(1) During an emergency circumstance, a child care center may permit an employee who has successfully completed criminal background check requirements but is not a qualified caregiver to supervise children for not more than two hours while the child care center secures a qualified caregiver.
(2) Notwithstanding subsection (1) of this section, a large child care center, as defined by department rule, or a child care center that operates on the property of a school district, district charter school, or institute charter school, may permit an employee of the child care center or an employee of the school district, district charter school, or institute charter school who has successfully completed criminal background check requirements but is not a qualified caregiver to supervise children for an amount of time that is reasonably necessary to address an emergency circumstance.
(3) During an emergency circumstance, a child care center shall maintain the staff-to-child ratio required by rule of the executive director.
(4) As used in this section, unless the context otherwise requires, emergency circumstance includes, but is not limited to, illness, death, accident, law enforcement action, road closure, hazardous weather, emergency bodily function, child elopement, or providing emergency attention or care to a child.
Source: L. 2022: Entire article added with relocations, (HB 22-1295), ch. 123, p. 755, � 3, effective July 1.
Editor's note: This section is similar to former � 26-6-106.2 as it existed prior to 2022.
26.5-5-316. Investigations and inspections - local authority - reports - rules. (1) (a) (I) (A) The department shall investigate and pass on each original application for a license, each application for a permanent license following the issuance of a probationary or provisional license, and each application for renewal, to operate a facility or an agency prior to granting the license or renewal. As part of the investigation, the department shall require each individual, including, but not limited to, the applicant, any owner, employee, newly hired employee, licensee, and any adult who is eighteen years of age and older who resides in the licensed facility, to obtain a fingerprint-based criminal history record check by reviewing any record that is used to assist the department in ascertaining whether the person being investigated has been convicted of any of the criminal offenses specified in section 26.5-5-309 (4) or any other felony. The executive director shall promulgate rules that define and identify what the criminal history record check entails.
(B) Rules promulgated by the executive director pursuant to this subsection (1)(a)(I) must allow an exemption from the fingerprint-based criminal history record check and the check of the records and reports of child abuse or neglect maintained by the state department of human services for those out-of-state employees working in Colorado at a children's resident camp in a temporary capacity for a camp that is in operation for fewer than ninety days. Each person so exempted from fingerprinting and the check of the records and reports of child abuse or neglect maintained by the state department of human services shall sign a statement that affirmatively states that the person has not been convicted of any charge of child abuse, unlawful sexual offense, or any felony. Prospective employers of exempted persons shall conduct reference checks of the prospective employees in order to verify previous work history and shall conduct personal interviews with each prospective employee.
(C) Rules promulgated by the executive director pursuant to this subsection (1)(a)(I) must require the fingerprint-based criminal history record check in all circumstances, other than those identified in subsection (1)(a)(I)(B) or (1)(a)(I)(D) of this section, to include a fingerprint-based criminal history record check utilizing the records of the Colorado bureau of investigation and the federal bureau of investigation and, for any new owner, new applicant, newly hired employee, new licensee, or individual who begins residing in the licensed facility. As part of the investigation, the records and reports of child abuse or neglect maintained by the state department of human services must be accessed to determine whether the owner, applicant, employee, newly hired employee, licensee, or individual who resides in the licensed facility being investigated has been found to be responsible in a confirmed report of child abuse or neglect. Information is made available pursuant to section 19-1-307 (2)(j) and rules promulgated by the state board of human services pursuant to section 19-3-313.5 (4). Except as provided in subsection (1)(a)(I)(D) of this section, any change in ownership of a licensed facility or the addition of a new resident adult or newly hired employee to the licensed facility requires a new investigation as provided in this section.
(D) When two or more individually licensed facilities are wholly owned, operated, and controlled by a common ownership group or school district, a fingerprint-based criminal history record check and a check of the records and reports of child abuse or neglect maintained by the state department of human services, completed for one of the licensed facilities of the common ownership group or school district pursuant to this section for any individual for whom such a check is required under this part 3 may satisfy the record check requirement for any other licensed facility under the same common ownership group or school district. A new fingerprint-based criminal history record check or new check of the records and reports of child abuse or neglect maintained by the state department of human services is not required of such an individual if the common ownership group or school district maintains a central records management system for employees of all its licensed facilities; takes action as required pursuant to section 26.5-5-309 when informed of the results of a fingerprint-based criminal history record check or check of the records and reports of child abuse or neglect maintained by the state department of human services that requires action pursuant to this part 3; and informs the department whenever an additional licensed facility comes under or is no longer under its ownership or control.
