Mo. Code Regs. tit. 13 § 35-71.030

Current through Register Vol. 49, No. 20, October 15, 2024

Section 13 CSR 35-71.030 - Hearings and Judicial Review

PURPOSE: This amendment is necessary to update the regulation to reflect current practice and to implement the requirements of HB 557 (2021).

(1) License Denial or License Revocation.

(A) The division may refuse to issue a license to an applicant, or may deny or revoke the license of a licensee, who-

1. Fails consistently to comply with the applicable provisions of sections 210.481-210.536, and 210.1250-210.1286, RSMo, and the applicable corresponding rules;

2. Violates any of the provisions of its license;

3. Violates federal or state laws or rules relating to the protection of children;

4. Abuses or neglects children, or is the subject of multiple or serious reports of child abuse or neglect which upon investigation results in a substantiated finding of child abuse or neglect; or is found guilty, pleads guilty, or pleads no contest to any crime which would render an individual ineligible for employment or presence at the Licensed Residential Care Facility (LRCF) pursuant to section 210.493, RSMo;

5. Employs persons who the division has found ineligible for employment or presence at the LRCF pursuant to section 210.493, RSMo, and 13 CSR 35-71.015, or who abuses or neglects children;

6. Furnishes or makes any misleading or false statements or reports to the division;

7. Refuses to submit any reports or refuses to make available to the division any records required in making an investigation;

8. Fails or refuses to submit to an investigation by an authorized and identified representative of the division at any reasonable time;

9. Fails to provide, maintain, equip, and keep in safe and sanitary condition the premises established or used for the care of children as required by law, rule, or ordinance applicable to the location of a facility;

10. Fails to provide adequate financial resources for the satisfactory care of children being served, or the upkeep of the premises, or both;

11. Fails to satisfactorily comply with all fire, safety, health, and sanitation inspections as may be required by state law or local ordinance and required under section 210.252, RSMo; or

12. Is a health or safety concern for the children at the LRCF.

(B) The division shall provide written notice of denial or revocation of licensure to the agency, which shall include the reason(s) for the denial or revocation. Upon receipt of the notice of denial or revocation, the agency shall cease operation within ten (10) business days unless stayed by an appropriate administrative or judicial order, or a request for an administrative hearing is made before the expiration of the ten (10) business days from the date of the notice.

(C) The agency may appeal the decision of the division to deny or revoke the license by filing a request for appeal with the division within ten (10) days after receipt of the notice of denial or revocation.

(D) Any person aggrieved by a decision of the division to deny or revoke a license shall be entitled to a hearing on administrative review under section (5) of this rule.

(E) An agency may not reapply for licensure within one (1) year from the date of denial or revocation.

(2) License Suspension.

(A) The division shall have the authority to suspend the license of an agency when-

1. The division determines that the suspension of the license is necessary to protect the health, safety, and welfare of children who are or may be placed at the operating site; and

2. The division determines that noncompliance with one (1) or more of the criteria set out in sections 210.496 and 210.1250- 210.1286, RSMo, and/or subsection (1)(A) of this rule may exist; and

3. The division has reasonable cause to believe that the agency will be able to develop and effectively implement a corrective action plan to resolve the concerns which gave rise to the suspension of the license.

(B) The agency shall cease operations within ten (10) business days of the date the division issues an order suspending the license of the agency unless-

1. The agency files a written request for administrative review within ten (10) business days of the date of the order; or

2. The order is stayed by an appropriate administrative or judicial order.

(C) The order for suspension of the license shall be in writing. The order shall include:

1. The factual and legal basis for the order; and

2. Notification of the right of the agency to administrative review. The division may extend the order if there has been no substantial change in the circumstances since the entry of the original order or if there are new grounds for extension of the order.

(D) The division may reinstate a suspended license on its own motion or upon written application by the agency. The division may reinstate that license if the division determines that-

1. The agency has developed and successfully implemented a corrective action plan approved by the division to remedy the concerns which resulted in the license suspension; and

2. The agency meets all of the criteria for licensing; and

3. The division determines that suspension of the license is no longer necessary to protect the health, safety, and welfare of the children involved.

(3) Suspension of Intake.

(A) The division shall have the authority to suspend the authorization of the agency to admit additional children into placement during time periods proscribed by the division when the division determines that the agency is not in compliance with the requirements of sections 210.493, 210.496, and 210.1250-210.1286, RSMo, and/or subsection (1)(A) of this rule and-

1. The addition of additional children to the agency is not in the best interests of the children already placed within the agency or who may be placed with the agency; and

2. Allowing the placement of additional children with the agency may pose a risk to the health, safety, and welfare of children already placed with the agency or who may be placed with the agency.

(B) The order for suspension of intake shall be in writing. The order shall include-

1. The factual and legal basis for the order; and

2. Notification of the right of the agency to administrative review. The division may extend the order if there has been no substantial change in the circumstances since the entry of the original order or if there are new grounds for extension of the order. A suspension of intake shall proscribe the number of additional children which the agency is authorized to accept for placement, if any, but it shall not include a requirement that children currently placed with the agency shall be removed.

