Petition for Writ of Certiorari — Altagracia Sanchez, et al., Petitioners v. District of Columbia Office of the State Superintendent of Education, et al.

Supreme Court briefDec 12, 2022

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Appendix A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________

Argued November 12, 2021

Decided August 12, 2022

No. 21-7014

ALTAGRACIA SANCHEZ, ET AL.,

APPELLANTS

v.

OFFICE OF THE STATE SUPERINTENDENT OF

EDUCATION AND DISTRICT OF COLUMBIA,

APPELLEES

_________

Appeal from the United States District Court for

the District of Columbia

(No. 1:18-cv-00975)

_________

Renée Flaherty argued the cause for appellants.

With her on the briefs was Robert J. McNamara.

Adam J. Tuetken, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. On the brief were

Karl A. Racine, Attorney General, Loren L. AliKhan,

Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy

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Solicitor General, and Graham E. Phillips, Assistant

Attorney General.

Before: SRINIVASAN, Chief Judge, KATSAS, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.

Concurring opinion filed by Senior Circuit Judge

RANDOLPH.

SRINIVASAN, Chief Judge: The District of Columbia’s Office of the State Superintendent of Education

regulates childcare facilities, including by setting

minimum qualifications for their workers. In 2016,

OSSE issued a rule requiring many childcare workers

to obtain an associate’s degree or its equivalent in a

field related to early-childhood education. Two childcare workers and a parent filed this lawsuit to challenge the new college requirements. They allege violations of their substantive due process and equal protection rights, as well as of the nondelegation doctrine.

The district court initially dismissed plaintiffs’

claims as unripe and moot. In a prior appeal, we found

the case justiciable and reversed. On remand, the district court again dismissed, this time on the merits. In

rejecting plaintiffs’ substantive due process and equal

protection claims, the court concluded that the college

requirements are rational, including in the distinctions they draw between different classes of daycare

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workers. And in rejecting plaintiffs’ nondelegation

doctrine claim, the court held that the statute granting regulatory authority to OSSE bears an intelligible

principle to guide the agency’s work. We agree with

the district court and affirm its judgment.

I.

We explained the background of this case in our

prior opinion. Sanchez v. OSSE, 959 F.3d 1121, 1123–

24 (D.C. Cir. 2020). We expand on that discussion

here as relevant to the present appeal. Because the

district court resolved the case at the motion-to-dismiss stage, we accept as true the facts pleaded in

plaintiffs’ complaint. Sparrow v. United Air Lines,

Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).

A.

The D.C. Council enacted the Child Development

Facilities Regulation Act of 1998 to modernize the

city’s licensing regime for childcare providers. See

D.C. Law 12- 215, 46 D.C. Reg. 274 (Apr. 13, 1999)

(codified as amended at D.C. Code § 7-2031 et seq.).

The Facilities Act applies to “[c]hild development facilit[ies],” which it defines as any “center, home, or

other structure that provides care and other services,

supervision, and guidance for children, infants, and

toddlers on a regular basis, regardless of its designated name.” D.C. Code § 7-2031(3). Rather than setting any specific standards in the statute, the D.C.

Council directed the mayor to “promulgate all rules

necessary” to establish “[m]inimum standards of operation of a child development facility concerning

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staff qualification, requirements and training,”

among other subjects. Id. § 7-2036(a)(1)(A). The

mayor has delegated that authority to OSSE. See

Mayor’s Order 2009-130, 56 D.C. Reg. 6883 (Aug. 21,

2009).

In 2016, OSSE issued new childcare regulations

intended to “ensure that care provided in a licensed

Child Development Facility is not only safe, but also

supports children’s healthy development and future

academic achievement and success.” 63 D.C. Reg.

11,279, 11,279 (Sept. 9, 2016). Those regulations institute new minimum education requirements for certain classes of childcare workers. Broadly speaking,

the regulations require many such workers to obtain

an associate’s degree or its equivalent in a field related to early-childhood education.

The specific requirements vary depending on

where a childcare provider works. First, the regulations cover “expanded child development home[s],”

which are private residences where two or more caregivers are responsible for up to twelve children. D.C.

Mun. Regs. tit. 5-A, § 199. Caregivers in those facilities must obtain at least an associate’s degree “with a

major in early childhood education, early childhood

development, child and family studies or a closely related field.” Id. § 170.2(a)(1). The regulations also apply to teachers in “child development centers,” which

are childcare facilities serving more than twelve children outside the operator’s home. Id. § 199. Teachers

in those centers may comply with the regulations in

either of two ways. Like expanded-home daycare

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workers, they may obtain an associate’s degree in an

early-childhood field. Id. § 165.1(a). If they already

have a college degree in another field, they may instead complete at least twenty-four credit hours in

subjects related to early-childhood education. Id. §

165.1(b).

Facilities may seek two types of waivers from the

new college requirements. First, OSSE may grant experience waivers to qualified teachers who had

worked in the same position continuously for the ten

years preceding the rulemaking (from 2006 to 2016).

Id. § 165.4. Second, OSSE may grant hardship waivers if the “demonstrated immediate economic impact

or hardship on the [f]acility or staff member is sufficiently great to make immediate compliance impractical despite diligent efforts,” so long as the facility or

staff member meets or exceeds “the intent of the regulation for which the waiver is requested” and the

welfare of children is not jeopardized. Id. § 106.1. The

decision whether to grant a waiver is committed to

OSSE’s discretion. Id. §§ 106.5, 165.4.

B.

Plaintiff Altagracia Sanchez immigrated to the

United States from the Dominican Republic and provides daycare services in her home. Sanchez employs

two assistant caregivers and is licensed to care for up

to nine children. She has a law degree from a university in the Dominican Republic but has not attended

college in this country. Under the regulations, she is

classified as an “expanded home caregiver,” so she

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must obtain an associate’s degree in an early-childhood field. Id. § 170.2(a)(1).

Plaintiff Dale Sorcher is a teacher at a preschool.

The preschool serves children ages zero to three and

is licensed as a “child development center.” Sorcher

has three college degrees, but none of them is in an

early-childhood field. To comply with the regulations,

then, she must either obtain a degree in an earlychildhood field or complete twenty-four credit hours

in subjects related to early-childhood education. Id. §

165.1(a)–(b).

Sanchez and Sorcher, along with Jill Homan, a

parent with two children in daycare, filed this lawsuit

against OSSE to challenge the college requirements.

They allege that the regulations infringe their substantive due process and equal protection rights and

also violate the nondelegation doctrine. Sanchez and

Sorcher argue that they can effectively care for children without going back to school, such that taking

expensive college classes would serve no purpose. Enrolling in an associate’s degree program would be especially difficult for Sanchez, given her limited English proficiency and the competing time demands of

running her small business. Homan posits that the

college requirements will increase the costs of daycare

while forcing some of her children’s favorite teachers

either to provide worse care while going back to school

part-time or to quit their jobs entirely because they

lack the time and money required to earn an associate’s degree.

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The district court initially dismissed plaintiffs’

suit on threshold justiciability grounds, but we reversed and remanded for the court to consider the

merits of plaintiffs’ challenges. Sanchez, 959 F.3d at

1124–26. On remand, OSSE moved to dismiss plaintiffs’ claims on the merits. The district court granted

the motion in a thoroughly reasoned opinion. Sanchez

v. OSSE, 513 F. Supp. 3d 101 (D.D.C. 2021).

The court held that plaintiffs had failed to state a

viable claim on any of their three legal theories. As to

plaintiffs’ due process and equal protection claims,

the court concluded that the regulations were subject

to only rational-basis review and met that forgiving

standard. Id. at 111–16. And as for plaintiffs’ claim

under the nondelegation doctrine, the court held that

the Facilities Act satisfied the doctrine by adequately

guiding OSSE’s regulatory discretion. Id. at 108–11.

Plaintiffs now bring this second appeal.

II.

We review the district court’s dismissal of the complaint de novo. W. Org. of Res. Councils v. Zinke, 892

F.3d 1234, 1240 (D.C. Cir. 2018).

A.

We first consider plaintiffs’ due process and equal

protection claims. Before addressing whether OSSE

had a rational basis for issuing the challenged regulations for purposes of both of those claims, we first

resolve a dispute about the applicable legal standard.

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1.

The parties agree that plaintiffs’ due process and

equal protection claims are subject to rational-basis

review. Plaintiffs first contend the college requirements “do[] absolutely nothing” to further any legitimate government interest, in violation of substantive

due process. Sanchez Br. 40. Because the challenged

requirements implicate no fundamental rights, they

are reviewed only for a rational basis. Heller v. Doe,

509 U.S. 312, 319–20 (1993); Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495

F.3d 695, 712 (D.C. Cir. 2007) (en banc). Plaintiffs further allege that the college requirements draw irrational distinctions between different classes of childcare workers, in violation of their rights to equal protection. Because the challenged classifications “neither proceed[] along suspect lines nor infringe[] fundamental constitutional rights,” their equal protection claim is also subject to rational-basis review. FCC

v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).

Although the parties agree that rational-basis review governs the resolution of the substantive due

process and equal protection claims, they disagree

about what that standard requires at the pleading

stage. Plaintiffs identify a supposed tension between

the procedural standard applicable to motions to dismiss and the substantive standard applicable to rational- basis challenges. But the ostensible tension, on

examination, is illusory.

In evaluating a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6), a court must “tak[e]

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note of the elements a plaintiff must plead to state a

claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).

The court then determines whether the plaintiff has

pleaded those elements with adequate factual support

to “state a claim to relief that is plausible on its face.”

Id. at 678 (citation omitted); see also Blue v. District

of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015). A claim

is facially plausible when the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In assessing

the sufficiency of the pleadings, the court must accept

the plaintiff’s factual allegations as true and draw all

reasonable inferences in the plaintiff’s favor. LaRoque

v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011).

To succeed on a rational-basis challenge, a plaintiff must meet a demanding standard. Rational-basis

review affords the policy choices of the political

branches “a strong presumption of validity.” Beach,

508 U.S. at 314–15 (citing Lyng v. Auto. Workers, 485

U.S. 360, 370 (1988)). Judicial intervention under

that standard “is generally unwarranted no matter

how unwisely . . . a political branch has acted.” Id. at

314 (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)).

A social or economic policy that “neither proceeds

along suspect lines nor infringes fundamental constitutional rights” must be upheld “if there is any reasonably conceivable state of facts that could provide a

rational basis” for the legislative choice. Id. at 313.

And because legislative bodies are under no constitutional obligation to explain their reasons for enacting

a policy, “it is entirely irrelevant for constitutional

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purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”

Id. at 315. A plaintiff bringing a constitutional challenge to a regulation on rationality grounds thus faces

the unenviable task of refuting “every conceivable basis which might support it.” Id. (quoting Lehnhausen

v. Lake Shore Auto Parts Co., 410 U.S. 356, 364

(1973)).

Plaintiffs contend that the rational-basis standard, in asking a court to consider whether any reasonably conceivable state of facts supports a challenged

policy, is incompatible with the motion-to-dismiss

standard, which requires a court to accept as true the

state of facts presented in the complaint. There is no

incompatibility between those standards. It is true, as

plaintiffs observe, that the “rational basis standard . .

. cannot defeat the plaintiff’s benefit of the broad Rule

12(b)(6) standard.” Wroblewski v. City of Washburn,

965 F.2d 452, 459 (7th Cir. 1992). But to survive a

motion to dismiss, plaintiffs bringing rational-basis

challenges still must plausibly plead facts supporting

the elements of their claims, like plaintiffs must do in

any case.

When rational-basis review applies, a plaintiff at

the summary-judgment stage or at trial will ultimately “bear[] the burden of showing that the statute

is not a rational means of advancing a legitimate government purpose.” Hettinga v. United States, 677 F.3d

471, 478–79 (D.C. Cir. 2012) (per curiam). At the motion-to-dismiss stage, then, the plaintiff must plausibly allege facts showing that no reasonably

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conceivable state of facts could provide a rational basis for the challenged policy. Id. at 479; see Beach, 508

U.S. at 313. Plaintiffs suggest that it would be all but

impossible for a complaint to contain allegations that

“negative every conceivable basis” for a challenged

policy. Beach, 508 U.S. at 315 (citation omitted). In

practice, however, pleading facts plausibly showing a

challenged policy’s irrationality will adequately negate any rational explanation for the policy so as to

survive a motion to dismiss, without the complaint’s

needing to refute a laundry list of potential justifications. That is a tall task, but not an impossible one.

In sum, plaintiffs here were required to plausibly

allege the elements of their claims, just like plaintiffs

in any other case. In the context of rational-basis review, that means plausibly alleging that no conceivable set of facts could support the challenged policy.

Having clarified the standard, we can now apply it to

plaintiffs’ due process and equal protection claims.

2.

Plaintiffs first contend that the college requirements “do[] absolutely nothing to further” any legitimate government interest, in violation of substantive

due process. Sanchez Br. 40. The district court held

that OSSE could have rationally theorized that “more

early childhood education for childcare providers will

lead to better childcare.” Sanchez, 513 F. Supp. 3d at

112. On appeal, plaintiffs concede both that occupational licensing regimes can properly incorporate

minimum education requirements and that OSSE has

an interest in promoting the educational growth of

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young children. But they challenge the fit between

OSSE’s means and its ends. They argue that an associate’s degree in early-childhood education has nothing to do with the job of caring for young children.

Plaintiffs’ argument that degrees in early-childhood education are irrelevant to education in early

childhood is a contradiction in terms, and their position is undermined by the factual allegations in their

own complaint. The complaint surveys colleges in the

Washington, D.C., area that offer associate’s degrees

in early-childhood education. According to plaintiffs,

those programs require students to complete roughly

sixty credit hours. As in virtually all college programs,

those credit hours are split between courses within

the early- childhood major and courses in other subjects. The local schools listed in the complaint require

between fifteen and thirty-six credit hours of earlychildhood courses within the major, with the remainder of the curriculum composed of required generaleducation courses and elective courses.

Plaintiffs contend that at least some of the elective

courses offered at local colleges, such as classes on

fencing or Shakespeare, would be irrelevant to the

work of a daycare teacher. And they point out that

early-childhood courses cover ages zero to eight, while

the District’s childcare regulations cover only ages

zero to three. But under rational-basis review, OSSE

could reasonably conclude that the coursework required to earn an associate’s degree in early-childhood

education would be, generally speaking, relevant to

the work of childcare providers. It’s possible that

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certain schools might have some idiosyncratic course

requirements. Even so, OSSE could rationally issue

the challenged regulations without needing to parse

the curriculum of any particular school.

Caregivers, moreover, can comply by completing

the required education at any accredited college in the

United States, affording them plenty of flexibility to

choose a program that matches their career goals.

And within a given school, even if some elective

courses might have limited relevance to aspiring

childcare workers, nothing would prevent students

from tailoring their course selections to their career

interest in caring for younger children. A variety of

courses outside the early-childhood major, from math

and English to art and history, could be beneficial to

someone tasked with the educational development of

toddlers—as any adult who has been flummoxed by a

two-year-old repeatedly asking “why” can attest.

Even if all associate’s degree programs contain at

least some irrelevant content, OSSE still could have

rationally concluded that requiring childcare workers

to complete a predominantly relevant course of study

will improve the quality of care young children receive. Under rational-basis review, OSSE had discretion to impose a requirement that is “not . . . in every

respect logically consistent with its aims,” so long as

it identified “an evil at hand for correction” and established “a rational way to correct it.” Williamson v. Lee

Optical of Okla., Inc., 348 U.S. 483, 487–88 (1955).

That standard is met here.

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Plaintiffs seek to undermine that conclusion by invoking a smattering of out-of-circuit decisions holding

that professional licensing regimes fail rational-basis

review if they impose onerous training requirements

that are irrelevant to the work actually done in a

given field. See, e.g., St. Joseph Abbey v. Castille, 712

F.3d 215 (5th Cir. 2013) (funeral-director licensing as

applied to casket retailers); Clayton v. Steinagel, 885

F. Supp. 2d 1212 (D. Utah 2012) (cosmetology licensing as applied to African-style hair braiders); Patel v.

Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69 (Tex.

2015) (esthetician licensing as applied to eyebrow

threaders). But this case involves no such mismatch

between the content of the required training and the

duties performed by the covered workers. Even assuming it is irrational to force a hair braider who

never dyes hair to sit through a week of training on

how to safely use hair dye, see Steinagel, 885 F. Supp.

2d at 1214–15, an associate’s degree in early-childhood education is self- evidently (and rationally) connected to the work of caring for young children.

