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Montana Administrative Register Notice 37-511 No. 9   05/13/2010    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through X pertaining to permissive licensing of drop-in child care facilities

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

 

 

TO:  All Concerned Persons

 

            1.  On June 8, 2010, at 3:00 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption of the above-stated rules.

 

2.  The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on June 1, 2010, to advise us of the nature of the accommodation that you need.  Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

            3.  The rules as proposed to be adopted provide as follows:

 

            RULE I  DEFINITIONS  For purposes of [RULES II through X], the following definitions apply:

(1)  "Drop-in day care center" or "center" means a day care center which only provides care to children on an irregular, intermittent, and occasional basis and that provides care only when parents are not on the same premises or not immediately available.

            (2)  "Irregular, intermittent, and occasional basis" means periods of time less than six hours a day and less than four days a week for no more than three consecutive weeks.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-703, 52-2-704, MCA

 

            RULE II  APPLICANT REQUIREMENTS FOR DROP-IN DAY CARE CENTERS  (1)  It is permissible for a drop-in day care center to seek licensure by the department. 

            (2)  An applicant for a drop-in day care center license shall:

            (a)  meet the requirements for day care centers provided in ARM Title 37, chapter 95 with the exception of:

            (i)  ARM 37.95.106 regarding licensing application as it applies to the number of fire and evacuation drills;

            (ii)  ARM 37.95.128 regarding health record forms;

            (iii)  ARM 37.95.140 regarding immunization requirements;

            (iv)  ARM 37.95.141 as it pertains to immunization documents;

            (v)  ARM 37.95.602 regarding program requirements;

            (vi)  ARM 37.95.611 regarding support services space;

            (vii)  ARM 37.95.613 regarding materials and equipment including play materials and equipment.  However, drop-in day care centers shall comply with ARM 37.96.613(3), (4), and (5) pertaining to high chairs, rest equipment, and telephone provisions; and

            (viii)  ARM 37.95.619 regarding night care.

            (b)  meet the requirements of ARM 37.95.106 regarding the submission to the department of:

      (i)  an annual approved inspection report from the state fire marshal or the fire marshal's designee indicating the fire safety rules have been met; and

      (ii)  an annual approved inspection report from public health authorities certifying the satisfactory completion of training or a certificate of approval following inspection by local health authorities in accordance with ARM 37.95.205, 37.95.206, 37.95.207, 37.95.210, 37.95.214, 37.95.215, 37.95.220, 37.95.221, 37.95.225, 37.95.226, and 37.95.227.

            (c)  submit to and receive prior approval from the department of a written plan of operation for the drop-in day care center as outlined in [RULE III]; and

            (d)  operate the drop-in day care center according to the approved plan of operation.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-721, 52-2-722, 52-2-723, 52-2-724, 52-2-731, MCA

 

            RULE III  DROP-IN DAY CARE CENTER PLAN OF OPERATION  (1)  The plan of operation must include:

            (a)  ages, numbers, and groupings of children to be served;

            (b)  the proposed method of staffing the drop-in day care center;

            (c)  the space, materials, equipment, and furnishings to be used at the drop-in day care center;

            (d)  the hours, days, and months of operation;

            (e)  the schedule of activity for the children;

            (f)  a method for ensuring that children are released only to their parents, guardians, or other persons authorized by parents or guardians to pick up children who are properly identified to the drop-in day care center staff;

            (g)  verification of liability and fire insurance and respective policy expiration dates;

            (h)  assurances as to how the program intends to comply with the background and protective services check and staff information required by ARM 37.95.106;

            (i)  assurances as to how the program intends to comply with the caregiver qualification requirements of ARM 37.95.166, 37.95.173, and 37.95.174; and

            (j)  methods for employing the discipline requirements of ARM 37.95.606.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-723, 52-2-724, 52-2-731, MCA

 

            RULE IV  DROP-IN DAY CARE CENTER SPACE REQUIREMENTS

            (1)  With the exception of outdoor space, the drop-in day care center shall meet the space requirements as outlined in ARM 37.95.610.  However, in the absence of an adequate outdoor play area, the center must set aside a greater amount of indoor space for large muscle development activities.  Such areas shall contain appropriate play equipment for large muscle development.

            (2)  If however, the center does have outdoor space available, the center shall still meet those space requirements as defined in ARM 37.95.610.

            (3)  If outdoor play space is provided, but is inadequate for the maximum number of children, a schedule shall be provided to show how outdoor play time will be made available to all the children.  At no time will there be more children in the outdoor play area than the maximum number allowed computed at 75 square feet per child as defined in ARM 37.95.705.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-731, MCA

 

            RULE V  EMERGENCY CARDS AND HEALTH HISTORY FORMS  (1)  Drop-in day care center staff shall require the parent or legal guardian of each child to be placed in care at the center to complete and sign an emergency card and health history form before the child is admitted to the center.

