RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[ 55 PA. CODE CHS. 3270, 3280, 3290 AND 3300 ]
Child Care Facilities
[38 Pa.B. 2437]
[Saturday, May 24, 2008]The Department of Public Welfare (Department), by this order, adopts a final-form rulemaking to read as set forth in Annex A under the authority of Articles IX and X of the Public Welfare Code (62 P. S. §§ 901--922 and 1001--1087). Notice of proposed rulemaking was published at 36 Pa.B. 2686 (June 3, 2006).
Purpose of the Final-Form Rulemaking
The child care facility regulations in Chapters 3270, 3280 and 3290 provide standards designed to protect the health, safety and rights of children and to reduce risks to children in child day care centers, group child day care homes (GDCH) and family child day care homes (FDCH). The regulations identify the minimum level of compliance necessary to operate a child day care center, GDCH or FDCH.
The final-form rulemaking is needed to update the minimum standards for child care facilities. The current regulations were published at 22 Pa.B. 1651 (April 4, 1992) and must be updated to reflect the current laws that directly impact the operation of child care facilities, to incorporate the Department's statements of policy issued since 1992, to implement developments in recommended health and safety practices and to reflect best practice in the field of child care.
Affected Individuals and Organizations
Children and families are directly affected by the final-form rulemaking. The minimum health and safety standards in Chapters 3270, 3280 and 3290 protect children who attend the more than 9,000 child care facilities in this Commonwealth. The cost of child care is of concern to families and directly affects the choices that families make regarding child care. The final-form rulemaking may result in decreased costs to parents due to the decreased costs associated with providing updated child health reports to the facility. The final-form rulemaking also will facilitate inclusion of children with special needs in child care facilities.
Child care facilities and staff also are affected by the final-form rulemaking. The final-form rulemaking may increase costs to some facilities. The effective date of the regulations provide 120 days from the publication date for facilities to assess and plan for increased costs. In addition, a facility has 2 years to comply with the requirements relating to playground surfacing. The delay in implementation of the final-form rulemaking will afford the Department time to provide information and tools to assist in understanding and complying with the final-form rulemaking to facilities. The final-form rulemaking relating to staff health appraisals and tuberculosis testing will decrease costs to facilities and staff.
Accomplishments and Benefits
The final-form rulemaking updates and codifies statements of policy. Since the child care service regulations were last published in April 1992, many changes have occurred that affect the regulations and operation of a child care facility. The Department published 12 statements of policy clarifying or interpreting the regulations, including statements of policy regarding emergency plans, supervision of children, Syrup of Ipecac, release of children, posting inspection summaries, Departmental access and swimming pool accessibility. Laws that impact operating a child care facility have changed regarding certificate of occupancy, vehicle safety, childhood immunizations and children with special needs. New research has resulted in changes to health and safety recommendations regarding Sudden Infant Death Syndrome (SIDS) prevention, playground safety and tuberculosis testing. In addition, the Department noted areas in which facilities have difficulty complying with requirements and examined the reasons for noncompliance. The final-form rulemaking makes clarifications that will assist facilities to comply with the regulations and continue to ensure minimum health and safety at a facility.
The final-form rulemaking also addresses the child abuse and criminal history clearance requirements for household members in a family child care home enacted by Act 2006-179. (See 23 Pa.C.S. § 6344.1 (relating to information relating to family day-care home residents).) Act 179 amends the Child Protective Services Law (CPSL) and became effective on May 28, 2007. Act 179 requires that the operator of a family child care home shall submit along with the application for registration certificate child abuse and criminal history clearances as required by the CPSL for each individual 18 years of age and older who resides in a family child care home for at least 30 days in a calendar year. This change appears in § 3290.11(m) (relating to application for and issuance of a certificate of registration).
The final-form rulemaking also extends the prohibition against hazardous toys and equipment to FDCHs in § 3290.102(f) (relating to condition of play equipment). Children receiving care in FDCHs also need the protection afforded by the regulation.
Fiscal Impact
Kindergarten Child as a Young School-Age Child
The final-form rulemaking changes the definition of ''young school-age child'' to include a kindergarten child. A school-age child care center or GDCH that enrolls a kindergarten child will be able to maintain its status as a school-age facility and will result in cost savings for many child day care centers and GDCHs relating to staffing and physical site. (See §§ 3270.241 and 3280.221 (relating to requirements specific to school-age programs).) A facility that transports kindergarten and school-age children to and from school will be able to count the driver in the staff:child ratio and will no longer have to supply an additional staff person on the vehicle to comply with staff:child ratio requirements related to transporting preschool children. The staff:child ratio for young school-age children is 1:12 and for preschool children is 1:10.
Changing the definition of ''young school-age child'' to include kindergarten children may result in lower reimbursement rates for some facilities that participate in the child care subsidy program. On average, the subsidy reimbursement rate for a preschool child is $2.73 higher per day than the reimbursement rate for a young school-age child. Using the average full-time child care center reimbursement rates of $26.55 per day for preschool child and $23.70 per day for young school-age child and the required staff:child ratio of 1:10 for preschool children and 1:12 for young school-age children, the income from each group of children is $265.50 for one group of 10 preschool children and $284.40 for one group of 12 young school-age children.
