United States District Court, S.D. Indiana, Indianapolis Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For REBIRTH CHRISTIAN ACADEMY DAYCARE, INC., Plaintiff: Gavin Minor Rose, ACLU OF INDIANA, Indianapolis, IN.
For MELANIE BRIZZI, in her official capacity as Child Care Admin. for the Division of Family Resources of the Indiana Family and Social Services Admin. (Added per First Amended Complaint of 4/3/13.), DEBRA MINOTT, in her official capacity as Secretary of the Indiana Family and Social Services Administration, Defendants: Corinne T.W. Gilchrist, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, IN.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
SARAH EVANS BARKER, United States District Judge.
This cause is now before the Court on Defendants' and Plaintiff's cross-motions for summary judgment, filed on June 16, 2014 [Docket No. 66] and July 7, 2014 [Docket No. 68], respectively. Plaintiff Rebirth Christian Academy Daycare, Inc. (" Rebirth" ) brings this action against Defendants Melanie Brizzi, in her official capacity as Child Care Administrator for the Division of Family Resources of the Indiana Family and Social Services Administration, and Debra Minott, in her official capacity as Secretary of the Indiana Family and Social Services Administration (collectively, " the FSSA" ), pursuant to 42 U.S.C. § 1983, alleging that its procedural due process rights under the Fourteenth Amendment to the United States Constitution were violated when the Indiana Family and Social Services Administration terminated its status as an unlicensed child care ministry without affording it access to an administrative appeal process. The Court previously dismissed Rebirth's individual capacity claims, and thus, the only remaining claim before us is Rebirth's request for injunctive relief. For the reasons detailed below, we DENY Defendants' Motion for Summary Judgment and GRANT Plaintiff's Motion for Summary Judgment.
Licensed and Unlicensed Child Care Providers
Generally, in order to legally provide child care in Indiana, child care homes and centers must obtain a license from the Indiana Family and Social Services Administration's (" FSSA" ) Division of Family Resources' (" DFR" ) Bureau of Child Care (" BCC" ), which is the sub-agency of the FSSA that is responsible for overseeing child care providers in Indiana. There are multiple licensure options, including child care homes (located in residential buildings) and child care centers (located in commercial buildings). To be licensed, a child care provider must submit a paper application and supporting documentation and submit to site visits and inspections. There is no application fee for licensure, but a child care provider must follow re-licensure procedures every two years. As of January 2014, there were 593 child care centers and 2,796 child care homes operating in Indiana.
Pursuant to Indiana Code § 12-17.2-6-1, et seq., individuals or organizations may operate child care ministries without a license,
however, provided that they register with the BCC and meet certain statutory and regulatory requirements imposed by the BCC and the Division of Fire and Building Safety. Under Indiana law, a " child care ministry" is " child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation under Section 501 of the Internal Revenue Code." Ind. Code § 12-7-2-28.8. To become registered, an unlicensed child care ministry must submit a paper application to the BCC and pay a registration fee of fifty dollars; complete an application with the Department of Homeland Security for the state fire marshal and pay an additional fee of fifty dollars; and pass initial inspections by the State Fire Division Inspector and a BCC ministry consultant inspector. Once an unlicensed child care ministry is registered with the BCC, it must re-register annually by completing a reapplication form, paying the same fees, and passing the renewal inspections. If an unlicensed child care ministry at any time fails to meet the applicable requirements exempting it from licensure, it loses its exemption. See Ind. Code § 12-17.2-6-9. In such cases, if the unlicensed child care ministry desires to continue operating legally, it must either apply for and receive a child care center license from the BCC or reapply for an exemption to licensure. See Ind. Code § 12-17.2-4-1; § 12-17.2-6-3. As of January 2014, 653 unlicensed child care ministries were operating in Indiana.
BCC Inspections and Plans of Improvement
Regardless of their classification, all child care providers in Indiana are subject to regular inspections by the BCC. Licensed child care providers are inspected at least once a year while unlicensed child ministries are inspected at least twice a year. Child care providers may be inspected more frequently if a complaint is received or if follow-up visits are necessary. For the initial inspection, the BCC schedules a time with the child care provider beforehand, but all subsequent visits are unannounced. The purpose of the inspections is to ensure compliance with Indiana law and regulations.
If an inspection reveals what the BCC believes to be a violation of applicable laws or regulations, the child care provider is issued a " plan of improvement" or a " plan of correction." Brizzi Dep. at 28. These forms specify the statute or regulation that the provider has allegedly violated and provide a section in which the child care provider may explain how each " noncompliance" was corrected or will be corrected. Generally, this document is given to a provider on the date of an inspection and specifies a date by which the form must be returned to the BCC. The amount of time that a provider will be given to return the document and correct the violations depends on the type of violations alleged. " Critical violations," which are defined as a " failure to meet a health, sanitation/fire safety standard that may be detrimental to the health, safety, and/or life of a child/staff," must be corrected within ten calendar days of the violation. Carter Aff. Exh. 1 at 1, 62. " Non-critical violations" must be corrected within thirty calendar days of the violation. Carter Aff. Exh. 1 at 1.
According to the BCC, plans of improvement are intended to be part of a dialogue between the BCC consultant and the child care provider, allowing a provider to discuss with the consultant any disagreements it might have with the violations found. The BCC claims that if a resolution cannot be reached through discussion, the provider can document their response in the plan of improvement or request additional discussion with the licensing consultant's manager, Lisa Clifford. However, it is not clear how these options are communicated to child care providers as
there are no instructions on the plan of improvement regarding the manner in which a provider can challenge the factual or legal accuracy of the violations cited therein.
Available Appeal Procedures
In the event that a licensed child care provider fails to take the corrective action specified in a plan of improvement or fails to return the document within the allotted timeframe, the BCC will usually take one of the following two actions: deny the application/reapplication for licensure or revoke the child care provider's license. Although Indiana law also allows the BCC to suspend rather than revoke a license, this option is not typically used. If any of these adverse actions is taken against a licensed child care provider, the provider has an opportunity to appeal the decision administratively through the Office of Hearings and Appeals of the FSSA and then to seek judicial review in a court of law. A licensed child care provider may continue to operate during the pendency of an appeal of a license revocation. In 2013, the BCC revoked the licenses of thirty-seven (37) child care homes, thirty-one (31) of which appealed the revocation, and of seven (7) child care centers, all of whom appealed.
If an unlicensed child care ministry fails to take the corrective action specified on a plan of improvement or fails to return the document within the specified timeframe, the BCC will terminate its registration as an unlicensed ministry. There is no administrative appeal process for a child care ministry to challenge the termination of its registration. In 2013, the registrations of ninety-one (91) unlicensed child care ministries in Indiana were terminated, but this number includes both voluntary and involuntary terminations.
Licensed child care providers who have had their licenses revoked as well as child care ministries who have had their registrations terminated both have the option of reapplying for a license or registration at any time during the calendar year. If a child care provider chooses to reapply in such circumstances, there is no increased monitoring, additional fees or training imposed as a result of the revocation or termination.
Facts Concerning Rebirth Christian Academy Daycare
Rebirth is a non-profit organization incorporated under the laws of the State of Indiana. In September 2009, Rebirth began lawful operations as an unlicensed child care ministry. Rebirth registered as such with the BCC and alleges that it has at all times met the statutory and regulatory requirements to operate as such. At the time it became a registered child care ministry, Rebirth was provided guidelines for unlicensed child care ministries contained in the " Interpretive Guide for Unlicensed Registered Child Care Ministry." Carter Aff. Exh. 1. The guide is a tool to assist BCC in communicating with ...