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
29a
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).
44a
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
45a
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
47a
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
48a
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
50a
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.
51a
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
52a
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
56a
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
61a
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
63a
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
64a
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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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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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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(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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(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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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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(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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(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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(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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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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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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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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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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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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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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(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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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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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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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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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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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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