ORDERS:
REPORT ON NEED AND REASONABLENESS
OF PROPOSED REGULATIONS
I. Introduction
The Department of Social Services
(DSS) is authorized to promulgate regulations to carry out its responsibilities
and duties. S.C. Code Ann. Section 43-1-80. In addition to its existing
obligations, additional responsibilities and duties were granted to DSS by
H.3716, 2005-2006 Appropriations Act, Part IB, Section 13.27. That provision
authorized the agency to impose monetary penalties for violation of statutes or
regulations pertaining to programs carried out by DSS. Further, section 13.27
mandated that DSS promulgate regulations relevant to its new authority as
follows:
[DSS] shall
promulgate regulations for each program in which penalties may be imposed. The
regulations must include guidance on the decision to assess a penalty, the
effect of failure to pay a penalty in a timely manner, and a schedule of
penalty ranges that takes into account severity and frequency of violations.
These regulations must provide for notice of the penalty and the right to a
contested case hearing before a designee of or panel appointed by the director
of the department. Judicial review of the final agency decision concerning a
penalty must be in accordance with statutes or regulations that apply to
judicial review of final revocation and denial decisions in that particular
program. The department, in accordance with regulations promulgated pursuant to
this provision, shall have discretion in determining the appropriateness of
assessing a monetary penalty against a person or facility and the amount of the
penalty. The authority to assess monetary penalties shall be in addition to
other statutory provisions authorizing the department to seek injunctive relief
or to deny, revoke, suspend, or otherwise restrict or limit a license or other
types of operating or practice registrations, approvals, or certificates.
Accordingly, DSS now seeks to
promulgate monetary penalty regulations covering child care centers, group
child care homes, child care centers operated by churches or religious
entities, and residential group care facilities for children.
Consistent with applicable law,
on November 30, 2005, a public hearing to determine the need and reasonableness
of the proposed regulations was held. S.C. Code Ann. Section 1-23-111. At the
hearing, DSS, as well as interested individuals and entities provided testimony
and documentation addressing the proposed regulations. The receipt of oral
comments closed on November 30, 2005, with the record remaining open until
December 5, 2005 for written comments.
II. Need For Proposed Regulations
S.C. Code Ann. Section 1-23-111
(Supp. 2000) requires a determination of the need for the regulation under
review. "Need" is a flexible term whose meaning varies according to
the context in which it is used. 65 C.J.S. Need (1966). The
scope of meanings of "need" certainly includes the standard of
"requiring supply or relief." Id.
DSS submits the following in
seeking to establish compliance with the "need" standard:
These regulations
will provide a mechanism by which the Department may levy a fine against a
facility which the Department licenses or regulates if the facility does not
comply with a regulation in R 114‑500. Currently, the only action the
Department can take when a facility is in violation of one or more regulations
is to issue a warning or to suspend, revoke or deny a license, registration or
approval. The ability to levy a fine will act as a deterrent against frequent
and consistent violations and will assist in bringing facilities that
repeatedly violate regulations into compliance.
In other words, DSS argues that
existing tools fail to provide adequate flexibility to enable DSS to
effectively carry out its enforcement duties. For example, on one end of the
existing enforcement spectrum, DSS may issue a warning. On the other end of
the spectrum, DSS may close a facility by issuing a suspension or a
revocation. However, no convenient and effective intermediate enforcement step
exists between the two extremes.
The evidence establishes that
warnings do not always achieve the desired corrective action. Further, the
evidence establishes that closing a facility creates significant disruption for
the families utilizing that facility. However, an intermediate step of
imposing a fine commiserate with the violation serves the public interest of
obtaining corrective steps without the disruptive impact of a facility closure.
Thus, the proposed regulations
meet the test of establishing a need. Need is established since the ability to
impose a fine grants the required relief of providing an intermediate
enforcement tool that will operate between a simple warning and the more
extensive and potentially disruptive action of suspension or revocation.
III.
Reasonableness Of Proposed Regulations
In addition to "need,"
the regulations must also be reasonable. Section 1-23-111.