Under rational-basis review, the policy choices of

the political branches are “not subject to courtroom

fact-finding and may be based on rational speculation

unsupported by evidence or empirical data.” Beach,

508 U.S. at 315. And here, at any rate, as plaintiffs

acknowledge in their complaint, OSSE issued its regulations in part based on a report from the National

Academies recommending a bachelor’s degree requirement for all educators of children ages zero to

eight. See Transforming the Workforce for Children

Birth Through Age 8: A Unifying Foundation, Inst. of

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Med. & Nat’l Rsch. Council (LaRue Allen & Bridget

B. Kelly eds., 2015). The report sought to equalize the

educational requirements for daycare workers and elementary school teachers, given that “the work of lead

educators for young children of all ages is based on

the same high level of sophisticated knowledge and

competencies.” Id. at 7; see also id. at 513. In light of

that expert guidance, OSSE could have rationally

concluded that its college requirements would improve the quality of childcare provided in licensed facilities.

Although we are sensitive to the burdens that

OSSE’s regulations impose on daycare workers, our

role is not to assess the wisdom of the agency’s policy

choices. A conceivably rational justification for the

college requirements is readily apparent, and, in this

context, that is all due process requires.

3.

Plaintiffs also contend that the college requirements are “riddled with arbitrary distinctions among

child-care providers” in violation of their equal protection rights. Sanchez Br. 35. “Where rationality is the

test, a State does not violate the Equal Protection

Clause merely because the classifications made by its

laws are imperfect.” Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 84 (2000) (alteration, quotation marks, and

citation omitted). Defining the class of people subject

to a regulatory requirement “inevitably requires that

some persons who have an almost equally strong

claim to favored treatment be placed on different

sides of the line.” Beach, 508 U.S. at 315–16

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(quotation marks and citation omitted). And in drawing those lines, a regulation “may select one phase of

one field and apply a remedy there, neglecting the

others.” Lee Optical, 348 U.S. at 489. Equal protection

“does not require that a State must choose between

attacking every aspect of a problem or not attacking

the problem at all.” Dandridge v. Williams, 397 U.S.

471, 486–87 (1970). Rather, a regulation must only

“be rationally based and free from invidious discrimination” to survive judicial review. Id. at 487.

Plaintiffs challenge three distinctions that the regulations draw between classes of childcare workers.

All three are rational.

First, the regulations require childcare workers

with no college education to complete an associate’s

degree with an early-childhood major. But they permit teachers in child development centers who already have college degrees in other fields to instead

take twenty-four credit hours of early- childhood classes. Plaintiffs point out that some associate’s degree

programs in early-childhood education require fewer

than twenty-four credit hours within that major. They

thus argue that Sorcher, who has three college degrees, should not have to complete “more early-childhood coursework than another person with the same

job who has no college education at all.” Sanchez Br.

36.

While some local colleges require fewer than

twenty-four credit hours of early-childhood classes for

an associate’s degree in that field, other colleges require more. For instance, according to plaintiffs’

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complaint, the University of the District of Columbia

requires thirty-six credit hours of early-childhood

classes for an associate’s degree in infant and toddler

education. And that is in addition to the general-education and elective courses needed to complete an associate’s degree. OSSE could have rationally concluded that a degree in another field plus twenty-four

credit hours of early childhood classes forms the

rough equivalent of an associate’s degree in earlychildhood education, which requires sixty total credit

hours, between fifteen and thirty-six of which are in

early childhood courses. As the district court correctly

observed, twenty-four was a “rational, while perhaps

rough” estimate of the number of early-childhood

credit hours required for a degree in that field.

Sanchez, 513 F. Supp. 3d at 115.

In any event, plaintiffs misperceive the nature of

the education requirements. Rather than treating

similarly situated teachers differently, the regulations simply open two avenues for compliance, which

are equally open to all teachers in child development

centers. Teachers can either earn an associate’s degree in early-childhood education or earn a degree in

another field and then take twenty-four credit hours

of early-childhood classes. The choice is entirely up to

them. If Sorcher would find it less burdensome to obtain an associate’s degree in early- childhood education than to take twenty-four credit hours of classes,

she has the option to comply with the regulations by

completing a full early-childhood degree.

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Second, the regulations apply to extended-home

caregivers like Sanchez, but not to nannies, babysitters, or parents who lead neighborhood play groups.

Plaintiffs argue that childcare providers do the same

job “wherever they happen to work,” so OSSE cannot

rationally subject caregivers in different settings to

different requirements. Sanchez Br. 38.

As a threshold matter, it is the Facilities Act, rather than the OSSE regulations, that exempts

babysitters and neighborhood play groups. D.C. Code

§ 7-2033. OSSE thus lacked statutory authority to

regulate those less formal care arrangements. And

plaintiffs’ complaint does not challenge the exemptions in the Facilities Act.

Regardless, rational justifications for the challenged exemptions are apparent. Nannies and

babysitters typically work for a single family within

the home, and OSSE could have rationally decided to

respect parents’ autonomy to hire childcare providers

without college degrees to work in their homes. The

case for exempting parent-led play groups is even

more evident: any attempt by OSSE to require parents to obtain associate’s degrees in early-childhood

education before supervising their kids’ friends would

raise significant questions. Plaintiffs make no effort

in their complaint to explain why it is irrational to

treat a professional caregiver in a daycare setting differently than a weekend babysitter or a parent supervising a play group.

Third, and lastly, the regulations apply to the preschool where Sorcher teaches, which is connected to a

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synagogue that offers after-school programming to elementary and high school students. But the regulations exempt daycares and preschools connected to

full-time elementary and high schools. Once again,

plaintiffs argue that those caregivers do the same

work and cannot rationally be treated differently.

And once again, plaintiffs do little in their complaint

to explain why the differential treatment is irrational.

A rational explanation for the regulatory distinction

is plainly apparent. OSSE could have rationally concluded that daycares attached to full-time schools

would be more likely to have qualified teachers. And

full-time schools are subject to their own comprehensive regulatory scheme, which includes minimum

qualifications for teachers. See D.C. Mun. Regs. tit. 5A, § 1601. OSSE properly prioritized “one phase of one

field and appl[ied] a remedy there.” Lee Optical, 348

U.S. at 489.

The distinctions that the regulations draw between classes of childcare workers are rational.

B.

Plaintiffs allege that the Facilities Act violates the

nondelegation doctrine by granting OSSE unconstrained authority to set licensing standards for daycares. We hold that plaintiffs have failed to state a

plausible nondelegation claim.

Before addressing whether the Facilities Act satisfies the nondelegation doctrine, we first consider

whether the nondelegation doctrine even applies to

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the District’s government. In their complaint, plaintiffs present their nondelegation claim under both the

Constitution and the D.C. Home Rule Act, Pub. L. No.

93-198, 87 Stat. 774 (1973) (codified as amended at

D.C. Code § 1-201.01 et seq.).

OSSE argues that plaintiffs’ nondelegation claim

“has no footing in the Constitution.” The constitutional nondelegation doctrine derives from the federal

separation of powers. Article I vests “[a]ll legislative

Powers” in Congress. U.S. Const. art. I, § 1. Because

that authority is exclusive, the nondelegation doctrine “bars Congress from transferring its legislative

power to another branch of Government.” Gundy v.

United States, 139 S. Ct. 2116, 2121 (2019) (plurality

opinion). Here, OSSE points out that the D.C. Council, not Congress, enacted the Facilities Act. OSSE

contends that the federal separation of powers imposes no limits on the authority of the D.C. Council to

delegate power to OSSE.

Perhaps recognizing the force of the OSSE’s argument in that regard, plaintiffs contend in the alternative that the nondelegation doctrine applies to the

District through the Home Rule Act, a proposition

OSSE does not appear to contest in this case. Congress wields plenary power over the nation’s capital,

including power to create a local government for the

District. U.S. Const. art I, § 8, cl. 17; District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109

(1953); Metro. R.R. Co. v. District of Columbia, 132

U.S. 1, 9 (1889). In designing that government, Congress presumably could vest legislative authority in

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any local body of its choosing. But through the Home

Rule Act, Congress decided to give the District’s government a tripartite structure modeled on that of the

federal government, with legislative power vested in

the D.C. Council, executive power in the mayor, and

judicial power in the D.C. Superior Court and Court

of Appeals. See D.C. Code §§ 1- 204.04(a); 1-204.22; 1204.31(a).

The D.C. Court of Appeals has observed that the

separation of powers within the District’s government

suggests that “the same general principles should

govern the exercise of such power in the District Charter as are applicable to the three branches of government at the federal level.” Wilson v. Kelly, 615 A.2d

229, 231 (D.C. 1992). There is thus “good reason to

think the nondelegation doctrine applies to the District’s government.” Unum Life Ins. Co. of Am. v. District of Columbia, 238 A.3d 222, 232 (D.C. 2020).

Ultimately, though, we need not decide whether

the nondelegation doctrine applies to the District, either through the Constitution or the Home Rule Act.

Instead, following the lead of the D.C. Court of Appeals, id., we will assume without deciding that the

doctrine applies. We may do so because we conclude

that, even if the doctrine applies, it is satisfied here.

The nondelegation doctrine requires a legislature

delegating authority to “lay down by legislative act an

intelligible principle to which the person or body authorized to act is directed to conform.” Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (alteration, quotation marks, and citation omitted). The

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legislature must make clear the “general policy” to be

pursued and “the boundaries of this delegated authority.” Am. Power & Light Co. v. SEC, 329 U.S. 90, 105

(1946).

The amount of guidance the legislature must provide “varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475.

For instance, Congress must give “substantial guidance” to the Environmental Protection Agency to

channel its setting of “air standards that affect the entire national economy,” but “need not provide any direction” at all to that agency for defining the statutory

term “country elevators.” Id.

In applying the nondelegation doctrine, the Supreme Court “has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress”—and, by analogy, the D.C. Council—

“simply cannot do its job absent an ability to delegate

power under broad general directives.” Mistretta v.

United States, 488 U.S. 361, 372 (1989). The governing standards for a permissible delegation are “not demanding,” and the Supreme Court has “over and over

upheld even very broad delegations.” Gundy, 139 S.

Ct. at 2129 (plurality opinion); cf. id. at 2131 (Alito,

J., concurring in the judgment) (“If a majority of this

Court were willing to reconsider the approach we

have taken for the past 84 years, I would support that

effort.”); id. at 2131–48 (Gorsuch, J., dissenting).

Under the current standard, the Facilities Act sets

forth an intelligible principle to guide OSSE’s

23a

Appendix A

regulation of daycares. The Act directs OSSE to issue

“[m]inimum standards of operation of a child development facility concerning staff qualification, requirements and training.” D.C. Code § 7- 2036(a)(1)(A).

That provision directs OSSE’s regulatory authority to

a particular subject matter (minimum staff qualifications and training) in a particular industry (childcare). Within that narrow sphere, the D.C. Council

can delegate considerable discretion. See Detroit Int’l

Bridge Co. v. Gov’t of Can., 883 F.3d 895, 902–03 (D.C.

Cir. 2018); TOMAC v. Norton, 433 F.3d 852, 867 (D.C.

Cir. 2006).

The Facilities Act’s definitions section provides

further direction. Under the statute, a “[c]hild development facility” is any “center, home, or other structure that provides care and other services, supervision, and guidance for children, infants, and toddlers

on a regular basis.” D.C. Code § 7-2031(3). The implication of the Act, read as a whole, is that the minimum qualifications should relate to the care, supervision, and guidance of children. In short, the Facilities

Act supplies the intelligible principle that OSSE must

set minimum qualifications for daycare workers to ensure their fitness to take care of small children.

As OSSE points out, the United States Code contains many comparable delegations. For example, the

Transportation Security Administration sets “minimum training requirements” and “minimum education levels” for “air carrier personnel.” 49 U.S.C. §

44935(a). The Secretary of the Treasury establishes

“minimum education and experience requirements”

24a

Appendix A

for certain tax appraisers. 26 U.S.C. §

170(f)(11)(E)(ii)(I). And the Secretary of Health and

Human Services sets “training, education, and experience requirements” for certain physician assistants

and nurse practitioners. 42 U.S.C. § 1395x(aa)(5)(A).

Delegations of authority to set minimum job qualifications are thus commonplace. We decline plaintiffs’

invitation to call into question such a ubiquitous type

of delegation.

In the alternative, plaintiffs contend that, even if

the Facilities Act includes an intelligible principle,

any guidance the statute provides is merely “hortatory” because OSSE’s rulemaking was not subject to

judicial review under the District’s version of the Administrative Procedure Act. Sanchez Br. 49–50. In

plaintiffs’ view, an intelligible principle serves no purpose unless a court can police the agency’s compliance

with the legislative command.

That argument is doubly flawed. First, it appears

that OSSE’s rulemaking would have been reviewable

in D.C. Superior Court. True enough, the D.C. Administrative Procedure Act provides for judicial review of

agency actions only in “contested case[s],” a term the

D.C. Court of Appeals has interpreted as covering

only formal adjudications. D.C. Code § 2-510; District

of Columbia v. Sierra Club, 670 A.2d 354, 359 (D.C.

1996). But despite that statutory lacuna, the District’s courts have permitted equitable actions challenging rulemakings. See id.; see also Dupont Circle

Citizen’s Ass’n v. D.C. Zoning Comm’n, 343 A.2d 296,

309–10 & n.26 (D.C. 1975) (Gallagher, J., concurring).

25a

Appendix A

Second, even if the college requirement were unreviewable for compliance with the Facilities Act, that

would be irrelevant to the analysis under our precedent. We have held that, even when judicial review is

unavailable, the nondelegation doctrine is satisfied so

long as a statute provides an intelligible principle to

guide an agency’s exercise of discretion. Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 33 n.8

(D.C. Cir. 2008). The Facilities Act does so and thus

complies with the nondelegation doctrine, assuming

the doctrine applies to the District.

*

*

*

*

*

For the foregoing reasons, we affirm the judgment

of the district court.

So ordered

26a

Appendix A

RANDOLPH, Senior Circuit Judge, concurring:

Though not necessarily central to this case, the Supreme Court’s nondelegation jurisprudence appears

to be in a state of flux. See Joseph Postell & Randolph

J. May, The Myth of the State Nondelegation Doctrines, 74 ADMIN. L. REV. 263, 264–65 (2022). Of

course, we are bound to apply the Supreme Court’s

current precedent, since only the Supreme Court enjoys “the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484 (1989). Because the majority evaluates the nondelegation claims presented here under

current doctrine, I join its analysis.

27a

Appendix B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALTAGRACIA

SANCHEZ, et al.,

:

:

:

Plaintiffs,

:

:

v.

:

:

OFFICE

OF

THE :

STATE SUPERINTEN- :

DENT OF EDUCA- :

TION, et al.,

:

:

Defendants.

Civil Action No.: 18-975

(RC)

Re Document Nos.: 32,

33

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

This case involves regulations promulgated by the

D.C. Office of the State Superintendent of Education

(“OSSE”) that impose minimum education requirements on certain childcare providers that operate in

the District of Columbia. Plaintiffs, two childcare providers and one parent, argue that the regulations resulted from an unconstitutional delegation of power

and that they violate the Due Process and Equal Protection Clauses of the U.S. Constitution. Defendants

28a

Appendix B

have moved to dismiss Plaintiffs’ claims. This Court

previously considered a motion to dismiss but ruled

that Plaintiffs’ failed to overcome several jurisdictional hurdles. Plaintiffs appealed and the D.C. Circuit reversed and remanded for consideration of the

merits of Plaintiffs’ allegations. See Sanchez v. Off. of

the State Superintendent of Educ., 959 F.3d 1121

(D.C. Cir. 2020). Defendants now argue that, accepting as true the factual allegations in the Amended

Complaint, Plaintiffs have failed to state a plausible

claim to relief. For the reasons set forth below, the

Court agrees and, therefore, grants Defendants’ motion to dismiss.

II. BACKGROUND

A. Statutory and Regulatory Framework

The Child Development Facilities Regulation Act

of 1998 (“Facilities Act”), D.C. Law 12-215, 46 D.C.

Reg. 274 (1999) (codified as amended at D.C. Code §

7-2031 et seq.), requires certain childcare providers in

the District of Columbia to obtain a license to operate,

see D.C. Code § 7-2034(a). The Facilities Act delegates

rulemaking power to the Mayor to promulgate “all

rules necessary to implement the provisions of” the

Facilities Act. Id. § 7-2036(a)(1). The delegation of authority requires that the Mayor set “[m]inimum

standards of operation of a child development facility

concerning staff qualification, requirements and

training, facility size, staff- child ratios and group

size, program design and equipment requirements,

safety and health standards, care for children with

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Appendix B

special needs, nutrition standards, and record keeping requirements.” Id. § 7-2036(a)(1)(A). The Facilities Act defines “child development facility” as “a center, home, or other structure that provides care and

other services, supervision, and guidance for children,

infants, and toddlers on a regular basis, regardless of

its designated name.” Id. § 7-2031(3). The Facilities

Act specifically exempts from its requirements

babysitters, informal playgroups, parent-led play cooperatives, childcare furnished in places of worship

during religious services, care provided by relatives,

childcare provided by the federal government, and

certain pre-kindergarten education programs. Id. § 72033. The Mayor has delegated the rulemaking power

under the Facilities Act to OSSE. See Mayor’s Order

2009-130, 56 D.C. Reg. 6883 (July 16, 2009).

