CHAPTER 3. REGULATION OF CHILD CARING INSTITUTIONS
IC 31-27-3
Chapter 3. Regulation of Child Caring Institutions
IC 31-27-3-1
License required for operation
Sec. 1. (a) A person may not operate a child caring institutionwithout a license issued under this article.
(b) The state or a political subdivision of the state may not operatea child caring institution or receive children for placement in a childcaring institution without a license issued under this article.
(c) A person may not operate a child caring institution if:
(1) the number of children maintained on the premises at anyone (1) time is greater than the number authorized by thelicense; or
(2) the children are maintained in a building or place notdesignated by the license.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-2
Conditions for issuance of license
Sec. 2. (a) A license may be issued only if the child caringinstitution is in substantial compliance with food, health, safety, andsanitation standards under rules adopted by the department underIC 31-27-2-4 or in accordance with a variance or waiver approved bythe department under IC 31-27-2-8.
(b) A license may be issued only if the child caring institution isin compliance with the fire and life safety rules as determined by thestate fire marshal under rules adopted by the department underIC 31-27-2-4 or in accordance with a variance or waiver approved bythe department under IC 31-27-2-8.
(c) The department may issue a waiver or variance regarding adetermination by the state fire marshal under subsection (b).
(d) Except as provided in subsection (e), the department may notissue a license under this chapter unless the child caring institutionis staffed by, when children are being cared for, at least one (1) childcare provider who is annually certified in a program on pediatriccardiopulmonary resuscitation and pediatric airway obstruction underthe American Heart Association's Basic Life Support Course D orany other comparable course approved by the department.
(e) The requirement under subsection (d) does not apply to a childcaring institution that only serves children who are at least thirteen(13) years of age and less than twenty-one (21) years of age.However, a child caring institution that only serves children who areat least thirteen (13) years of age and less than twenty-one (21) yearsof age must have on duty, when children are being cared for, at leastone (1) child care provider who is annually certified in a program oncardiopulmonary resuscitation as required by the department.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-3 Apply for licenses; criminal history checks
Sec. 3. (a) An applicant must apply for a child caring institutionlicense on forms provided by the department.
(b) An applicant must submit the required information as part ofthe application.
(c) The applicant must submit with the application a statementattesting the following:
(1) That the applicant has not been convicted of:
(A) a felony; or
(B) a misdemeanor relating to the health and safety ofchildren.
(2) That the applicant has not been charged with:
(A) a felony; or
(B) a misdemeanor relating to the health and safety ofchildren;
during the pendency of the application.
(d) The department, on behalf of an applicant, or, at the discretionof the department, an applicant, shall conduct a criminal historycheck of the following:
(1) Each individual who is an applicant.
(2) The director or manager of a facility where children will beplaced.
(3) An employee or a volunteer of the applicant who has or willhave direct contact on a regular and continuing basis with achild who is or will be placed in a facility operated by theapplicant.
(e) If the applicant conducts a criminal history check undersubsection (d), the applicant shall:
(1) maintain records of the information it receives concerningeach individual who is the subject of a criminal history check;and
(2) submit to the department a copy of the information itreceives concerning each person described in subsection (d)(1)through (d)(3).
(f) If the department conducts a criminal history check on behalfof an applicant under subsection (d), the department shall:
(1) determine whether the subject of a national fingerprintbased criminal history check has a record of a conviction for:
(A) a felony; or
(B) a misdemeanor relating to the health and safety of achild;
(2) notify the applicant of the determination under subdivision(1) without identifying a specific offense or other identifyinginformation concerning a conviction contained in the nationalcriminal history record information;
(3) submit to the applicant a copy of any state limited criminalhistory report that the department receives on behalf of anyperson described in subsection (d); and
(4) maintain a record of every report and all information thedepartment receives concerning a person described in
subsection (d).
(g) Except as provided in subsection (h), a criminal history checkdescribed in subsection (d) is required only at the time an applicationfor a new license or the renewal of an existing license is submitted.
(h) A criminal history check of a person described in subsection(d)(2) or (d)(3) must be completed on or before the date the personis employed or assigned as a volunteer. However, a fingerprint basedcriminal history background check under IC 31-9-2-22.5(1)(B) for aperson described in subsection (d)(3) must be completed not laterthan the conclusion of the first ninety (90) days of employment in orassignment of a volunteer to a position described in subsection(d)(3). If a person described in this subsection has been the subjectof a criminal history check (as described in IC 31-9-2-22.5) that wasconducted not more than one (1) year before the date the licenseapplication is submitted to the department, a new criminal historycheck of that person is not required.
