§ 9-28-405 - Child Welfare Agency Review Board -- Duties.
               	 		
9-28-405.    Child Welfare Agency Review Board -- Duties.
    (a)    (1)  The  Child Welfare Agency Review Board shall promulgate and publish rules  setting minimum standards governing the granting, revocation, refusal,  conversion, and suspension of licenses for a child welfare agency and  the operation of a child welfare agency.
      (2)  The board may consult with such other agencies, organizations, or individuals as it shall deem proper.
      (3)    (A)  The  board shall take any action necessary to prohibit any person,  partnership, group, corporation, organization, or association not  licensed or exempted from licensure pursuant to this chapter from  advertising, placing, planning for, or assisting in the placement of any  unrelated minor for purposes of adoption or for care in a foster home.
            (B)  The prohibition against advertising shall not apply to persons who are seeking to add to their own family by adoption.
(b)  The  board may amend the rules and regulations promulgated pursuant to this  section from time to time, in accordance with the rule promulgation  procedures in the Arkansas Administrative Procedure Act,    25-15-201 et  seq.
(c)    (1)  The board shall have exclusive authority to promulgate rules that:
            (A)  Promote the health, safety, and welfare of children in the care of a child welfare agency;
            (B)  Promote safe and healthy physical facilities;
            (C)  Ensure adequate supervision of the children by capable, qualified, and healthy individuals;
            (D)  Ensure appropriate educational programs and activities for children in the care of a child welfare agency;
            (E)  Ensure adequate and healthy food service;
            (F)  Include  procedures for the receipt, recordation, and disposition of complaints  regarding allegations of violations of this subchapter, of the rules  promulgated under this subchapter, or of child maltreatment laws;
            (G)  Include  procedures for the assessment of child and family needs and for the  delivery of services designed to enable each child to grow and develop  in a permanent family setting;
            (H)  Ensure  that criminal record checks and central registry checks are completed  on owners, operators, and employees of a child welfare agency as set  forth in this subchapter;
            (I)  Require  the compilation of reports and making those reports available to the  Division of Youth Services of the Department of Human Services when the  board determines it is necessary for compliance determination or data  compilation;
            (J)  Ensure that a child placement agency:
                  (i)  Treats  clients seeking or receiving services in a professional manner, as  defined by rules promulgated pursuant to this section; and
                  (ii)  Provides  clients seeking or receiving services from a child placement agency  that provides adoption services with the phone number and address of the  Child Welfare Agency Licensing Unit of the Division of Children and  Family Services of the Department of Human Services where complaints can  be lodged;
            (K)  Require that  all child welfare agencies that provide adoption services fully apprise  in writing all clients involved in the process of adopting a child of  the agency's adoption program or services, including all possible costs  associated with the adoption program; and
            (L)  Establish rules governing retention of licensing records maintained by the division.
      (2)  This  subchapter shall not be construed to prevent a licensed child welfare  agency from adopting and applying internal operating procedures that  meet or exceed the minimum standards required by the board.
(d)    (1)  Provided  that the health, safety, and welfare of children in the care of a child  welfare agency are not endangered, nothing in this subchapter shall  permit the board to promulgate or enforce any rule that has the effect  of:
            (A)  Interfering with the religious teaching or instruction offered by a child welfare agency;
            (B)  Infringing upon the religious beliefs of the holder or holders of a child welfare agency license;
            (C)  Infringing  upon the right of an agency operated by a religious organization to  consider creed in any decision or action relating to admitting or  declining to admit a child or family for services;
            (D)  Infringing  upon the parent's right to consent to a child's participating in prayer  or other religious practices while in the care of the child welfare  agency; or
            (E)  Prohibiting the use of corporal discipline.
      (2)    (A)    (i)  A  child welfare agency that articulates a sincerely held religious belief  that is violated by a specific rule promulgated by the board shall  notify the division in writing of the belief and the specific rule that  violates the belief.
                  (ii)  The rule shall be presumptively invalid as applied to that child welfare agency.
