2023 Tennessee Code › Title 71 - WELFARE (§§ 71-1-101 — 71-7-103) › Chapter 3 - PROGRAMS AND SERVICES FOR CHILDREN (§§ 71-3-101 — 71-3-1206) › Part 5 - CHILD CARE AGENCIES (§§ 71-3-NEW — 71-3-520) › Section 71-3-502 - Licensing of child care agencies - Regulations of child care agencies - Assistance in meeting child care standards - Application for license - Provisional license - Transfer of license prohibited - Denial of license - Quality assessment and rating system - Curriculum guideline addressing personal safety

(a)
(1)
All persons or entities operating a child care agency as defined in this part, unless exempt as provided in §
71-3-503
, must be licensed by the department as a child care agency.
(2)
(A)
The department has the authority to issue regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2, for the licensing of any persons or entities subject to any provisions of this part and for enforcement of appropriate standards for the health, safety and welfare of children in their care.
(B)
To the extent they are not inconsistent with the statutory provisions of this part, the regulations of the department that are in effect July 1, 2021, shall remain in force and effect until modified by regulatory action of the department.
(3)
The department's regulations of child care agencies shall be developed based upon consideration of the criteria in subdivisions (a)(3)(A)-(F). In determining whether to initially grant a license or whether to take any licensing action involving a licensed child care agency, the statutory criteria in subdivisions (a)(3)(A)-(F) may be cited and considered by the department and by the child care agency board of review as the basis for such action in addition to the regulations:
(A)
The safety, welfare and best interests of the children in the care of the agency;
(B)
The capability, training and character of the persons providing or supervising the care of the children;
(C)
Evidence that the expected performance of the caregivers, supervisors or management of the child care agency seeking initial licensure or renewal of licensure will be such as to protect children in care from injury, harm or the threat of injury or harm; or, during licensure, that the actual performance of any of the duties of caregivers, supervisors or management of a licensed child care agency demonstrates or has demonstrated a level of judgment that a reasonable person would exercise or would have exercised, under existing or under reasonably foreseeable circumstances, that would prevent or would have prevented injury, harm, or the threat of injury or harm, to any child in care;
(D)
The quality of the methods of care and instruction provided for the children;
(E)
The suitability of the facilities provided for the care of the children; and
(F)
The adequacy of the methods of administration and the management of the child care agency, the agency's personnel policies, and the financing of the agency.
(4)
The department shall promulgate regulations that address the following areas:
(A)
Training for directors and care givers as follows:
(i)
Preemployment training for directors, including, but not limited to, training in interviewing and evaluating care givers for service in an agency;
(ii)
Training for caregivers that includes, but is not limited to, preservice orientation as well as additional training within the first six (6) months of employment as provided by rule; and
(iii)
The department of human services shall promulgate rules that consider the prior education and experience of a registered nurse who is seeking approval under the department's rules as a director of a child care agency that operates as part of a facility licensed under title 68 as a nursing home;
(B)
Liability and accident insurance coverage, including minimum amounts of coverage based upon insurance industry standards, for both facilities and vehicles owned, leased or contracted for by the child care agency; provided, that this requirement shall not apply to a child care agency that is under the direct management of a self-insured administrative department of the state, a county, a municipality or any combination of those three (3); and
(C)
(i)
Education of the parents of children in day care regarding the benefits of immunizing their children against influenza.
(ii)
The department of human services shall work to increase immunization awareness and participation among parents of children in child care agencies by working with the department of health in publishing on the department's website information about the benefits of annual immunization against influenza for children six (6) months of age to five (5) years of age;
(iii)
The department shall work with child care agencies and providers to ensure that the information is annually distributed to parents in August or September.
(5)
The department shall enact these regulations by emergency rule to be effective July 1, 2000; provided, however, permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act.
(6)
(A)
The department of human services licensure rules for child care centers serving preschool children contained in Tenn. Comp. R. & Regs. 1240-4-3-.07(4)(e), and licensure rules for child care centers serving school-age children contained in Tenn. Comp. R. & Regs. 1240-4-6-.07(4)(f), and in any other portions of those rules, that were part of the amendments filed as permanent rules for each rule on September 29, 2000, enacted on December 13, 2000, and effective on July 1, 2001, and that define or reference the age groups for "infants" as being comprised of children who are six (6) weeks to twelve (12) months of age, and the age groups for "toddlers" as being comprised of children who are thirteen (13) months to twenty-three (23) months of age, shall expire on July 19, 2001.
