administrator or 26 foster parent; 27 (5) a release for the administrator or foster parent and for each other 28 person, as specified by the department by regulation, who will have contact with 29 individuals served by the facility or agency, authorizing the department to review all 30 federal, state, and municipal law enforcement, medical, licensing, and protective 31 services records, identified in regulations adopted under this chapter, that are relevant
01 to the person who is the subject of the release and to the type of license for which the 02 application has been submitted; 03 (6) for a facility, the number of individuals that will be served in the 04 facility; 05 (7) the type of facility or agency for which the license is sought; 06 (8) copies of all inspection reports and approvals required by state fire 07 prevention and environmental health and safety authorities for operation of the facility 08 or agency, including any variances granted by such an authority; 09 (9) a plan of operation, as required by the department by regulation; 10 (10) a staffing plan that describes the number of people who will work 11 at the facility or agency, staff qualifications, a description of each person's 12 responsibilities, and, for a facility other than a maternity home, a supervision schedule 13 for the children in care that meets the requirements established by the department by 14 regulation; 15 (11) evidence that the applicant has completed any orientation or 16 training required by the department, by regulation, for holders of the type of license 17 for which the application was submitted; and 18 (12) any other information required by the department, by regulation, 19 in order to monitor compliance with this chapter and regulations adopted under this 20 chapter. 21 * Sec. 8. AS 47.35 is amended by adding new sections to read: 22 Sec. 47.35.023. PROVISIONAL LICENSE; BIENNIAL LICENSE. (a) The 23 department shall issue a provisional license to a new facility or agency that applies 24 under AS 47.35.017 if, after inspection and investigation, the department determines 25 that the application and plan of operation for the facility or agency meet the 26 requirements of this chapter and regulations adopted under this chapter. A provisional 27 license is valid for a period not to exceed one year. The department may extend a 28 provisional license for one additional period not to exceed one year. 29 (b) Before expiration of a provisional license, the department shall inspect and 30 investigate the facility or agency in order to determine whether the facility or agency 31 is operating under the provisional license in compliance with this chapter and
01 applicable regulations. 02 (c) Before expiration of a provisional license, the department shall issue a 03 biennial license for the facility or agency if (1) after inspection and investigation under 04 (b) of this section, the department finds that the facility or agency is operating in 05 compliance with, and meets the licensure requirements of, this chapter and regulations 06 adopted under this chapter; (2) the ground for revocation set out in AS 47.35.130(a)(2) 07 does not exist; and (3) all applicable fees have been paid. The department shall 08 prepare a summary report of its findings and recommendations for issuance of a 09 biennial license. 10 (d) The issuance of a license by the department does not obligate the 11 department to place or maintain an individual in the facility or through the agency, or 12 to support the facility or agency financially. 13 Sec. 47.35.025. DENIAL OF LICENSE; RIGHT TO APPEAL. (a) If the 14 department denies an application for a license or decides not to issue a biennial 15 license, the department shall hand deliver to the prospective licensee, or mail to the 16 prospective licensee by certified mail, return receipt requested, a notice of denial of 17 licensure. The notice must contain a summary of the department's reasons for denial 18 of the license and a form for requesting a hearing under (b) of this section. 19 (b) A prospective licensee who was denied licensure may appeal the 20 department's decision by requesting a hearing, on the form provided by the 21 department, within 15 days after receipt of the notice of denial of licensure. 22 Sec. 47.35.027. VARIANCES. (a) The department may grant to an applicant 23 for a license under this chapter, or to a licensee, a variance from a requirement of this 24 chapter or a regulation adopted under this chapter if that person submits to the 25 department, on a form provided by the department, a complete variance request as 26 required by this section. A variance may be granted if 27 (1) the applicant or licensee proposes an alternative means, acceptable 28 to the department, to satisfy the intent of the requirement for which the variance is 29 requested; and 30 (2) the health and safety of children is adequately protected. 31 (b) A request for a variance must contain the following information:
