It was my pleasure to meet many of you at our Licensing Workshop to discuss how to protect your license and avoid a revocation action. We discussed the formal steps taken when defending an Accusation for Revocation by Licensing. We hope we stressed to providers that you must be proactive business owners and hold Licensing accountable for their actions and/or citations. Here is a summary of what we discussed.
A revocation action typically begins with citations. While a complaint can be found to be unsubstantiated, meaning there was insufficient or no evidence to prove the complaint is valid, it is still posted on Licensing’s website with the original complaint language. This is unfair and misleading. When prospective parents see the complaint, true or not, many choose to move on and select another daycare. Therefore, we recommend you appeal all Unsubstantiated Findings, to protect your business and your license, unless the complaints were found to be true.
If you are writing your own appeal, be concise and straightforward. Be careful while appealing one citation to admit to another violation. For example, one provider’s appeal stated the child in question could not have fallen while in her care because she was in a highchair waiting for her parents. While the provider was able to clear the first accusation, the Unsubstantiated Finding was simply changed to a Type A violation of the child’s personal rights. This was because in the appeal the provider admitted the child was in a highchair for something other than eating, thus a Type A violation.
You should always appeal Type A violations that you believe are untrue. These violations can interfere in your ability to insure your business and you can lose enrollment. In my years of experience with Licensing Managers, I have learned they instruct LPA’s to put daycare homes with four Type A violations on a watch list. There is also a troubling pattern where one incident at your child care can lead to several Type A violations from the same event. This puts you on the prime target list for being labeled a problem daycare.
Appeals are also a lengthy process that most regional managers do not want to deal with. Appeal decisions require thought, discussions of the regulations, and a written response. They are also a long process that can take anywhere from 10-15 months. This means many providers lose track of their appeal and lose — providers must be diligent and attentive so as to not lose their appeal. Any rejection is usually appealed to the Program Director in Sacramento so regional managers know their response will be reviewed by their supervisors. At times they can determine the LPA made a mistake when citing and this implies the LPA was improperly trained by their manager. Regional managers routinely deny appeals.
A denied appeal is automatically eligible to go to the next level in Sacramento. You need to understand the denial rationale and respond to the issues raised by the regional manager. You will not discuss the same issues in the appeal but instead focus on what the regional manager misunderstood. We have found the second level appeals to be more fair in their evaluation of the matters raised. We get more citations overturned at this level.
If the citation is serious and could result in revocation, you should consult an attorney. There are reasons an attorney may file a Notice of Appeal and wait to see if an Accusation is forthcoming. If the Accusation is being drafted in Sacramento, you do not want to share all your defense information in a written appeal. Why? Because the Licensing Department’s attorney can draft the Accusation around this information and possibly prevent you from introducing valuable defense evidence at your hearing.
Why should you appeal a citation? Your appeal notice is placed on Licensing’s website so parents can see you have a legitimate explanation of the facts behind the citation in question. This is vital information for your business and will help you be prepared should you face a citation. If you are sued you should seek the help of an attorney. Always report any incident where a child is taken for a medical evaluation to Licensing, otherwise you will receive an automatic citation.
Janice C Mendel
Disclaimer: The opinions expressed herein are those of the author only, and not Service Employees International Union, Local 99 (“Local 99”). The content of this article is provided to you for informational purposes only. Local 99 does not guarantee the accuracy or completeness of any information published herein, and is not responsible for any errors, omissions, or claims for damages arising out of use, or with regard to the accuracy or sufficiency of the information contained herein. If you need legal advice, you should contact an attorney to obtain advice on your particular matter.