            (2)  If the center allows enrollment of children without medical verification of immunization status, then the center must post notification of such in a place that is easily visible to parents and legal guardians.

            (3)  If the parent or legal guardian does not have verification of the child's immunization status, then the parent shall indicate in writing that to the best of the parent's or legal guardian's knowledge and belief, the child is up to date with the schedule of immunizations for the child's age;

            (4)  Drop-in day care center staff shall ensure that the emergency card and health history form are signed and updated as necessary.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-723, 52-2-731, MCA

 

            RULE VI  EMERGENCY SAFETY REQUIREMENTS  (1)  In addition to the requirements imposed by the fire marshal or the fire marshal's designee, and the requirements of ARM 37.95.121, the following criteria for emergency safety must also be met:

            (a)  the operator shall ensure that staff members and children practice procedures at least monthly to be used in the event of a fire or other emergency requiring escape from the center;

            (b)  an operator shall post immediately accessible to each telephone in the center a notice stating the emergency telephone numbers to summon fire, police, and rescue services; and

            (c)  a prepared emergency evacuation plan which includes:

            (i)  a diagram of safe routes by which the staff and children may exit each area of the center in the event of a fire or other emergency requiring evacuation of the center; and

            (ii)  a copy of the plan must be posted in each area in the center.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-731, 52-2-734, MCA

 

            RULE VII  MATERIALS AND EQUIPMENT  (1)  The operator shall make accessible to a child only materials and equipment that are:

            (a)  developmentally appropriate;

            (b)  safe;

            (c)  in good repair;

            (d)  cleanable;

            (e)  nontoxic; and

            (f)  free from known hazards (such as lead paint, etc.).

            (2)  The operator shall provide to each group of children a sufficient quantity and variety of materials and equipment for activities according to the numbers and ages of the children in the group.

            (3)  Materials shall be provided for:

            (a)  vigorous play;

            (b)  creative and dramatic play;

            (c)  socialization;

            (d)  manipulation, including construction materials; and

            (e)  individual pursuits.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-731, MCA

 

            RULE VIII  FOOD SERVICE  (1)  If the operator furnishes food and beverages for meals and snacks, the food and beverages must meet the child's daily nutritional needs as established by the National Research Council or the USDA Food and Nutrition Service.

            (2)  Food and beverage must be offered to children according to the following schedule:

            (a)  if a child is at a drop-in day care center for less than four consecutive hours, the child shall receive at least one snack; and

            (b)  if a child is at a drop-in day care center for four to six consecutive hours, the child shall receive at least one meal and one snack.

            (3)  If the center does not provide meals or snacks, then arrangements must be made with the children's parent or legal guardian to provide the food and beverages as indicated in (2).

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, MCA

 

            RULE IX  STAFFING QUALIFICATIONS  (1)  Each drop-in day care center shall have a director.  A director must:

            (a)  be at least 18 years of age; and

            (b)  have at least 1,040 hours of paid or unpaid staff supervision experience.

            (2)  Each drop-in day care center shall have at least one direct care-giving staff who must:

            (a)  be at least 18 years of age;

            (b)  have at least two years of satisfactory full-time experience in a related educational, early childhood, or child-care setting; and

            (c)  be on-site when children are in care.

            (3)  Other care-giving staff must meet the qualifications outlined in the facilities plan of operation.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-723, 52-2-731, MCA

 

            RULE X  CARE OF INFANTS  (1)  If a drop-in day care center provides care to infants, all requirements contained in ARM Title 37, chapter 95, subchapter 10 shall be met.

 

AUTH:  52-2-704, MCA

IMP:  52-2-702, 52-2-731, MCA

 

            4.  The Department of Public Health and Human Services (the department) is proposing new Rules I through X pertaining to permissive licensing of drop-in day care facilities.  As a result of House Bill 324 (HB 324), 2001 Laws of Montana, Chapter 505, the Montana Legislature amended the Montana Child Care Act to allow for the permissive licensing of child care centers that provide care to children on an irregular basis.  These facilities are otherwise known as "drop-in day care" facilities.

 

The legislation also gave the department the authority to adopt rules; however, in developing these voluntary rules, the legislation required the department to provide for exceptions regarding child-to-staff ratios and requirements for immunization which are present in the regulations that currently exist for the other types of regulated child care programs.

 

The proposed new rules provide the minimum requirements that the department deems as being necessary to protect the health and safety of children placed in drop-in day care facilities.

 

Rule I

 

In order to write sufficient rules regarding the licensure of facilities operating on an irregular, intermittent, and occasional basis, it is necessary to define how these facilities differ from the existing regular-based day care facilities.

 

Because many "drop-in" styles of child care exist at places like health clubs and churches, as a benefit to its members, the department feels it is necessary to specify that the permissive licensure required by HB 324, only applies to those types of facilities where parents are not on the premises or immediately available. 

 

Drop-in day care centers are intended to supplement not substitute care provided in traditional day care centers which provide child care on a more regular basis.  Therefore, it is necessary to define what constitutes drop-in day care and to further define what is meant by irregular, intermittent, and occasional basis.