The wages for child care staff often vary according to position. The majority of staff in child care facilities are qualified as assistant group supervisors (AGSs). An AGS is permitted to be alone with children. According to the Department of Labor and Industry (L&I) wage statistics, the average wage for a child care worker is $8.90 per hour. Using an estimate of a 10-hour full day of care, the cost of a child care worker for 10 hours is $89. The income produced from a group of 10 preschool children less the cost of the child care worker is $176.50. The income produced from a group of 12 young children less the cost of the child care worker is $195.40. The addition of two children to the staff:ratio offsets the lower rate for a young school-age child.
A child care center must have one group supervisor (GS) for every group of 45 enrolled children. A GS has more qualifications than an AGS, may supervise children alone and is often referred to as a ''teacher.'' According to the L&I wage statistics, the average wage for a preschool teacher is $10.44 per hour. If a GS is counted as a staff person, the cost of a GS for 10 hours is $104.40. The income produced from a group of 10 preschool children less the cost of the GS is $161.20. The income produced from a group of 12 school-age children less the cost of the child care worker is $180. Again, the addition of two children to the staff:ratio offsets the lower rate for a young school-age child.
Mandatory Orientation Training
Mandatory orientation training may create costs to an individual who wants to open a child care facility. The training will require a full day including travel and training time. The individual's costs will vary depending on the distance the individual must travel to participate in training. Using the Commonwealth mileage rate, an individual who travels 200 miles round trip will incur a travel cost of $97.
For individuals currently operating or working in child care facilities, attendance at orientation training will be part of their job duties.
An individual who operates a FDCH or GDCH and who wants to open a new facility may have to arrange for staff to work at the facility while the individual attends orientation training. According to L&I wage statistics, the average wage for a child care worker is $8.90 per hour. If substitute staff must be hired to cover an 8-hour shift, the estimated cost is $71.20.
An individual who is employed outside the child care field and who wants to open a facility may miss a day of work to attend orientation training and may lose wages for that day. Based on L&I's statistics regarding the average State wage for all workers in this Commonwealth, the individual may lose $158 in wages to attend orientation training.
Indoor Temperature of 82° F
The final-form rulemaking requires mechanical air circulation at 82° F, instead of 85° F, which is the current standard. Many facilities already have a means of ventilation in place. Ventilation may be provided through using a fan. If a facility has to purchase a fan, the cost of a fan will vary depending on the type of fan, such as a standing fan, window fan, wall fan or ceiling fan. The estimated costs would be anywhere from $15 to $100 depending upon the type of fan chosen by the provider.
Disposable, Nonporous Gloves in First Aid Kit
The addition of disposable, nonporous gloves to the first aid kit represents increased cost to a facility. The use of gloves is a universal precaution to prevent the spread of disease transmitted by means of body fluids. The cost of a box of 100 gloves ranges from $2.99 to $8.99. The rate at which the gloves are used to administer first aid is unknown. The health and safety protection afforded to children and staff by using gloves outweighs the cost.
Protective Surfacing Under Outdoor Play Equipment
The final-form rulemaking relating to surface covering under outdoor embedded play equipment may result in increased costs for facilities. Many facilities already meet the United States Consumer Product Safety Commission (CPSC) recommendations. The current regulation requires at least 6 inches of loose-fill material under embedded play equipment. The CPSC recommendations state that 6 inches of uncompressed wood chips, the most common protective surface covering used at child care facilities, provides adequate protection from a fall height from 7 feet. Six inches of loose-fill material will be adequate for most child care facilities. If a facility must modify the protective surface to comply with the regulation, the cost will depend upon the fall height from the equipment, the type of surface covering used and the size of the area that must be covered.
A facility that has a unitary surface covering that meets the requirements in the Department's statements of policy in §§ 3270.102a, 3280.102a and 3290.102a (relating to condition of play equipment--statement of policy) at 27 Pa.B. 2827 is in compliance with the final-form rulemaking.
Child's Service Report Form
Facilities will incur added costs in preparing a service report form every 6 months for each infant, toddler and preschool child and for each school-age child who attends the facility more than 15 hours per week. The Department estimates that on average, a form will take 10 minutes to complete. The Department estimates the average costs of preparing service report forms to be as follows: child care center--$345.95; GDCH--$81.40; and FDCH--$40.70.
Staff Health
The final-form rulemaking changes the requirement for annual health appraisals to health appraisals every 2 years and eliminates bi-annual tuberculosis testing. These changes will save each staff person $75 to $150 per year and an additional $25 to $75 every 2 years.
Paperwork Requirements
Facilities must complete a service report form every 6 months for each infant, toddler and preschool child and for each school-age child who attends the facility more than 15 hours per week. The Department will develop a form for facilities to use. The form will take approximately 10 minutes to complete.
