9-28-407. Licenses required and issued.

9-28-407. Licenses required and issued. (a)(1) It shall be unlawful for any person, partnership, group, corporation, association, or other entity or identifiable group of entities having a coordinated ownership of controlling interest to operate or assist in the operation of a child welfare agency that has not been licensed by the Child Welfare Agency Review Board from licensing pursuant to this subchapter. (2) This license shall be required in addition to any other license required by law for all entities that fit the definition of a child welfare agency and are not specifically exempted, except that no nonpsychiatric residential treatment facility or agency licensed or exempted pursuant to this subchapter shall be deemed to fall within the meaning of § 20-10-101 for any purpose. (3) Any child welfare agency capacity licensed or permitted by the board as of March 1, 2003, whether held by the original licensee or by a successor in interest to the original licensee, is exempted from: (A) Obtaining any license or permit from the Office of Long-Term Care; (B) Obtaining any permit from the Health Services Permit Agency or the Health Services Permit Commission to operate at the capacity licensed by the board as of March 1, 2003; and (C) Obtaining any permit from the Health Services Permit Agency or the Health Services Permit Commission to operate at any future expanded capacity serving only non-Arkansas residents unless a permit is required by federal law or regulation. (4) Any further expansion of capacity by a licensee of the board shall require a license or permit from the Office of Long-Term Care and the Health Services Permit Agency unless the bed expansion is exempted under subdivisions (a)(3)(A)-(C) of this section. (5)(A) Subdivisions (a)(3) and (4) of this section shall be construed to include a child welfare agency that is licensed or permitted by the board as a residential facility as of March 1, 2003, if the licensee then met and continues to meet the following criteria: (i) The licensee is a nonhospital-based residential facility that specializes in providing treatment and care for seriously emotionally disturbed children under eighteen (18) years of age who have co-occurring substance abuse and psychiatric disorders; (ii) The licensee possesses accreditation from at least one (1) of the following national accreditation entities: (a) The Commission on Accreditation of Rehabilitation Facilities; (b) The Council on Accreditation of Services for Families and Children; or (c) The Joint Commission on Accreditation of Healthcare Organizations; (iii) The licensee is licensed by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services or its successor; and (iv) The licensee is operating a nontraditional program that is approved by the Division of Elementary and Secondary Education. (B)(i) Licensees described in subdivision (a)(5)(A) of this section shall be eligible for reimbursement by the Arkansas Medicaid Program under the same methodology and at the same reimbursement rates as residential treatment facilities that do not specialize in treating children with co-occurring substance abuse and psychiatric disorders. (ii) However, Medicaid payments shall be reduced by payments received from other payors in connection with Medicaid-covered care and treatment furnished to Medicaid recipients. (b)(1) It shall be unlawful for any person to falsify an application for licensure, to knowingly circumvent the authority of this subchapter, to knowingly violate the orders issued by the board, or to advertise the provision of child care or child placement when not licensed under this subchapter to provide those services, unless determined by the board to be exempt from licensure under this subchapter. (2) Any violation of this section shall constitute a Class D felony. (c)(1) Any person, partnership, group, corporation, organization, association, or other entity or identifiable group of entities having a coordinated ownership of controlling interest, desiring to operate a child welfare agency shall first make application for a license or a church-operated exemption for the facility to the board on the application forms furnished for this purpose by the board. (2)(A) The Department of Human Services shall also furnish to the applicant upon request an application form. (B) The child welfare agency shall submit a separate application for license for each separate physical location of a child welfare agency. (d)(1) The Department of Human Services shall review, inspect, and investigate each applicant to operate a child welfare agency and shall present a recommendation to the board whether the board should issue a license and what the terms and conditions of the license should be. (2) The Department of Human Services shall complete its recommendation within ninety (90) days after receiving a complete application from the applicant. A complete application shall consist of: (A) A completed application form prepared and furnished by the board; (B) A copy of the articles of incorporation, bylaws, and current board roster, if applicable, including names and addresses of the officers; (C) A complete personnel list with verifications of qualifications and experience; (D) Substantiation