Administrative Rules of the State of Montana

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 ADOPTION

TO: All Concerned Persons

1. On May 13, 2010, the Department of Public Health and Human Services published MAR Notice No. 37-511 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1165 of the 2010 Montana Administrative Register, Issue Number 9.

2. The department has adopted New Rule I (37.95.1101), IV (37.95.1120), VII (37.95.1150), VIII (37.95.1160), IX (37.95.1170), and X (37.95.1180) as proposed.

3. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.

NEW RULE II (37.95.1105) APPLICANT REQUIREMENTS FOR DROP-IN DAY CARE CENTERS (1) remains as proposed.

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

(a) through (a)(viii) remain as proposed.

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

(i) remains as proposed.

(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.

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

NEW RULE III (37.95.1110) DROP-IN DAY CARE CENTER PLAN OF OPERATION (1) The plan of operation must include:

(a) through (h) remain as proposed.

(i) assurances as to how the program intends to comply with the safety requirements required by ARM 37.95.121;

(j) assurances as to how the program intends to comply with the health care requirements of ARM 37.95.139 and health habits of ARM 37.95.184;

(k) assurances as to how the program intends to comply with the storage and administration of medications required by ARM 37.95.182 and the first aid requirements of ARM 37.95.183;

(l) assurances as to how the program intends to comply with the staff records requirements of ARM 37.95.160;

(i) and (j) remain as proposed but are renumbered (m) and (n).

AUTH: 52-2-704, MCA

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

NEW RULE V (37.95.1130) EMERGENCY CARDS AND HEALTH HISTORY FORMS (1) and (2) remain as proposed.

(3) If the center does not allow enrollment of children without medical verification of immunization status, and the parent or legal guardian does not have verification of the child's immunization status, then the parent or legal guardian 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;. This acknowledgement may suffice as verification of immunization status.

(4) remains as proposed.

AUTH: 52-2-704, MCA

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

NEW RULE VI (37.95.1140) 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~~ record 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) through (c)(ii) remain as proposed.

(2) Telephone numbers of the hospital, police department, fire department, ambulance, and the Emergency Montana Poison Control Center (800) 222-1222 must be posted by each telephone.

AUTH: 52-2-704, MCA

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

4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

COMMENT #1: One comment was received supporting the regulation of drop-in care facilities.

RESPONSE #1: The department thanks the commenter for their support.

COMMENT #2: One commenter asks the department to clean up the current set of day care facility rules before finalizing and implementing the proposed rules under this rule package.

RESPONSE #2: The department is publishing these new rules for a new category of licensure. The rule referred to by the commenter is outside the scope of these rules.

COMMENT #3: A commenter is concerned that the mandatory licensure of drop-in child care facilities will have an impact on registered sanitarian duties.

RESPONSE #3: Under this set of proposed new rules, the licensure of drop-in child care facilities is not mandatory; rather it is a permissive licensure. However, if a drop-in child care facility does request licensure, it is the responsibility of the local health department to inspect the facility under the authority and responsibilities outlined in 52-2-735, MCA, as it is for any other day care center operation.

COMMENT #4: A commenter, while concerned with some of the provisions of the new rules, understands the department is subject to certain statutory limitations that exist for this category of care.

RESPONSE #4: The department appreciates the comment.

COMMENT #5: One commenter supports language giving licensing staff authority to determine whether drop-in care centers should be licensed as a regular-based facility. The commenter would like to see specific language to this extent incorporated into the rule.

RESPONSE #5: The department already has this authority under 52-2-741, MCA, and exercises that authority when appropriate. There is no need to add additional language to this rule package.

COMMENT #6: One comment was received requesting clarification regarding the definitions of "regular" versus "irregular" as stated in New Rule I (37.95.1101).