01 (1) the statute or regulation from which the variance is sought; 02 (2) the reasons why the variance is needed; 03 (3) the period of time for which the variance is requested; 04 (4) the proposed alternative means of satisfying the intent of the 05 requirement for which the variance is requested; 06 (5) a statement as to how the health and safety of children will be 07 protected during the period of the variance; and 08 (6) assurance that the conditions of the facility or agency do not present 09 an imminent danger to the health or safety of individuals served by the facility or 10 agency. 11 (c) To evaluate a request for a variance, the department shall take one or more 12 of the following actions: 13 (1) investigate the statements in the request; 14 (2) inspect the facility or agency; 15 (3) schedule a conference with the applicant or licensee regarding the 16 variance request. 17 (d) The department's decision approving or denying a variance must be in 18 writing, and the department shall provide a copy of the decision to the person 19 requesting the variance. If the department grants the variance, the decision must state 20 the term of and conditions of the variance. 21 (e) If an applicant or licensee violates a condition of a variance granted under 22 this section, the variance is void. 23 Sec. 47.35.029. CONTENT OF LICENSE; POSTING. (a) A license issued 24 under this chapter must state 25 (1) the period of time during which the license is in effect; 26 (2) the name of the facility or agency; 27 (3) the type of facility or agency; 28 (4) the name of the licensee; 29 (5) the location and mailing address of the facility or agency; 30 (6) for a facility other than a maternity home, the number and age 31 range of children that the facility may have in care at any time;
01 (7) any conditions set by, and variances approved by, the department; 02 and 03 (8) the address and phone number of the nearest department office that 04 is responsible for administering this chapter or of the department representative 05 responsible for evaluating that facility or agency under AS 47.35.010(a)(4). 06 (b) A licensee, except a foster home licensee, shall post the license in a 07 conspicuous place in the facility or agency visible to individuals in care and their 08 families, and to facility or agency staff. A foster home licensee shall have the facility 09 license available for inspection upon request. 10 * Sec. 9. AS 47.35 is amended by adding a new section to read: 11 Sec. 47.35.033. LICENSES NOT TRANSFERABLE. A license may be issued 12 under this chapter only for the location and person named in the application. A license 13 issued under this chapter may not be transferred to another person or location. 14 * Sec. 10. AS 47.35 is amended by adding new sections to read: 15 Sec. 47.35.037. ORIENTATION AND TRAINING. The department, by 16 regulation, may require that an applicant or licensee complete orientation or training 17 to assist that person in operating under the license. 18 Sec. 47.35.039. RECORDS REQUIRED. (a) In accordance with regulations 19 adopted by the department, a licensee shall keep the records regarding each individual 20 in its care, or that it places, that are necessary to show compliance with this chapter 21 and regulations adopted under this chapter. 22 (b) The department's licensing records, with the names of all individuals in 23 care and parents of minors in care deleted to protect the confidentiality of those 24 individuals, are available for public inspection, except for 25 (1) material made confidential by state or federal statutes or regulations; 26 (2) material that is part of an uncompleted licensing or complaint 27 investigation; or 28 (3) records that would deprive an applicant, licensee, or other person 29 of a fair and impartial hearing; 30 (4) records for which the department determines that disclosure would 31 constitute an unwarranted invasion of personal privacy.