(i) An applicant or licensee may provisionally employ anindividual or assign a volunteer described in subsection (d)(3) forwhom a criminal history check is required under subsection (d)(3)during the period after the process of requesting fingerprint basedcriminal history background check information has been initiated byor on behalf of the applicant or licensee but before the determinationis obtained by or communicated to the applicant or licensee. If thedetermination is not received by not later than the ninety (90) daysafter the effective date of hire or volunteer assignment, the employeeor volunteer relationship must be terminated or suspended until adetermination is received. An employee or volunteer whosedetermination has not yet been received may not have direct contactwith a child who is or will be placed at a facility operated by theapplicant or licensee unless the direct contact occurs only in thepresence of a volunteer or employee of the applicant or licensee whohas been the subject of a completed and approved criminal historycheck. In determining whether to provisionally hire or assign as avolunteer an individual described in subsection (d)(3), the applicantor licensee shall consider the following:
(1) The training time required by an employee or a volunteer.
(2) The safety and security of the children under the supervisionof the applicant or licensee.
(3) The safety and security of the other staff and volunteersworking under the supervision of the applicant or licensee.
(4) The staffing concerns of the applicant or licensee.
(5) Any other factor relating to the safety and security of theapplicant's or licensee's operations.
(j) The department shall, at the applicant's request, inform theapplicant whether the department has or does not have a record of theperson who is the subject of a criminal history background check andif the department has identified the person as an alleged perpetratorof abuse or neglect. The department may not provide to the applicantany details or personally identifying information contained in anychild protective services investigation report. (k) A person who is the subject of a criminal history checkconducted in accordance with this section may request the statepolice department to provide the person with a copy of any state ornational criminal history report concerning the person.
As added by P.L.145-2006, SEC.273. Amended by P.L.138-2007,SEC.47.
IC 31-27-3-4
Child caring institution established by county; operation
Sec. 4. (a) A county may establish a child caring institution. Thechild caring institution may be operated by:
(1) the county; or
(2) a public or private agency under contract with the county;
and must be operated under the rules adopted by the director underthis article.
(b) This section does not affect the following:
(1) IC 31-31-1-1 or IC 31-40, requiring the county fiscal bodyto appropriate sufficient money to pay for services ordered bythe juvenile court.
(2) IC 31-31-8, authorizing the juvenile court to establishdetention and shelter care facilities.
(3) IC 12-13-5 and IC 12-19-1, requiring the division of familyresources, the office, and the county departments to providecare and treatment for delinquent children and children in needof services.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-5
Grounds for denial of license applications
Sec. 5. (a) The following constitute sufficient grounds for a denialof a license application:
(1) A determination by the department of child abuse or neglectby:
(A) the applicant;
(B) an employee of the applicant who has direct contact, ona regular and continuous basis, with children who are underthe direct supervision of the applicant; or
(C) a volunteer of the applicant who has direct contact, on aregular and continuous basis, with children who are underthe direct supervision of the applicant.
(2) A criminal conviction of the applicant, or the director ormanager of a facility where children will be placed by theapplicant, of:
(A) a felony;
(B) a misdemeanor related to the health and safety of a child;
(C) a misdemeanor for operating a child caring institution,foster family home, group home, or child placing agencywithout a license under this article (or IC 12-17.4 before itsrepeal); or
(D) a misdemeanor for operating a child care center or child
care home without a license under IC 12-17.2.
(3) A determination by the department that the applicant madefalse statements in the applicant's application for licensure.
(4) A determination by the department that the applicant madefalse statements in the records required by the department.
(5) A determination by the department that the applicantpreviously operated a home or facility without a licenserequired under any applicable provision of this article (orIC 12-17.4 before its repeal) or IC 12-17.2.
(b) An application for a license may also be denied if an employeeor volunteer of the applicant who has direct contact on a regular andcontinuous basis with children who are under the direct supervisionof the applicant has been convicted of any of the following:
(1) A felony described in IC 31-27-4-13(a).
(2) Any other felony or a misdemeanor relating to the healthand safety of a child, unless the applicant is granted a waiver bythe department to employ or assign the person as a volunteer ina position described in this subsection.
(c) In determining whether to grant a waiver under subsection (b),the department shall consider the following factors:
(1) The length of time that has passed since the disqualifyingconviction.
(2) The severity, nature, and circumstances of the offense.
(3) Evidence of rehabilitation.
(4) The duties and qualifications required for the proposedemployment positions or volunteer assignment.