(E) The executive director shall promulgate rules to implement this subsection (1)(a)(I).
(II) Rules promulgated by the executive director pursuant to subsection (1)(a)(I) of this section must also include:
(A) A comparison search on the Colorado state courts data access system at the state judicial department with the name and date of birth information and any other available source of criminal history information that the department determines is appropriate for each circumstance in which the fingerprint check conducted by the Colorado bureau of investigation either does not confirm a criminal history or confirms a criminal history, in order to determine the crime or crimes for which the person was arrested or convicted and the disposition thereof;
(B) Any other recognized database, if any, that is accessible on a statewide basis as set forth by department rules; and
(C) When the results of an investigation performed pursuant to subsection (1)(a)(I) of this section or this subsection (1)(a)(II) reveal a record of arrest without a disposition, a name-based judicial record check, as defined in section 22-2-119.3 (6)(d).
(III) If the operator of a facility or agency refuses to hire an applicant as a result of information disclosed in the investigation of the applicant pursuant to subsection (1)(a)(I) of this section, the employer is not subject to civil liability for such refusal to hire. If a former employer of the applicant releases information requested by the prospective employer pertaining to the applicant's former performance, the former employer is not subject to civil liability for the information given.
(b) (I) When the department is able to certify that the applicant or licensee is competent and will operate adequate facilities to care for children under the requirements of this part 3 and that standards are being met and will be complied with, it shall issue the license for which applied. The department shall inspect or cause to be inspected the facilities to be operated by an applicant for an original license before the license is granted and shall thereafter inspect or cause to be inspected the facilities of all licensees that, during the period of licensure, have been found to be the subject of complaints or to be out of compliance with the standards set forth in section 26.5-5-314 and department rules or that otherwise appear to be placing children at risk. The department may make such other inspections as it deems necessary to ensure that the requirements of this part 3 are being met and that the health, safety, and welfare of the children being placed are protected.
(II) The executive director shall adopt rules concerning the on-site public availability of the most recent inspection report results of child care center facilities and family child care home facilities, when requested. The executive director shall also adopt rules concerning a requirement that all facilities licensed under this part 3 post their licenses and information regarding the procedures for filing a complaint under this part 3 directly with the department, which rules must require that each such facility display its license and complaint procedures in a prominent and conspicuous location at all times during operational hours of the facility.
(III) If, as a result of an inspection of a licensed child care center facility or family child care home facility, the department determines that there were no serious violations of any of the standards prescribed and published by the department or any of the provisions of this part 3, within twenty days after completing the inspection the department shall send a written notice to the facility indicating such fact. Within ten days after receipt of the written notice, the licensee shall provide a copy of the written notice to the parents and legal guardians of the children cared for at the child care center facility or family child care home facility.
(2) When the department receives a serious complaint about a child care facility licensed pursuant to this part 3 alleging the immediate risk of health or safety of the children cared for in such facility, the department shall respond to the complaint and conduct an on-site investigation concerning the complaint within forty-eight hours after its receipt.
(3) (a) (I) Except as otherwise provided in subsection (3)(a)(II) of this section, the department may authorize or contract with any county department, the county department of health, or any other publicly or privately operated organization that has a declared interest in children and experience working with children or on behalf of children to investigate and inspect the facilities applying for an original or renewal license or applying for a permanent license following the issuance of a probationary or provisional license under this part 3 and may accept reports on such investigations and inspections from such agencies or organizations as a basis for such licensing. When contracting for investigations and inspections, the department shall assure that the contractor is qualified by training and experience and has no conflict of interest with respect to the facilities to be inspected.
(II) The department shall not authorize or contract with any county department, the county department of health, or any other publicly or privately operated organization that has a declared interest in children and experience working with children or on behalf of children for investigations and inspections described in subsection (3)(a)(I) of this section of any facilities that provide twenty-four-hour care and are licensed pursuant to this part 3.
(b) A city, county, or city and county may impose and enforce higher standards and requirements for facilities licensed under this part 3 than the standards and requirements specified under this part 3.
(4) Every facility licensed under this part 3 shall keep and maintain such records as the department may prescribe pertaining to the admission, progress, health, and discharge of children under the care of the facility, and shall report relative thereto to the department whenever called for, upon forms prescribed by the department. The facility and the department shall keep all records regarding children and all facts learned about children and their relatives confidential.