RESPONSE #6: Regular basis is defined in 52-2-703, MCA and irregular, intermittent, and occasional basis is defined in New Rule I (37.95.1101). For purposes of these rules, drop-in child care is defined as irregular, intermittent care which occurs on an occasional basis. Care in traditional day care settings is much more structured and occurs with regularity.

COMMENT #7: One comment was received suggesting the inclusion of before and after school programs in the definition of drop-in care.

RESPONSE #7: The department disagrees. While after school programs can fall into the category of care not requiring licensure, this rule is specifically designed to address the permissive licensure outlined in 52-2-721, MCA. The statute does not specifically address the before and after school issue. To add this to the proposed rule would be exceeding the scope of the enabling legislation.

COMMENT #8: One commenter indicates that licensing of drop-in care facilities should not be elective.

RESPONSE #8: Section 52-2-721, MCA, mandates that the department develop rules for the permissive licensure of these facilities. Therefore, requiring drop-in day care centers to become licensed is not within the department's authority.

COMMENT #9: One commenter points out that the inclusion of ARM 37.95.220 and 37.95.221 into New Rule II (37.95.1105) is not appropriate as these sections have been repealed. Therefore, the commenter requests that the department remove the references.

RESPONSE #9: The department agrees and will amend this rule accordingly.

COMMENT #10: One commenter requests that the department should add references to ARM 37.95.121, 37.95.139, 37.95.160, 37.95.182, and 37.95.183 because it is assumed by the commenter that these rules are enforced through the local health departments.

RESPONSE #10: The department agrees and will include references to those specific ARM cites as part of the facilities plan of operation outlined in New Rule III (37.95.1110). While local health departments may be reviewing these regulations as part of their duties under 52-2-735, MCA, they do so with regard to day care centers and only then in a limited capacity.

COMMENT #11: Two comments were received disagreeing with the language in New Rule II (37.95.1105) which allows "exemptions" to child immunizations.

RESPONSE #11: Section 52-2-704, MCA requires the department to provide a process for "exceptions" to the immunization requirements for regular-based centers. The department is not providing for exemption from those requirements. New Rule V (37.95.1130) specifies the department's expectations with regard to a center's responsibilities surrounding requirements for immunizations. The department supports immunization for vaccine preventable illnesses.

COMMENT #12: Two comments were received requesting that the department include references to ARM 37.95.611 from this rule.

RESPONSE #12: The department disagrees. The proposed rules are minimum requirements for licensure of drop-in day care centers. Drop-in day care centers may choose to exceed any of the minimum requirements outlined by these rules including offering support service space.

COMMENT #13: One commenter suggests the department's proposal should include a reference to ARM 37.95.106 as it pertains to the number of fire and evacuation drills.

RESPONSE #13: New Rule II(2)(a)(i) (37.95.1105) excludes ARM 37.95.106 as it pertains to the number of fire and evacuation drills, however, New Rule VI(1)(a) (37.95.1140) requires 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. Due to the irregular nature of the drop-in day care center, a monthly "drill" was established whereas other day care centers must conduct and document eight emergency evacuation practices each month. The department will strengthen the rule by requiring a record of the "drills".

COMMENT #14: One commenter is concerned because references to ARM 37.95.602 and 37.95.613 pertaining to plans of operation, types of activity materials, and equipment are not included in this rule.

RESPONSE #14: The operator of this type of facility must submit a plan of operation listing the types of materials and equipment to be used and the schedule of activity for the children. The department believes the language in New Rule III (37.95.1110) is sufficient. When considering the purpose and rationale for providing care in drop-in day care centers, it is not unreasonable to expect that the services provided will not be as formal or elaborate as those provided in traditionally licensed day care centers. Drop-in day care centers are not intended to replace traditional day care centers, but to supplement child care services on an irregular, intermittent, or occasional basis.

COMMENT #15: One comment was received expressing concern about the department's exclusion of night care in New Rule II (37.95.1105). The concern focused on the need to ensure quality care during night time hours.