 

Rule II

 

The set of requirements which exist in ARM Title 37, chapter 95, are basic (minimum) requirements which were designed to protect the health and safety of children attending a day care center.  These rules are the "floor below which one cannot go" and be considered licensed by the state of Montana.  Therefore, even though the licensing is considered voluntary and permissive, the department feels that drop-in day care centers should also meet the minimum floor of safety.

 

HB 324 included exceptions to existing rules and the department has attempted in this rule to apply that requirement.  Proposed new Rule II(2)(a)(i) through (viii) define the exceptions as well as includes other requirements that are specific to regular- based day care settings.  The legislation required the department to provide exceptions to the rule requiring proof of immunization upon entry into the program, this is outlined in proposed new Rule II(2)(a)(iii) and (iv).  In this same respect, the department feels it is necessary to make an exception to the infant health status documentation of which proof of immunization is part of.  Therefore, the department has included proposed new Rule II(2)(a)(ii) in the areas of exceptions.  Those items delineated in proposed new Rule II(2)(a)(v) through (viii) are specific to regular- based center programs and because of the unique nature of drop-in day care centers, typically are not implemented.  As such, the department is not requesting adherence to these provisions.

 

Rule III

 

A plan of operation is necessary in order to be licensed by the department so that the department has at least the basic information regarding a drop-in day care center.  Without this information, the department has no indication that the center is appropriate for licensure.  Also, users of the drop-in day care center can be assured that there are minimum safeguards in place to protect the health and safety of the children at the drop-in day care center.

 

Rule IV

 

Child behavior tends to be more constructive when sufficient space is organized to promote developmentally appropriate skills.  Crowding has been shown to be associated with increased risk of developing upper respiratory infections.  Also, having sufficient space will reduce the risk of injury from simultaneous activities occurring in limited space.  It also allows for proper and timely exiting in the event of a fire or other emergent condition.

 

Rule V

 

Proposed new Rule V is necessary to provide emergency and health history information in the event of an emergency for the protection and health of the child, other children in the center, and staff.  Without this information those in the center could be exposed to greater risk of illness.  In the event of an emergency, it is crucial that the parent, guardian, or other emergency contact information be readily available.

 

Proposed new Rule V(2) is necessary to inform parents and guardians that children without medical verification of immunizations may be allowed in the center.  Parents and guardians can then make an informed decision as to the best interests of their child in utilizing drop-in day care center services.

 

Rule VI

 

Emergency safety requirements are necessary to protect the children and staff of the drop-in day care center in the event of an emergency.  The requirements of proposed new Rule VI ensure that emergency telephone numbers and evacuation routes are displayed and therefore accessible to staff.  Requiring staff members and children to practice emergency procedures encourages familiarity with the procedures which should result in a more orderly evacuation during an emergency or unforeseen event.

 

Rule VII

 

Proposed new Rule VII provides guidance for the drop-in day care center as to what materials and equipment will be appropriate to provide learning experiences appropriate for the age groups and capabilities of the children in the drop-in day care center.  Proposed new Rule VII is necessary to indicate that the center will provide activities and services other than basic child supervision.

 

Rule VIII

 

Proposed new Rule VIII is necessary to indicate the requirements for providing meals and snacks at a drop-in day care center.  Children have smaller stomachs and therefore do not normally consume as much food per meal or snack as those with larger stomachs.  Therefore, children tend to get hungry within a shorter period of time.  Providing food to the children in a drop-in day care center using the guidelines indicated ensures that the children have something to eat at least once every four hours.  Preventing excessive hunger and thirst among the children in a drop-in day care center could have positive effects on the child.  Hungry children may not be able to resist illness and may have overall poorer health, may demonstrate higher levels of behavior problems such as aggression, hyperactivity, and inability to get along with others.  Therefore, the requirements for the provision of snacks and meals are a reasonable requirement.

 

Rule IX

 

The staff qualifications of proposed new Rule IX require those direct care-giving drop-in day care center staff to have previous experience in working with children.  This is necessary because the children in this care setting are receiving care for limited time periods and there is the potential for a large number of children to be in attendance at one time.  The care provider has limited opportunity to get to know the child and to foster a positive rapport.  By requiring previous experience in working with children, the caregiver is better prepared to work with children in a short-term setting.  The staffing requirements also indicate the logical chain of command for facility staff.

 

Rule X

 

It is necessary to include proposed new Rule X to reinforce to drop-in day care providers that caring for infants requires additional considerations and precautions for the health and safety of infants.

 

            5.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., June 11, 2010.

 

6.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

            9.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The primary bill sponsor was contacted by letter on March 11, 2010, sent postage prepaid via USPS, and by telephone and e-mail on March 11, 2010.

 

 

 

/s/  John Koch                                                /s/  Mary Dalton for                                       

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

           

Certified to the Secretary of State May 3, 2010.

 

 

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