Each child care facility must ensure that no hazardous equipment is used by children on the premises. The Department will provide an affirmation form to child day care center and GDCH operators for this purpose. The form will take no more than 10 minutes for the facility to complete. In a FDCH, the operator's self-certification of compliance with all applicable regulatory requirements at the time of initial and renewal application will serve as certification of compliance with the regulation relating to no hazardous equipment in the facility.
Public Comment
Following publication of proposed rulemaking, the Department received 46 comments during the 30-day public comment period and three comments within 30 days after the close of the public comment period. The comments received during the public comment period came from 18 child care providers, 13 advocacy organizations, 7 medical professionals or organizations, 3 attorneys, 3 consumers, 1 Pennsylvania Key employee and 1 former Department employee.
The comments received within 30 days after the close of the public comment period came from two providers and one medical professional.
The Department also received comments from the House Children and Youth Committee and the Independent Regulatory Review Commission (IRRC).
Prior to publication of proposed rulemaking, the Department formed a regulation work group to gain input regarding the proposed rulemaking. Work group participants represent a variety of stakeholders interested in child care including providers from all types of child care facilities, advocates, medical professionals, early intervention professionals and representatives of the Departments of Education and Health. The work group met twice.
In February 2006, the Office of Child Development and Early Learning conducted leadership forums regarding initiatives for Fiscal Year 2006-2007. The forums were held in several locations across the State. Approximately 500 people attended the forums. Participants were provided the option of attending several topic-specific sessions regarding upcoming initiatives, including an overview and discussion of the proposed regulatory amendments.
Following publication of proposed rulemaking, the Department held two additional work group meetings. During the 30-day public comment period, the work group met once to discuss strategy to solicit comments regarding the proposed amendments. Following the close of the public comment period, the work group met to discuss the comments and possible revisions to the proposed rulemaking. In addition, Department staff contacted work group members who were unable to attend the meeting to get their input.
Discussion of Comments and Major Changes
Following is a summary of the major comments received within the public comment period following publication of the proposed rulemaking and the Department's response to those comments. A summary of major changes from proposed rulemaking is also included.
Statutory Authority
IRRC, citing the en banc Commonwealth Court's April 3, 2006 opinion and order in St. Elizabeth's Child Care Center v. Department of Public Welfare, 895 A.2d 1280 (Pa. Cmlth. 2006), has questioned the Department's authority to ''regulate'' Article IX nonprofit child care facilities. In that case, the Court held that the Department lacked statutory authority under Article IX of the Public Welfare Code to promulgate regulations that require a nonprofit day care center to obtain a Certificate of Compliance to operate. The St. Elizabeth's case did not address the issue of whether the Department was authorized to issue regulations under the supervisory authority conferred by Article IX, apart from any requirement to obtain a certificate of compliance.
Under Article IX, the Department retains the statutory right to enter, visit, inspect and make and enforce rules in its supervision of all ''children's institutions'' and ''supervised institutions'' in this Commonwealth, which includes child care facilities, both before and after the facilities commence operation.
In response to the Commonwealth Court's ruling, the Department filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Supreme Court granted the Department's Petition for Allowance of Appeal at 23 MAP 2007. See 591 Pa. 720, 919 A.2d 960 (Pa. 2007). The grant of the Petition for Allowance of Appeal operates as an automatic stay of the Commonwealth Court's order. Pa.R.A.P. 1736(b) (relating to exemption from security).
Despite the stay of the St. Elizabeth's order, the Department does not intend to take legal action to enforce its regulations that require Article IX nonprofit child care facilities to obtain a Certificate of Compliance, pending the disposition of the Supreme Court case at 23 MAP 2007. However, as provided in 62 P. S. § 911(b) under Article IX, these facilities shall continue to be subject to unannounced inspections by the Department and the Department will have free and full access to the facilities. If the Department, under inspections or access, finds conditions deemed in its opinion to be unlawful, unhygienic or detrimental, the Department will have the authority to pursue the statutory remedies set forth under 62 P. S. § 911(c).
§§ 3270.4, 3280.4 and 3290.4. Definitions--Preschool and young school-age child.
Fifteen commentators responded to the changed definitions of ''preschool child'' and ''young school-age child.'' Seven commentators supported the change. Commentators stated the change will reduce operating costs. Another commentator stated that the change will increase opportunities for kindergarten children to participate in school-age child care programs, especially school-based, school-age care programs and that kindergarten children's access to regulated care will increase as a result. Another commentator stated that the change makes sense because the needs of children attending kindergarten are more similar to those of a school-age child as opposed to a preschool child.
Eight commentators opposed the change. Seven of the commentators opposed the change because the child care subsidy reimbursement rate is lower in their counties for a young school-age child than for a preschool child.
The House Children and Youth Committee (Committee) opposed the change due to concerns that a lower child care subsidy reimbursement rate for young school-age children will negatively impact providers.