(B)
"Infant" and "toddler" categories of children in the care of a child care agency licensed pursuant to this part shall be defined as follows, until otherwise modified by rule of the department:
(i)
"Infants" shall be comprised of children six (6) weeks to fifteen (15) months of age; and
(ii)
"Toddlers" shall be comprised of children twelve (12) months to thirty (30) months of age.
(C)
All other department rules not specifically designated to expire by subdivision (a)(6)(A), or affected by the definitions in subdivision (a)(6)(B), including, but not limited to, the definitions or references to the age range for the "2 year old" category in the care of a child care agency, descriptions or definitions of any other age groups of children, adult to child ratios, and, except as modified by ch. 436 of the Public Acts of 2001, and the effective dates of the rules, shall remain in full force and effect or shall become effective in accordance with the department's regulations.
(D)
The department of human services shall have authority to immediately implement emergency rules effective on July 19, 2001, or as soon thereafter as possible, to define the age groups for "infants" and "toddlers" as defined by subdivision (a)(6)(B) and to make any conforming rule changes in the text or in the adult to child supervision charts contained in Tenn. Comp. R. & Regs. 1240-4-3 or 1240-4-6 or in any other rule of the department that may be necessary to implement the changes made by this section relative to the age range definition for the "infant" and "toddler" groups. Permanent rules shall be implemented as otherwise provided by the Uniform Administrative Procedures Act.
(b)
(1)
The department shall assist applicants or licensees in meeting the child care standards of the department unless the circumstances demonstrate that further assistance is not compatible with the continued safety, health or welfare of the children in the agency's care and that regulatory action affecting the agency's license is warranted. All costs and expenses arising from or related to meeting the child care standards of the department shall be borne entirely by the applicant or licensee; provided, the department may, in its discretion, provide from available funds for technical assistance to child care agencies, and the training of child care givers.
(2)
If a license is revoked or an application for licensure is denied, then the department shall offer reasonable assistance to the parent, guardian, or custodian of children in care in planning for the placement of the children in licensed child care agencies or other suitable care.
(c)
Application for a license to operate a child care agency shall be made in writing to the department in such manner as the department determines and shall be accompanied by the appropriate fee established by rule as provided in subsection (f).
(d)
(1)
A person or entity that does not have an existing license may apply for a provisional license. The purpose of the provisional license is to permit the license applicant to begin the operation of a child care agency after meeting certain minimum requirements and to demonstrate during the provisional licensing period that it has the ability to attain and maintain compliance with all licensing laws and regulations.
(2)
An applicant shall receive a provisional license upon the presentation of satisfactory evidence that:
(A)
The facility that is proposed for the care of children has received fire safety and environmental safety approval, and that, after appropriate inspection, the department has determined that the site does not endanger the safety or welfare of children;
(B)
The applicant and the personnel who will care for the children are capable in all substantial respects of caring for the children;
(C)
The applicant has the ability to attain and maintain compliance with the licensing laws and regulations, both during and after the provisional licensing period;
(D)
The applicant, owner, director or an employee of the agency has not previously been associated in an ownership or management capacity with any child care agency that has been cited by the department for violations of this part or the department's regulations, including the agency for which the application is pending, unless the department determines that a reasonable basis exists to conclude that such individual is otherwise qualified to provide child care; and
(E)
The criteria in subdivision (a)(3) support the issuance of a provisional license.
(3)
If the department determines that any of the criteria in subdivision (d)(2) has not been, or cannot be met, then it may deny the application for a provisional license.
(4)
(A)
If the department determines that the applicant has fully complied with subdivision (d)(2) and with all other laws and regulations governing the specific classification of child care agency for which the application was made, that the child care agency has demonstrated the ability to maintain compliance with all licensing regulations following the provisional licensure period, and that it has a reasonable likelihood of maintaining licensure, then the department shall issue a license.
(B)
If the applicant has not satisfactorily demonstrated compliance with the requirements for licensing as determined by the department, a license may be denied by the department.
(5)
The licensee shall post the license in a clearly visible location as determined by the department so that parents or other persons visiting the agency can readily view the license and all the information on the license.