RESPONSE #15: The rules as proposed are intended to be minimum standards only. Programs choosing to license as drop-in day care centers must submit a plan of operation which will describe all services provided by the center. If the facility chooses to provide night care service, this service must be outlined in the plan of operation as specified in New Rule III (37.95.1110) and must be approved by the department.

COMMENT #16: One comment asks the department to include a requirement for an infection control plan that would be approved by the local health department.

RESPONSE #16: The department sees merit in this suggestion and in an effort to ensure facilities will have an infection control plan that is reasonable, a reference to ARM 37.95.184 has been added to New Rule III (37.95.1110) but does not go so far as to indicate that the plan must be approved by the local health department. Such a requirement would exceed the requirements for regular-based day care centers.

COMMENT #17: One comment indicates that New Rule IV (37.95.1120) is confusing and that perhaps the department could use a different format or formula to make the issue of indoor and outdoor space more definitive.

RESPONSE #17: The language is consistent with what is currently used in regular-based child care facilities when dealing with variances between indoor and outdoor space. Department staff plans to use the existing measure to determine compliance should this become an issue in drop-in day care facilities.

COMMENT #18: One commenter states that New Rule V(2) and (3) (37.95.1130) appear to conflict. The commenter could not tell whether the rule requires proof of immunization status.

RESPONSE #18: Section 52-2-704, MCA requires the department to provide for "exceptions" (not exemptions) to the department's immunization requirements for drop-in day care centers. The department believes by implementing the rule as proposed, we have accomplished the statutory mandate. However, the department has rewritten the rule to clarify the intent.

COMMENT #19: A commenter feels the language in New Rule V(2) (37.95.1130) pertaining to public notice of immunization policy is insufficient. The commenter would like to see the rule require that notification be posted on an 8.5" by 11" placard.

RESPONSE #19: The department believes the rule is sufficient and consistent with other regulatory directives regarding posting of information.

COMMENT #20: A commenter suggests that the language in New Rule V(3) (37.95.1130) is not sufficient to protect children from vaccine preventable illnesses.

RESPONSE #20: Please refer to the responses in comment #11 and comment #18 above. The department believes the measures discussed will be sufficient.

COMMENT #21: A commenter recommends that additional emergency numbers should be required to be posted as provided in ARM 37.95.613(6).

RESPONSE #21: The department believes the rule as written is sufficient, but in order to be consistent with regular child care licensing standards has added some of the language from ARM 37.95.613(6) to New Rule VI (37.95.1140). It is unreasonable to expect a drop-in day care center to post the parent's numbers, so this language was not added to New Rule VI (37.95.1140).

COMMENT #22: One commenter suggested that the information required by New Rule VI (37.95.1140) should be updated every 12 months and should be posted in the centers.

RESPONSE #22: The department agrees emergency information should be kept up to date. New Rule II (37.95.1105) requires drop-in care facilities to be subject to annual fire marshal inspections while New Rule VI (37.95.1140) mandates that recommendations from this annual inspection and additional emergency safety requirements be met. Additionally, the language specified in New Rule VI(1)(c)(ii) (37.95.1140) indicates posting of the annual inspections is required.

COMMENT #23: One commenter requests that drop-in day care facilities be subject to the same food service requirements as regular-based day care facilities.

RESPONSE #23: The rule as proposed requires that children be fed meals and snacks. The difference between drop-in and regular child care centers is that the proposed rule allows the facility to opt out of preparing meals within the facility and may require parents to supply meals for their children. The provision of snacks and meals is a reasonable requirement, but due to the irregular nature of care, this can be a difficult task for a program operator. As such, the department has adopted the requirement that parents supply the meal and or snack if the facility opts out of preparing it themselves.

COMMENT #24: One comment indicates that the requirements contained in New Rule VIII (37.95.1160) are unclear.

RESPONSE #24: Please see the response to comment #23 above.

/s/ John Koch /s/ Laurie Lamson for

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State October 4, 2010.