01 (c) A government agency that provides funding to a facility or agency licensed 02 under this chapter may have access to that facility's or agency's records in order to 03 conduct an audit. 04 * Sec. 11. AS 47.35 is amended by adding new sections to read: 05 Sec. 47.35.043. MONITORING; INVESTIGATION. (a) No later than the 06 first anniversary of the effective date of a biennial license, including a renewed 07 biennial license, the licensee shall submit an annual self-monitoring report to the 08 department. The department shall specify, by regulation, the contents of the report. 09 (b) To encourage parents of children in child care facilities to become involved 10 in day-to-day monitoring of the care provided by such facilities, the department shall 11 require licensees to give to parents of children in child care in the licensee's facility 12 a summary of the regulatory requirements that apply to the facility and the 13 department's or department representative's telephone contact number for reporting a 14 concern regarding child care. The department also may provide notice of the 15 telephone contact numbers for reporting child care concerns. 16 (c) The department may conduct an investigation, including announced or 17 unannounced on-site inspections, for ongoing monitoring or to assist in its review of 18 an annual self-monitoring report. 19 Sec. 47.35.045. BIENNIAL LICENSE RENEWAL. (a) At least 90 days 20 before the expiration date of a biennial license, the licensee shall submit, on a form 21 provided by the department, an application for renewal of the license and any 22 associated variances. 23 (b) Before expiration of a biennial license, the department or its representative 24 shall inspect a facility or agency that is the subject of a renewal application. 25 (c) The department shall renew a biennial license if the department finds that 26 (1) the licensee 27 (A) either is in compliance with this chapter and regulations 28 adopted under this chapter or is substantially in compliance and has 29 implemented a plan of correction, approved by the department, that is designed 30 to bring the facility or agency into full compliance; and 31 (B) has maintained the facility or agency in good repair and is
01 in compliance with all state fire safety and environmental health and safety 02 code requirements; 03 (2) the ground for revocation set out in AS 47.35.130(a)(2) does not 04 exist; and 05 (3) all applicable fees have been paid. 06 (d) If the licensee submits a renewal application within the time period 07 required by the department by regulation, but the department is unable to complete its 08 review before the expiration date of the biennial license, the license is automatically 09 extended for six months, or until the department completes its review and either 10 approves or denies the application, whichever occurs first. 11 (e) If the department decides to approve an application for renewal, but finds 12 that the applicant is not in compliance with a provision of this chapter, a regulation 13 adopted under this chapter, or a condition on the license, the department, as a 14 condition on the renewed biennial license, shall require the applicant to correct any 15 violations and provide the department with verification of compliance. 16 (f) If the department denies an application for renewal, it shall provide the 17 applicant with a notice of denial of application. The notice must contain a written 18 statement of the reasons for denial and a form for requesting a hearing under (g) of 19 this section. 20 (g) An applicant whose application is denied may appeal the department's 21 decision by requesting a hearing, on the form provided by the department, within 15 22 days after receipt of the notice of denial of application. 23 Sec. 47.35.047. NOTICE OF CHANGES. (a) A licensee shall provide the 24 department with written notice of a change of mailing address at least 14 days before 25 the effective date of the change. 26 (b) A licensee shall notify the department within 24 hours after having 27 knowledge of an indictment or charging by information or complaint of an 28 administrator, foster parent, member of the licensee's household, regular volunteer, or 29 staff person for a felony, for a misdemeanor crime of assault, reckless endangerment, 30 contributing to the delinquency of a minor, or misconduct involving a controlled 31 substance, for the crime of perjury, as defined in AS 11 or the laws of another
01 jurisdiction, or for a sex crime as defined in AS 12.62.035. 02 (c) A licensee shall notify the department at least 20 days before the effective 03 date of a decision to relinquish the license. 04 (d) A licensee shall notify the department at least 20 days before the date on 05 which the licensee wishes to change the number of children in care or hours of 06 operation. 07 (e) A licensee shall notify the department no later than one day after signing 08 a contract for sale of the licensed facility or agency. 09 (f) A licensee shall notify the department at least 30 days before the licensee 10 wishes to change the location of the facility or agency. 11 * Sec. 12. AS 47.35 is amended by adding new sections to read: 12 Sec. 47.35.105. COMPLAINTS. (a) A person who believes that a provision 13 of this chapter, a regulation adopted under this chapter, or a condition of a license 14 issued under this chapter has been violated may file a verbal or written complaint with 15 the department. 