(6)
(A)
(i)
The license shall describe the ownership of the child care agency, the person who is charged with the day-to-day management of the child care agency, and, if the agency is owned by a person other than the director, or if the agency is under the ownership or direction or control of any person or entity who is not also the on-site director or manager of the agency, the license shall also state the corporate or other name of the controlling person or entity, its address and telephone number where the parents, guardians or custodians may have contact regarding the agency's operations.
(ii)
If the child care agency is operated by a public or private nonprofit entity and is subject to the control or direction of a board of directors or other oversight authority, the license shall list the name, address and telephone number of the chair of the board or other executive head of such controlling body.
(B)
In order for a child care agency to offer before or after-school services under this part, the department must issue a license bearing a notation that the agency is authorized to provide before or after-school care services. An agency may not offer such services unless its license bears such notation.
(7)
(A)
In granting any license, the department may limit the total number of children who may be enrolled in the agency regardless of the agency's physical capacity or the size of its staff.
(B)
Adult/child ratios and group sizes in group child care homes and child care centers may exceed requirements set by rule of the department of human services by up to ten percent (10%), rounded to the nearest whole number, for no more frequently than three (3) days per week; provided, however, infant and toddler groups may never exceed the required ratios and group sizes.
(C)
(i)
The department may promulgate rules, under the Uniform Administrative Procedure Act, to provide for the amounts of liability coverage for any personal vehicles that are not owned, operated by, or contracted by the child care agency for the transportation of children enrolled in the agency, but which are utilized by parents, staff or volunteers only for occasional field trips for children enrolled at the agency.
(ii)
Such rules must provide that any vehicles not owned, operated by, or contracted for by the agency for any transportation of children enrolled at the agency, and which are utilized only as described in subdivision (d)(7)(C)(i) for field trips must provide evidence of currently effective liability coverage for such nonagency vehicles in amounts sufficient to provide adequate coverage for children being transported by such vehicles.
(iii)
Subject to department rule, all vehicles used by or on behalf of a child care center to provide transportation of children, that are designed to transport six (6) or more passengers, shall be equipped with a child safety monitoring device that shall prompt staff to inspect the vehicle for children before an alarm sounds. In order to facilitate the affordability of such devices for centers, the department is authorized to establish a grant program to subsidize a portion or all of the cost of such devices for centers; provided, however, that the department may only use private donations that it receives for such purpose to fund the grants. Only devices approved by the department are authorized for use on such a vehicle. This subdivision (d)(7)(C)(iii) shall not apply:
(a)
When all children in a vehicle are five (5) years of age and in kindergarten, or older than five (5) years of age, except that if any one (1) of such children is developmentally or physically disabled or nonambulatory then this subdivision (d)(7)(C)(iii) shall apply; or
(b)
To vehicles used exclusively for the provision of occasional field trips.
(iv)
Vehicles used by a licensed child care agency for the transportation of children shall be subject only to color and marking requirements promulgated by the department and shall be exempt from any other such requirements that may be set forth in state law or local ordinance. Color and marking requirements shall be issued by the department, in consultation with the department of safety, as deemed appropriate for the safe operation, proper identification, or registration of the vehicle.
(v)
Such rules shall prohibit a newly hired employee or existing employee who is full-time or part-time, or, as defined by the department, a substitute employee of a child care agency, or a contractor or other persons or entities providing any form of transportation services for compensation to a child care agency, from engaging in any form of driving services involving children in a child care agency until the employee or substitute employee has undergone a drug test and the results are negative for illegal drug use. The rules shall provide exceptions for emergency transportation requirements in limited circumstances, as deemed appropriate by the department.
(8)
If the department fails to issue a license within one hundred twenty (120) days of the granting of the provisional license, then the provisional license continues in effect, unless suspended, as provided in §
71-3-509
, until such determination is made. If a license is denied following the issuance of a provisional license, and if a timely appeal is made of the denial of a license, then the provisional license remains in effect, unless suspended, until the board of review renders a decision regarding the denial of a license.
(9)
If a provisional license is denied or a license is denied following the issuance of a provisional license, the applicant may appeal the denial or restriction as provided in §
71-3-509
.
(e)
(1)
Except as provided in this subsection (e), no license for a child care agency shall be transferable, and the transfer by sale or lease, or in any other manner, of the operation of the agency to any other person or entity shall void the existing license immediately and any pending appeal involving the status of the license, and the agency shall be required to close immediately. If the transferee has made application for, and is granted, a provisional license, the agency may continue operation under the direction of the new licensee. The new licensee in such circumstances may not be the transferor or any person or entity acting on behalf of the transferor.