IRRC also stated that the Department should carefully examine the impact of this change on facilities that provide care primarily to preschool children and provides care for only a few kindergarten children. A facility may not benefit from the less stringent staff:child ratio for young school-age children but will receive less subsidy reimbursement.
Response
The Department finds that including a kindergarten child in the definition of young school-age child will facilitate care for kindergarten children.
The majority of kindergarten children (63%) are participating in full-day kindergarten classrooms in this Commowealth. School-age child care programs are established to meet the needs of children who need child care only before and after school hours, including kindergarten children. The Department's regulation permits a child day care center or GDCH in which care is provided exclusively to school-age children to comply with fewer requirements than a facility that provides care for children of all age levels. (See §§ 3270.241 and 3280.221.) In addition, a school-age child care program located in a school building is exempt from physical site requirements in accordance with section 7-776.1 of the Public School Code of 1949 (24 P. S. § 7-776.1). A facility that enrolls a kindergarten child cannot be considered a school-age program under the current regulation because the facility is not providing care exclusively to school-age children. As a result, the facility must comply with all the requirements in Chapters 3270 and 3280 and will incur higher costs.
Some school-age child care programs transport children between school and the child care facility. The Department's current regulation relating to transportation of children states the driver may not be counted in the staff:child ratio when preschool children are transported but may be counted in the ratio when only school-age children are being transported. (See §§ 3270.173(b) and (c) and 3280.173(b) and (c) (relating to transportation ratios).) When a kindergarten child is being transported, the facility cannot count the driver as part of the staff:child ratio and must provide more staff on the vehicle to meet the preschool staff:child ratio of 1:10 rather than the young school-age ratio of 1:12. The cost of transporting a kindergarten child is, therefore, higher than the cost of transporting a school-age child.
Defining a kindergarten child as a preschool child under the Department's current regulation creates a disincentive for a school-age child care program to enroll a kindergarten child. By changing the definition of young school-age child to include a child in kindergarten, a school-age child care facility will be able to enroll a kindergarten child and continue to operate as a school-age program as provided in §§ 3270.241 and 3280.221. The facility will not incur the higher costs of providing care to a preschool child as discussed more fully in our fiscal impact analysis. The final-form rulemaking will facilitate before- and after-school care for kindergarten children.
The child care subsidy reimbursement rate was the basis for comments opposing changing the definition to make a kindergarten child a young school-age child. The subsidy reimbursement rate is a separate issue from the child care facility regulations and is outside the scope of this final-form rulemaking. Therefore, the Department made no changes to the final-form rulemaking.
§§ 3270.4, 3280.4 and 3290.4. Definitions--Child with special needs.
Nine commentators addressed the proposed definition of ''child with special needs.'' Eight commentators supported the change in definition. One commentator made suggestions to include a reference to a service agreement under 22 Pa. Code Chapter 15 (relating to protected handicapped students) as a document that identifies that a child has a special need. The same commentator objected to the term ''formal behavioral plan'' and suggested that a behavioral plan written by a certified behavior analyst should be accepted as indication that the child has a special need.
IRRC commented that a service agreement under 22 Pa. Code Chapter 15 should be included as a document that identifies that a child has a special need. IRRC also objected to the use of the word ''formal'' in reference to the behavioral plan and suggested adding a certified behavior analyst to the list of professionals who may write a behavioral plan.
Response
The Department agreed and incorporated the suggested changes into the final-form rulemaking. In addition, the Department made the editorial change of deleting ''psychiatrist'' from the definition in subparagraph (ii) since ''physician'' already includes a ''psychiatrist''. (See 1 Pa.C.S. § 1991 (relating to definitions).)
§§ 3270.4, 3280.4 and 3290.4. Definitions--IEP, IFSP and service agreement.
IRRC suggested that adding the following definitions to the regulation will provide clarity:
* Define ''individualized education program (IEP)'' as defined defined in 22 Pa. Code §§ 14.1 and 14.131--14.133 (relating to definitions; IEP).
* Define ''individualized family service plan (IFSP)'' as defined in Chapter 4226 (relating to early intervention services).
* Define ''service agreement'' as defined in 22 Pa. Code Chapter 15.
Response
The Department added these definitions to the final-form rulemaking.
§§ 3270.17, 3280.16 and 3290.15. Service to a child with special needs--Overall comments.
Six commentators made general comments regarding the proposed amendments to §§ 3270.17, 3280.16 and 3290.15 (relating to service to a child with special needs). Five supported the amendment. One commentator opposed the amendments based on concerns about the need for staff training specific to a child's special need and providing a program tailored to a child's special need without additional supports or funding.
Response
Training in numerous topic areas relating to children with special needs is available through the Pennsylvania Key Professional Development System, the Department's contracted comprehensive Statewide training system for child care providers. Over 70 training opportunities were offered Statewide in Fiscal Year 2005-2006. Individuals who provide specialized services to a child with special needs can come to the facility to provide those services. In addition, Federal and State laws provide guidance and parameters regarding reasonable accommodations that a facility may be required to make in caring for a child with a special need.