(d) Notwithstanding subsection (a) or (b), if:
(1) a license application could be denied due to a criminalconviction of, or a determination of child abuse or neglect by,an employee or a volunteer of the applicant; and
(2) the department determines that the employee or volunteerhas been dismissed by the applicant;
the criminal conviction of, or determination of child abuse or neglectby, the former employee or former volunteer does not constitute asufficient basis for the denial of a license application.
(e) The department may adopt rules to implement this section.
As added by P.L.145-2006, SEC.273. Amended by P.L.138-2007,SEC.48.
IC 31-27-3-6
Incomplete applications
Sec. 6. The department may not act on an incomplete application.The department shall return an incomplete application with anotation concerning omissions. The return of an incompleteapplication is without prejudice.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-7
Investigation of applicants
Sec. 7. The department shall investigate a person seeking
licensure to determine whether the person is in compliance with thisarticle and the rules adopted under this article. The investigationshall be conducted at a reasonable time and in a reasonable manner,in announced or unannounced visits. Activities may include onsiteinspections, record reading, observation, and interviewing. Thedepartment may require that evidence of compliance with the rulesbe presented in a form and manner specified in the rules.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-8
Issuance of license
Sec. 8. The department shall issue a license to a person who meetsall of the license requirements when an investigation shows theapplicant to be in compliance under this article.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-9
Eligibility for waivers and variances
Sec. 9. A child caring institution may be eligible to receive awaiver or variance from the requirements of this chapter bycomplying with IC 31-27-2-8.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-10
Waiver of maximum stay for child
Sec. 10. (a) The department may grant a waiver of the sixty (60)day maximum stay for a child if the child caring institution licensedas a shelter care facility applies for the waiver before the expirationof the sixty (60) day period.
(b) The child caring institution shall document in the request fora waiver that the waiver is in the best interest of the child.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-11
Denial of license
Sec. 11. (a) The department shall deny a license when anapplicant fails to meet the requirements for a license.
(b) The department shall send written notice by certified mail thatthe application has been denied and give the reasons for the denial.
(c) An administrative hearing concerning the denial of a licenseshall be provided upon written request by the applicant. The requestmust be made not more than thirty (30) days after receiving thewritten notice under subsection (b).
(d) An administrative hearing shall be held not more than sixty(60) days after receiving the written request.
(e) An administrative hearing shall be held in accordance withIC 4-21.5-3.
(f) The department shall issue a decision not more than sixty (60)days after the conclusion of a hearing.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-12
Investigation of unlicensed premises
Sec. 12. The department is responsible for investigating anypremises that the department has reason to believe are being used forchild care without a license in circumstances where a license isrequired.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-13
Duration of license; limitations; renewal; public display
Sec. 13. (a) A license for a child caring institution expires four (4)years after the date of issuance, unless the license is revoked,modified to a probationary status, or voluntarily returned.
(b) A license issued under this chapter:
(1) is not transferable;
(2) applies only to the licensee and the location stated in theapplication; and
(3) remains the property of the department.
(c) When a licensee submits a timely application for renewal, thecurrent license remains in effect until the department issues a licenseor denies the application.
(d) A current license must be publicly displayed.
As added by P.L.145-2006, SEC.273. Amended by P.L.146-2006,SEC.27.
IC 31-27-3-14
Probationary status; duration; expiration; extension
Sec. 14. (a) The department may place a licensee on probationarystatus if the licensee is temporarily unable to comply with a rule andif:
(1) the noncompliance does not present an immediate threat tothe health and well-being of the children;
(2) the licensee files a plan with the department, statedepartment of health, or the state fire marshal to correct theareas of noncompliance within the probationary period; and
(3) the department, state department of health, or state firemarshal approves the plan.
(b) A probationary status period is for not more than six (6)months. However, the department may extend a probationary statusperiod for one (1) additional period of six (6) months.
(c) At the expiration of a probationary status period, thedepartment shall:
(1) reactivate the license to the end of the original term of thelicense;
(2) extend the probationary status period as permitted undersubsection (b); or
(3) revoke the license.
As added by P.L.145-2006, SEC.273. Amended by P.L.146-2006,SEC.28.
IC 31-27-3-15
Inspections
Sec. 15. The department and the state fire marshal shall do thefollowing:
(1) Make annual onsite inspections.
(2) Keep written records of their monitoring activities andinspections.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-16
Cooperation by licensees
Sec. 16. A licensee shall cooperate with the department and thestate fire marshal in carrying out the activities required by section 15of this chapter, including permitting the department and the state firemarshal to conduct announced or unannounced inspections.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-17
Sprinkler system requirements
Sec. 17. The fire prevention and building safety commission maynot adopt rules requiring the installation of a sprinkler system in aliving unit of a licensed child caring institution in which fewer thansixteen (16) children reside, each of whom is:
(1) ambulatory; and
(2) at least six (6) years of age.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-18
Records
Sec. 18. (a) A licensee shall keep records regarding each child inthe control and care of the licensee as the department requires andshall report to the department upon request the facts the departmentrequires with reference to children.
