“How can a provider avoid making mistakes that can get her into trouble?”
“When should she hire an attorney?”
These were some of the questions I asked Minneapolis attorney Scott Johnson today over lunch.
In the last five years Scott has helped dozens of family child care providers appeal negative licensing actions.
He works for the law firm of Goetz & Eckland, P.A that also defends providers in criminal cases (child abuse, etc.). He can be reached at 612-874-1552; email@example.com.
Over the years I have heard from many providers who have had trouble with their licensor. “She’s out to get me!” is a common complaint. I wanted to know what advice a lawyer would give providers to help reduce conflicts and improve the chances of winning an appeal.
Scott described four areas where providers can help themselves.
Maintain Clear Lines of Communication
Make sure you maintain a clear line of communication with your licensor. You want a professional relationship where you can talk things over. Although you may have negative feelings about your licensor, it’s important to get past these feelings and do your best to work cooperatively.
Keep documentation of interactions with your licensor. Immediately after a licensor visits your home, write up a summary of your conversation.
“Licensor visited my home between 2pm and 3pm on October 9th. We talked about safety issues. She said I should not keep adult scissors on the dining room table, but it was okay to store them on top of my refrigerator. She also said I could use a ‘time out’ to discipline a two year old. After inspecting all the rooms in my home and my backyard she didn’t indicate I had violated any licensing rules.”
Email or mail a copy of your notes to the licensor and add, “Here are my notes of your visit to my home on October 9th. If you believe that I have not accurately described our meeting, please let me know what I have written that is not correct. Also, let me know if I have left out anything important.” Such record keeping can help you if the licensor later states something that is different than your notes.
When possible, communicate with your licensor via email or mail, not by phone. When you talk on the phone, the licensor is at an advantage because she is likely to write up notes of your conversation immediately after it’s over. You are much less likely to keep similar notes. Copies of emails or letters are more useful as written records in your defense.
Tell the Whole Truth
Providers sometimes get into trouble because they don’t initially own up to what happened or they don’t fully explain the circumstances to their licensor. Doing this will cause a loss of trust that can get you into more trouble.
In one case a provider told her licensor that there were six children in her care, when in fact there were seven. A parent dropped off the seventh child early and thus the provider was over enrolled for a few minutes. When the licensor asked the other children who was in the home, they revealed to her the presence of the seventh child.
In another case a child wandered out of the back yard of a provider and a licensor investigated the incident. The provider told the licensor she was outside with the children, and when she turned her head away for a moment the child was gone. In fact, the provider was in the bathroom at the time. The licensor found this out by talking to the other children.
It’s better to tell the whole truth up front. In the above cases the provider is still in violation of the rules and is likely to be cited. But the provider will lose the licensor’s trust if she finds out later that the provider lied. She may become more suspicious and wonder when else the provider has lied. As a result, she is less likely to take the provider’s word in the future. It’s always better to be honest up front and not let the truth dribble out over time.
Avoid These Mistakes
There are many licensing rules and while some of them may seem minor or petty, (particularly those dealing with paperwork) licensors are trained to enforce them all. By violating even minor rules you can undermine your relationship with your licensor. By following all the rules you can help avoid trouble.
Providers who enter into new personal relationships should be aware that the past history of this person could affect your livelihood. Background checks will uncover past problems (drug use, drunk driving record, etc.) that can result in your boyfriend not being permitted to be around the children, even if you don’t live together.
This can be a problem because a licensor may not believe you when you say that your boyfriend will never come over when children are present. Licensors may look for an extra car in your driveway or adult clothing that is not yours. Because they might not believe your assurances, you could lose your license.
Be careful what you put on Facebook. One provider posted a negative comment about a child to her private “friends.” One of these friends copied what she had posted and turned it over to her licensor with the result that the provider got into trouble. Even writing notes about your feelings in emails (“I feel so frustrated today with the children” or “I don’t know what I’m going to do about this child”) could be interpreted by your licensor as a sign that it might not be safe for you to be around children.
Get Legal Help
Some business liability insurance companies (Assure Child Care, West Bend, DCI, Freisinger, and others) include coverage for legal assistance when you are confronted with negative licensing actions. Usually such coverage is for a small amount of money ($2,500- $5,000). But even a small amount of money can help when you need a lawyer. Ask your insurance agent if your policy has such coverage. See listings of companies on my insurance directory.
When you should seek out legal help? If you get a correction order from your licensor that involves a small consequence (fine, requirement to take a training class) you probably don’t need a lawyer. There is little a lawyer can do in this situation. However, if your licensor is taking action to suspend or revoke your license you should definitely seek out a lawyer.
Also, see my article, "How to Find a Lawyer When You Need One."
Tom Copeland - www.tomcopelandblog.com
Image credit: www.talkingdrugs.org
For more information about how to maintain a positive relationship with your licensor, see my book Family Child Care Legal and Insurance Guide.