Pursuant to this authority, OSSE issued regulations that set minimum education requirements for

childcare staff at child development facilities. See generally D.C. Mun. Regs. tit. 5-A1, §§ 100–99. Under the

regulations, teachers at childcare development centers, located on premises other than a dwelling that

serve more than twelve children, must obtain at least

an associate’s degree from an accredited college “with

a major in early childhood education, early childhood

development, child and family studies, or a closely related field.” Id. § 165.1. Caregivers in an expanded

child development home, which is a facility located in

a private residence where two or more caregivers

oversee up to twelve children, must obtain the same.

Id. § 170.2. The requirements did not become immediately binding; when initially promulgated, the

30a

Appendix B

regulations generally provided a grace period of anywhere between three and six years. See, e.g., 63 D.C.

Reg. 14,786, 14,799 (original versions of D.C. Mun.

Regs. tit. 5-A1, §§ 164.1(b), (c) and 170.2(a)(1)(2)).1

The regulations also provided that OSSE could waive

compliance with any of the education requirements if

presented with clear and convincing evidence that (1)

“[t]he demonstrated . . . economic impact or hardship

on the Facility or staff member [was] sufficiently

great to make immediate compliance impractical despite diligent efforts;” (2) “[t]he facility or staff member [was] meeting or exceeding the intent of the regulation for which the waiver [was] requested; and” (3)

“[t]he health and welfare of staff and children [we]re

not jeopardized.” D.C. Mun. Regs. tit. 5A-1, § 106.1.

OSSE provided for another exemption for certain staff

positions for individuals who had, as of December

2016, “continuously served” in the relevant staff position for ten or more years. Id. §§ 165.4, 170.2.

The regulations make three distinctions relevant

to the current case. First, the regulations, like the Facilities Act, specifically exempt certain childcare providers, such as babysitters and nannies, from the degree requirements. Id. § 101.5. Second, the regulations specifically exempt private schools that provide

“education services to children in grades pre-K1 In June 2018, OSSE amended its regulations to allow more

time to comply with the degree requirements. 65 D.C. Reg.

7034–7036 (June 29, 2018); see also D.C. Mun. Regs. tit. 5- A1 §§

165.1(d), 170.2(a)(2). The deadline for compliance relevant to

this case is now December 2023. See D.C. Mun. Regs. tit. 5-A1

§§ 165.1(d), 170.2(a)(2).

31a

Appendix B

through twelfth (12th) grade during [] a full school

day.” Id. § 101.5(l). Under this exemption, private, parochial, or independent schools that have full-time elementary or secondary educational programs in addition to infant and toddler care on the same premises

need not comply with the minimum degree requirements. See id. § 165.6. Third, teachers at childhood

development centers who already possess a college degree in a major other than an early childhood field

must obtain at least twenty-four credit hours of college coursework in an early childhood field. Id. §

165.1.

B. Factual and Procedural Background

Plaintiff Altagarcia Sanchez is subject to the new

education requirements as an “expanded home caregiver.” See generally id. §§ 169–71. She runs a licensed daycare out of her house and currently cares

for nine children. See Am. Compl. ¶ 164, ECF No. 31.

Although she carries a doctoral degree in law from her

home country, id. ¶ 157, she never attended college in

the United States, id. ¶ 159. Plaintiffs allege that,

given the demands of her work schedule, it would take

Ms. Sanchez at least five years to complete the degree

requirements as a part-time student, which they estimate would require around sixty credit hours. See id.

¶¶ 170–75. However, Plaintiffs allege that Ms.

Sanchez cannot afford to attend college, even parttime. Id. ¶¶ 180–83. Ms. Sanchez received a waiver to

the degree requirement in April 2019, but she fears

that OSSE may revoke the waiver at some point in

the future. Id. ¶¶ 190–91.

32a

Appendix B

Plaintiff Dale Sorcher is what the regulations refer

to as a teacher at a child development center. See D.C.

Mun. Regs. tit. 5A-1, § 165. Ms. Sorcher teaches children ages zero to three at a Jewish preschool attached

to the synagogue she attends. Am. Compl. ¶¶ 193–95.

Although Ms. Sorcher has two master’s degrees and a

bachelor’s degree, she does not have the requisite education in early childhood education called for by the

regulations. Id. ¶¶ 192, 211–12. The synagogue does

have educational programs for elementary and secondary students but does not offer full-time educational programs. Id. ¶ 197. Plaintiffs allege that Ms.

Sorcher is not eligible for a waiver of the degree requirement, id. ¶ 226, and that she does not have time

to go back to college, id. ¶ 229. Furthermore, Plaintiffs

maintain that Ms. Sorcher does not need more education in order to competently do her job. Id. ¶ 230.

Plaintiff Jill Homan is a parent whose young

daughter attends a licensed daycare center subject to

the regulations. Id. ¶¶ 234, 245–50. Ms. Homan is

“afraid that the caregivers she trusts will not be able

to comply with the college requirement and will lose

their jobs.” Id. ¶ 247. She worries that daycare providers forced to attend college in addition to their

work duties will be “exhausted, stressed, and overwhelmed” and “will provide worse care than those

who do not have to worry about attending school.” Id.

¶ 250. She also believes that “day care will continue

to become more expensive under the college requirement.” Id. ¶ 251.

Plaintiffs bring three counts against the District of

Columbia and OSSE (together “Defendants”) related

33a

Appendix B

to the OSSE regulations. First, Plaintiffs argue that

the Facilities Act’s delegation of authority to the

Mayor to promulgate minimum educational standards violates the District of Columbia Self-Government and Governmental Reorganization Act (the

“D.C. Home Rule Act”), D.C. Code §§ 1-201.01–

1.207.71, and the U.S. Constitution’s nondelegation

doctrine. Id. ¶¶ 263–75. Second, Plaintiffs claim that

the OSSE regulations violate their Fifth Amendment

Due Process rights because “[t]here is no rational basis for prohibiting someone from working in a day care

because she does not have a college degree.” Id. ¶ 279.

Finally, Plaintiffs argue that the OSSE regulations

draw arbitrary and irrational distinctions between

different types of day-care providers and facilities,

which they maintain violates the Equal Protection

Clause. Id. ¶¶ 281–88.

This Court previously considered a motion to dismiss Plaintiffs’ Compliant. See Sanchez v. Off. of State

Superintendent of Educ., No. 18-cv-975, 2019 WL

935330 (D.D.C. Feb. 26, 2019). The Court dismissed

all of Plaintiffs’ claims on threshold, jurisdictional

grounds. See id. at *5–6 (dismissing Ms. Homan’s

claims for lack of standing); id. at 6–9 (dismissing

other claims as moot and unripe). The Court thus declined to consider the merits of Plaintiffs’ challenges

under the nondelegation doctrine, the Due Process

Clause, and the Equal Protection Clause. Plaintiffs

appealed. Finding that the doctrines of mootness and

ripeness did not bar any of Plaintiffs’ claims, the D.C.

Circuit determined that Plaintiffs’ purely legal challenges are presumptively reviewable. See Sanchez,

34a

Appendix B

959 F.3d at 1124–26. The court reversed and remanded for consideration of the merits of Plaintiffs’

claims, finding that the claims are justiciable. See id.

at 1123.

After remand, Plaintiffs’ filed an Amended Complaint. See Am. Compl. Defendants’ motion to dismiss

argues that, even accepting the factual allegations as

true, Plaintiffs fail to state a plausible claim to relief

with respect to each count in the Amended Complaint.

See Defs.’ Mot. Dismiss (“Defs.’ Mot.”), ECF No. 33. In

addition to the motion to dismiss, Plaintiffs filed a motion for discovery notwithstanding the pending motion to dismiss. See Pls.’ Mot. Notwithstanding Mot.

Dismiss, ECF No. 32. Plaintiffs’ motion argues that

the Court should permit limited discovery despite the

pending motion to dismiss. See id. at 1–3. Both motions are ripe for decision.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that

a complaint contain “a short and plain statement of

the claim” in order to give the defendant fair notice of

the claim and the grounds upon which it rests. Fed.

R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 551

U.S. 89, 93 (2007) (per curiam). A motion to dismiss

under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests

whether a plaintiff has properly stated a claim. See

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint’s factual allegations are to be taken as true,

and the court is to construe them liberally in the

plaintiff’s favor. See, e.g., United States v. Philip

35a

Appendix B

Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).

Notwithstanding this liberal construal, the court deciding a Rule 12 motion must parse the complaint for

“sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This

plausibility requirement means that a plaintiff’s factual allegations “must be enough to raise a right to

relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even

if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory

statements,” are insufficient to withstand a motion to

dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor

must a court presume the veracity of legal conclusions

that are couched as factual allegations, see Twombly,

550 U.S. at 555.

IV. ANALYSIS

As explained above, Plaintiffs bring three claims

against Defendants. First, Plaintiffs argue that the

rulemaking provision of the Facilities Act is an impermissible delegation of legislative power in violation of

the D.C. Home Rule Act and the U.S. Constitution.

Second, Plaintiffs argue that the OSSE regulations violate Plaintiffs’ substantive due process rights guaranteed by the Fifth Amendment. Third, Plaintiffs argue that the OSSE regulations violate the equal protection clause by making arbitrary and irrational

36a

Appendix B

distinctions. Defendants argue that Plaintiffs have

failed to allege sufficient facts to withstand a motion

to dismiss with respect to each claim.2 The Court addresses each claim in turn.

A. Nondelegation Doctrine Claim

Article I of the Constitution states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art I, § 1.

“This text permits no delegation of those powers.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472

(2001). As such, “[i]n a nondelegation challenge, the

test is whether Congress has set forth ‘an intelligible

principle to which the person or body authorized to

act is directed to conform.’” TOMAC, Taxpayers of

Michigan Against Casinos v. Norton, 433 F.3d 852,

866 (D.C. Cir. 2006) (quoting Whitman, 531 U.S. at

472 (alterations and internal quotations omitted)). To

determine the boundaries of a delegation, courts look

to the statutory language, the purpose of the statute,

its factual background, and the statutory context.

Michigan Gambling Opposition v. Kempthorne, 525

F.3d 23, 30 (D.C. Cir. 2008) (citing TOMAC, 433 F.3d

at 866 (quoting Am. Power & Light Co. v. SEC, 329

U.S. 90, 104 (1946)). “[T]he degree of agency discretion that is acceptable varies according to the scope of

the power congressionally conferred.” Whitman, 531

2 Defendants also argue that Ms. Homan lacks standing, see

Defs.’ Mot. at 35–36, and that OSSE should be dismissed as a

defendant, see id. at 36. Because the Court has determined that

Plaintiffs have failed to state a claim, it will not address these

arguments.

37a

Appendix B

U.S. at 475. Although broad delegations of power may

require “substantial guidance,” relatively narrow delegations of power need not be accompanied by explicit

direction or any direction at all. Id. (noting that Congress need not provide direction to EPA to define

“country elevators” but must provide “substantial

guidance on setting air standards that affect the entire national economy”). Though the D.C. Court of Appeals has not held that the nondelegation doctrine applies to the District’s government, both parties apparently agree that it applies by application of the Home

Rule Act. See Defs.’ Mot. at 14–15; Pls.’ Opp’n at 14,

ECF No. 34 ; see also Unum Life Ins. Co. of Am. v.

District of Columbia, 238 A.3d 222, 232 (D.C. 2020)

(assuming without deciding applicability of nondelegation doctrine and applying Supreme Court precedent to resolve issue). For purposes of the present motion to dismiss, the Court assumes the applicability of

the nondelegation doctrine to delegations by the District Council to District agencies.

Defendants argue that the delegation of authority

in the Facilities Act contains an intelligible principle

“to establish minimum qualifications that are appropriate given the nature of the job to which [childcare

providers] apply.” Defs.’ Mot. at 19. Defendants first

note that “the standards for any permissible delegation ‘are not demanding,’” id. at 16 (quoting Gundy v.

United States, 139 S. Ct. 2116, 2129 (2019) (plurality

op.)), and that the Supreme Court has consistently

upheld even broad delegations of authority, see id. Defendants argue that the Facilities Act instructs the

38a

Appendix B

Mayor3 “as to the limits of [her] authority (that [she]

may set ‘minimum standards of operation’) as well as

the targets (child development facilities) and content

(staff qualification, requirements and training) of any

regulations.” Id. at 17 (quoting D.C. Code § 72036(a)(1)). Defendants point to a variety of similar

delegations of authority to set minimum education or

training standards that contain virtually the same

level of direction. See id. at 18 (discussing similar delegations to the Transportation Security Administration, the Department of Homeland Security, the

Treasury Secretary, and the Secretary of the Interior). Finally, Defendants argue that Plaintiffs offer

no legal support for their argument that some stricter

scrutiny should be required because the D.C. Administrative Procedure Act (“DCAPA”), D.C. Code § 2510, does not provide for judicial review of rulemakings. See id. at 19–22 (citing Am. Compl. ¶¶ 270–

74, 95). Defendants claim that “whether (or to what

extent) the delegee’s actions are subject to judicial review” does not change the nondelegation doctrine

analysis. Id. at 19–20 (citing Michigan Gambling Opposition, 525 F.3d at 33 n.8). In any event, Defendants

challenge Plaintiffs’ underlying premise and argue

that rulemakings by D.C. agencies can, in fact, be reviewed by the D.C. Superior Court. See id. at 20 (citing District of Columbia v. Sierra Club, 670 A.2d 354,

359 (D.C. 1996)).

The District actually states that the Facilities Act “instructs OSSE,” id. at 17, but the statutory delegation of authority grants rulemaking authority to the Mayor, see D.C. Code § 72036(a)(1).

3

39a

Appendix B

In opposition, Plaintiffs claim that the delegation

of authority in the Facilities Act does not contain an

intelligible principle. Pls.’ Opp’n at 15–17. This is so,

they claim, because the Facilities Act allows free

range for the Mayor to “set any standard [she] likes”

without regard to any limiting principles. Id. at 16.

Plaintiffs claim that under the language of the Facilities Act, the Mayor could forbid college degrees, require a Ph.D., or demand compliance with physical

tests. See id. Plaintiffs maintain that the Mayor’s authority to set minimum standards of operation at

child development facilities under the Facilities Act

equals the authority of the legislature itself. Id. With

respect to the statutory delegations that authorize

agencies to set minimum qualifications in other contexts, Plaintiffs say that the Court should treat those

differently because they are subject to judicial review

under the Administrative Procedure Act. Id. at 17–18.

According to Plaintiffs, nothing could be done if the

Mayor or OSSE required childcare providers to become, for example, certified public accountants because the DCAPA does not allow for judicial review of

rulemakings. Id. The Court understands Plaintiffs to

argue that because the DCAPA limits judicial review

to “contested cases”—in other words, adjudications—

the delegation of authority should be struck down

even if the statute contains an intelligible principle.

See id. (“Therefore, even if OSSE’s statute had ordered it to pursue an intelligible principle, there was

no mechanism by which a court could determine that

is was failing to actually do so or was acting arbitrarily, capriciously, or without substantial evidence.”);

id. at 20 (“For nondelegation purposes, what matters

40a

Appendix B

is whether there is any authority ensuring that an

agency’s exercise of its delegated legislative power is

not arbitrary or capricious.” (footnote omitted)).

The Court agrees with Defendants; the delegation

of power in D.C. Code § 7-2036 does not amount to an

unconstitutional delegation of legislative power. The

text of the statute and broader statutory context

make clear an intelligible principle to guide the delegated authority. First, the text cabins the delegated

power to “rules necessary to implement the provisions

of this subchapter,” which is titled “Child Development Facilities Regulation.” D.C. Code § 7- 2036(a)(1)

(emphasis added). Second, the text limits the Mayor’s

authority to a specific population and subject. The Facilities Act states that the Mayor shall set “[m]inimum standards of operation of a child development

facility concerning staff qualification, requirements

and training.” Id. § 7-2036(a)(1)(A). The “minimum

standards of operation” must relate to “child development facilit[ies]” and must speak to “staff qualification, requirements and training.” Id. Third, the statutory definition of “child development facility” further

guides the Mayor in setting appropriate minimum

standards of operation. A child development facility

“means a center, home, or other structure that provides care and other services, supervision, and guidance for children, infants, and toddlers on a regular

basis.” Id. § 7-2031(3) (emphasis added). Plainly, the

minimum standards of operation set by the Mayor

must be directed at care, supervision, and guidance

for children, infants, and toddlers. The narrow scope

of this delegation of power does not require further

41a

Appendix B

direction or guidance. See Whitman, 531 U.S. at 475.