(2)
If the department determines that any person or entity has transferred nominal control of an agency to any persons or entities who are determined by the department to be acting on behalf of the purported transferor in order to circumvent a history of violations of the licensing law or regulations or to otherwise attempt to circumvent the licensing law or regulations or any prior licensing actions instituted by the department, the department may deny the issuance of any license to the applicant. The denial of the license may be appealed as provided in §
71-3-509
.
(3)
(A)
The license of any agency shall not be voided nor shall any pending appeal be voided pursuant to this subsection (e) solely for the reason that the agency is subject to judicial orders directing the transfer of control or management of a child care agency or its license to any receiver, trustee, administrator or executor of an estate, or any similarly situated person or entity.
(B)
If the current licensee dies, and provided that no licensing violations require the suspension, denial or revocation of the agency's license, the department may grant family members of the licensee, or administrators or executors of the licensee, a new provisional license to continue operation for a period of one hundred twenty (120) days. At the end of such period, the department shall determine whether a license should be granted to a new licensee as otherwise provided in this section.
(C)
Nothing in this subsection (e) shall be construed to prevent the department from taking any regulatory or judicial action as may be required pursuant to the licensing laws and regulations that may be necessary to protect the children in the care of such agency.
(f)
(1)
Prior to January 1, 2022, the licensure application fees as they existed for child care agencies on June 30, 2021, apply. On or after January 1, 2022, licensure fees apply only to applications for provisional licenses for child care agencies licensed pursuant to this part in amounts established by rules promulgated by the department pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(2)
In order to address the need for and encourage the development of extended child care for parents working during nights or on weekends, or for any other nontraditional child care needs for which the department determines that available child care is inadequate or unavailable in all or any part of the state, the department may promulgate rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, providing for alternative fee schedules in order to recognize and encourage the development of child care to meet such needs.
(g)
[Deleted by 2021 amendment.]
(h)
All licensure application fees collected by the department from family child care homes, group child care homes, child care centers and drop-in centers shall be paid into the general fund, but shall be earmarked for, and dedicated to, the department. Such earmarked fees shall be used by the department exclusively to improve child care quality in this state by funding activities that include child care provider training activities, but excluding any costs associated with conducting criminal background checks. Increased fees shall be used solely for a variety of training options, which can be accessed by agencies, organizations and individuals for grants for workshops, conferences and scholarships that improve the quality of child care in this state.
(i)
Notwithstanding any provisions of title 13, chapter 7, to the contrary, upon adoption of a resolution by a two-thirds (2/3) vote of the county legislative body, any zoning authority, in determining the suitability of a request for any use of property for the establishment or alteration of any child care agency, may consider the criminal background of the person or persons making a request to such board, or may consider the criminal background of any person or persons who will manage or operate such child care agency. The board may require the person to submit a fingerprint sample and a criminal history disclosure form and may submit the fingerprint sample for comparison by the Tennessee bureau of investigation pursuant to §
38-6-109
, or it may conduct the background check by other means as it deems appropriate. The zoning authority shall be responsible for all costs associated with obtaining such criminal background information.
(j)
(1)
(A)
The department shall establish and implement a quality assessment and rating system for the purpose of evaluating, individually and collectively, child care agencies licensed or approved by the department pursuant to this part so that parents or other caretakers of children enrolled, or being considered for enrollment, at a child care agency, may make more informed decisions regarding the care of their children by comparing the quality of services offered by child care agencies, to encourage the improvement of out-of-home child care for children in this state, and to support child care providers in continuously improving the quality of services and support they provide families. The quality assessment and rating system established pursuant to this subsection (j) must be developed in a manner easily usable by parents or other caretakers of children to make informed choices related to child care.
(B)
For purposes of this subsection (j), "child care agencies" includes child care centers, group child care homes, and family child care homes.
(2)
(A)
The department shall promulgate rules establishing the quality assessment and rating system under this subsection (j). Each child care agency must receive a quality assessment and rating evaluation after the rules establishing the quality assessment and rating system under this subsection (j) become effective, and annually thereafter. This quality assessment and rating system must include an annual evaluation of each child care agency by the department and must reflect key indicators of performance comparison among all child care agencies in this state, which may include information related to the following:
(i)
Health and safety practices; and
(ii)
Teacher-child interactions.