Changes to each section are discussed as follows.
§§ 3270.17(a), 3280.16(a) and 3290.15(a). Service to a child with special needs.
Four commentators supported the requirement to make reasonable accommodation to include a child with special needs but expressed concerns regarding the definition of ''reasonable accommodation'' and reference to the Americans With Disabilities Act (ADA) only.
Response
Federal and State laws establish requirements relating to reasonable accommodation. The requirements regarding reasonable accommodation are not identical for all child care facilities and the regulation cannot address every situation. The Department changed the language to reference applicable Federal and State laws in general. Consistent with other rulemaking (35 Pa.B. 2499 (April 23, 2005)), the regulation does not provide an exhaustive list of applicable laws. A comprehensive list of laws is unnecessary because their applicability does not depend on this final-form rulemaking.
§§ 3270.17(b), 3280.16(b) and 3290.15(b). Service to a child with special needs.
Three commentators supported the requirement to permit service providers to come into the facility. One commentator suggested adding a reference to services specified in a service agreement under 22 Pa. Code Chapter 15 or by a licensed practitioner.
IRRC commented that some parents may not share the IEP or IFSP with the facility and the regulation should acknowledge this by instructing child care staff that it is up to the parent to provide the document. IRRC also asked whether early intervention must include a child care facility representative on an IFSP team under Chapter 4226.
Response
A service agreement applies only to a school setting; therefore, the Department did not add to the final-form rulemaking the suggested reference to a service agreement. The Department considers the reference to licensed practitioner to be covered by an IEP or IFSP and did not add to the final-form rulemaking the suggested reference to a licensed practitioner. At this time, the Department's regulation relating to early intervention does not require inclusion of a child care facility representative in development of the IFSP; however, participation of a child care facility representative is encouraged in Early Intervention policy. The Department will provide information to facilities regarding Early Intervention services and will include information that a parent is not required to provide a copy of an IEP or IFSP to the facility.
The Department made minor changes to this subsection to add clarity.
§§ 3270.17(c), 3280.16(c) and 3290.15(c). Service to a child with special needs.
Two commentators supported the requirement that the facility must provide information regarding resources for early intervention services to facility staff and to the parent of a child who staff believe may need an assessment for early intervention services. One commentator cautioned that child care staff should not make a diagnosis regarding whether a child has special needs.
The Committee commented that the proposed rulemaking places the facility director in a difficult situation in which the director must determine if parents have or have not had their child evaluated and if it is prudent to advise them to have the child evaluated. The Committee recommended changing this requirement to a suggestion.
IRRC also expressed concern about training for child care staff to complete the developmental checklist and to talk with a parent regarding a child who may need an assessment. IRRC recommended that child care staff should complete training before completing an observation of a child's development, assessing a child for a possible disability and approaching a parent with referral information.
Response
The Department changed the final-form language to require that the operator shall make staff persons and parents aware of community resources for the family of a child who may have special needs. The Department will provide to the operator information regarding community resources.
§§ 3270.27, 3280.26 and 3290.24. Emergency plan.
IRRC requested that the Department add a definition of emergency to the regulation and referred to the definition of ''emergency'' that appears in the child care emergency planning tool kit prepared by the Pennsylvania Emergency Management Agency. IRRC commented that the list of requirements regarding the information that must be included in the emergency plan is unclear and incomplete and cited the requirements regarding shelter of children during an emergency and evacuation of children during an emergency. IRRC also commented that the plans for evacuation during a fire should cross-reference the existing regulations regarding ''evacuation routes'' and ''evacuation plans'' in §§ 3270.94(f) and (g), 3280.94(f) and (g) and 3290.94(f) and (g) (relating to fire drills) to avoid conflict or confusion regarding evacuation routes.
Response
The Department incorporated into the final-form rulemaking the existing statements of policy in §§ 3270.21a, 3280.20a and 3290.18a (relating to emergency plan--statement of policy) requiring emergency plans that was published at 33 Pa.B. 6428 (December 27, 2003) and has been in effect since June 2004. The definition of ''emergency'' has never been questioned during that time period. The Department did not add a definition of ''emergency'' because the Department intends for ''emergency'' to retain its dictionary definition.
The Department revised the language relating to shelter and evacuation of children in an emergency as suggested by IRRC's comments.
§§ 3290.31(a) and 3290.213. Age and training.
The Department received 13 comments regarding the requirement that an FDCH operator submit to the Department at the time of first certificate renewal proof that the operator has a high school diploma or general educational development (GED) certificate. Twelve commentators supported the proposed rulemaking, including two family child care provider associations. Four of the twelve commentators suggested that the Department extend the time line to get a GED, provide financial assistance for an operator to get a GED and grandfather all current operators at any location.
The Committee stated that a FDCH operator does not need a high school diploma or GED to operate a quality family child care program and recommended deletion of the requirement.