The Mayor’s delegated authority is “cabined by ‘intelligible principles’ delineating both the area in and the

purpose for which” the minimum operating standards

should apply. TOMAC, 433 F.3d at 867.

The Court rejects Plaintiffs’ contention that some

other standard should apply because the DCAPA does

not provide for judicial review of D.C. agency rulemaking. Plaintiffs apparently contend that even with

an intelligible principle to guide the delegation of

power the delegation should be struck down because

the DCAPA only allows for review of “contested

cases.” See Pls.’ Opp’n at 18; see also D.C. Code § 2510(a). But Plaintiffs cite no cases for the novel contention that delegations of power to D.C. agencies are

per se unconstitutional or in violation of the D.C.

Home Rule Act because of the gap in the DCAPA.

Moreover, the Court agrees with Defendants that

caselaw supports the contention that D.C. agency

rulemakings are reviewable. See District of Columbia

v. Sierra Club, 670 A.2d 354, 359 (D.C. 1996) (“The

availability of review by this court of agency decisions

in ‘contested cases’ . . . does not preclude judicial review of other matters, because any party aggrieved by

an agency’s decision may initiate an appropriate equitable action in the Superior Court to seek redress.”

(internal alterations and quotations omitted)); D.C.

Hosp. Ass’n v. Barry, 586 A.2d 686, 690–94 (D.C.

1991) (upholding D.C. Superior Court decision that

found D.C. regulations were not arbitrary and capricious); Capitol Hill Restoration Soc’y, Inc. v. Moore,

410 A.2d 184, 188 (D.C. 1979) (“[W]e are not

42a

Appendix B

foreclosing all review . . . in other noncontested matters … Any party aggrieved by an agency’s decision

may initiate an appropriate equitable action in the

Superior Court to seek redress.”); Dupont Circle Citizen’s Ass’n v. D.C. Zoning Comm’n, 343 A.2d 296, 308

(D.C. 1975) (en banc) (J. Gallagher concurring) (stating that a party will “always have access to the trial

court for review in an original proceeding” and can argue “that the agency action was arbitrary and capricious”). In any event, whether or not the Mayor’s actions pursuant to the Facilities Act might be unreviewable does not control the nondelegation doctrine

analysis. See Michigan Gambling Opposition, 525

F.3d at 33 n.8.4

Because the Facilities Act contains an intelligible

principle to guide the Mayor’s rulemaking authority,

the Court finds that Plaintiffs have failed to state a

4 Plaintiffs argue that Michigan Gambling Opposition does

not support the proposition that the nondelegation doctrine analysis is unaffected by reviewability. See Pls.’ Opp’n at 21. The

court in Michigan Gambling Opposition stated “[n]or are we concerned, for purposes of the non-delegation doctrine, that the Secretary’s decision . . . might be unreviewable in a court of law . . .

[the statute] intelligibly guides the Secretary’s exercise of discretion, and that is all that the non-delegation doctrine requires.”

525 F.3d at 33 n.8. The Court understands this to mean that

whether an agency’s actions are reviewable does not change the

nondelegation doctrine analysis. But even assuming arguendo

that Plaintiffs could potentially win this point, they fail to cite

any precedent that suggests that the nondelegation doctrine

analysis should change if agency action is not subject to judicial

review. Nor do they cite any precedent explaining how the analysis should change.

43a

Appendix B

plausible claim to relief with respect to their nondelegation challenge.

B. Due Process Claim

The Fifth Amendment to the U.S. Constitution

provides that no person shall “be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V. Plaintiffs claim that the degree requirement contained in OSSE’s regulations “does not

further any valid public health or safety purpose, and

therefore violates Plaintiffs’ right to due process of

law on its face and as applied.” Am. Compl. ¶ 278. The

government may infringe upon a fundamental liberty

or property interest “only if the infringement is ‘narrowly tailored to serve a compelling state interest.”

Am. Fed’n of Gov’t Emps., AFL-CIO v. United States,

330 F.3d 513, 523 (D.C. Cir. 2003) (quoting Reno v.

Flores, 507 U.S. 292, 302 (1993)). Where no fundamental liberty or property interest is at stake, “the

Fifth Amendment requires only a rational basis.” Id.

(citing FCC v. Beach Commc’ns Inc., 508 U.S. 307, 313

(1993); Waters v. Rumsfeld, 320 F.3d 265, 268 (D.C.

Cir. 2003). Under rational basis review, to survive a

motion to dismiss, a plaintiff must plead “facts that

establish that there is not ‘any reasonable conceivable

state of facts that could provide a rational basis for

the classification.’” Hettinga v. United States, 677

F.3d 471, 479 (D.C. Cir. 2012) (quoting Dumaguin v.

Sec’y of Health and Hum. Servs., 28 F.3d 1218, 1222

(D.C. Cir. 1994)); see also Am. Fed’n, 330 F.3d at 523

(applying same standard for rational basis review to

substantive due process and equal protection challenges).

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Appendix B

Defendants argue that Plaintiffs cannot overcome

the deferential standard under a rational basis review. Defs.’ Mot. at 23. Defendants state that the “rational relationship here is no more than that involved

in requiring a science teacher to have science degree,

an accountant to have an accounting degree, or a lawyer to have a law degree.” Id. at 24. Defendants say

that questioning whether the regulations will actually improve childcare, or whether some childcare

workers will be unable to comply, or whether the data

underlying OSSE’s action actually supports the regulations does not change the deferential analysis. See

id. at 24–29. In opposition, Plaintiffs point to a number of cases in other contexts where courts have

struck down statutes after a rational basis review. See

Pls.’ Opp’n at 29–30. Plaintiffs say that here, the degree requirements in the regulations do “absolutely

nothing to further” the legitimate government interest of promoting optimal childcare outcomes. Id. at 30

(emphasis in original). Plaintiffs argue that they

should be entitled to develop a record to show that the

degree requirements are unrelated to OSSE’s purpose. Id. at 31. Defendants argue in reply that

whether there is a rational basis for the regulations is

a legal conclusion and that Plaintiffs cannot allege

facts that survive a motion to dismiss in this case because “one could at least rationally speculate that requiring more advanced education would yield improved child care.” Defs.’ Reply at 16–17, ECF No. 37.

The Court finds that Plaintiffs have failed to state

a plausible claim to relief under the Due Process

Clause. The Court agrees with Defendants that

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Appendix B

“OSSE’s regulations are plainly ‘rational on [their]

face.’” Id. at 17 (quoting Hettinga, 677 F.3d at 479).

The regulations require individuals who will be caring for children, infants, and toddlers to take classes

or obtain a degree in “early childhood education, early

childhood development, child and family studies, or a

closely related field.” D.C. Mun. Regs. tit. 5A-1, §

165.1. A conceivable rational basis for the regulations

is readily apparent: more early childhood education

for childcare providers will lead to better childcare.

Given this plausible reason for the government action, the “inquiry is at an end.” Beach Commc’ns, 508

U.S. at 314 (quoting United States R.R. Ret. Bd. v.

Fritz, 449 U.S. 166, 179 (1980)). Even if Plaintiffs

have data showing that the degree requirements at

issue will not make for better childcare, “a legislative

choice is not subject to courtroom fact-finding and

may be based on rational speculation unsupported by

evidence or empirical data.” Id. at 315.5 It is rational

to determine that the degree requirements in OSSE’s

regulations could improve early childhood care in the

District of Columbia. Plaintiffs have failed to “plead

facts that establish that there is not ‘any reasonable

conceivable state of facts that could provide a rational

basis for the classification.’” Hettinga, 677 F.3d at 479

(quoting Dumaguin, 28 F.3d at 1222). Accordingly,

5 For this reason, the parties’ discussion of a 2015 report by

the National Academies of Sciences is irrelevant. See Defs.’ Mot.

at 26–29; Pls.’ Opp’n at 32–33. Whether the report supports or

does not support the regulations does not change the “strong presumption of validity” afforded to laws under rational basis review. Beach Commc’ns, 508 U.S. at 314.

46a

Appendix B

Plaintiffs fail to state a plausible claim under the Due

Process Clause.

C. Equal Protection Claim

The Fourteenth Amendment to the U.S. Constitution provides that no state shall “deny to any person

within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV. Plaintiffs’ equal protection claim alleges that OSSE’s rules draw arbitrary distinctions with respect to the degree requirement. See Am. Compl. ¶¶ 283–88. Such distinctions

are subject to rational basis review. See Gebresalassie

v. District of Columbia, 170 F. Supp. 3d 52, 60 (D.D.C.

2016). “A statutory classification that ‘neither proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against equal

protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Hettinga, 677 F.3d at 478

(quoting Beach Commc’ns, 508 U.S. at 313). Like rational basis review of due process claims, at the motion to dismiss stage, an equal protection challenge to

a statute that does not involve a classification along

suspect lines or fundamental rights—like the challenge here—requires overcoming a “strong presumption of validity,” Tate v. District of Columbia, 627 F.3d

904, 910 (D.C. Cir. 2010), by “plead[ing] facts that establish that there is not ‘any reasonable conceivable

state of facts that could provide a rational basis for

the classification,’” Hettinga, 677 F.3d at 479 (quoting

Dumaguin, 28 F.3d at 1222). Again, like with a due

process challenge, “a legislative choice is not subject

to courtroom fact-finding and may be based on

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Appendix B

rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315.

Plaintiffs challenge three distinctions made in the

OSSE regulations on equal protection grounds. See

Am. Compl. ¶¶ 283–286. First, Plaintiffs argue that

the regulations draw “an arbitrary and irrational distinction between day-care providers . . . and other

kinds of child-care providers, such as nannies” Id. ¶

283. Second, Plaintiffs argue that the regulations

draw “an arbitrary and irrational distinction between

private, parochial, and independent schools with fulltime elementary or secondary education programs

with day cares attached . . . and private, parochial,

and independent schools with attached day cares . . .

that serve elementary and secondary-school age children in other capacities.” Id. ¶ 284. Third, Plaintiffs

argue that the regulations draw “an arbitrary and irrational distinction between day-care center teachers

who already have a college degree and those who do

not.” Id. ¶ 286. Day-care center teachers who already

have a college degree “must obtain at least 24 semester credit hours in an early- childhood field” whereas

those “who do not have a degree must obtain an associate’s degree with a major in an early-childhood field,

which may require less than 24 semester credit

hours.” Id. Plaintiffs argue that none of these distinctions rationally relate to a legitimate government

purpose. See Pls.’ Opp’n at 24–28.

The District argues that the three distinctions

Plaintiffs point to all survive rational basis scrutiny.

Defs.’ Mot. at 30–35. The District suggests that distinguishing between day-care teachers and other

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Appendix B

child care workers—such as babysitters, nannies, and

parent-supervised play groups—makes sense because

the other child care workers, who are exempt from the

degree requirement, do not usually care for three or

more unrelated children. Id. at 31. Furthermore, the

District argues that these other child care workers are

not performing the same type of work as a teacher at

a child development center, so the distinction is rational. Defs.’ Reply at 10. Treating schools with fulltime elementary and secondary programs differently

than schools that only offer part time programs also

makes sense, the District says, because OSSE could

have reasonably concluded that day cares attached to

full-time elementary or secondary schools are already

more likely to have staff with relevant college degrees.

Defs.’ Mot. at 33. Finally, the District argues that

treating child development center teachers who already have college degrees differently than teachers

who do not have a degree also has a plausible rational

basis. Id. at 34–35. The regulations require teachers

who already have college degrees in a non-early-childhood field to earn twenty-four credit hours in early

childhood studies. See id. The District contends that

the twenty-four-credit hour requirement is an appropriate approximation even though there may be some

degree programs that require more or fewer credits.

Id. at 34–35 (citing Beach Commc’ns, 508 U.S. at 316

n.7 (“The problems of government are practical ones

and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.”

(quoting Metropolis Theatre Co. v. Chicago, 288 U.S.

61, 69–70 (1913)).

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Appendix B

The Court finds that Plaintiffs have failed to plead

sufficient facts to state a plausible equal protection

claim with respect to each distinction. The Court

agrees with Defendants that each distinction survives

a rational basis review. First, distinguishing between

child development facility employees and other childcare givers, like nannies and babysitters, makes

sense. The Court agrees with Defendants that these

other caregivers have a different set of demands on

their time, usually care for smaller numbers of children, and are generally individually selected by parents. See Defs.’ Reply at 10–11. It is completely rational to exempt more informal childcare from the degree and licensure requirements precisely because

they are more informal. It would also be rational for

OSSE to conclude that the other types of caregivers

perform work that is different in kind from the caregivers covered by the regulations. Plaintiffs fail to address this conceivably rational basis for the distinction. Instead, Plaintiffs dismiss the potential differences between different types of caregivers and argue

that “child-care providers are performing the same

work, wherever they happen to work.” Pls.’ Opp’n at

26. This is no answer, though, to the plausible basis

for the distinction offered by Defendants.

Second, treating day cares attached to full-time elementary or secondary schools differently from day

cares attached to institutions that do not offer fulltime educational services also has a conceivably rational basis. As Defendants note, “OSSE could reasonably think that day cares operated by and co-located

with full-time elementary or secondary schools are

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Appendix B

already more likely than other institutions to have

staff with relevant college degrees, and that there is

thus less need to impose a degree requirement on

them.” Defs.’ Mot. at 33. Plaintiffs do not address this

potential basis for the distinction. Instead, Plaintiffs

argue that this distinction makes the regulations “so

underinclusive as to be irrational.” Pls.’ Opp’n at 26.6

The Court disagrees. The explanation offered by Defendants represents a potential rational basis for the

distinction. OSSE could reasonably decide to target

specific childcare institutions that potentially have

more underqualified staff. Plaintiffs must do more

than merely assert that the distinction is irrational.

At this stage, Plaintiffs must show facts that establish

there is no conceivable rational basis for the proffered

distinction. Although Plaintiffs obviously disagree

with this distinction in the regulations, they have

failed to overcome the deferential rational basis review.

6 Plaintiffs cite Williams v. Vermont to suggest that this dis-

tinction is similar to a statute that granted car-tax credits to

state residents depending on their residency at the time the car

was purchased. See id. (citing Williams v. Vermont, 472 U.S. 14,

23 (1985)). The Court found “no relevant difference between motor vehicle registrants who purchased their cars out-of-state

while they were Vermont residents and those who only came to

Vermont after buying a car elsewhere.” Williams, 472 U.S. at 27.

Here, there is a conceivably plausible difference between the two

categories offered by Defendants such that disparate treatment

makes sense. Day care facilities without attached full-time elementary or secondary schools may be more likely to have underqualified caregivers. OSSE could rationally aim to address that

potential deficiency.

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Appendix B

Third, the distinction between teachers who already have a college degree and those who do not also

has a plausible rational basis. Plaintiffs suggest that

because it may be possible for a teacher without a college degree to obtain the requisite associate’s degree

with fewer than twenty-four credit hours in earlychildhood education classes, it is irrational to require

twenty- four credit hours for those who already possess a college degree in some other subject. Pls.’ Opp’n

at 24–25. The Court agrees with Defendants, who argue that OSSE had to set the bar somewhere and selecting twenty-four credit hours “as an approximation

of a major’s worth of study easily passes constitutional muster.” Defs.’ Mot. at 35; see also Beach

Commc’ns, 508 U.S. at 316 n.7 (“The problems of government are practical ones and may justify, if they do

not require, rough accommodations—illogical, it may

be, and unscientific.” (quoting Metropolis Theatre, 288

U.S. at 69–70)). Choosing to set the bar at twenty-four

credit hours represents a rational, while perhaps

rough, estimate for the appropriate amount of early

childhood education for teachers in child development

facilities. Plaintiffs complain that the regulations will

allow some teachers to comply with the degree requirements while taking fewer early childhood education classes than others who already have college degrees. Pls.’ Opp’n at 25. But this argument fails to account for the fact that teachers without a college degree will be required to take far more courses to obtain their associate’s degree, see Am. Compl. ¶ 175 (estimating sixty credit hours for Ms. Sanchez), than

teachers who already have college degrees. OSSE

could have rationally added the additional classes

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Appendix B

required for an associate’s degree to its calculus for

determining the appropriate amount of education.

But even crediting Plaintiffs’ argument, OSSE did not

have to review all possible associate’s degree programs to ensure logical coherence because it “had to

draw the line somewhere” and “must be allowed leeway to approach a perceived problem incrementally.”

