Chapter I

Child Care Regulation: Background

Organization

The Department of Public Health's Division of Community Based Regulation is responsible for licensing and inspecting child care providers statewide. Figure I-1 shows the organization of the department and where child care regulation falls within the department.

As Figure I-1 shows, three main units within the Division of Community Based Regulation are responsible for child care regulation - Licensing, Investigations, and Quality Enhancement. Each unit has its own distinct functions.

· Licensing Unit: approves initial and renewal license applications and conducts initial and routine inspections. This unit is the primary source of technical assistance services to child care providers.

· Investigations Unit: handles all complaints against providers, serves as the primary intake and coordinating function for complaints, and investigates complaints. Investigations may be conducted in conjunction with the Department of Children and Families if a complaint involves suspected child abuse or neglect.

· Quality Enhancement Unit: oversees and coordinates the enforcement function for the entire division.

Types of Facilities and Capacity

DPH regulates child care centers, group day care homes, and family day care homes. Child care centers and group day care homes operate under one set of state regulations, while family day care homes abide by different regulations because the two types of day care services are considered distinct by the state. Centers and group day care homes are larger facilities, serve a greater number of children per facility, and operate within more of a "school-based" atmosphere. Family day care providers offer child care services within their private homes and are licensed to care for fewer children than centers and group homes. Table I-1 outlines the various types of child care services licensed by the state and their regulated capacity levels.

Licensed facilities. Figure I-2 illustrates the number of licensed child care facilities between December 1997 and August 2001.

· 1,652 child care centers (serving more than 12 children), 70 group homes (7-12 children), and 3,696 family day care homes (6 or fewer children) are currently licensed statewide as of August 2001.

· The overall number of centers and group homes has remained relatively steady since 1997.

· The number of family day care homes has dropped by almost 1,600 homes, or just over 30 percent since 1997. (Given the decline, DPH may want to monitor reasons for the downturn in conjunction with the Department of Social Services, which serves as the state's lead agency for child care.)

Licensed capacity. Overall capacity levels of licensed facilities were reviewed. Figure I-3 shows the trend in the total number of licensed spots throughout the state from December 1997 through August 2001.

· Licensed capacity levels for centers and group day care homes increased almost 16 percent between 1997 and 2001, from 77,762 to 89,951 slots.

· The number of licensed slots for family day care homes declined 52 percent, from 46,283 in 1997 to the current level of 22,047.

Staffing

The following staff are involved with the regulation of child care within the public health department's Division of Community Based Regulation:

· 32 licensing specialists (21 involved with licensing, 8 with complaints, and 3 with enforcement);

· three licensing supervisors, one complaint supervisor, and one enforcement supervisor;

· one licensing manager, and one enforcement/complaint manager; and

· one nursing supervisor and two nursing consultants who also provide child care technical assistance, monitoring, and complaint investigation services.

There is no DPH staff solely responsible for providing technical assistance services. Such services are within the responsibilities of each licensing specialist in the Licensing Unit, along with several other units with the department to a lesser degree. The committee was told although some technical assistance may be provided by the complaint and enforcement units, technical assistance is not a significant focus of those units. More detailed staffing information is provided in Chapter IV.

Budget

Figure I-4 shows the state spent $2.77 million on child care regulation in FY 01, up 21 percent from FY 97. The FY 01 expenditure includes an interagency transfer from the Department of Social Services (DSS) of $1.3 million. The transfer was made as a result of an interagency agreement whereby DSS provides money (state and federal) to fund licensing specialist positions on a yearly basis. The agreement was developed when licensing for family day care transferred from DSS to DPH in 1994.

The Division of Community Based Regulation currently has 47 full-time staff dedicated to child care licensing and inspections, including licensing specialists, supervisors, and support staff. Funding for these services comes from several sources, including DPH, DSS, and federal block grants (social services and community development.) The expenditures shown in Figure I-4 for DPH and DSS are for state fiscal years, while the federal expenditures are for federal fiscal years. As illustrated in the figure, funding from the federal Community Development Block Grant (CDBG) ceased after FY 97, while funding from DSS began in FY 98.

Licensing Process

The major steps of the process are highlighted in Figure I-5. The licensing process begins with a prospective provider submitting an application to the Licensing Unit. The unit reviews the application for completeness. An initial facility inspection is also conducted by the Licensing Unit as part of the application process. The inspection is to ensure the facility meets the regulatory health and safety requirements.

Child care centers and group day care homes receive initial licenses good for six months. During the six-month period, DPH conducts another, unannounced inspection of the facility. If the facility passes the inspection, a regular two-year license is granted. If problems are found during the inspection, a second six-month provisional license may be issued. As a general practice, DPH usually does not grant more than two six-month licenses.

Table I-2 outlines the length of licenses and fee structures for child care centers, group day care homes, and family day care homes. Providers starting a child care center or group day care home must first receive a six-month provisional license. Following DPH approval, center or group day care home providers are issued a regular license valid for two years. All license renewals are on two-year cycles.

Licenses for family day care homes are valid for two years and granted only after DPH has approved a prospective provider's application and completed an initial inspection of the home. A provisional license is not required for a family day care home.

The fee structure for a child care center and group day care home depends on the type of license, as outlined in the table. A provisional six-month license for a center costs $50, and $30 for a group home. The fee for the initial two-year license, and each two-year renewal license, is $200 for a center and $100 for a group home. The fee for a family day care home license is $20 every two years.