16 (b) The department shall investigate all complaints filed under this section 17 unless the department reasonably concludes that the complaint is without merit. 18 (c) After an investigation under this section, the department shall prepare a 19 written report of investigation and shall mail a copy to the licensee or other person 20 who is the subject of the complaint, and to the complainant if requested. If the 21 department determines that a violation of this chapter, a regulation adopted under this 22 chapter, or a condition of a license issued under this chapter has occurred, the 23 department's report of investigation shall contain the following: 24 (1) a description of the violation; 25 (2) a citation to the provision of this chapter or the regulation that has 26 been violated, if applicable; and 27 (3) either 28 (A) a date by which the violation must be corrected and a 29 verification of compliance submitted to the department; or 30 (B) a plan of correction. 31 (d) A licensee may submit to the department a written response regarding a
01 report of investigation relating to that facility or agency. The department shall retain 02 the written response in the licensing file. 03 (e) A licensee may not take retaliatory action against a person who files a 04 complaint. A complainant against whom retaliatory action has been taken may recover 05 treble damages in a civil action upon a showing that the actions were taken in 06 retaliation for the filing of a complaint. 07 Sec. 47.35.110. INVESTIGATIONS; SEARCH WARRANTS. (a) An 08 applicant for a license, or a licensee, shall cooperate with the department for purposes 09 of licensing investigations, investigations relating to ongoing monitoring of the facility 10 or agency, or investigations under AS 47.35.105 by 11 (1) permitting representatives of the department to inspect the facility 12 or agency, review records, interview staff, and interview individuals in care; and 13 (2) providing to the department information and documentation 14 requested by the department to determine compliance with this chapter and regulations 15 adopted under this chapter. 16 (b) Following an investigation relating to ongoing monitoring of a facility or 17 agency or relating to a facility that the department believes is operating without a 18 license in violation of this chapter, the department shall prepare and distribute a written 19 report of investigation as described in AS 47.35.105(c) and the facility or agency may 20 submit a response as described in AS 47.35.105(d). 21 (c) The department may seek a search warrant to inspect a facility or agency 22 (1) if the department has probable cause to believe that the facility or 23 agency is operating without a license in violation of this chapter and the facility or 24 agency operator refuses to allow an inspection by the department; or 25 (2) if the licensee refuses to allow an inspection of the facility or 26 agency by the department. 27 Sec. 47.35.120. ENFORCEMENT ACTIONS. (a) During an investigation 28 under this chapter, the department, by written notice, may suspend operations of the 29 facility or agency if the department has reasonable cause to believe that a violation is 30 occurring that presents an imminent danger to the health or safety of the individuals 31 in care. A suspension under this subsection continues for the time period set by the
01 department, and may continue until the department issues a report of investigation 02 under AS 47.35.105(c) or 47.35.110(b). 03 (b) If, after an investigation under this chapter, the department has determined 04 that a violation of this chapter or a regulation adopted under this chapter has occurred 05 or a ground for revocation or nonrenewal set out in AS 47.35.130 exists, has issued 06 a report of investigation under AS 47.35.105(c) or 47.35.110(b), and has determined 07 that voluntary compliance or a plan of correction is not appropriate, the department 08 may take one or more of the following enforcement actions, as the department 09 considers appropriate: 10 (1) delivery of a warning notice to the licensee or other person who is 11 the subject of the investigation; 12 (2) modification of the term of an existing license or reduction of the 13 number of children for whom care can be provided; 14 (3) suspension of operations of the facility or agency for a period of 15 time set by the department; 16 (4) suspension of admissions to the facility for a period of time set by 17 the department; 18 (5) nonrenewal of the license; 19 (6) revocation of the license; 20 (7) order immediate closure of the facility or agency; 21 (8) assessment of an administrative fine of up to $500 for each day a 22 violation continues, not to exceed a total of $5,000 for a violation. 23 (c) The department shall provide the licensee or other person who is the 24 subject of an investigation with written notice of the department's decision under (b) 25 of this section to take enforcement action. The notice must contain a form for 26 requesting a hearing under (d) of this section and must describe 27 (1) each enforcement action that will be taken; 28 (2) the condition, if any, in the facility or agency that constitutes a 29 violation of this chapter or a regulation adopted under this chapter; 30 (3) the licensee's or other person's right to appeal the department's 31 decision to take an enforcement action described in (b)(2) - (8) of this section.