"Reasonable," like "need," is "a relative, generic
term difficult of adequate definition." 75 C.J.S. Reasonable
634 (1952). However, for purposes of reviewing a proposed regulation,
"reasonable" is best defined as that which is agreeable to reason
under the facts and circumstances of the matter under review. Id.;
36 Words and Phrases 405 (1962).
In this case, the proposed
penalty regulations do not satisfy the "reasonable" criteria.
Accordingly, I find the regulations unreasonable under the facts and
circumstances of the matter under review.
Here, beyond all doubt, the major
thrust of the regulations is the creation of three classes of violations for
which a range of potential fines may be imposed. The first is a Class I
violation carrying fines up to $1,000 for violations "that constitute an
imminent danger to the health and safety of a child in a child care facility,
and which could result in a substantial probability of death or serious harm to
a child in the facility." The second is a Class II violation carrying
fines up to $500 for violations "which [DSS] determines to be a threat to
the health and safety of a child in the facility." Finally, Class III
violations carry fines up to $250 for "violations of regulations
identified as Class III."
In determining whether the
imposition of such penalties meets the test of reasonableness, the
classifications and accompanying fines must be evaluated "based on an
analysis of factors listed in Section 1-23-115(C)." See S.C. Code Ann. Section
1-23-111 (B). For reasonableness, section 1-23-115(C)(1) asks whether the
promulgating agency has established a "plan for implementing the regulations."
Section 1-23-115(C)(1). "Implement" means "ensure of actual
fulfillment by concrete measures." Merriam-Webster Online
Dictionary, http://www.m‑w.com/dictionary. Here, a plan for
actual fulfillment by concrete measures is lacking.
First, the regulations themselves
provide no plan of implementation. Rather, the most applicable language simply
provides that "[t]hese regulations take effect one hundred eighty days
after final publication in the State Register and apply to all violations committed
on or after the effective date." Such a statement establishes a date for
enforcement; it does not establish a plan of implementation. Indeed, read
literally, the regulation holds that on the180th day all covered
facilities will be subjected to all applicable fines. In terms of
implementation, is one to expect the fines to be imposed via a mass audit of
all covered facilities on the 180th day? Certainly most, but
perhaps not all, would assume no such means of implementation would result.
However, such uncertainty underscores the need for a specific plan of
implementation that notifies covered facilities of the details of enforcement.
Such a plan is not within the regulations.
Second, not only do the
regulations lack a plan of implementation, but also the agency has not yet
formulated such a plan. The testimony at the hearing established that DSS has
future plans to train its personnel in the proper means for implementing the
penalty regulations. However, the evidence shows that even such future plans have
not been reduced to specifics. Indeed, in response to specific questions from
concerned child care providers, the agency has given rather general assurances
that "common sense" will be applied. While certainly an admirable
goal, such fails to yield the required plan of implementation.
IV. Recommendation
In conclusion, the proposed
regulations meet the test of establishing a need. A need exists since the
ability to impose a fine grants the required relief of providing an
intermediate enforcement tool which can be utilized beyond the action of
issuing a simple warning but below the more extensive and potentially
disruptive action of issuing a suspension or revocation.
However, the regulations do not
meet the test of reasonableness since reasonableness (for the regulations here
under review) requires the presence of an existing, detailed plan of
implementation. Such is lacking here.
A plan of implementation is
critical here given the number of potential violations and the scope of the
matters encompassed by these proposed regulations. Indeed, fines can result
from violations of any of the more than 300 different infractions. Moreover,
the scope of the acts or omissions that may trigger a fine range from the
mundane ("the operator shall keep a separate record for each child")
to the critical (storage and administering of medications).
THEREFORE, given that the
proposed regulations do not satisfy the reasonableness criterion in that they
subject child care providers and the parents who utilize such services to the
imposition of regulations lacking a detailed plan of implementation, I
recommend that DSS create a plan of implementation appropriate for the
potential violations and the scope of matters encompassed by these proposed
regulations and that DSS do so before proceeding further with the proposed
regulations.
AND IT IS SO FOUND AND
RECOMMENDED.
__________________________________
RAY N. STEVENS
Administrative
Law Judge
Dated: December 22, 2005
Greenville, SC |