Beach Commc’ns, 508 U.S. at 316.

At bottom, Plaintiffs failed to overcome the “strong

presumption of validity” that rational basis review demands.7 Beach Commc’ns, 508 U.S. at 314. As the Supreme Court has stated:

Defining the class of persons subject to a regulatory requirement—much like classifying governmental beneficiaries—“inevitably requires

that some persons who have an almost equally

strong claim to favored treatment be placed on

different sides of the line, and the fact [that]

the line might have been drawn differently at

some points is a matter for legislative, rather

than judicial, consideration.”

7 Plaintiffs cite a number of cases from other jurisdictions to

support their claim that equal protection challenges to occupational-licensing requirements can survive a motion to dismiss.

See Pls.’ Opp’n at 23. Plaintiffs do not argue, and the Court does

not find, that these cases bear any factual resemblance to this

case. The Court agrees that it is not impossible for an equal protection challenge to survive rational basis review. Plaintiffs’

challenge, however, does not. See Hettinga, 677 F.3d at 478–80

(affirming district court’s dismissal based on application of rational basis review).

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Appendix B

Id. at 315–16 (quoting Fritz, 449 U.S. at 179 (internal

quotation marks and citation omitted)); see also Hettinga, 677 F.3d at 479 (“Although the classification

might indeed be unfair to [plaintiffs], mere disparity

of treatment is not sufficient to state an equal protection violation.”). Plaintiffs have failed to plead sufficient facts to “establish that there is not ‘any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Hettinga, 677 F.3d

at 479 (quoting Dumaguin, 28 F.3d at 1222).8 As such,

Plaintiffs have failed to state a plausible equal protection claim.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to

dismiss (ECF No. 33) is GRANTED. Plaintiffs’ motion for discovery notwithstanding the motion to dismiss (ECF No. 32) is DENIED AS MOOT. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: January 13, 2021

RUDOLPH CONTRERAS

United States District Judge

The Court’s deferential rational basis review passes no

judgment on the wisdom of the challenged regulation’s degree

requirement, makes no assessment of whether there are actual

benefits to be derived therefrom, and offers no evaluation of the

real burdens it imposes on workers that may lose their jobs or on

parents who are likely to pay more for childcare as a result.

8

54a

Appendix C

CODE OF THE DISTRICT OF COLUMBIA

SUBCHAPTER II.

CHILD DEVELOPMENT

FACILITIES REGULATION

DC ST § 7-2031

Definitions

For the purposes of this subchapter, the term:

(1) “Care giver” means an individual whose duties

include direct care, supervision, and guidance of infants or children in a child development facility.

(2) “Child” or “children” means an individual or individuals from 2 years to 15 years of age.

(3) “Child development facility” means a center,

home, or other structure that provides care and other

services, supervision, and guidance for children, infants, and toddlers on a regular basis, regardless of

its designated name. “Child development facility”

does not include a public or private elementary or secondary school engaged in legally required educational

and related functions or a pre-kindergarten education

program licensed pursuant to the Pre-k Act of 2008.

(3A) (A) “Drinking water source” means a source

of water from which a person can reasonably be expected to consume or cook with the water originating

from the source.

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Appendix C

(B) “Drinking water source” shall not include a

source of water for which a child development facility posts a conspicuous sign pursuant to §72051(b)(3).

(3B) “Formal parent-led play cooperative” means:

(A) A group of parents, step-parents, or legal

guardians of participating children, including a

group that has organized as a nonprofit organization, who have agreed to supervise the participating children during group meetings; and:

(B) The group:

(i) Meets at predetermined times for fewer

than 4 hours per day;

(ii) Meets at locations other than a home of

one of the parents, step-parents, or legal guardians in the group;

(iii) Does not require payment by parents,

step-parents, or legal guardians, other than to

cover the costs of administering the group, including rent, insurance, equipment, and activities;

(iv) Requires, as a prerequisite to joining

the group, that a parent, step-parent, or legal

guardian of each participating child in the

group volunteer a minimum number of hours

to supervise the participating children during

meetings, regardless of whether the group

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Appendix C

requires parents, step-parents, or legal

guardians of every child to be present at every

meeting;

(v) Notifies, upon registration with the

group, the parents, step-parents, and legal

guardians of each participating child in the

group that the group is not a child development

facility licensed pursuant to this subchapter;

(vi) Does not employ any individual to supervise participating children on behalf of parents other than to facilitate activities while

parents, step-parents, or legal guardians supervise the participating children; and

(vii) Has written policies and procedures for

the prevention of the spread of infectious diseases, response to and prevention of food allergies, emergency preparedness, and handling of

health information.

(4) “Infant” means an individual younger than 12

months of age.

(4A) “Informal parent-supervised neighborhood

play groups” means:

(A) A group of parents, step-parents, or legal

guardians of participating children who gather

together to allow children to play together; and

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Appendix C

(B) The group does not meet the definition of a

formal parent-led play cooperative as defined

in paragraph (3B) of this section.

(5) “Licensee” means a child development facility

that is licensed pursuant to this subchapter.

(6) “Person” means any individual, firm, partnership, company, corporation, trustee, or association.

(6A) “Pre-k Act of 2008” means Chapter 2A of Title

38 [§ 38-271.01 et seq.].

(7) “Related person” means any legal guardian or

any of the following relationships established by marriage, adoption, or blood to the 5th degree:

(A) Parent or step-parent;

(B) Grandparent;

(C) Brother, sister, step-sister, or step-brother;

(D) Uncle or aunt; or

(E) Niece or nephew.

(7A) “Remediation steps” means, at a minimum,

actions to:

(A) Decrease the elevated lead concentration in

a drinking water source to 5 parts per billion or

less; or

(B) Preclude people from consuming or cooking

with water from a drinking water source.

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Appendix C

(8) “Toddler” means an individual older than 12

months but less than 24 months of age.

DC ST § 7-2032

Applicability and scope

(a) This subchapter shall apply to every child development facility and care giver in the District of Columbia.

(b) Unless exempted by this subchapter or the

laws of other jurisdictions, the provisions and requirements in this subchapter shall also apply to all child

development facilities operated by the District government outside the District of Columbia.

DC ST § 7-2033

Exemptions

The provisions of this subchapter shall not apply to

the following:

(1) Occasional babysitting in a babysitter’s home

for the children of one family;

(2) Informal parent-supervised neighborhood play

groups;

(2A) Formal parent-led play cooperatives;

(3) Care furnished in places of worship during religious services;

(4) Care given by an individual who is related to

the child, infant, or toddler;

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Appendix C

(5) Child development facilities operated by the

federal government on federal government property;

however, a private child care provider utilizing space

in or on federal government property is not exempt

unless federal law specifically exempts the facility

from the District’s regulatory authority; or

(6) Pre-kindergarten education programs licensed

pursuant to Chapter 2A of Title 38.

DC ST § 7-2033.01

Transfers of personnel, property, and funds

from Department of Health to Office of the

State Superintendent of Education;

continuation.

(a) All positions, personnel, property, records, and

unexpended balances of appropriations, allocations,

and other funds available or to be made available to

the Department of Health that support the functions

related to the licensure of child-care programs in the

Early Care and Education Administration and the

Early Intervention Program shall be transferred to

the Office of the State Superintendent of Education,

established by § 38-2601, within 60 days of July 18,

2008.

(b) All rules, orders, obligations, determinations,

grants, contracts, licenses, and agreements of the Department of Health, the Department of Human Services, the Board of Education, or the District of Columbia Public Schools relating to the functions transferred to the Office of the State Superintendent of Education pursuant to subsection (a) of this section shall

60a

Appendix C

remain in effect according to their terms until lawfully amended, repealed, or modified.

DC ST § 7-2034

License required

(a) Except as otherwise provided in this subchapter, no person shall, either directly or indirectly, operate a child development facility in the District without

first having obtained a license to do so.

(b) An applicant for a license to operate a child development facility shall establish to the satisfaction of

the Mayor, that the facility meets all requirements set

forth in this subchapter and rules adopted pursuant

to this subchapter.

(c) An applicant for a license shall:

(1) Submit an application to the Mayor on a

form required and provided by the Mayor;

(2) Submit supporting documentation required

by the Mayor; and

(3) Pay the applicable fee established by the

Mayor, except that no license fee shall be required

of any child development facility operated

by

the District government.

(d) The license shall be valid for a period of time to

be determined by the Mayor and only for the premises

and persons named as applicants in the application.

Any change in ownership of a licensee owned by a

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Appendix C

person or in the legal or beneficial ownership of a percentage of stock established by rule of a corporate licensee shall require relicensure.

(e) The Mayor may authorize the issuance of provisional and restricted licenses under specific circumstances and criteria to be established by rule.

DC ST § 7-2035

Licenses issued pursuant

to prior law

Except as otherwise provided by this subchapter, any

child development facility licensed pursuant to the

Child Development Facilities Regulation, enacted December 14, 1974 (Reg. 74-34; 29 DCMR § 300 et seq.)

(“Child Development Facilities Regulation”), as

amended, shall be considered licensed pursuant to

this subchapter and shall be subject to renewal requirements established pursuant to this subchapter.

DC ST § 7-2036

Powers and duties of the Mayor

(a) (1) The Mayor shall promulgate all rules necessary

to implement the provisions of this subchapter, including the following:

(A) Minimum standards of operation of a child

development facility concerning staff qualification, requirements and training, facility size, staffchild ratios and group size, program design and

equipment requirements, safety and health

standards, care for children with special needs,

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Appendix C

nutrition standards, and record keeping requirements;

(B) Administrative procedures for hearings consistent with the

requirements of § 2-509, unless otherwise provided in this subchapter;

(C) Allowance for a child development facility to

operate on a 24-hour basis so long as no child, infant, or toddler will be under the care of the child

development facility for more than 18 consecutive

hours in a 24-hour period, or appropriate hours as

provided by rule; and

(D) The establishment of a fee schedule to recover the costs of regulating child development facilities pursuant to this subchapter.

(2) The rules required to be promulgated pursuant

to this section shall be submitted to the Council for a

30-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the

Council does not approve or disapprove the proposed

rules, by resolution, within this 30-day review period,

the proposed rules shall be deemed approved.

(b) The Mayor may conduct investigations and inspections needed to ensure compliance with this subchapter. In this regard, the Mayor may administer oaths,

examine witnesses, and issue subpoenas to compel attendance and testimony of witnesses and the production of books, records, and other documents needed to

enforce this subchapter. In case of contumacy or refusal to obey a subpoena, the Superior Court of the

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Appendix C

District of Columbia, at the request of the Mayor,

shall issue an order requiring the contumacious person to appear and testify or produce books, papers, or

other evidence bearing on the hearing. Failure to obey

the court’s order shall be punishable as contempt of

court.

(c) The Mayor shall maintain and make available to

the public information concerning:

(1) The application, licensure, and renewal requirements and procedures; and

(2) An official register of currently licensed child

development

facilities.

DC ST § 7-2036.01

Child Development Facilities Fund

(a) There is established as a special fund the Child

Development Facilities Fund ("Fund"), which shall be

administered by the Office of the State Superintendent of Education in accordance with subsection (c) of

this section.

(b) Revenue from all payments, fees, and fines collected pursuant to this subchapter shall be deposited

in the Fund.

(c) Money in the Fund shall be used for the following purposes:

(1) To fund activities regulating child development facilities, including the enforcement and

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Appendix C

monitoring activities concerning the licensure of

child development facilities, pursuant to this subchapter; and

(2) Appropriate overhead and administrative

expenses related to the Fund.

(d)(1) The money deposited into the Fund shall not

revert to the unrestricted fund balance of the General

Fund of the District of Columbia at the end of a fiscal

year, or at any other time.

(2) Subject to authorization in an approved

budget and financial plan, any funds appropriated in the Fund shall be continually available

without regard to fiscal year limitation.

DC ST § 7-2037

Variances

An applicant operating a child development facility

prior to July 1, 1975, may be granted a variance from

the physical or structural requirements of any rule

adopted pursuant to this subchapter upon a determination by the Mayor that full compliance would result

in exceptional and undue hardship. Any variance

shall be granted in accordance with procedures established by rule.

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Appendix C

DC ST § 7-2038

License renewal

(a) A license shall be renewed in accordance with

rules established pursuant to this subchapter, unless

there is a pending disciplinary action by the Mayor.

(b) An application for renewal of a license shall be

submitted to the Mayor no later than 90 days before

expiration of the license on a form provided by the

Mayor with the appropriate renewal fee. An application for renewal fewer than 90 days after expiration,

shall be renewed in accordance with renewal requirements established by rule, including the payment of

the renewal fee and any late penalty.

(c) A child development facility holding a valid license at the time of application for renewal shall continue to operate as licensed until the Mayor acts on

the renewal application.

DC ST § 7-2039

Denial of a license

The Mayor may, subject to the right to a hearing, deny

an initial or renewal license to an applicant who fails

to establish that the applicant meets the requirements for licensure established by this subchapter

and rules issued pursuant to this subchapter.

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Appendix C

DC ST § 7-2040

Revocation, suspension, denial

of license

The Mayor may, subject to the right to a hearing, refuse to issue, revoke, suspend, or deny renewal of a

license to operate a child development facility to a person who is found to have:

(1) Failed to comply with the provisions of this

subchapter and any rules or regulations promulgated

pursuant to this subchapter;

(2) Failed to comply with other federal and District

laws applicable to child development facilities;

(3) Committed, aided, abetted, or permitted to be

committed any act of dishonesty, fraud, gross negligence, abuse, assault, battery, or other illegal acts related to the operation of the facility; or

(4) Been convicted of a crime involving moral turpitude.

DC ST § 7-2041

Summary suspension

(a) If, after an investigation, the Mayor determines that a licensee has failed to comply with the

provisions of this subchapter or any rules promulgated pursuant to this subchapter in such a manner

as to present an imminent danger to the health,

safety, and welfare of children, infants, toddlers, or

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Appendix C

the general public, the Mayor may summarily suspend or restrict the license prior to a hearing.

(b) The Mayor must provide the licensee with written notice of the summary suspension initiated pursuant to subsection (a) of this section, the reason for

the suspension, and the right to request a hearing.

(c) The licensee shall have 5 days after service of

the notice of the summary suspension in which to request a hearing to challenge the summary suspension. A hearing shall be held within 5 business days

of a timely request and the Mayor shall issue a decision within 5 business days after closing the record.

DC ST § 7-2042

Cease and desist orders

(a) If, after investigation, the Mayor determines

that a person has violated any provision of this subchapter or any rule issued pursuant to this subchapter, and the violation presents an imminent danger to

the public, the Mayor may issue a written order directing the person to cease and desist from the violation.

(b) Within 5 days of service of the cease and desist

order, the person shall request an expedited hearing

on the violation. If no request for a hearing is made

within the 5-day period, the cease and desist order

shall be final. Within 5 business days of a timely request for an expedited hearing, the Mayor shall conduct a hearing.

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DC ST § 7-2043

Right of entry and inspection

To ensure compliance with the provisions of this subchapter and rules adopted pursuant to this subchapter, the Mayor, or any duly authorized designee, shall

be permitted at reasonable times to conduct an inspection of any child development facility licensed

pursuant to this subchapter or for which a license application has been filed.

DC ST § 7-2044

Hearings

(a) Exception as provided in § 7-2041, before the

Mayor denies an application, suspends, revokes, or restricts a license, or imposes a civil fine, the Mayor

shall give the person notice of the contemplated action

and an opportunity for a hearing. The Mayor shall

send all notices by certified mail. Notice of a scheduled hearing shall be sent by certified mail at least 20

days before the hearing date except when an expedited hearing has been requested. The Mayor may request all parties to participate in a settlement conference prior to a hearing and may enter into a negotiated settlement agreement or consent decree in lieu

of a hearing.

(b) The Mayor may delegate the authority to conduct a hearing and issue a final decision to an administrative law judge or an attorney examiner in accordance with rules issued pursuant to this subchapter.

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DC ST § 7-2045

Judicial review

A person aggrieved by a final decision of the Mayor

may appeal the decision to the District of Columbia

Court of Appeals pursuant to § 2-510.

DC ST § 7-2046

Criminal and civil penalties

(a) Any person who violates any provision of this

subchapter shall, upon conviction, be subject to imprisonment not to exceed 6 months or a fine not to exceed $300, or both. Each unlawful act shall constitute

a separate violation of this subchapter.

(b) Any person who has been previously convicted

pursuant to this subchapter shall, upon conviction, be

subject to imprisonment not to exceed one year or a

fine not to exceed $5,000, or both.