01 (d) A licensee or other person to whom a notice has been provided under (a) 02 or (c) of this section may appeal the department's decision to impose an enforcement 03 action described in (a) or (b)(2) - (8) of this section by filing a written request for a 04 hearing, on the form provided by the department, within 15 days after receipt of the 05 notice of enforcement action. 06 (e) Unless the violation that prompted enforcement action under (b) of this 07 section presents an imminent danger to the health or safety of the individuals in care, 08 an enforcement action described in a notice provided under (c) of this section may not 09 be imposed until 10 (1) the time period for requesting a hearing under (d) of this section has 11 passed without a hearing being requested; or 12 (2) the department makes a final decision following a hearing requested 13 under (d) of this section. 14 (f) If a hearing is requested under (d) of this section, the department's decision 15 following the hearing is a final administrative order. 16 (g) If a hearing is not requested under (d) of this section, the department's 17 notice of enforcement action constitutes a final administrative order, for which the 18 department may seek the court's assistance in enforcing. 19 (h) A licensee whose license was revoked or not renewed under this section 20 may not reapply for licensure under this chapter until after the time period, if any, set 21 by the department in its final administrative order. If no time period is set by the 22 department, the revocation or nonrenewal is permanent, and the former licensee may 23 not again apply for licensure under this chapter. 24 (i) Assessment of an administrative fine under this section does not preclude 25 imposition of a criminal penalty under AS 47.35.820. 26 Sec. 47.35.130. GROUNDS FOR LICENSE REVOCATION OR 27 NONRENEWAL. (a) In addition to the ground of violation of this chapter or a 28 regulation adopted under this chapter, the department may revoke, or decline to renew, 29 on one or more of the following grounds, a license issued under this chapter: 30 (1) failure to submit a timely and complete renewal application; 31 (2) the indictment or charging by information or complaint for, or a
01 criminal conviction within the last 10 years, of the licensee or facility administrator for 02 a felony; a misdemeanor crime of assault, reckless endangerment, contributing to the 03 delinquency of a minor, or misconduct involving a controlled substance; the crime of 04 perjury, as defined in AS 11 or the laws of another jurisdiction; or a sex crime as 05 defined in AS 12.62.035; 06 (3) obtaining or attempting to obtain or retain a license under this 07 chapter by fraudulent means, misrepresentation, or by submitting false information; 08 (4) failure to correct a violation noted in a report of investigation 09 provided under AS 47.35.105(c) or 47.35.110(b); 10 (5) failure to comply with a final administrative order issued by the 11 department under AS 47.35.120. 12 (b) A licensee may voluntarily relinquish the license or withdraw an 13 application for renewal. 14 * Sec. 13. AS 47.35 is amended by adding new sections to read: 15 ARTICLE 2. ADULT FACILITIES. 16 Sec. 47.35.210. POWERS OF DEPARTMENT REGARDING ADULT 17 RESIDENTIAL CARE FACILITIES. The department may 18 (1) license and supervise adult residential care facilities; 19 (2) investigate applicants, licensees, and persons that the department 20 believes are operating an adult residential care facility without a license in violation 21 of AS 47.35.210 - 47.35.250; 22 (3) adopt regulations to implement the provisions of AS 47.35.210 - 23 47.35.250, including regulations establishing licensure and operating standards; 24 application and licensure procedures and fees; license renewal procedures, standards, 25 and fees; procedures and standards for variances; and procedures regarding 26 enforcement actions and appeals; 27 (4) enter into agreements with private or municipal agencies, or with 28 individuals, to investigate and make recommendations to the department for the 29 licensing and supervision of adult residential care facilities under procedures and 30 standards of operation established by the department. 31 Sec. 47.35.220. LICENSE REQUIRED. A person may not operate an adult