Source: L. 2022: Entire article added with relocations, (HB 22-1295), ch. 123, p. 755, � 3, effective July 1; (1)(a)(II)(C) amended, (HB 22-1270), ch. 114, p. 531, � 50, effective April 21. L. 2023: (1)(a)(I)(A) and (1)(a)(II)(A) amended, (HB 23-1235), ch. 434, p. 2550, � 16, effective June 7.
Editor's note: (1) The provisions of this section are similar to provisions of several former sections as they existed prior to 2022. For a detailed comparison, see the comparative tables located in the back of the index.
(2) Subsection (1)(a)(II)(C) was numbered as � 26-6-107 (1)(a)(I.5)(C) in HB 22-1270 (See L. 2022, p. 531). That provision was harmonized with subsection (1)(a)(II)(C) of this section as it appears in HB 22-1295.
26.5-5-317. Denial of license - suspension - revocation - probation - refusal to renew license - fines. (1) When an application for a license has been denied by the department, the department shall notify the applicant in writing of the denial by mailing a notice to the applicant at the address shown on the application. Any applicant who is aggrieved by the denial may pursue the remedy for review as provided in subsection (9) of this section if the applicant, within thirty days after receiving the notice, petitions the department to set a date and place for hearing, affording the applicant an opportunity to be heard in person or by counsel. All hearings on the denial of licenses shall be conducted in conformity with the provisions and procedures specified in article 4 of title 24, as in the case of the suspension and revocation of licenses.
(2) The department may deny an application, or suspend, revoke, or make probationary the license of any facility regulated and licensed pursuant to this part 3 or assess a fine against the licensee pursuant to section 26.5-5-323 if the licensee, an affiliate of the licensee, a person employed by the licensee, or a person who resides with the licensee at the facility:
(a) Is convicted of any felony, other than those offenses specified in section 26.5-5-309 (4), or child abuse, as specified in section 18-6-401, the record of conviction being conclusive evidence thereof, notwithstanding section 24-5-101; or have entered into a deferred judgment agreement or a deferred prosecution agreement to any felony, other than those offenses specified in section 26.5-5-309 (4) or child abuse, as specified in section 18-6-401; or should the department have a certified court order from another state indicating that the applicant, licensee, person employed by the licensee, or any person residing with the licensee has been convicted of a felony, other than those offenses specified in section 26.5-5-309 (4), under a law of any other state or the United States or has entered into a deferred judgment agreement or a deferred prosecution agreement in another state as to a felony, other than those offenses specified in section 26.5-5-309 (4); or
(b) Is convicted of third degree assault, as described in section 18-3-204; any misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3; the violation of a protection order, as described in section 18-6-803.5; or any misdemeanor offense in any other state, the elements of which are substantially similar to the elements of any one of the offenses described in this subsection (2)(b). As used in this subsection (2)(b), convicted has the same meaning as set forth in section 26.5-5-309 (4)(a)(II).
(c) Is determined to be insane or mentally incompetent by a court of competent jurisdiction and, if a court enters, pursuant to part 3 or part 4 of article 14 of title 15, or section 27-65-110 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of operating a family child care home or child care center, the record of such determination and entry of such order being conclusive evidence thereof; or
(d) Uses any controlled substance, as defined in section 18-18-102 (5), including retail marijuana, or consumes any alcoholic beverage during the operating hours of the facility or is under the influence of a controlled substance or alcoholic beverage during the operating hours of the facility; or
(e) Is convicted of unlawful use of a controlled substance as specified in section 18-18-404; unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance as specified in section 18-18-403.5 or 18-18-405; or unlawful offenses relating to marijuana or marijuana concentrate as specified in section 18-18-406; or
(f) Consistently fails to maintain standards prescribed and published by the department; or
(g) Furnishes or makes any misleading or any false statement or report to the department; or
(h) Refuses to submit to the department any reports or refuses to make available to the department any records required by it in making investigation of the facility for licensing purposes; or
(i) Fails or refuses to submit to an investigation or inspection by the department or to admit authorized representatives of the department at any reasonable time for the purpose of investigation or inspection; or
(j) Fails to provide, maintain, equip, and keep in safe and sanitary condition premises established or used for child care pursuant to standards prescribed by the department of public health and environment and the department or by ordinances or regulations applicable to the location of such facility; or
(k) Willfully or deliberately violates any of the provisions of this part 3 or any of the standards prescribed and published in department rule pursuant to this part 3; or
(l) Fails to maintain financial resources adequate for the satisfactory care of children served in regard to upkeep of premises and provision for personal care, medical services, clothing, and other essentials in the proper care of children; or
(m) Is charged with the commission of an act of child abuse or an unlawful sexual offense, as specified in section 18-3-411 (1), if:
(I) Such individual has admitted committing the act or offense and the admission is documented or uncontroverted; or
(II) The administrative law judge finds that such charge is supported by substantial evidence; or
(n) Admits to an act of child abuse or if substantial evidence is found that the licensee, person employed by the licensee, or person who resides with the licensee in the licensed facility has committed an act of child abuse. As used in this subsection (2)(n), child abuse has the same meaning as that ascribed to the term abuse or child abuse or neglect in section 19-1-103 (1); or
(o) Is the subject of a negative licensing action.