(c) Civil fines and penalties may be imposed as alternative sanctions for any violations of the provisions

of this subchapter or rules issued under the authority

of this subchapter pursuant to Chapter 18 of Title

2 (“Civil Infractions Act”). The adjudication of any infraction issued pursuant to the Civil Infractions Act

shall be pursuant to of the Civil Infractions Act.

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DC ST § 7-2047

Prosecutions

(a) Prosecutions of violations of this subchapter

shall be brought by the Corporation Counsel in the

name of the District of Columbia.

(b) In prosecutions initiated pursuant to this subchapter, a child development facility claiming an exemption from a licensing requirement of this subchapter shall have the burden of proving entitlement to

the exemption.

DC ST § 7-2048

Injunctions

(a) The Corporation Counsel may bring an action

in the Superior Court of the District of Columbia in

the name of the District of Columbia to enjoin any violation of this subchapter.

(b) Remedies established by this section shall be in

addition to criminal sanctions, civil sanctions, or disciplinary action initiated by the Mayor.

(c) In any proceeding brought pursuant to this section, it shall not be necessary to prove that any person

has been injured by the violation alleged.

DC ST § 7-2049

Repeal of existing regulations

The Child Development Facilities Regulation shall remain in effect until superseded by rules issued by the

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Mayor. Upon the effective date of rules promulgated

pursuant to this subchapter, the Child Development

Facilities Regulation shall be deemed repealed.

DC ST § 7-2050

Pending actions and proceedings;

existing orders

(a) No judicial or administrative proceeding commenced by or against any child development facility,

or officer or employee of a child development facility

in his or her official capacity, shall abate by reason of

the taking effect of this subchapter; but the action or

proceeding shall be continued with substitution as to

parties and officers or agencies as are appropriate.

(b) All decisions issued pursuant to the Child Development Facilities Regulation shall continue in effect until modified, rescinded, or superseded by rules

or regulation issued pursuant to this subchapter.

DC ST § 7-2051

Prevention of lead in drinking

water in child development

facilities

(a) Within 120 days of September 23, 2017, the Department of Energy and Environment ("DOEE") shall

provide a list of approved contractors to all child development facilities, from which child development facilities shall select a contractor to assist in meeting

the requirements of subsection (b) of this section.

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(b) By September 31, 2019, each licensed child development facility shall:

(1) Locate all drinking water sources at the

child development facility;

(2) Install a filter that reduces lead in drinking

water on each drinking water source in the child

development facility and maintain the filters, at

a minimum, in a manner consistent with the manufacturer's recommendations. Filters or all of the

filter's component parts shall be certified for lead

reduction to the National Sanitation Foundation

("NSF")/American National Standards Institute

("ANSI") Standard 53 for Health Effects or

NSF/ANSI Standard 61 for Health Effects;

(3) Post a conspicuous sign near each water

source at the child development facility that is

not a drinking water source, which includes an

image that clearly communicates that the water

source should not be used for cooking, when applicable, or consumed;

(4) Test all drinking water sources at the child

development facility for lead annually;

(5) If a test conducted pursuant to paragraph

(4) of this subsection shows a lead concentration

over 5 parts per billion:

(A) Shut off the drinking water source as

soon as possible but no later than 24 hours after receiving the test result and keep the

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drinking water source shut off until a subsequent test shows that the lead concentration

level is not over 5 parts per billion;

(B) Determine, in writing, which remediation steps should be implemented to address

the elevated lead concentration level;

(C) Send the test result and remediation

steps to parents or guardians of children at the

child development facility through email or

written communication within 5 business days

of receiving the test result; and

(D) Notify parents and guardians of children at the child development facility within 5

business days of the completion of the remediation steps required by subparagraph (B) of

this paragraph.

(c)(1) Any contractor selected pursuant to subsection (a) of this section shall, at times and in a manner

to be determined by the Mayor, provide the child development facility that selected the contractor with

written proof that the contractor's service complied

with the requirements of this section.

(2) A child development facility shall, at times

and in a manner to be determined by the Mayor,

provide proof of compliance with this section to

DOEE.

(d) After a child development facility provides

proof of compliance to DOEE pursuant to subsection

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(c)(2) of this section and DOEE determines that the

child development facility has complied with all the

requirements of this section, DOEE shall:

(1) Compensate the contractor selected pursuant to subsection (a) of this section, pursuant to

rules issued pursuant to subsection (i) of this section; and

(2) Notify the Office of the State Superintendent of Education ("OSSE") that the child development facility has complied with the requirements of this section.

(e)(1) If a contractor provides a false or misleading

proof of compliance under subsection (c)(1) of this section, the Mayor shall, for a 5-year period:

(A) Remove the contractor from all DOEEapproved contractor lists;

(B) Prohibit the contractor from participating in the activities described in this section;

and

(C) Prohibit the contractor from conducting

business with the District government.

(2) The penalty provided in this subsection

shall be in addition to any other penalty provided

by law.

(3) A person aggrieved by an action of the

Mayor taken pursuant to this subsection may

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appeal the action of the Mayor to the Office of Administrative Hearings pursuant to § 2-1831.03(b14).

(f)(1) The Mayor may, at any reasonable time and

with reasonable notice, and upon the presentation of

appropriate credentials to, and with the consent of,

the owner, operator, or person in charge:

(A) Enter a child development facility to determine compliance with this section; and

(B) Inspect and copy any record, report, or

other document or information related to compliance with this section.

(2) If the Mayor is denied access to enter a child

development facility or to inspect and copy records pursuant to paragraph (1) of this subsection, the Mayor may apply to the Superior Court

of the District of Columbia for a search warrant.

(g) OSSE, in consultation with DOEE, shall provide to the Mayor, the Council, and the Healthy

Schools and Youth Commission, no later than June 30

of each year, a report on child development facility

compliance with this section.

(h) Nothing in this subsection is intended to, or

does, create a private right of action against any person or entity based upon compliance or noncompliance with its provisions. No person or entity may assert any claim or right as a beneficiary or protected

class under this subsection in any civil, criminal, or

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administrative action against the District of Columbia.

(i) Within 120 days after September 23, 2017, the

Mayor, in consultation with OSSE, pursuant to subchapter I of Chapter 5 of Title 2, shall issue rules to

implement the provisions of this section, including

rules by which DOEE shall compensate contractors

for services provided under subsection (b) of this section.

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Appendix D

DISTRICT OF COLUMBIA

MUNICIPAL REGULATIONS

CHILD DEVELOPMENT

FACILITIES; LICENSING

5-A DCMR § 100

AUTHORITY AND PURPOSE

100.1 In accordance with Section 7 of the Child Development Facilities Regulation Act of 1998, effective

April 13, 1999 (D.C. Law 12-215; D.C. Official Code §

7-2036 (2012 Repl. & 2015 Supp.)) (“Facilities Act”),

the Office of the State Superintendent of Education

(“OSSE”) shall administer and enforce this chapter.

100.2 The purposes of this chapter include the following:

(a) Protecting and promoting the health, safety,

welfare and positive development of children who

receive services in licensed Child Development Facilities;

(b) Defining the general procedures and requirements to obtain and maintain a license to operate

a Child Development Facility; and

(c) Setting forth the minimum standards applicable to the District's licensed Child Development

Facilities.

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5-A DCMR § 101

APPLICABILITY

101.1 A Child Development Facility that is licensed

(“Licensee”), required to be licensed, or applying for a

license shall comply with the requirements of this

chapter, and with all applicable federal and District

of Columbia laws and regulations.

101.2 Unless specifically exempted, the provisions of

this chapter shall apply to a Child Development Facility that is licensed, required to be licensed, or applying for a license under the Facilities Act and this

chapter, and their respective staff.

101.3 The phrase “Child Development Facility” (“Facility”), as defined in this chapter, includes any person

or persons, or entity or organization, whether organized formally or informally, unless specifically exempted:

(a) That provides care, education, and other services, supervision, and guidance for more than two

(2) infants, toddlers, and children that are not related, on a regular basis;

(b) Includes the administration, program, and premises of a Child Development Facility, other parts

of the building housing the Facility, and adjoining

grounds over which the administrator has direct

control; and

(c) Includes:

(1) A Child Development Center (“Center”);

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(2) A Child Development Home;

(3) An Expanded Child Development Home

(“Expanded Home”); and

(4) An Out-of-School-Time (OST) Program.

101.4 Except as provided in Subsection 101.5, no person shall either directly or indirectly operate a Facility, for any purpose, until a license has been issued to

that person stating that the use complies with the

provisions of this chapter and all applicable federal

and local laws and regulations.

101.5 The following child development services shall

be exempt from obtaining a license to operate a Facility:

(a) Occasional babysitting in a babysitter's home

or a child's home for the children of one (1) family;

(b) Care provided in a child's home by a caregiver

paid for by a child's family;

(c) Care provided for more than one (1) child in a

Nanny-Share, as defined in this chapter;

(d) Informal or occasional parent-supervised play

groups;

(e) Adult gyms or clubs that provide temporary

babysitting as a benefit in order for members to

utilize services;

(f) Adult education programs that provide child

care services while parent(s) are on the same

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Appendix D

campus as the child attending a class or education

program for a temporary period of time;

(g) Child-centered businesses that solely provide

sessions, classes or activities including, but not

limited to, tutoring, music, dance, sport, or art,

while parent(s) or guardian(s) remain on the business' premises;

(h) Care provided in places of worship during religious services;

(i) Care provided by a related person, as defined in

this chapter;

(j) Facilities operated by the Federal Government

on Federal Government property, except that a

private entity utilizing space in or on Federal government property is not exempt unless Federal

law specifically exempts the Facility from the District of Columbia's regulatory authority;

(k) District of Columbia public school or public

charter school providing education services to children in grades pre-K-3 through twelfth (12th)

grade during a full school day;

(l) A private school providing education services to

children in grades pre-K-through twelfth (12th)

grade during the a full school day; and

(m) A community based organization providing

only pre-K education services to pre-K age children pursuant to the Pre-k Act and funded by

OSSE;

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(n) Facilities that provide only before school care,

only after school care, or only summer camp to

school age children; and

(o) Facilities otherwise exempted by law.

101.6 A Facility that has entered into a Child Care

Subsidy Provider Agreement with the District of Columbia shall comply with the terms of such Provider

Agreement in addition to the provisions of this chapter.

5-A DCMR § 102

GENERAL LICENSE REQUIREMENTS

102.1 Except as otherwise provided in this chapter, no

person shall either directly or indirectly operate a Child

Development Facility without first obtaining a license

issued by OSSE, or its successor agency.

102.2 A license shall be issued only to a Facility for

which an application is made.

102.3 A license shall be for the address of the Facility’s

actual side.

102.4 OSSE shall issue a license after receipt of a complete application, if OSSE determines that the application establishes, to OSSE’s satisfaction, that the Facility

will be operated in compliance with the provisions of this

chapter and all applicable federal and local laws and

regulations.

102.5 If a conflict exists between a general requirement

and a specific requirement of this chapter applicable to

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a particular classification or size of Facility, the specific

requirement shall apply.

102.6 OSSE shall issue the following types of licenses:

(a) Initial License. An initial license may be issued

by OSSE to an applicant who is not currently licensed;

(b) Renewal License. A renewal license may be issued by OSSE to a current Licensee demonstrating

substantial compliance with this chapter that applies for renewal before the expiration of the current

license; or

(c) Restricted License. A restricted license may be

issued by OSSE as an alternative to suspending or

revoking an existing license when a Facility has one

or more deficiencies.

102.7 The initial license and each renewal license may

be valid for a three (3) year period beginning on the date

of issuance.

102.8 Each Facility licensed pursuant to this chapter

that accepts public funding shall participate in OSSE's

Quality Rating and Improvement System or any successor tiered-quality rating system.

102.9 Each Facility licensed pursuant to this chapter

that does not accept public funding may participate in

OSSE’s Quality Rating and Improvement System, or

any successor tiered-quality rating system.

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102.10 Each license shall state:

(a) The name of the License;

(b) The name of the parent entity (if any) of the License or person(s) with ownership interests in the

Facility;

(c) The classification of the Facility as Center, Home

or Expanded Home;

(d) The address of the Facility

(e) The maximum allowable number of children who

may be cared at the Facility, including the maximum

capacity for each age category of children served at

the Facility;

(f) The limitations, if any, on services authorized; and

(g) The expiration date of the license.

102.11 A Licensee shall display the original license issued pursuant to these regulations, at all times in a conspicuous place readily visible and accessible to the public at the premise(s) named on the license.

102.12 A Licensee shall comply with the provisions

stated on its license unless otherwise authorized under

this chapter.

102.13 A separate license shall be required for each

building functioning as a Facility, even if on the same

premise(s).

102.14 A license shall remain the property of OSSE.

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102.15 A license is not transferable, assignable, or subject to sale.

102.16 A license shall be void, and a License shall surrender the license to OSSE immediately upon the occurrence of any of the following:

(a) A License closes the Facility permanently;

(b) The license is revoked;

(c) The license is suspended;

(d) The license expires and the application for a renewal license is denied; or

(e) The license expires and the Facility has not applied for a renewal license.

5-A DCMR § 103

APPLICATION FOR INITIAL LICENSE

103.1 An applicant for an initial license to operate a Facility under this chapter shall initiate the application in

the name of the person or persons or legal entity or entities with ownership interests and who are responsible

for operation of the Facility.

103.2 Prior to submitting an application for an initial

license to operate a Facility under this chapter, the applicant shall complete a Child Development Facility licensing orientation facilitated by or on behalf of OSSE.

If an applicant submits an application prior to completing the required orientation, OSSE may suspend processing the application until this requirement is met.

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103.3 An applicant for an initial license to operate a Facility under this chapter shall submit a complete application to OSSE.

103.4 OSSE shall consider that an application is complete when the applicable fees, imposed pursuant to Section 108 (Fees) of these regulations, all required documentation listed on the application form issued by

OSSE, and all information requested on the application

form, are provided.

103.5 In addition to the required documentation listed

on the application form issued by OSSE, each applicant

shall obtain, and provide OSSE with the original version

of the following:

(a) A Certificate of Occupancy, Home Occupation

Permit, or other succeeding form of equivalent proof

that the premise(s) comply with all applicable Federal and District of Columbia building, fire-safety,

construction, and zoning laws, regulations and codes

and that the premise(s) are fit and suitable for the

operation of a Child Development Facility, issued by

the District of Columbia Department of Consumer

and Regulatory Affairs (“DCRA”);

(b) A fire safety inspection certification or other equivalent proof that the premise(s) comply with all applicable Federal and District of Columbia fire safety

laws, regulations and codes, issued by the District of

Columbia Department of Fire and Emergency Medical Services (“FEMS”) not more than ninety (90) days

old;

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(c) A certification or clearance report issued by a D.C.

Department of Energy and Environment (“DOEE”)

certified lead- based paint inspector, risk assessor, or

dust sampling technician confirming that the Facility does not contain any lead-based paint hazards, issued no more than thirty (30) days prior to the date

of application;

(c-1) Proof of compliance with section 21a of the Facilities Act;

(d) [RESERVED];

(e) A Clean Hands certification that the applicant

satisfies the requirements that must be met in order

to obtain a license or permit from the District government, set out in D.C. Official Code § 47-2862, issued

by the District of Columbia Office of Tax and Revenue within thirty (30) days of the date the application is submitted;

(f) Proof of insurance, that includes a reasonable coverage amount, as determined by the District of Columbia Office of Risk Management, for the following

types of coverage:

(1) Commercial General Liability;

(2) Umbrella “Follow Form” Liability;

(3) Sexual Abuse & Molestation Liability; and

(4) Vehicle liability covering every vehicle that

will be used to provide transportation services to

children at the Facility; and

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(g) A current, valid, and notarized building use

agreement that identifies a contingency location that

may be used if the primary location of operation

ceases to be available and includes, but is not limited

to, the following:

(1) Contact information for the owner of the building;

(2) The purpose of the use;

(3) General guideline and requirements;

(4) Proof of appropriate insurance coverage;

(5) Proof of valid certificate of occupancy;

(6) Proof of updated safety inspections that are

required specific for a Child Development Facility;

(7) User responsibilities;

(8) User restrictions; and

(9) Facility usage fee, if any.

103.6 An application for an initial license shall include

a signed declaration by the applicant, or by a person authorized to submit the application on the applicant's behalf if the applicant is not an individual, that the contents of the application and the information provided

with it are true, accurate, and complete.

103.7 Upon receipt of a complete application for an initial license, and prior to the issuance of the license,

OSSE shall review the application and conduct an on-

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site inspection to determine whether the Facility is in

compliance with the requirements in this chapter.

103.8 If, in the course of the on-site inspection for an

initial license, OSSE determines that a Facility is out of

compliance with any requirement of this chapter, or that

the application is deficient in any way, OSSE may issue

a Statement of Deficiency(ies).