Response
Currently, 97% of registered FDCH operators have a high school diploma or GED. As of the September 22, 2008 effective date of September 22, 2008, the final-form rulemaking, a newly registered FDCH operator who does not have a high school diploma or GED will have 2 years, which is one full registration period, to obtain the credential and must demonstrate complianceat the time of the first registration renewal. GED classes are offered free of charge Statewide in 150 locations. The cost of taking the examination to obtain a GED is $40 to $60. The Department maintains that 2 years is sufficient time to obtain a GED and did not change the time line for compliance in the final-form rulemaking.
The FDCH registration system is a self-certification system. The applicant for a registration certificate submits to the Department a signed statement certifying that the applicant has read and is in compliance with the FDCH regulation. By requiring the operator to have a high school diploma or GED at the time of certificate renewal, the Department is requiring a minimum level of literacy sufficient to comply with these regulations and operate a small business. This requirement will increase the health and safety of children in FDCHs and will also codify what already is the minimal educational background of 97% of current FDCH operators.
Further, these final-form regulations align staffing requirements across all child care settings since primary staff in child care centers and GDCHs are required to have a high school diploma or GED. In fact, any staff in centers or GDCHs who do not meet this educational requirement must be supervised at all times by a staff person with the required educational background.
In the final-form rulemaking, the Department permanently grandfathered all currently registered FDCH operators even if the operator moves to a new location.
§§ 3270.70, 3280.70 and 3290.68. Indoor temperature.
One commentator opposed the proposed rulemaking as it does not address the heat index.
IRRC noted the comment regarding factoring in the heat index and the standard published in Caring for Our Children: National Health and Safety Performance Standards: Guidelines for Out-of-Home Child Care, 2nd Edition which references maintaining the humidity in a child care space at 30%--50%. IRRC suggested that the Department should review its policy concerning allowable high temperature.
Response
The Department researched the impact of referencing the heat index in the final-form rulemaking. The National Weather Service defines ''heat index'' as an accurate measure of how hot it really feels when the relative humidity is added to the actual air temperature. To determine the heat index, one must measure the relative humidity. Hygrometers are the instruments that measure relative humidity. The price for one hygrometer ranges from approximately $30 to hundreds of dollars. To monitor relative humidity, the facility would need a hygrometer in each child care space and would incur significant costs.
The National Health and Safety Performance Standards represent state-of-the-art child care facility standards. The Department reviewed the child care facility regulations of the adjacent seven states which have climates similar to this Commonwealth. None of the seven states' regulations reference indoor humidity. Only three of the seven states' regulations establish a maximum indoor temperature and require ventilation above the maximum temperature.
The Department did not change the final-form rulemaking.
§§ 3270.102(c), 3280.102(c) and 3290.102(c). Condition of play equipment; §§ 3270.233, 3280.215 and 3290.212. Play surfaces.
Twenty-two commentators addressed the requirement that the surface covering under outdoor play equipment that requires embedded mounting must meet the guidelines for loose-fill or unitary playground protective surface covering established by the United States Consumer Product Safety Commission. Ten commentators supported the change.
Twelve commentators did not support the change. Eight commentators cited cost as the reason for opposing the change. Four commentators do not believe that FDCH and GDCH facilities located in residences should have to comply with the requirement. One commentator felt that 2 years was not sufficient time to come into compliance. Another commentator opposed the requirement because public schools are not required to comply.
Response
The CPSC guidelines for loose-fill and unitary surface coverings reflect the fall height of the equipment and the type and depth of surface covering required to protect a child from injury if the child falls from the highest point of the equipment. The CPSC standards state that 6 inches of uncompressed wood chips, the most common protective surface covering used at child care facilities, provides protection up to a fall height of 7 feet. The previous requirement for 6 inches of loose-fill material will be adequate for most child care facilities; thus, the majority of facilities are not likely to incur additional costs associated with implementation of the final-form rulemaking. Facilities that do not meet this requirement have 2 years to comply.
The Department did not change the final-form rulemaking.
§§ 3270.119, 3280.119 and 3290.118. Program plan.
Thirty-one commentators addressed the proposed rulemaking to require a program plan for each child in care. Five commentators supported the proposal. Twenty-six commentators opposed the proposal.
The Committee also commented on the proposed rulemaking. The Committee perceived a lack of clarity in the proposed rulemaking and were concerned about licensing repercussions if the plan was not followed, the burden of paperwork and costs to the provider, whether a provider is qualified to develop a program plan, the provider's inability to access a child's IEP or IFSP and have information regarding early intervention services being provided to the child, difficulty in writing program plans for school-age children who are in care for short periods of time and a complaint system for parents who disagree with the program plan.
IRRC expressed the same concerns as the House Children and Youth Committee with regard to lack of clarity, particularly regarding a child who has an IEP or IFSP and a child who does not. IRRC expressed concern regarding whether child care staff have sufficient experience, training and education to develop plans similar to IEPs and IFSPs. IRRC suggested that if the Department reduces the requirement and instead requires a semi-annual statement of the child's use of child care services and the child's developmental progress, then the Department should develop a form and prescribe the contents of the form.