(3) The department may deny an application to renew a license based on the grounds set forth in subsection (2) of this section. The denial is effective upon the expiration of the existing license. The existing license does not continue in effect even though the applicant for renewal files a request for hearing or appeal.
(4) The department may deny an application for a child care facility license pursuant to this part 3 if the applicant is a relative affiliate of a licensee of a child care facility licensed pursuant to this part 3, which licensee is the subject of a previous negative licensing action or is the subject of a pending investigation by the department that may result in a negative licensing action.
(5) (a) (I) The department shall deny an application for a license under the circumstances described in section 26.5-5-309 (4). The department shall revoke or suspend a license previously issued if:
(A) The licensee, person employed by the licensee, or person residing with the licensee is thereafter convicted or if it is later discovered that the licensee, person employed by the licensee, or person residing with the licensee had previously been convicted of any of the criminal offenses set forth in section 26.5-5-309 (4); or
(B) The department has a certified court order from another state indicating that the licensee, person employed by the licensee, or person residing with the licensee is thereafter convicted of, or if it is later discovered that the licensee, person employed by the licensee, or person residing with the licensee had previously been convicted of, a criminal offense under a law of any other state or of the United States that is similar to any of the criminal offenses set forth in section 26.5-5-309 (4); or
(C) The licensee, an affiliate of the licensee, a person employed by the licensee, or a person who resides with the licensee at the facility has been determined to be insane or mentally incompetent by a court of competent jurisdiction and the court has entered, pursuant to part 3 or part 4 of article 14 of title 15 or section 27-65-110 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of operating a family child care home or child care center, the record of the determination and entry of the order being conclusive evidence thereof.
(II) As used in this subsection (5)(a), convicted means a conviction by a jury or by a court and includes a deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred adjudication agreement, an adjudication, and a plea of guilty or nolo contendere.
(b) A certified copy of the judgment of a court of competent jurisdiction of such conviction or deferred judgment and sentence agreement, deferred prosecution agreement, deferred adjudication agreement, or a certified court order from another state indicating such an agreement from another state is prima facie evidence of such conviction or agreement.
(6) The department shall deny an application for an entity licensed under this part 3 and shall revoke the license of an entity licensed under this part 3 if the entity cultivates marijuana pursuant to the authority in section 16 of article XVIII of the state constitution.
(7) The department may assess fines, pursuant to the provisions of section 26.5-5-323, against a licensee or a person employed by the licensee who willfully and deliberately or consistently violates the standards prescribed and published by the department or the provisions of this part 3.
(8) The department shall determine the existence of convictions identified in this section according to the records of the Colorado bureau of investigation, the Colorado state courts data access system at the state judicial department, or any other source, as set forth in section 26.5-5-316 (1)(a)(II).
(9) The department shall suspend or revoke a license only in conformity with the provisions and procedures specified in article 4 of title 24, and after a hearing thereon as provided in said article 4; except that an administrative law judge shall conduct all hearings under this part 3 and issue an initial decision. The executive director shall review the initial decision and issue the final decision of the department. A licensee is not entitled to a right to cure any of the charges described in subsection (2)(a), (2)(c), (2)(d), or (2)(m)(I) of this section. A hearing does not prevent or delay any injunctive proceedings instituted under the provisions of section 26.5-5-320.
Source: L. 2022: Entire article added with relocations, (HB 22-1295), ch. 123, p. 760, � 3, effective July 1. L. 2023: IP(2), (2)(b), and (8) amended, (HB 23-1235), ch. 434, p. 2550, � 17, effective June 7; (2)(c) amended, (HB 23-1301), ch. 303, p. 1836, � 64, effective August 7. L. 2024: (5)(a)(I)(C) amended, (HB 24-1450), ch. 490, p. 3422, � 68, effective August 7.
Editor's note: This section is similar to former � 26-6-108 as it existed prior to 2022.