(b) The department shall keep records regarding children and factslearned about children and the children's parents or relativesconfidential.
(c) The following have access to records regarding children andfacts learned about children:
(1) A state agency involved in the licensing of the child caringinstitution.
(2) A legally mandated child protection agency.
(3) A law enforcement agency.
(4) An agency having the legal responsibility to care for a childplaced at the child caring institution.
(5) The parent, guardian, or custodian of the child at the childcaring institution.
(6) A citizen review panel established under IC 31-25-2-20.4.
(7) The department of child services ombudsman established byIC 4-13-19-3.
As added by P.L.145-2006, SEC.273. Amended by P.L.138-2007,
SEC.49; P.L.182-2009(ss), SEC.374.
IC 31-27-3-19
Notice of enforcement actions; informal meetings
Sec. 19. Except as provided in section 29 of this chapter, thedepartment shall give a licensee thirty (30) days written notice bycertified mail of an enforcement action. The licensee shall also beprovided with the opportunity for an informal meeting with thedepartment. The licensee must request the meeting not more than ten(10) working days after receipt of the certified notice.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-20
Administrative hearings
Sec. 20. (a) An administrative hearing concerning the decision ofthe department to impose a sanction under this chapter shall beprovided upon a written request by the child caring institution. Therequest must be made not more than thirty (30) days after receivingnotice under section 19 of this chapter. The written request must bemade separately from an informal meeting request made undersection 19 of this chapter.
(b) An administrative hearing shall be held not more than sixty(60) days after receiving the written request.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-21
Procedure for administrative hearings
Sec. 21. A hearing requested under section 20 of this chapter shallbe held in accordance with IC 4-21.5-3.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-22
Issuance of decisions
Sec. 22. The department shall issue a decision not more than sixty(60) days after the conclusion of a hearing.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-23
Repealed
(Repealed by P.L.146-2006, SEC.60.)
IC 31-27-3-24
Repealed
(Repealed by P.L.146-2006, SEC.60.)
IC 31-27-3-25
Repealed
(Repealed by P.L.146-2006, SEC.60.)
IC 31-27-3-26 Cessation of operation upon revocation of license
Sec. 26. A child caring institution shall cease operation when thelicense of the child caring institution is revoked.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-27
Notice
Sec. 27. (a) After a license is revoked, the department shall notifyin writing each person responsible for each child in care to ensurethat those children are removed.
(b) The written notice shall be sent to the last known address ofthe person responsible for the child in care and shall state that thelicense of the child caring institution has been revoked.
As added by P.L.145-2006, SEC.273. Amended by P.L.146-2006,SEC.29.
IC 31-27-3-28
Judicial review
Sec. 28. A final decision of the department made after a hearingis subject to judicial review under IC 4-21.5-5.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-29
Investigations of noncompliance; injunctions; corrective actionplans; removal of children; informal meetings
Sec. 29. (a) The department shall investigate a report of a licensedchild caring institution's noncompliance with this article or the rulesadopted under this article if there is reasonable cause to believe thata licensee's noncompliance with this article and rules adopted underthis article creates an imminent danger of serious bodily injury to achild or an imminent danger to the health of a child and shall reportthe department's findings to the attorney general and to the countyoffice and the prosecuting attorney in the county where theinstitution is located.
(b) The attorney general or the department may do the following:
(1) Seek the issuance of a search warrant to assist in theinvestigation.
(2) File an action for injunctive relief to stop the operation of achild caring institution if there is reasonable cause to believethat a licensee's noncompliance with this article or the rulesadopted under this article creates an imminent danger of seriousbodily injury to a child or an imminent danger to the health ofa child.
(c) The department may require a plan of corrective action foremergency protection of the children described in subsection (b).
(d) The department may provide for the removal of children fromchild caring institutions described in subsection (b).
(e) An opportunity for an informal meeting with the departmentshall be available after the injunctive relief is ordered.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-30
Expiration of injunctions for creation of imminent danger
Sec. 30. A court order granted under section 29(b)(2) of thischapter expires upon the later of the following:
(1) Sixty (60) days after the order is issued.