(B)
The department shall not discriminate or fail to recognize the credentials of any accrediting agency based upon religious affiliation, race, age, color, sex, or national origin.
(C)
Upon completion, the quality assessment and rating results of each child care agency must be available on the department's website and posted in a clear and visible location at each child care agency for review by the parents or other caretakers of children enrolled, or being considered for enrollment, at the child care agency.
(3)
Any child care agency that accepts the department's child care assistance subsidy payments may receive higher subsidy payments or other financial performance incentives, as determined by the department, based upon the child care agency's quality assessment and rating results, subject to available funding in the department's budget.
(4)
The commissioner and the comptroller of the treasury may, in their discretion, conduct audits of the records of any child care providers as necessary to verify that the expenditures by a child care provider of state or federal child care subsidy funds are being made according to state or federal requirements.
(5)
A child care agency is subject to denial or revocation of the agency's license by the department and may also be subject to a civil penalty of five hundred dollars ($500) imposed by the department if the child care agency knowingly:
(A)
Provides false information or fails to provide any information to the department, the comptroller, or their agents or designees that is required or necessary to perform any of the requirements of this title or to enforce state or federal law or regulations, or child care subsidy or licensing requirements;
(B)
Fails to allow entrance by any person designated by the department to perform the evaluation required by this subsection (j); or
(C)
Continues to display expired or revoked quality assessment and rating results after written notice by the department.
(k)
The department is authorized to review possible dangers to children and workers in child care facilities from carbon monoxide gas and to issue such rules and regulations as it may deem necessary.
(l)
(1)
The department of human services shall make available to child care providers licensed by the department a curriculum guideline in any suitable format addressing personal safety containing a component related to the prevention of child sexual abuse and shall allow child care providers licensed by the department to choose terminology and instructional methods that accomplish the goal of providing clear, effective and appropriate instruction in personal safety. The department is encouraged to distribute a sample curriculum that is developmentally-appropriate and age-appropriate, child-friendly and family-friendly, and designed to be acceptable to a broad range of providers, parents and legal guardians.
(2)
The personal safety curriculum that will be implemented by the child care provider must be made available so parents and legal guardians have the opportunity to review it and so parents and legal guardians will be aware of this component of the child care provider's curriculum. The department shall develop a standard notification form to be provided to the parents or legal guardians by the child care agency. The notification form shall contain the following information:
(A)
The method of instruction and sample terminology used in the personal safety/child sexual abuse curriculum;
(B)
The availability of the instructional materials for review by the parents or legal guardians; and
(C)
A place for the parents or legal guardians to sign acknowledging they have been provided an opportunity to review the personal safety curriculum, have been notified of the child sexual abuse/personal safety curriculum for their child and the individual record for each child shall include a copy of the signed notification form.
(3)
If a parent has questions regarding the personal safety component of the quality early childhood education curriculum, then the provider or a representative of the provider shall meet with the parent and discuss the personal safety component of the curriculum.
(4)
The department of human services is expressly authorized and directed to implement by emergency rules, effective October 1, 2008, a rule regarding implementation of this requirement for the personal safety curriculum; provided, that any permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act.
Amended by 2021 Tenn. Acts, ch. 280, Secs.s2, s3, s4, s5, s6, s7, s8, s9, s10, s11, s12, s13, s14, s15, s16, s17, s18, s19, s20, s21 eff. 7/1/2021.
Amended by 2021 Tenn. Acts, ch. 280, s 1, eff. 7/1/2021.
Amended by 2016 Tenn. Acts, ch. 839, s 13, eff. 7/1/2016.
Acts 2000, ch. 981, § 3; 2001, ch. 453, §§ 3 - 6, 24, 25; 2003 , ch. 170, § 2; 2004, ch. 696, § 1; 2005, ch. 151, §§ 2 - 7; 2005, ch. 453, §§ 1, 2; 2006, ch. 906, § 1; 2008 , ch. 687, § 1; 2008 , ch. 1032, § 1; 2009 , ch. 566, § 12; 2010 , ch. 789, §§ 1 - 3; 2010 , ch. 1132, § 1; 2011 , ch. 410, § 3 (ii).