01 residential care facility without a license issued under AS 47.35.210 - 47.35.250 unless 02 the facility is a Pioneers' Home operated by the state under AS 47.55. 03 Sec. 47.35.230. APPLICATION FOR LICENSE; LICENSING. (a) Except 04 as otherwise provided in regulations adopted by the department, the procedures and 05 requirements in AS 47.35.017, 47.35.023, 47.35.025, 47.35.027, 47.35.029, 47.35.033, 06 and 47.35.045 apply to application for license for and licensure of an adult residential 07 care facility. 08 Sec. 47.35.240. RECORDS; REPORTS. (a) As required by the department 09 by regulation, the licensee for an adult residential care facility shall 10 (1) keep records regarding adults in care in the facility; and 11 (2) submit reports to the department. 12 (b) The department's licensing records, with the names of adults in care 13 deleted, are available for public inspection, except for material described in 14 AS 47.35.039(b)(1) - (4). 15 (c) A government agency that provides funding to a facility licensed under 16 AS 47.35.210 - 47.35.250 may have access to the facility's records in order to conduct 17 an audit. 18 (d) The provisions of AS 47.35.047(a), (b), (c), (e), and (f), regarding notice 19 to the department of certain changes, apply to an adult residential care facility licensed 20 under AS 47.35.210 - 47.35.250. 21 Sec. 47.35.250. COMPLAINTS; INVESTIGATIONS; ENFORCEMENT 22 ACTIONS. Except as provided otherwise in regulations adopted by the department, 23 the provisions of AS 47.35.105, 47.35.110, 47.35.120, and 47.35.130, regarding 24 complaints, investigations, and enforcement actions, apply to an adult residential care 25 facility. 26 * Sec. 14. AS 47.35 is amended by adding new sections to read: 27 Sec. 47.35.800. ADMINISTRATIVE PROCEDURE. The administrative 28 adjudication provisions of AS 44.62 (Administrative Procedure Act) apply to an appeal 29 from a department decision under this chapter relating to denial, involuntary 30 conditioning, or revocation of a license, suspension of operations or admissions, or 31 assessment of an administrative fine.
01 Sec. 47.35.810. IMMUNITY FROM LIABILITY. (a) A person operating 02 under agreement with the department under AS 47.35.010(a)(4) is immune, during the 03 performance of the person's duties on behalf of the department, from civil liability that 04 might otherwise be incurred or imposed, if the person is operating within the scope of 05 the duties delegated to the person under the agreement. 06 (b) The department and its employees are not liable for civil damages as a 07 result of an act or omission in the licensing, monitoring, or supervision of a facility 08 or agency licensed under this chapter. This subsection does not preclude liability for 09 civil damages as a result of gross negligence or reckless or intentional misconduct. 10 Sec. 47.35.820. PENALTY. A person who violates a provision of this chapter 11 or a regulation adopted under this chapter is guilty of a class B misdemeanor. 12 * Sec. 15. AS 47.35.900 is repealed and reenacted to read: 13 Sec. 47.35.900. DEFINITIONS. In this chapter, 14 (1) "administrator" means an individual who has general administrative 15 charge and oversight of a facility or agency; 16 (2) "agency" means a child placement agency; 17 (3) "child" means an individual under 18 years of age, and includes an 18 individual who is a relative of a care provider, administrator, or foster parent; 19 (4) "child care" means, care, supervision, and provision of 20 developmental opportunities, with or without compensation, to a child whose parents 21 are not present; 22 (5) "child care facility" means a place where child care is regularly 23 provided for children under the age of 12, for periods of time that are less than 24 24 hours in duration unless nighttime care is authorized by the department; 25 (6) "child placement agency" means a person who arranges for 26 placement of a child 27 (A) in a foster home, residential child care facility, or adoptive 28 home; or 29 (B) for guardianship purposes; 30 (7) "department" means the Department of Health and Social Services; 31 (8) "facility" means the administration, program, and physical plant of