            (B)    (i)  The division may then file a petition before the board seeking to enforce the rule.
                  (ii)  The  division shall bear the burden of showing that the health, safety, or  welfare of children would be endangered by the exemption, and if the  board so finds by a preponderance of the evidence, the board shall  render a finding of fact so concluding.
(e)  The  board shall issue all licenses to child welfare agencies upon majority  vote of board members present during each properly called board meeting  at which a quorum is present when the meeting is called to order.
(f)    (1)    (A)  The  board shall have the power to deny an application to operate a child  welfare agency or revoke or suspend a previously issued license to  operate a child welfare agency.
            (B)  The  board may deny, suspend, convert, or revoke a child welfare agency  license or issue letters of reprimand or caution to a child welfare  agency if the board finds by a preponderance of the evidence that the  applicant or licensee:
                  (i)  Fails to comply with the provisions of this subchapter or any published rule of the board relating to child welfare agencies;
                  (ii)  Furnishes or makes any statement or report to the division that is false or misleading;
                  (iii)  Refuses  or fails to submit required reports or to make available to the  division any records required by it in making an investigation of the  agency for licensing purposes;
                  (iv)  Refuses or fails to submit to an investigation or to reasonable inspection by the division;
                  (v)  Retaliates  against an employee who in good faith reports a suspected violation of  the provisions of this subchapter or the rules promulgated under this  subchapter;
                  (vi)  Fails to  engage in a course of professional conduct in dealing with clients being  served by the child placement agency, as defined by rules promulgated  pursuant to this section;
                  (vii)  Demonstrates gross negligence in carrying out the duties at the child placement agency; or
                  (viii)  Fails  to provide clients involved in the process of adoption of a child with  correct and sufficient information pertaining to the adoption process,  services, and costs.
      (2)  Any denial of application or revocation or suspension of a license shall be effective when made.
(g)  The board shall review the qualifications of persons required to have background checks under this subchapter.
(h)    (1)  The  board may grant an agency's request for alternative compliance upon a  finding that the child welfare agency does not meet the letter of a  regulation promulgated under this subchapter but that the child welfare  agency meets or exceeds the intent of that rule through alternative  means.
      (2)    (A)  If the  board grants a request for alternative compliance, the child welfare  agency's practice as described in the request for alternative compliance  shall be the compliance terms under which the child welfare agency will  be held responsible.
            (B)  Violations of those terms shall constitute a rule violation.
(i)    (1)    (A)  The  board shall have the authority to impose a civil penalty upon any  person violating any provisions of this subchapter and any person  assisting any partnership, group, corporation, organization, or  association in violating any provisions of this subchapter, except that  the imposition of civil penalties shall not apply to agencies that have  been granted a church-operated exemption pursuant to this subchapter.
            (B)    (i)  The  board may impose a civil penalty upon any person, partnership, group,  corporation, organization, or association not licensed or exempt from  licensure as a child welfare agency in the State of Arkansas pursuant to  this subchapter that advertises, places, plans for, or assists in the  placement of any unrelated minor for purposes of adoption or for care in  a foster home.
                  (ii)  The prohibition against advertising does not apply to persons who are seeking to add to their own family by adoption.
      (2)  The  board shall have the discretion to impose a civil penalty pursuant to  this section when the board determines by clear and convincing evidence  that the person sought to be charged has violated this subchapter or the  rules promulgated thereunder willfully, wantonly, or with conscious  disregard for law or regulation.
      (3)  The board may impose civil penalties as follows:
            (A)    (i)  Class  A violations as defined in this subchapter shall be subject to a civil  penalty of five hundred dollars ($500) for each violation, with each day  of noncompliance constituting a separate violation.
                  (ii)  In  no event shall the board impose civil penalties of more than two  thousand five hundred dollars ($2,500) for Class A violations occurring  in any one (1) calendar month; and
            (B)    (i)  Class  B violations as defined in this subchapter shall be subject to a civil  penalty of one hundred dollars ($100) for each violation with each day  of noncompliance constituting a separate violation.