103.9 After receipt of notification from the applicant

that every stated deficiency has been corrected, OSSE

shall conduct a follow-up application review and inspection or inspections as needed to determine whether the

Facility is in compliance with this chapter.

103.10 OSSE may deny the application for an initial license if:

(a) An applicant fails to provide a complete application within ninety (90) days of the initial submission;

(b) An applicant demonstrates inability to abate the

identified deficiencies under this chapter within the

required timeframe specified by OSSE, which shall

not to exceed ninety (90) days;

(c) An applicant demonstrates inability to comply

with this chapter within the required timeframe

specified by OSSE, which shall not to exceed one

hundred and eighty (180) days;

(d) An applicant or, if the applicant is a business entity, any owner, officer, or employee of the applicant,

who the applicant plans to assign to work at the

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Facility is registered, or is required to be registered,

on a State child protection registry or repository; or

(e) The provisions of this chapter are not met.

5-A DCMR § 104

APPLICATION FOR RENEWAL LICENSE

104.1 The application for a renewal license shall be submitted no later than ninety (90) days before the expiration date of the existing license.

104.2 The existing license shall remain in effect until

OSSE makes a final determination with regard to the

application for a renewal license, if a Licensee submits a

timely and complete renewal license application, provided that the Licensee complies with the terms, conditions, and restrictions applicable to the license.

104.3 An applicant for a renewal license to operate a

Child Development Facility under this chapter shall

submit a complete application to OSSE

104.4 OSSE shall consider an application complete

when the appropriate fees, pursuant to Section 108

(Fees) and all required documentation listed on the application form issued by OSSE, the documentation required by these regulations, and a fully complete application form is submitted.

104.5 In addition to the required documentation listed

on the application form issued by OSSE, each applicant

shall obtain:

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(a) A fire safety inspection certification or other

equivalent proof from FEMS that the premise(s)

comply with all applicable Federal and District of Columbia fire safety laws, regulations and codes, issued

by FEMS;

(a-1) Proof of compliance with section 21a of the Facilities Act;

(b) A Clean Hands certification that the applicant

satisfies the requirements that must be met in order

to obtain a license or permit from the District government, set out in D.C. Official Code § 47-2862, issued

by the District of Columbia Department of Tax and

Revenue within thirty (30) days of the date the application is submitted;

(c) A Certificate of Immunization Compliance that

the applicant reached the immunization compliance

target issued by the District of Columbia Department of Health;

(d) Proof of insurance, that includes a reasonable coverage amount, as determined by the District of Columbia Office of Risk Management, for the following

types of coverage:

(1) Commercial General Liability;

(2) Umbrella “Follow Form” Liability;

(3) Sexual Abuse & Molestation Liability; and

(4) Vehicle liability covering every vehicle that

will be used to provide transportation services to

children at the Facility; and

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(e) A current, valid, and notarized building use

agreement that identifies a contingency location that

may be used if the primary location of operation

ceases to be available and includes, but is not limited

to, the following:

(1) Contact information for the owner of the building;

(2) The purpose of the use;

(3) General guideline and requirements;

(4) Proof of appropriate insurance coverage;

(5) Proof of valid certificate of occupancy;

(6) Proof of updated health and safety inspections

specific to a Facility;

(7) User responsibilities;

(8) User restrictions; and

(9) Facility usage fee, if any.

104.6 An application for a renewal license shall include

a signed declaration by the applicant, or by a person authorized to submit the application on the applicant's behalf if the applicant is not an individual, that the contents of the application and the information provided

with it are true, accurate, and complete.

104.7 If a Licensee submits an incomplete or late application, the Licensee may pay the appropriate penalty fee

to extend the current license until the application for the

renewal license is approved or denied by OSSE, but for

not longer than one hundred and eighty (180) days. If

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the application for a renewal license is still incomplete

after one hundred and eighty (180) days, the current license will be deemed to have expired and the renewal

application shall be deemed denied, effective on the first

day after the expiration of this one hundred and eighty

day (180) period.

104.8 If the Licensee submits an incomplete or late application, OSSE may, in its discretion, waive the penalty

fee if the Licensee demonstrates to OSSE's satisfaction,

in writing:

(a) Evidence of good faith effort to submit a complete

application for a renewal license on time; and

(b) Evidence of delay or hardship for reasons not

within the Facility's control.

104.9 Upon receipt of a complete application for a renewal license, and prior to the issuance of the renewal

license, OSSE may conduct an on-site inspection to determine whether the Facility is in compliance with this

chapter.

104.10 If, in the course of the on-site inspection for a renewal license, or review of an application for license renewal, OSSE determines that an existing Licensee is

out of compliance with any requirement of this chapter,

OSSE may issue a Statement of Deficiencies.

104.11 After receipt of notification from the existing Licensee that every stated deficiency has been corrected,

OSSE shall conduct a follow-up inspection or inspections

and, where appropriate, review of the application or

other materials, to determine whether the Facility is in

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compliance with applicable laws and the regulations of

this chapter. Nothing in this procedure shall extend the

deadline by which a license be renewed in order to avoid

being deemed denied.

104.12 OSSE may deny the application for a renewal license if:

(a) An applicant fails to abate the identified deficiencies within the required timeframe specified by

OSSE;

(b) An applicant fails to comply with this chapter

within the required timeframe specified by OSSE; or

(c) The provisions of this chapter are not met.

104.13 If a renewal license is denied, the Licensee shall

not care for any children and shall cease all operations

upon the expiration of the current license.

5-A DCMR § 105

APPLICATION FOR AN

AMENDED LICENSE

105.1 A Licensee may submit an application to

amend an issued license.

105.2 An application for an amended license shall be

in the form approved by OSSE and include:

(a) Justification for the amendment;

(b) Description of the impact of the amendment on

the services offered;

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(c) Applicable licensure fee required in Section 108

(Fees); and

(d) Any other information OSSE may reasonably

require.

105.3 An application for an amended license shall be

subject to the same review and requirements as an

application for an initial or renewal license, including

an on-site inspection if OSSE determines it would be

necessary or useful.

5-A DCMR § 106

WAIVER

106.1. OSSE, may waive compliance with one or more

provisions in this chapter, if OSSE determines, upon

clear and convincing evidence the following:

(a) The demonstrated immediate economic impact

or hardship on the Facility or staff member is sufficiently great to make immediate compliance impractical despite diligent efforts;

(b) The Facility or staff member is meeting or exceeding the intent of the regulation for which the

waiver is requested; and

(c) The health and welfare of staff and children are

not jeopardized as alternative means have been

put in place that ensure the health, safety, and

welfare of children and staff.

106.2 A Child Development Facility licensed (“Licensee”), required to be licensed, or applying for a license

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may apply for a waiver by submitting a written request to OSSE that shall include the following:

(a) Name, address of the Facility, and its assigned

license number;

(b) Citation of the rule for which a waiver is being

sought;

(c) The waiver sought

(d) Proof of immediate economic impact or hardship on the Facility or staff member;

(e) Proof that the intent of the specific regulation

shall be achieved in a manner other than that prescribed by the regulation and that the health,

safety, and welfare of children in care will be preserved;

(f) All other relevant information regarding the alleged hardship; and

(g) Any other evidence OSSE may reasonably require.

106.3 OSSE shall respond to the request for a waiver,

in writing, within thirty (30) days of receipt of the request.

106.4 Any waiver granted shall be posted at the Facility in the vicinity of the posted license and available

on request.

106.5 Any waiver is issued at the discretion of OSSE

and may be revoked by OSSE at any time, either upon

violation of any condition attached to it, or upon the

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determination of OSSE that continuance of the

waiver is no longer in the best interest of children in

its care.

106.6 Noncompliance with the terms of the waiver

shall void the waiver, require the site to comply with

the regulation that had been waived, and may be the

basis of additional enforcement action.

5-A DCMR § 107

RESTRICTED LICENSE

107.1 As an alternative to suspending or revoking an

existing license when a Child Development Facility

(“Facility”) has one (1) or more deficiencies, OSSE

may issue a restricted license for no more than one (1)

year, based upon the anticipated completion of corrective actions required pursuant to a Statement of Deficiencies.

107.2 OSSE may issue a restricted license for no

more than thirty (30) days if a Facility needs to relocate to its identified contingency location due to a

temporary closure, so long as the Facility has a current and valid building use agreement with the contingency location.

107.3 A Facility operating under a restricted license

shall not enroll additional children.

107.4 A Licensee may only operate within the individualized parameters of the restricted license, as determined by OSSE, based on the Facility specific deficiencies.

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107.5 A restricted license will not be issued for deficiencies that jeopardize the health, safety, or welfare

of children, staff, or the general public.

107.6 If all of the noted deficiencies are successfully

addressed during the restricted license period, OSSE

will reinstate the full license that had been in effect

to the Licensee.

107.7 Failure to successfully complete the corrective

action(s), the basis of which resulted in the restricted

license, will result in automatic termination of the restricted license or suspension or revocation of the Facility's license, or both.

5-A DCMR § 108

FEES

108.1 Fees for a license to operate a Child Development Facility (“Facility”) shall vary based on the type

of Facility and the capacity of the Facility, as determined by OSSE.

108.2 Each applicant for a license to operate a Facility shall pay an application and pre-licensure inspection fee in the amount of seventy-five dollars ($75.00).

108.3 Each applicant for an initial license to operate

a Facility for a three (3) year duration shall pay the

applicable fee:

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Appendix D

Initial License Fees

Applicable Fee

Child Development Home or

Expanded Home

$225.00

Child Development Center,

1 - 50 Children

$600.00

Child Development Center,

51 - 100 Children

$900.00

Child Development Center,

101 - 175 Children

$1,200.00

Child Development Center,

Over 175 Children

$1,500.00

108.4 Each applicant for a renewal license to operate

a Facility for a three (3) year duration shall pay the

applicable fee:

Renewal License Fees

Applicable Fee

Child Development Home or

Expanded Home

$225.00

Child Development Center,

1 - 50 Children

$600.00

Child Development Center,

51 - 100 Children

$900.00

Child Development Center,

101 - 175 Children

$1,200.00

Child Development Center,

Over 175 Children

$1,500.00

108.5 A penalty fee may be imposed for a late or incomplete renewal license application, pursuant to this

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chapter, to extend a Facility's current license accordingly:

Penalty Fee for Renewal License

Applicable Fee

90 day Extension

$100.00

180 day Extension

$200.00

108.6 The following fees are also applicable to a license to operate a Facility:

Other Fees

Fee to Replace an Issued License

Fee to Amend an Issued License

Applicable Fee

$100.00

$100.00

108.7 OSSE may make reasonable adjustments to license fees, by rulemaking. A new fee schedule shall

be published by OSSE at least thirty (30) days before

any new fee is implemented.

108.8 The fees described in this section do not include

the cost of any inspections to be conducted by an entity or agency other than OSSE, including but not limited to, a fire or lead based paint hazard inspection.

108.9 Fee payment is non-transferable and non-refundable.

5-A DCMR § 109

CHANGES REQUIRING A NEW LICENSE

109.1 A Child Development Facility licensed by

OSSE shall submit an application for an initial license if:

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Appendix D

(a) A change in ownership, as defined in this chapter, is proposed. When a change in ownership of a

Facility will occur, a Licensee shall apply for a new

initial license at least ninety (90) days before new

ownership takes effect; and

(b) A change in location is proposed. When a Facility permanently changes location, it is considered

a new operation. A Licensee shall apply for a new

initial license and a new license shall be obtained,

prior to opening at the new location. A temporary

closure, pursuant to Subsection 107.2, is not considered a change in location.

5-A DCMR § 110

NOTICE REQUIREMENTS FOR

CHANGES IN OPERATION

110.1 Licensee shall notify OSSE in writing no less

than thirty (30) calendar days before the implementation of any of the following planned changes in operation:

(a) Renovation or alteration of the premises that

exceeds the scope of minor modification pursuant

to Title 11 DCMR, and that requires the Facility

to submit an application for modification to DCRA.

Upon receiving a new Certificate of Occupancy but

prior to serving any additional children, a Licensee

shall apply for an amended license;

(b) Change in telephone number of the Facility or

a disruption of telephone service at the Facility;

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(c) A significant change in circumstances, including but not limited to:

(1) Operation of the program;

(2) Hours of operation;

(3) Services provided;

(4) Increase in capacity;

(5) Program space usage; or

(6) Closure of the Facility.

(d) In the case of a Child Development Home or

Expanded Home, a change in the Caregiver's first

or last name;

(e) In the case of a Child Development Home or

Expanded Home, any new additional person(s)

who intend to reside in the household and who

were not listed on the application for licensure, including the new member's criminal history; or

(f) In the case of a Child Development Center, a

change in the Center Director, including the new

Center Director's credentials.

110.2 If a Facility undergoes any of the listed changes

in operation without the change being planned in advance, the Licensee shall notify OSSE, in writing,

within twenty-four (24) hours of the change occurring.

110.3 Upon notification of the change(s), OSSE may

inspect the Facility to evaluate the impact of the

change(s) on the provision of child development services.

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110.4 Based upon the nature of the change(s) in operation, OSSE may require that an initial or renewal

application, along with the appropriate fees, be submitted.

110.5 Upon notification of the change(s), OSSE may

issue an amended license, consistent with the approved change(s) and subject to the provisions of this

chapter.

5-A DCMR § 111

MONITORING AND INSPECTIONS

111.1 OSSE, and any other duly authorized official of

OSSE or another agency of the District of Columbia

having jurisdiction over or responsibilities for a Child

Development Facility (“Facility”), after presenting official credentials or identification or authority issued

by the District of Columbia, shall have the right, either with or without prior notice, to enter upon and

into the premises of any Facility licensed, required to

be licensed or that has applied for licensure, to facilitate verification of information submitted by a Facility and to determine compliance with the Facilities

Act or other applicable Federal and District of Columbia laws and regulations.

111.2 An authorized entrant shall conduct an inspection in a manner that minimizes disruption to a Facility.

111.3 The right of entry and inspection shall also extend to any premise that OSSE reasonably believes is

being operated or maintained as a Facility without a

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valid license provided that entry or inspection shall

be made with the permission of the individual in

charge of the premises or with a warrant obtained

from the D.C. Superior Court, pursuant to D.C. Official Code § 11-941, or an appropriate court of competent jurisdiction, authorizing the entry or inspection

for the purpose of determining compliance with this

chapter.

111.4 OSSE is authorized to issue a subpoena to inspect and investigate a Facility in order to determine

compliance with the provisions of this chapter, that

may be enforced in accordance with the terms of D.C.

Official Code § 7-2036(b).

111.5 OSSE, and other authorized District of Columbia officials, shall have access to all records of the Facility, including but not limited to:

(a) Child, staff, and administrative records;

(b) Financial, tax, and inspection records;

(c) Surveillance footage from a Facility's recording

devices;

(d) Policies and procedures; and

(e) Any other information or documentation necessary to determine the Facility's compliance with

applicable Federal and District of Columbia laws

and regulations.

111.6 Each Licensee shall receive, at minimum, one

(1) annual announced and one (1) annual unannounced inspection to:

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(a) Facilitate verification of information submitted

by the Licensee;

(b) Determine compliance with the Facilities Act,

or other applicable Federal and District of Columbia laws and regulations; and

(c) Verify compliance with waiver terms, if applicable.

111.7 Annual required documents shall be updated

and available for review during annual inspections.

111.8 Upon its own initiative, or upon receipt of information alleging violation(s) of any law or regulation under its jurisdiction, OSSE may conduct announced or unannounced on-site investigations or

desk audits.

111.9 OSSE shall maintain and make available to the

public by electronic means, a list of all of the Facilities

licensed that includes the following information for

each licensed Facility:

(a) Dates of monitoring and inspection;

(b) Results of monitoring and inspection reports;

(c) Any corrective action taken;

(d) Substantiated complaints about failure to comply with the provisions of this chapter or such

amendment, and all applicable federal and local

laws and regulations; and

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Appendix D

(e) The number of deaths, serious injuries, and instances of substantiated child abuse that occurred

in each Facility.

5-A DCMR § 112

ENFORCEMENT ACTIONS

112.1 A Child Development Facility licensed, required to be licensed, or applying for a license may be

subject to any of the following enforcement actions by

OSSE, or any other authorized government entity,

when that agency or entity has jurisdiction, for violations of Federal or District of Columbia laws or regulations:

(a) Denial of application for initial license;

(b) Denial of application for renewal license;

(c) Issuance of a restricted license;

(d) Suspension of a license;

(e) Revocation of a license;

(f) Cease and desist order;

(g) Civil fines;

(h) Summary suspension;

(i) Criminal prosecution; or

(j) Injunction.