Inspections

State law requires the public health department to inspect child care facilities to ensure compliance with state child care regulations, which focus on health and safety. Table I-3 outlines the frequency and type of inspections required for child care centers, group day care homes, and family day care homes. The Licensing Unit is responsible for inspecting approximately 1,200 family day care homes, 825 centers, and 35 group day care homes annually. Licensing specialists within the unit also assist with the yearly relicensing of approximately 1,830 family day care homes and 860 center-based facilities.

As noted in the table, under current law, only one-third of the family day care homes licensed by DPH are required to be inspected during a given year. The law does not require inspections to be done on a rotating schedule, but that only a third of the caseload be inspected yearly. Although not within the scope of this study, DPH noted it tries to rotate its inspection schedule to ensure each home is inspected at least every two to three years.

If violations are found during an inspection the specialist will cite the provider on an inspection form. The form is left with the provider following an exit meeting whereby the specialist and provider discuss the inspection. If violations are cited, the provider is responsible for completing a "corrective action plan." The plan outlines the various steps taken by the provider to correct the violations and comply with regulations. The plan is sent to the licensing specialist for review and approval.

Enforcement

Child care providers come in contact with the Quality Enhancement Unit (i.e., enforcement) for a variety of reasons, most commonly for "substantial non-compliance" with state regulations. There are, however, no written guidelines defining substantial non-compliance, and decisions to begin enforcement are made on a case-by-case basis.

Several types of violations may result in immediate enforcement actions when it is determined there is serious or immediate threat to the health and safety of a child(ren) in care, including abuse and neglect, lack of supervision, and overcapacity. In these cases, and others, the department has the ability to issue a "summary suspension" against the providers. A summary suspension immediately suspends the provider's operating license and begins the enforcement process.

The committee was informed unless the violation is of an egregious nature, the community based regulations division attempts to resolve regulation violations using the least amount of enforcement possible. Only if violations remain unresolved does the level of enforcement increase. Due to the focus of this study, the committee did not confirm this information.

Compliance meeting. A compliance meeting is considered the first stage of the enforcement process. The Quality Enhancement Unit works with the licensing and complaints units to determine whether enforcement is needed to help ensure regulatory compliance of a provider.

The enforcement process begins with a "Notice of Violation" sent to the provider. The notice details the violations cited during the inspection(s) and offers the provider the opportunity for a meeting (i.e., compliance meeting) at the department to discuss the violations. Compliance meetings usually involve the Quality Enhancement Unit supervisor, a licensing specialist from the unit who acts as a case manager, a licensing or complaint unit supervisor, and the licensing specialist who conducted the inspection. The meetings last roughly an hour and the provider is asked to respond to the alleged violations. The meeting concludes typically with a conference of DPH staff who decide on the necessary enforcement tool.

Committee staff attended several compliance meetings and makes the following observations:

· There is a formality to the violation notices and the compliance meetings, even though providers are told they are not "required" to attend.

· The notices reviewed by committee staff mentioned the provider may have an attorney present at the meeting, which no provider had in the meetings attended by committee staff.

· Each compliance meeting began with the provider being told she could voluntarily surrender her license at any time, rather than beginning with the "least stringent" enforcement tool and working to the most severe, setting the tone for the meetings.

· There were usually at least four DPH personnel in attendance at each meeting, including the representatives from the enforcement and licensing units.

Enforcement outcomes. There are four possible outcomes to a compliance meeting:

· Directive corrective action plan: a voluntary agreement on the part of the provider to correct the violations warranting the compliance meeting and notify the unit within a certain time period of the corrective actions taken (not considered a regulatory action by DPH and does not appear on the quarterly regulatory action reports maintained by the department.)

· Consent order: considered a regulatory action by DPH -- the provider voluntarily agrees to enter into a consent order and agrees to abide by the stipulations outlined in the order, which include correcting the violations outlined in the violations notice and possibly other actions, such as specific training.

· Voluntarily surrender: provider voluntarily surrenders child care operating license.

· Statement of charges: DPH may issue a statement of charges proposing to revoke, suspend, or place on probation a provider's license, or issue a civil penalty. Such actions may be taken separately or in conjunction with one another.

DPH also has the ability to negotiate financial penalties or to levy fines against providers. Financial penalties may be negotiated with the provider or fines may be levied unilaterally by the department. Financial penalties are part of a negotiated consent order to resolve a case. A civil penalty or fine is not negotiated, but imposed by the department after a contested case hearing.

Administrative hearing. An administrative hearing may take place if there is no resolution as a result of a compliance meeting. Such hearings occur before a hearing officer from the public health department, and both the department and the provider are represented by lawyers. All administrative hearings begin with a "Statement of Charges" sent to the provider. This is a formal document specifying the various charges against a provider. Providers are required to attend administrative hearings and may be represented by legal counsel if they choose. The process follows the state's Uniform Administrative Procedures Act format.

Superior Court. If a provider wants to appeal the decision of the administrative hearing process, such appeal can be made through the state's court system.

Enforcement data. Enforcement data were obtained from the Quality Enhancement Unit, as detailed in Table I-4. The information is provided because various people within the child care community noted during this study that DPH has become more enforcement oriented over the past several years. The data included in the table are for information purposes and provide a simple measure of department's enforcement activity regarding child care providers. Since enforcement is not specifically included in the scope of study, no further analysis was conducted.

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