of the financial soundness of the child welfare agency's operation; and (E) A written description of the child welfare agency's program of care, including intake policies, types of services offered, and a written plan for providing healthcare services to children in care. (e)(1) The board shall issue a regular license that shall be effective until adverse action is taken on the license if the board finds that: (A) The applicant for a child welfare agency license meets all licensing requirements; or (B) The applicant for a child welfare agency license meets all essential standards, has a favorable compliance history, and has the ability and willingness to comply with all standards within a reasonable time. (2)(A) The board may issue a provisional license that shall be effective for up to one (1) year if the board finds that the applicant meets all essential standards but the applicant requires more frequent monitoring because the applicant's ability or willingness to meet all standards within a reasonable time has not been favorably determined. (B) The board shall at no time issue a regular or provisional license to any agency or facility that does not meet all essential standards. (f)(1) A license to operate a child welfare agency shall apply only to the owner stated on the application. (2) The license shall be transferable, along with all capacity and rights of licensure, from: (A) One (1) location to another; and (B) One (1) owner to another, if permitted under subdivision (f)(3) of this section. (3) Whenever ownership of a controlling interest in the operation of a child welfare agency is sold, the following procedures shall be followed: (A) The seller shall notify the Department of Human Services of the sale at least thirty (30) days before the completed sale; (B) The seller shall remain responsible for the operation of the child welfare agency until the child welfare agency is closed or an amended license is issued to the buyer; (C) The seller shall remain liable for all penalties assessed against the child welfare agency that are imposed for violations occurring before the transfer of a license to the buyer; (D) The buyer shall provide all documentation required of a new applicant to the Department of Human Services; (E) The buyer shall be subject to any corrective action notices to which the seller was subject; and (F) The provisions of subsection (a) of this section, including those provisions regarding obtaining licenses or permits from the Office of Long-Term Care and regarding obtaining any permits from the Health Services Permit Agency or the Health Services Permit Commission, shall apply in their entirety to the new owner of the child welfare agency. (g) If the board votes to issue a license to operate a child welfare agency, the license must be posted in a conspicuous place in the child welfare agency and must state at a minimum: (1) The full legal name of the entity holding the license, including the business name, if different; (2) The address of the child welfare agency; (3) The effective date and expiration date of the license, if applicable; (4) The type of child welfare agency the licensee is authorized to operate; (5) The maximum number and ages of children that may receive services from the child welfare agency, if applicable; (6) The status of the license, whether regular, provisional, or probationary; and (7) Any special conditions or limitations of the license. (h)(1) Reports, correspondence, memoranda, case histories, or other materials, including protected health information, compiled or received by a licensee or a state agency engaged in placing a child, including both foster care and protective services records, shall be confidential and shall not be released or otherwise made available except to the extent permitted by federal law and only: (A) To the Director of the Child Welfare Agency Review Board as required by rule; (B) For adoptive placements as provided by the Revised Uniform Adoption Act, § 9-9-201 et seq.; (C) To multidisciplinary teams under § 12-18-106(a); (D)(i) To the child's parent, guardian, or custodian. (ii) However, the licensee or state agency may redact information from the record such as the name or address of foster parents or providers when it is in the best interest of the child. (iii) The licensee or state agency may redact counseling records, psychological or psychiatric evaluations, examinations, or records, drug screens or drug evaluations, or similar information concerning a parent if the other parent is requesting a copy of a record; (E) To the child; (F)(i) To healthcare providers to assist in the care and treatment of the child at the discretion of the licensee or state agency and if deemed to be in the best interest of the child. (ii) “Healthcare providers” includes doctors, nurses, emergency medical technicians, counselors, therapists, mental health professionals, and dentists; (G) To school personnel and daycare centers caring for the child at the discretion of the licensee or state agency and if deemed to be in the best interest of the child; (H)(i) To foster parents, the foster care record for foster children currently placed in their home. (ii) However, information about the parents or guardians and any siblings not in