01 a foster home, child care facility, residential child care facility, or maternity home; 02 (9) "foster home" means a place where the adult head of household 03 provides 24-hour care on a continuing basis to one or more children who are apart 04 from their parents; 05 (10) "home study" means a written report of an investigation of the 06 prospective adoptive or foster parent or parents' ability to care for a child that has been 07 prepared in accordance with AS 25.23.100(f); 08 (11) "licensee" means a person to whom a license has been issued 09 under this chapter; 10 (12) "maternity home" means a place of residence whose primary 11 function, with or without compensation, is to give care to pregnant individuals, 12 regardless of age, before or after the individual gives birth, or that provides care, as 13 needed, to mothers and their newborn infants; 14 (13) "nonsecure attendant care setting" means an unlocked place that 15 is an alternative to an adult jail or other locked setting, where an employee, adult head 16 of household, or volunteer provides care for one or more children 10 years of age or 17 older who have been arrested and who are apart from their parents; 18 (14) "parent" means a birth or adoptive parent or a legal guardian; 19 (15) "recreational camp" means a place that provides recreational 20 opportunities to children who attend with the consent of their parent; 21 (16) "relative" means an individual who is related to another through 22 any of the following relationships, by blood, adoption, or marriage: parent, 23 grandparent, brother, sister, stepparent, stepsister, stepbrother, cousin, aunt, uncle, 24 great-aunt, great-uncle or step-grandparent; 25 (17) "residential child care facility" means a place, staffed by 26 employees, where one or more children who are apart from their parents receive 24-hour care on a continuing basis. 27 * Sec. 16. AS 47.35.020, 47.35.030, 37.35.035, 47.35.040, 47.35.055, 47.35.060, 47.35.070, 28 47.35.075, 47.35.090, and 47.35.100 are repealed. 29 * Sec. 17. APPLICABILITY; IMPLEMENTATION. (a) AS 47.35, as amended by this 30 Act, applies to all foster homes, child care facilities, residential child care facilities, child 31 placement agencies, and maternity homes, as defined in AS 47.35.900 as repealed and
01 reenacted by sec. 15 of this Act, that are in operation on January 1, 1996, as well as to all 02 such facilities and agencies that begin operation on or after January 1, 1996. 03 (b) A foster home, child care facility, residential child care facility, child placement 04 agency, or maternity home, as defined in AS 47.35.900 as repealed and reenacted by sec. 15 05 of this Act, that is in operation on January 1, 1996, and that was licensed by the Department 06 of Health and Social Services before January 1, 1996 may continue to operate under that 07 license until the expiration date of the license, or until a complaint is filed, whichever occurs 08 first. On the date that that license expires or a complaint is filed, whichever occurs first, the 09 procedures in AS 47.35, as amended by this Act, including license renewal procedures, first 10 apply to such a facility or agency. 11 (c) If sec. 13 of this Act takes effect, AS 47.35, as amended by this Act, applies to 12 residential facilities for dependent adults and to foster homes for adults that are in operation 13 on January 1, 1996, as well as to adult residential care facilities that begin operation on or 14 after January 1, 1996. A residential facility for dependent adults or a foster home for adults 15 that is in operation on January 1, 1996 and that was licensed by the Department of Health and 16 Social Services before that date may continue to operate under that license until the expiration 17 date of the license or until a complaint is filed, whichever occurs first. On the date that that 18 license expires or a complaint is filed, whichever occurs first, the adult residential care facility 19 procedures in AS 47.35, as amended by this Act, including license renewal procedures, first 20 apply to such a facility or foster home. 21 * Sec. 18. TRANSITION: REGULATIONS. Notwithstanding secs. 20 and 21 of this Act, 22 the Department of Health and Social Services may proceed to adopt regulations necessary to 23 implement the provisions of this Act. The regulations take effect under AS 44.62 24 (Administrative Procedure Act), but not before January 1, 1996. 25 * Sec. 19. Section 18 of this Act takes effect immediately under AS 01.10.070(c). 26 * Sec. 20. Sections 1 - 12 and 14 - 17 of this Act take effect January 1, 1996. 27 * Sec. 21. (a) Subject to (b) of this section, sec. 13 of this Act takes effect January 1, 28 1996. 29 (b) Section 13 of this Act takes effect only if a bill that provides for a licensing and 30 regulatory structure for residential facilities for adults is not enacted into law after passing the 31 second session of the Eighteenth Legislature.