(C) If the division finds that suspension of intake prior to the opportunity for a hearing on administrative review is necessary to protect the health, safety, and welfare of children then the division has the option to make the order to suspend intake effective immediately upon delivery to the agency; otherwise the order shall be effective ten (10) business days from the date of the entry of the order unless-

1. The agency files a written request for administrative review within ten (10) business days of the date of the order; or

2. The order is stayed by an appropriate administrative or judicial order.

(D) If the division issues an order to immediately suspend intake the division shall schedule an informal meeting to review the decision with the agency as soon as practicable. The meeting shall take place before the director or his/her designee. The division shall notify the agency of the date and time for the meeting. The meeting may be continued at the request of the agency, but the order shall remain in effect pending the meeting. The meeting shall be informal, the rules of evidence shall not apply, and both the agency and the division may submit any information relevant to the issues in the case. The purpose of the meeting will be-

1. For the division to determine whether there is probable cause to find that a suspension of intake is necessary to protect the best interests of the children placed with the agency or who may be placed with the agency pending a fair hearing on administrative review pursuant to section (4), below; and

2. To afford the agency an opportunity to informally provide information relevant to the division's decision and to request relief from the entry of the order.

(E) If the division finds after the meeting that there is probable cause to continue the suspension of intake pending hearing on administrative review the division shall expedite the hearing on administrative review; otherwise the suspension of intake shall be stayed pending hearing on administrative review.

(F) The division may rescind the order suspending intake on its own motion or upon written application by the agency. The division may reinstate the intake if the division determines that-

1. The agency has developed and successfully implemented a corrective action plan approved by the division to remedy the concerns which resulted in the suspension of intake; and

2. The agency meets all of the criteria for licensing; and

3. The division determines that the suspension of intake is no longer necessary to protect the health, safety, and welfare of the children.

(4) Emergency Order Against an Existing License.

(A) The division may issue an order immediately suspending a license prior to a hearing on administrative review when the division finds that there is probable cause to believe that-

1. There is an imminent risk of immediate and significant harm to the health, safety, or welfare of children who are placed or who may be placed with the agency; and

2. The risk is such that the health, safety, or welfare of the children may be at risk if the division's emergency action does not become effective before the agency is afforded an opportunity for a hearing.

(B) The division's findings under this section must be made in writing and set out in the order. The order shall notify the agency of its right to request administrative review and of its right to an informal meeting.

(C) If the division issues an emergency order against a license under this section the division shall schedule an informal meeting to review the decision with the agency as soon as practicable. The meeting shall take place before the director or his/her designee. The division shall notify the agency of the date and time for the meeting. The meeting may be continued at the request of the agency, but the order shall remain in effect pending the meeting. The meeting shall be informal, the rules of evidence shall not apply, and both the agency and the division may submit any information relevant to the issues in the case. The purpose of the meeting will be-

1. For the division to determine whether there is probable cause to find that an emergency exists which requires continuation of the division's action pending a hearing on administrative review pursuant to section (5) below; and

2. To afford the agency an opportunity to informally provide information relevant to the division's decision and to request relief from the entry of the order.

(D) If the division finds after the meeting that there is probable cause for the emergency action and continues the suspension in effect the division shall refer the matter for a hearing on administrative review; otherwise the suspension of the license shall be stayed pending hearing on administrative review.

(5) Hearing on Administrative Review.

(A) The agency which is aggrieved by the decision of the division, (including, but not limited to, a decision to deny a variance, to suspend intake, suspend a license, deny a license application, or revoke an existing license) shall have the right to a hearing on administrative review of the division's decision.

(B) The division shall provide written notice to the agency of its adverse action against the license of an agency. The notice shall-

1. Inform the agency of the nature of the decision;

2. State the factual and legal basis for the division's action;

3. State the effective date of the action, if applicable; and

4. Notify the agency of its right to seek administrative review.

(C) To request a hearing the agency shall submit a written request for administrative review within ten (10) business days of the decision of the division. The request for administrative review shall set forth the basis of the agency's objection to the division's decision.

(D) Unless otherwise provided in this rule, the division's action shall be stayed pending the entry of an order after hearing on administrative review if the agency request administrative review of the division's decision within ten (10) business days of the date of the notice of the division's action.

(E) If the agency requests a hearing the division shall hold an administrative hearing. The hearing shall be held by the director or the director's designee.

(F) Upon receipt of the final decision of the division, the agency can decide to accept the final decision or file petition for judicial review pursuant to sections 210.526 and 536.100 through 536.140, RSMo.

13 CSR 35-71.030

AUTHORITY: sections 210.506 and 210.526, RSMo 2000.* This rule originally filed as 13 CSR 40-71.030. Original rule filed Nov. 9, 1978, effective Feb. 11 , 1979. Emergency rescission and emergency rule filed Nov. 1, 1993, effective Nov. 12, 1993, expired March 11 , 1994. Emergency rescission and emergency rule filed March 2, 1994, effective March 12, 1994, expired July 9, 1994. Rescinded and readopted: Filed Nov. 1, 1993, effective June 6, 1994. Emergency amendment filed July 25, 2008, effective Aug. 4, 2008, expired Jan. 30, 2009. Moved to 13 CSR 35-71.030 and amended: Filed July 25, 2008, effective Jan. 30, 2009. Amended: Filed Dec. 16, 2013, effective June 30, 2014.

Amended by Missouri Register February 15, 2022/Volume 47, Number 4, effective 3/31/2022

*Original authority: 210.506, RSMo 1982, amended 1993, 1995.