Response
The Department changed the final-form rulemaking to require the completion of a service report form for each infant, toddler and preschool child and for each school-age child who attends the facility more than 15 hours per week. The form must be completed every 6 months and will address information about the child's growth and development within the context of the child care services provided by the facility. The form is referenced in amendments to §§ 3270.123(a)(3), 3280.123(a)(3) and 3290.123(a)(3) (relating to agreement). The Department will provide a form for the facility to use. The elements in the Department's form are based on the guidelines of the American Public Health Association, the American Academy of Pediatrics, and the Maternal and Child Health Bureau of the United States Department of Health and Human Services published in Caring for Our Children: National Health and Safety Performance Standards: Guidelines for Out-of-Home Child Care, 2nd Edition. The information on the form parallels the health and developmental information that pediatricians request during check up visits. The facility must give the child's parent a copy of each report.
§§ 3270.120, 3280.120 and 3290.119. Infant sleep position (now designated as §§ 3270.119, 3280.119 and 3290.118. Infant sleep position).
Fifteen commentators supported the proposed rulemaking to require infants be placed on their backs to sleep in accordance with the current American Academy of Pediatrics (AAP) policy relating to SIDS prevention. Three commentators wanted to expand the requirement to include the entire content of the AAP policy relating to items in a crib. Three commentators suggested changing the language to reference the current AAP recommendation regarding infant sleep position so that the regulation would not have to be amended if the policy changed.
IRRC suggested changing the language to reference the AAP recommendation for preventing SIDS and to inform providers how they may obtain copies of the AAP recommendation.
Response
The Department revised this section to require facilities to comply with the current AAP recommendation on infant sleep position. The Department also added language in §§ 3270.106(j), 3280.105(j) and 3290.105(j) (relating to rest equipment) to prohibit toys, bumper pads and pillows in a crib while an infant is sleeping in the crib as per the AAP recommendation. The Department previously provided facilities with information regarding SIDS prevention, including brochures and materials regarding the AAP recommendation, and will continue to do so.
§§ 3270.131(a)--(d), 3280.131(a)--(d) and 3290.131(a)--(d). Health information.
Nine commentators supported the proposed changes related to the frequency and content of child health reports. Five of those commentators were providers and three commentators represented advocacy organizations.
Twelve commentators opposed the changes regarding the frequency and content of child health reports. Seven of those commentators were medical professionals or representatives of medical organizations and two were providers. Six of the 12 commentators specifically opposed the deletion of the requirement that health reports must include a review of age-appropriate screenings according to the standards of the AAP.
IRRC commented that the Department should retain current requirements relating to the AAP recommended schedule for health examinations and screenings but should provide for exceptions when families cannot meet the requirement or have privacy concerns. IRRC further commented that by doing so, the Department can gather useful information, provide facilities with relief from enforcement complications and encourage families to obtain recommended screenings. IRRC also asked for further explanation of the benefits of the changed requirements. IRRC also noted that a commentator said that the changed requirements would be inconsistent with the polices for Head Start; the Early and Periodic Screening, Diagnosis and Treatment program in the Medical Assistance Program and the goals of the Department of Health.
Response
The Department added to the final-form rulemaking two requirements relating to the content of the child health report, which is to be completed by the child's health care professional. First, the health report must include specific information regarding abnormal results of vision, hearing and lead screenings. This will provide the facility with valuable information regarding the child's health that may impact on the child within the context of the child care program. Second, the health report must also include a statement indicating whether AAP recommended screenings were conducted since the date of the child's previous health report. This statement will serve as the requested reminder to parents and health care providers about AAP recommended screenings.
There are wide variations in the source of a child's health care coverage, and in some instances, a lack of health care coverage. Thus, requiring the facility to have on file child health reports and health screening information that comply with the AAP recommendations may far exceed the scope of the health care coverage available to the family. If the facility does not comply, the Department will cite the facility for noncompliance with the regulation and require the facility to correct the violation.
Parents may incur added costs to comply with the AAP schedule if their health care coverage does not cover all the examinations and screenings included in the AAP schedule. In addition, some physicians charge parents to complete the health report required by regulation. In some areas of this Commonwealth, facilities report that parents must wait months for well-child appointments and cannot meet the time lines due to lack of availability of qualified physicians.
The Department is concerned about creating a regulation that provides for exceptions whereby a parent can simply document that the parent cannot get health information or has a privacy concern. The result is a lack of health information that is necessary to protect all children in care or to deal with a medical emergency involving a child.
The final-form rulemaking provides for submission of health information on a regular schedule, requires the child care facility to know if the AAP recommendations have been fulfilled, and focuses on submission of information that the facility needs to protect the health and safety of the child and all other children in the facility. The modifications in the final-form rulemaking also serve as a reminder and incentive to parents to have their children receive primary pediatric care in accordance with the AAP recommendations.
§§ 3270.131(e), 3280.131(e) and 3290.131(e). Health information.