                  (ii)  In  no event shall the board impose civil penalties of more than five  hundred dollars ($500) for Class B violations occurring in any one (1)  calendar month.
      (4)  If any person  upon whom the board has levied a civil penalty fails to pay the civil  penalty within sixty (60) days of the board's decision to impose the  penalty, the amount of the fine shall be considered to be a debt owed  the State of Arkansas and may be collected by civil action by the  Attorney General.
(j)    (1)    (A)  The  board shall notify the applicant or licensee of the division's petition  for adverse action in writing and set forth the facts forming the basis  for the request for the adverse action.
            (B)  This  notice shall offer the licensee the opportunity for a predeprivation  adverse action hearing to determine if the adverse action should be  taken against the licensee or applicant.
      (2)  Nothing  in this section shall prevent the division or the board from closing a  child welfare agency on an emergency basis if emergency closure is  immediately required to protect the health, safety, or welfare of  children, in which case the licensee shall be entitled to a  postdeprivation adverse action hearing.
(k)    (1)  Adverse action hearings shall comply with the Arkansas Administrative Procedure Act,    25-15-201 et seq.
      (2)    (A)  Within  ten (10) business days after rendering a decision, the board shall  forward to the applicant or licensee written findings of fact and  conclusions of law articulating the board's decision.
            (B)  The  board shall also issue an order that the applicant or licensee cease  and desist from the unlawful operation of a child welfare agency if the  adverse action taken was revocation or suspension of the license or  denial of an application.
(l)    (1)  If,  upon the filing of a petition for a judicial review, the reviewing  court determines that there is a substantial possibility that the  board's decision against the licensee or applicant may be reversed, the  circuit court may enter a stay prohibiting enforcement of a decision of  the board, provided that the court articulates the facts from the  adverse action hearing record that constitute a substantial possibility  of reversal.
      (2)    (A)  Thereafter,  the court shall complete its review of the record and announce its  decision within one hundred twenty (120) days of the entry of the stay.
            (B)  If  the court does not issue its findings within one hundred twenty (120)  days of the issuance of the stay, the stay shall be considered vacated.
(m)  All  rules and regulations promulgated pursuant to this section and all  public comment received in writing by the division in response shall be  made available for review by the Senate Interim Committee on Children  and Youth and the Subcommittee on Children and Youth of the House  Committee on Aging, Children and Youth, Legislative and Military  Affairs, and by the Governor or his or her designee from among the  Governor's staff.
(n)    (1)    (A)  The  validity or application of any rule or regulation promulgated by the  board under authority of this subchapter shall be subject to remedies  provided by law for obtaining declaratory judgments at the suit of any  interested person instituted in the circuit court of any county in which  the plaintiff resides or does business or in Pulaski County Circuit  Court.
            (B)  However, the board must be named a party defendant and the board must be summoned as in an action by ordinary proceedings.
      (2)  If  a juvenile is found to be maltreated due to the acts or omissions of a  person other than the parent or guardian of the juvenile, the court may  enter an order restraining or enjoining the person or facility employing  that person from providing care, training, education, custody, or  supervision of juveniles of whom the person or facility is not the  parent or guardian.
      (3)    (A)  If  the person or facility other than the parent or guardian of the  juvenile found to be maltreated was not subject to this subchapter, the  court may order the person or facility to obtain a license from the  board as a condition precedent to the person or facility providing care,  training, education, custody, or supervision of any juveniles of whom  the person or facility is not the parent or guardian.
            (B)  If the court so orders, this subchapter shall thereafter apply to the person or facility subject to the court order.
(o)    (1)  The  Department of Human Services shall maintain a website accessible to the  general public that contains information on child placement agencies.
      (2)  The website shall contain:
            (A)  The name, phone number, and address of all child placement agencies licensed by the board;
            (B)  Information  on each child placement agency, specifically if the license is in good  standing, if the license has ever been revoked or suspended, or if any  letters of caution or reprimand have been issued by the board; and
            (C)  The name and contact information for a person in the unit who handles complaints about child placement agencies.