112.2 Other than where OSSE proposes to issue a

Notice of Summary Suspension or a Cease and Desist

order, OSSE shall provide written notification of the

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Appendix D

proposed enforcement action to the Licensee or applicant prior to initiating any of the enforcement actions

in Subsection 112.1.

112.3 Advance written notice is not required prior to

summary suspension or issuance of a cease and desist

order.

112.4 Unless otherwise specified in this chapter, Notice required by this section shall be served by certified mail upon the Licensee or applicant at the current physical address of the Facility as shown in OSSE's records.

112.5 Notice served by certified mail is deemed

served on the date stamped upon the return receipt,

indicating delivery of the Notice to the applicant or

Licensee.

112.6 Unless otherwise specified in this chapter,

written notification of a proposed enforcement action

shall include the following:

(a) The intent and nature of the proposed enforcement action, specifying the basis for the intended

action;

(b) Notice of the effective date of the proposed action;

(c) Notice of the description of, and citation for,

each violation alleged;

(d) In the case of a license suspension, notice of the

time period of the proposed suspension;

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Appendix D

(e) Signature of authorized OSSE official;

(f) Notice that an applicant or Licensee may request a hearing on the proposed enforcement action by submitting a written request to the Office

of Administrative Hearings within ten (10) business days after receipt of the Notice, or, if a different time period is prescribed by law, within the applicable time period (which shall be identified in

the Notice);

(g) Notice that the proposed action shall become

final without a hearing on the eleventh (11th)

business day after service of written notification of

the proposed enforcement action if the applicant or

Facility fails to request a hearing within the time

and in the manner specified.

(h) Notice that the Licensee will be required to surrender its current license to OSSE upon final action to convert the license to restricted status, or

to suspend, or revoke the license.

5-A DCMR § 113

REVOCATION, DENIAL AND SUSPENSION

113.1 An application for a license to operate a Facility

may be denied by OSSE or a license to operate a Facility issued pursuant to this chapter may be denied

for renewal, suspended for a period determined by

OSSE, or revoked by OSSE if the applicant or Licensee, or an employee or volunteer of either, has:

(a) Failed to comply with any provision of the Facilities Act or this chapter;

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Appendix D

(b) Failed to comply with any federal or District of

Columbia laws or regulations applicable to Facilities;

(c) Fraudulently or deceptively obtained or attempted to obtain an initial license or renewal license or committed any other action described in

D.C. Official Code § 7-2040(3);

(d) Provided false or misleading information on

any form or report required by OSSE;

(e) Failed to allow authorized officials entry to conduct an inspection or investigation, or to otherwise

determine whether the applicant or Licensee is in

compliance with this chapter or any relevant federal or District of Columbia laws or regulations;

(f) Employed any method of discipline prohibited

by this chapter;

(g) Been determined by a duly authorized District

of Columbia government official to pose a danger

to children or youth, pursuant to CYSHA;

(h) Pled guilty or nolo contendere with respect to,

or received probation before judgment with respect to, or been convicted of, one of the following

crimes as defined in the District of Columbia Official Code or a comparable crime in another state

or federal law:

(1) Murder;

(2) Child abuse;

(3) Rape or sexual abuse;

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Appendix D

(4) A sexual offense involving a minor or nonconsenting adult;

(5) Child pornography;

(6) Kidnapping or abduction of a child;

(7) Subject to Subsection 133.10, illegal possession, use, sale, or distribution of controlled substances;

(8) Illegal possession or use of weapons;

(9) A felony involving behavior or acts that

gravely violate moral sentiments or accepted

moral standards of this community and are of

a morally culpable quality;

(10) A crime of violence as defined in District of

Columbia Official Code § 23-1331(4);

(i) Failed to report suspected child abuse or neglect, as required by District of Columbia Official

Code § 4-1321.02;

(j) Been denied a license to operate a Facility or

had a license to operate a Facility denied, suspended, or revoked in another jurisdiction within

the previous three (3) years for a cause which

would be grounds for denial, suspension, or revocation under this section;

(k) If the Facility at issue is a Child Development

Home, a determination that any person living in

the home that operates as a licensed Facility has

pled guilty or nolo contendere with respect to, or

received probation before judgment with respect

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Appendix D

to, or been convicted of, any of the offenses identified in Subsection 113.1(h);

(l) A determination that an applicant or Licensee,

or any employee or volunteer who is reasonably expected to come into contact with one (1) or more

children, has admitted to or has been found to

have abused or neglected a child in the District of

Columbia or in any other jurisdiction;

(m) Any bankruptcy of the Facility or the parent

entity of the Facility; or

(n) Voluntarily closure by a Facility while enforcement action is pending without OSSE approval.

113.2 A Licensee may not reapply for a license for a

period of three (3) years if the license to operate a

Child Development Facility is revoked.

113.3 If the license of a Facility is suspended or revoked for a building structural issue or construction,

the owner, Center Director or Caregiver may reapply

for a license after all building structural issues are

abated or construction is completed, provided that the

application shall include such evidence as is reasonably required by OSSE to determine that all building

structural or construction issues have been resolved.

5-A DCMR § 114

SUMMARY SUSPENSION,

114.1 OSSE may issue a Notice of Summary Suspension to summarily and immediately suspend the license of a Facility, for a period of not more than forty-

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Appendix D

five (45) calendar days, unless otherwise provided for

in this section, upon finding that circumstances present an imminent danger to the health, safety, or welfare of children, adults, or the general public.

114.2 OSSE may stop placement of children eligible

for subsidized care in the Facility once a Notice of

Summary Suspension has been issued.

114.3 An imminent threat to the health, safety, or

welfare of children, adults, or the general public may

include, but is not limited to, an imminent threat of:

(a) Poor air quality;

(b) Evidence of rodents and insects in the Facility;

(c) Inadequate staffing;

(d) Issues pertaining to improper sanitation and

hygiene;

(e) Substantiated claims of child abuse;

(f) Unsafe handling and preparation of food; or

(g) Any other situation that constitutes a violation

of this chapter or the Facilities Act that poses an

imminent danger to the health, safety, or welfare

of children, adults, or the general public.

114.4 A summary suspension of a license shall be effective upon the delivery to the Facility of a written

Notice of Summary Suspension, unless otherwise

specified by OSSE in the Notice.

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Appendix D

114.5 The Notice of Summary Suspension shall:

(a) Be hand-delivered to the Licensee, at the current physical address of the Facility as shown in

OSSE's records; and

(b) Provide that the Licensee may, within five (5)

days after receipt of the Notice, request a hearing.

If no request for a hearing is made, the Notice

shall become the final administrative decision of

the agency.

114.6 Once a Notice of Summary Suspension has

been delivered to a Facility, the Licensee shall immediately:

(a) Surrender the Facility's current license to

OSSE;

(b) Cease the provision of all child development

services;

(c) Provide parents and guardians with written notification of the Notice of Summary Suspension.

Written notification of the Notice of Summary Suspension shall state the reason provided by OSSE

for the Notice of Summary Suspension, and inform

parents and guardians of the need to make alternative child care arrangements; and

(d) Provide OSSE with a copy of the written notification provided to parents and guardians.

114.7 Except as provided in Subsections 114.10

through 114.12, during the summary suspension period, OSSE shall either reinstate the current license

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Appendix D

or initiate proceedings for the revocation of the license.

114.8 A license that has been summarily suspended

may be reinstated before the end of the suspension

period if OSSE determines that the Facility has:

(a) Provided parents and guardians with proper

and complete information regarding the Notice of

Summary Suspension;

(b) Completely abated the perceived or actual

threat to the health, safety, or welfare of children,

adults, or the general public or established that

there was, in fact, no such threat; and

(c) Demonstrated substantial compliance with the

Facilities Act and with this chapter.

114.9 Requests for review of an OSSE's Notice of

Summary Suspension shall be filed with the Office of

Administrative Hearings not later than five (5) days

after the date the written notification of the Notice of

Summary Suspension is issued. If a request for review

is not received within a timely manner, the summary

suspension shall become the final administrative decision of the agency.

114.10 Upon a timely request for an expedited hearing pursuant to this section, the Office of Administrative Hearings (OAH) shall conduct the hearing within

five (5) business days after the request, and the Office

of Administrative Hearings shall issue a decision

within five (5) business days after the hearing record

is closed.

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Appendix D

114.11 The Administrative Law Judge's final decision

shall be in writing and is the final administrative decision.

114.12 If OAH upholds the basis for summary suspension, and the deficiency is not reinstated pursuant to

Subsection 114.8, the Facility may, before the end of

the initial suspension period, ask OSSE to extend the

suspension period for an additional forty-five (45)

days.

114.13 The burden to demonstrate good cause for extending a summary suspension shall be that of the

Facility, and shall include written evidence from the

Facility showing significant progress has been made

toward achieving compliance with the law(s) or regulation(s) cited, a plan for achieving such compliance

within the additional time sought and information establishing why it is substantially likely that the Facility will, in fact, achieve such compliance, and that

only through the provision of such additional time will

the Facility be able to demonstrate such compliance.

114.14 If OSSE determines, in its sole discretion, that

there is a substantial likelihood that if the Facility is

granted an additional forty-five (45) days in which to

correct all violations cited in the Notice of Suspension,

and will be able to operate in accordance with this

chapter and the Facilities Act, OSSE may, in its sole

discretion, extend the summary suspension for up to

an additional forty-five (45) days. Under no circumstance shall a summary suspension period last more

than a total of ninety (90) calendar days.

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Appendix D

5-A DCMR § 115

CEASE AND DESIST

115.1 If OSSE reasonably believes that a Licensee,

parent entity, or any person has violated the Facilities

Act or any provision of this chapter, and that the violation presents an imminent threat to the health,

safety, or welfare of children, adults, or the general

public, OSSE may issue a written cease and desist order directing the Facility, parent entity, or person to

cease and desist from the violating action(s).

115.2 The cease and desist order shall be effective

upon the delivery of the cease and desist order. The

cease and desist order shall be hand-delivered to the

Licensee, or to an adult employee or family member

of the Licensee, at the current physical address of the

Facility as shown in OSSE's records.

115.3 The cease and desist order shall:

(a) Be hand-delivered to the Licensee or to an adult

employee or family member of the Licensee, at the

current physical address of the Facility as shown

in OSSE's records; and

(b) Provide that the Licensee may request an expedited hearing within five (5) days after receipt of

the Cease and Desist Order. If no request for a

hearing is made, the Order shall be final.

115.4 Once a Facility has received a cease and desist

order, the Licensee shall immediately:

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Appendix D

(a) Surrender the Facility’s current license to

OSSE;

(b) Cease the provision of all child development

services;

(c) Provide parents and guardians with written notification of the Cease and Desist Order. Written

notification of the Cease and Desist Order shall

state the reason provided by OSSE for the Cease

and Desist Order, and inform parents and guardians of the need to make alternative child care arrangements; and

(d) Provide OSSE with a copy of the written notification provided to parents and guardians.

115.5 Upon a timely request for an expedited hearing

pursuant to this section, the OAH shall conduct the

hearing within five (5) business days after the request, and the Office of Administrative Hearings shall

issue a decision within five (5) days after the hearing

record is closed.

5-A DCMR § 116

CIVIL FINES, CRIMINAL PROSECUTION

AND INJUNCTIONS

116.1 Civil fines and penalties may be imposed for

any violation of the Facilities Act or of this chapter,

pursuant to the District of Columbia Department of

Consumer and Regulatory Affairs Civil Infractions

Act of 1985, effective October 5, 1985 (D.C. Law 6-42;

D.C. Official Code §§ 2-1801.01 et seq.). Adjudication

of all charged infractions shall be conducted pursuant

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Appendix D

to Titles I through III of the Civil Infractions Act, except that where a requirement under this chapter conflicts with a requirement under the Civil Infractions,

the provision in this chapter shall apply.

116.2 Any violation of the Act may result in criminal

prosecution, whereupon the violator shall, upon conviction, be subject to imprisonment not to exceed six

(6) months, or a fine not to exceed three hundred dollars ($300.00), or both. Each unlawful act shall constitute a separate violation of this chapter.

116.3 Any person who has been previously convicted

of an offense in violation of the Act shall, upon a subsequent conviction for the same offense, be subject to

imprisonment not to exceed one (1) year, a fine not to

exceed five thousand dollars ($5,000.00), or both.

116.4 Prosecutions shall be brought by the Attorney

General for the District of Columbia or the United

States Attorney for the District of Columbia in the Superior Court of the District of Columbia.

116.5 In any prosecution conducted for violation of

the Act, a Child Development Facility claiming an exemption from a licensing requirement shall have the

burden of proving entitlement to the exemption.

116.6 The Attorney General may bring a civil action

in the Superior Court of the District of Columbia to

enjoin any violation of the Facilities Act or of this

chapter.

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Appendix D

5-A DCMR § 117

ADMINISTRATIVE HEARINGS

117.1 The Office of Administrative Hearings

(“OAH”), pursuant to the OAH Act, will hear and decide licensing appeals where it is alleged by a Licensee or an applicant for a license that there is an error

in any order, requirement, decision, determination, or

refusal made by OSSE in the administration or enforcement of the Facilities Act and this chapter.

117.2 Hearings conducted by OAH will comply with

this chapter, the OAH Act, the Facilities Act and applicable rules and procedures established by the OAH

Rules of Practice and Procedure set out at 1 DCMR

Chapters 28 (Office of Administrative Hearings:

Rules of Practice and Procedure) and 29 (Office of Administrative Hearings: Rules for DCPS, Rental Housing, Public Benefits, and Unemployment Insurance

Cases).

117.3 Parties may participate in settlement negotiations prior to a hearing, and may enter into a negotiated settlement agreement in lieu of participating in

a hearing.

117.4 Each hearing shall be conducted in accordance

with the requirements of the District of Columbia Administrative Procedure Act, approved October 21,

1968 (82 Stat. 1208; D.C. Official Code § 2-509), unless otherwise provided in this chapter, the OAH Act,

or in the OAH Rules of Practice and Procedure set out

at 1 DCMR Chapters 28 and 29.

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Appendix D

117.5 Any person(s) aggrieved by a final decision of

OAH may appeal the decision to the District of Columbia Court of Appeals pursuant to Section 11 of the

District of Columbia Administrative Procedure Act,

approved October 21, 1968 (82 Stat. 1209; D.C. Official Code § 2-510).

5-A DCMR § 118

REQUIREMENTS FOR ALL LICENSED CHILD

DEVELOPMENT FACILITIES

118.1 A licensed Child Development Facility (“Licensee”) shall operate in accordance with the license capacity, age range limitations, hours of operation and

other specific service requirements or restrictions designated on its license.

118.2 Except as provided in Subsection 118.3, a Licensee shall comply with the requirements set forth

in Sections 118 to 161, regardless of the Licensee's

classification as a Center, Child Development Home,

Expanded Home, or out-of-school-time program.

118.3 If a conflict exists between a general requirement set forth in Sections 118 to 161, and a specific

requirement of this chapter applicable to a particular

classification or size of Child Development Facility,

the specific requirement shall apply.

118.4 A Licensee shall exclude any employee with a

communicable disease from the workplace, to the

same extent and in the same manner as school employees are excluded and readmitted pursuant to 5-E

DCMR §§ 1023.1, 1023.5, and 1023.9.

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Appendix D

118.5 A Licensee shall protect the safety, health, and

welfare of all children within their care.

5-A DCMR § 119

CAPACITY

119.1 License capacity is the maximum number of

children the Licensee is licensed to care for at any

given time, as determined by OSSE.

119.2 OSSE shall determine limitations on the license capacity based on the following criteria:

(a) Occupancy capacity established by DCRA or by

FEMS;

(b) Program space requirements, as provided in

this chapter;

(c) Lavatory requirements, as provided in this

chapter; and

(d) Adult-to-child ratios and maximum group size

requirements, as established in this chapter.

119.3 Any Facility requesting a change to its license

capacity under a current license shall submit an application to amend an issued license to OSSE, with

the payment of the appropriate fee, in accordance

with Section 108 (Fees).

5-A DCMR § 120

SUPERVISION

120.1 Children shall be supervised while at the Facility by responsible staff and volunteers who can see

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Appendix D

and hear the children supervised at all times including but not limited to when they are napping or sleeping, on the playground, on field trips, on vehicular and

non-vehicular excursions, and during all water activities and water play activities.

120.2 A Licensee shall have a written staffing plan to

ensure the required supervision of all enrolled children at all times.

120.3 A Licensee shall have a written staffing

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Petition for Writ of Certiorari — Altagracia Sanchez, et al., Petitioners v. District of Columbia Office of the State Superintendent of Education, et al. | Frix