(2) When a final department decision is issued under sections20 through 22 of this chapter if notice of an enforcement actionis issued under section 19 of this chapter.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-31
Grounds for revocation of license
Sec. 31. (a) The following constitute sufficient grounds forrevocation of a license:
(1) A determination by the department of child abuse or neglectby:
(A) the licensee;
(B) an employee of the licensee who has direct contact, ona regular and continuous basis, with children who are underthe direct supervision of the licensee; or
(C) a volunteer of the licensee who has direct contact, on aregular and continuous basis, with children who are underthe direct supervision of the licensee.
(2) A criminal conviction of the licensee, or the director ormanager of a facility where children will be placed by thelicensee, of any of the following:
(A) A felony.
(B) A misdemeanor related to the health or safety of a child.
(C) A misdemeanor for operating a child caring institution,foster family home, group home, or child placing agencywithout a license under this article (or IC 12-17.4 before itsrepeal).
(D) A misdemeanor for operating a child care center or childcare home without a license under IC 12-17.2.
(3) A determination by the department that the licensee madefalse statements in the licensee's application for licensure.
(4) A determination by the department that the licensee madefalse statements in the records required by the department.
(5) A determination by the department that the licenseepreviously operated a home or facility without a licenserequired under any applicable provision of this article (orIC 12-17.4 before its repeal) or IC 12-17.2.
(b) A license may also be revoked if an employee or volunteer ofthe licensee who has direct contact on a regular and continuous basiswith children who are under the direct supervision of the licensee hasbeen convicted of any of the following:
(1) A felony described in IC 31-27-4-13(a).
(2) Any other felony or a misdemeanor relating to the healthand safety of a child, unless the licensee is granted a waiver bythe department to employ or assign the person as a volunteer in
a position described in this subsection.
(c) In determining whether to grant a waiver under subsection (b),the department shall consider the following factors:
(1) The length of time that has passed since the disqualifyingconviction.
(2) The severity, nature, and circumstances of the offense.
(3) Evidence of rehabilitation.
(4) The duties and qualifications required for the proposedemployment positions or volunteer assignment.
(d) Notwithstanding subsection (a) or (b), if:
(1) a license could be revoked due to a criminal conviction of,or a determination of child abuse or neglect by, an employee ora volunteer of the licensee; and
(2) the department determines that the employee or volunteerhas been dismissed by the licensee within a reasonable timeafter the licensee became aware of the conviction ordetermination;
the criminal conviction of, or determination of child abuse or neglectby, the former employee or former volunteer does not constitute asufficient basis for the revocation of a license.
(e) The department may adopt rules to implement this section.
As added by P.L.145-2006, SEC.273. Amended by P.L.138-2007,SEC.50.
IC 31-27-3-32
Compliance with rules; disciplinary sanctions; revocation of license
Sec. 32. (a) A licensee shall operate a child caring institution incompliance with the rules established under this article and is subjectto the disciplinary sanctions under subsection (b) if the departmentfinds that the licensee has violated this article or a rule adopted underthis article.
(b) After complying with the procedural provisions in sections 19through 22 of this chapter, the department may revoke the licensewhen the department finds that a licensee has committed a violationunder subsection (a).
As added by P.L.145-2006, SEC.273. Amended by P.L.146-2006,SEC.30.
IC 31-27-3-33
Investigations of unlicensed operation; injunctions; civil penalties
Sec. 33. (a) The department shall investigate a report of anunlicensed child caring institution and report the department'sfindings to the attorney general and to the county office and theprosecuting attorney in the county where the institution is located.
(b) The attorney general or the department may do the following:
(1) Seek the issuance of a search warrant to assist in theinvestigation.
(2) File an action for injunctive relief to stop the operation of achild caring institution if there is reasonable cause to believethat the child caring institution is operating without a license
required under this article.
(3) Seek in a civil action a civil penalty not to exceed onehundred dollars ($100) a day for each day a child caringinstitution is operating without a license required under thisarticle.
(c) An opportunity for an informal meeting with the departmentshall be available after the injunctive relief is ordered.
(d) The civil penalties collected under this section shall bedeposited in the department of child services child care fundestablished by IC 31-25-2-16.
As added by P.L.145-2006, SEC.273. Amended by P.L.1-2007,SEC.202.
IC 31-27-3-34
Expiration of injunction for unlicensed operation
Sec. 34. A court order granted under section 33(b)(2) of thischapter expires when the child caring institution is issued a license.
As added by P.L.145-2006, SEC.273.
IC 31-27-3-35
Violations of chapter
Sec. 35. A person who knowingly or intentionally violates thischapter commits a Class B misdemeanor.
As added by P.L.145-2006, SEC.273.