the foster home shall not be redisclosed by a foster parent and shall only be used to assist the foster parent in the care of the child; (I)(i) To the board. (ii) However, at any board meeting no information that identifies by name or address any protective services recipient or foster care child shall be orally disclosed or released in written form to the general public; (J) To the Division of Child Care and Early Childhood Education; (K) For any audit or similar activity conducted in connection with the administration of any such plan or program by any governmental agency that is authorized by law to conduct the audit or activity; (L) Upon presentation of an order of appointment, to a court-appointed special advocate; (M) To the attorney ad litem for the child; (N) For law enforcement or the prosecuting attorney upon request; (O) To circuit courts, as provided for in the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.; (P) In a criminal or civil proceeding conducted in connection with the administration of any such plan or program; (Q) For purposes directly connected with the administration of any of the state plans as outlined at 42 U.S.C. § 671(a)(8), as in effect January 1, 2001; (R) For the administration of any other federal or federally assisted program that provides assistance, in cash or in kind, or services, directly to individuals on the basis of need; (S)(i) To individual federal and state representatives and senators in their official capacity and their staff members with no redisclosure of information. (ii) No disclosure shall be made to any committee or legislative body of any information that identifies by name or address any recipient of services; (T) To a grand jury or court upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; (U) To a person, provider, or government entity identified by the licensee or the state agency as having services needed by the child or his or her family; (V) To volunteers authorized by the licensee or the state agency to provide support or services to the child or his or her family at the discretion of the licensee or the state agency and only to the extent information is needed to provide the support or services; (W)(i) To a person, agency, or organization engaged in a bona fide research or evaluation project that is determined by the Division of Children and Family Services to have value for the evaluation or development of policies and programs within the Division of Children and Family Services. (ii) Any confidential information provided by the Department of Human Services for a research or evaluation project under this subdivision (h)(1)(W) shall not be redisclosed or published; (X) To a child fatality review panel as authorized by the Department of Human Services; or (Y) To the Child Welfare Ombudsman. (2) Foster home and adoptive home records are confidential and shall not be released except: (A) To the foster parents or adoptive parents; (B) For purposes of review or audit, by the appropriate federal or state agency; (C) Upon allegations of child maltreatment in the foster home or adoptive home, to the investigating agency; (D) To the board; (E) To the Division of Children and Family Services and the Division of Elementary and Secondary Education, including child welfare agency licensing specialists; (F) To law enforcement or the prosecuting attorney upon request; (G) To a grand jury or court upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; (H)(i) To individual federal and state representatives and senators in their official capacity and their staff members with no redisclosure of information. (ii) No disclosure shall be made to any committee or legislative body of any information that identifies by name or address any recipient of services; or (I) To the attorney ad litem and court-appointed special advocate, the home studies on the potential adoptive families selected by the Department of Human Services to adopt the juvenile or as ordered by the court. (3)(A) Any person or agency to whom disclosure is made shall not disclose to any other person reports or other information obtained pursuant to this subsection. (B) Any person disclosing information in violation of this subsection shall be guilty of a Class C misdemeanor. (C) Nothing in this subchapter shall be construed to prevent subsequent disclosure by the child or his or her parent or guardian. (D) Any data, records, reports, or documents released under this section to a law enforcement agency, the prosecuting attorney, or a court by the Department of Human Services are confidential and shall be sealed and not redisclosed without a protective order to ensure that items of evidence for which there is a reasonable expectation of privacy are not distributed to persons or institutions without a legitimate interest in the evidence. (i) Foster parents approved by a child placement agency licensed by the Department of Human Services shall not be liable for damages caused by their foster children, nor shall they be liable to the foster children nor to the parents or guardians of the foster children for injuries to the foster children caused by acts or omissions of the foster parents unless the acts or omissions constitute malicious, willful, wanton, or grossly negligent conduct.