Eight commentators specifically addressed the proposed immunization requirements which match the Department of Health requirements in 28 Pa. Code § 27.77 (relating to immunization requirements for children in child care group settings). Seven commentators supported the change. One commentator did not support the requirement to exclude a child who did not get immunizations within the time prescribed in the regulation.
Response
The immunization requirements in the Department's current regulations differ from the Department of Health's immunization requirements. The current differing requirements create confusion to providers and parents. The final-form rulemaking creates consistency in immunization requirements by adopting the Department of Health's immunization requirements for children who attend child care facilities. (See 28 Pa. Code § 27.77.)
The Department did not change the final-form rulemaking.
§§ 3270.133, 3280.133 and 3290.133. Child medication and special diets.
Eleven commentators supported the proposed rulemaking. One commentator stated the Department should reference other laws regarding disability discrimination that may impact on providing medication related to child's special need. Two commentators supported adding a requirement for medication administration training.
IRRC recommended that the Department add a requirement for medication administration training like that required for staff in Personal Care Homes in § 2600.190 (relating to medication administration training) and include a citation to the pertinent section of the ADA requiring reasonable accommodation. IRRC also noted that the language of the regulation could be interpreted to require administration of any and all medications or special diets to a child with a special need rather than only medications or special diets related to a child's special need. If this is not the Department's intent, the final-form rulemaking should be reworded to clearly state the intent.
Response
The ADA is not the only statute regarding disability discrimination. The Department changed the final-form rulemaking to reference all applicable Federal and State laws. The Department also changed the final-form rulemakingto specify that the requirement to administer medication or a special diet pertains only to a medication or special diet related to a child's special need.
The Department will not require medication administration training. Medication administration training is currently available to providers through the Pennsylvania Keys to Professional Development system. At this time, the Department does not know how many children with special needs will require medication during the time they are in care. Child care is provided for only a portion of the day; thus, medication schedules may not include the hours a child is in care. To meet the needs of some children with special needs, staff persons may need specialized training or instruction in administration that can be provided by the child's parent or a service provider or medical professional who works with the child. In addition, service providers who come onsite to provide services to the child may be responsible for administering medication. The Department will monitor medication administration in child care facilities to determine whether it is necessary to require medication administration training for facility staff persons.
In addition to the major changes discussed previously, the Department made several changes in preparation of the final-form rulemaking including reformatting to enhance readability, revising language to enhance clarity and conforming to the changes previously discussed.
Regulatory Review Act
Under section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), on March 10, 2008, the Department submitted a copy of this final-form rulemaking to IRRC and to the Chairpersons of the House Committee on Children and Youth and the Senate Committee on Public Health and Welfare (Committees). In compliance with the act the Department also provided the Committees and IRRC with copies of all public comments received, as well as other documentation.
In preparing the final-form rulemaking, the Department reviewed and considered comments received from the Committees, IRRC and the public.
In accordance with § 5.1 (j.1) and (j.2) of the Regulatory Review Act, this final-form rulemaking was deemed approved by the Committees on March 30, 2008. IRRC met on April 17, 2008, and approved the final-form regulation.
In addition to submitting the final-form rulemaking, the Department has provided IRRC and the Committees with a copy of a Regulatory Analysis Form prepared by the Department. A copy of this form is available to the public upon request.
Findings
The Department finds that:
(1) The public notice of intention to amend the administrative regulation by this order has been given under section 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations in 1 Pa. Code §§ 7.1 and 7.2.
(2) The adoption of this final-form rulemaking regulation in the manner provided by this Order is necessary and appropriate for the administration and enforcement of the Public Welfare Code.
Order
The Department acting under the authority of Articles IX and X of the Public Welfare Code orders that:
(a) The regulations of the Department, 55 Pa. Code Chapters 3270, 3280 and 3290 are amended by amending §§ 3270.4, 3270.11, 3270.15, 3270.17, 3270.24, 3270.25, 3270.31, 3270.52, 3270.61, 3270.70, 3270.75, 3270.82, 3270.102, 3270.104, 3270.106, 3270.113, 3270.115, 3270.117, 3270.122--3270.124, 3270.131, 3270.133, 3270.135, 3270.151, 3270.175, 3270.176, 3270.182, 3270.233, 3270.241, 3280.4, 3280.11, 3280.15, 3280.16, 3280.23, 3280.24, 3280.31, 3280.52, 3280.61, 3280.70, 3280.75, 3280.102, 3280.105, 3280.108, 3280.113, 3280.115, 3280.117, 3280.122--3280.124, 3280.131, 3280.133, 3280.135, 3280.151, 3280.175, 3280.176, 3280.182, 3280.215, 3280.221, 3290.4, 3290.11, 3290.14, 3290.15, 3290.21, 3290.22, 3290.31, 3290.68, 3290.73, 3290.102, 3290.105, 3290.113, 3290.115, 3290.116, 3290.122--3290.124, 3290.131, 3290.133, 3290.135, 3290.151, 3290.173, 3290.174, 3290.182, 3290.212 and 3290.213; adding §§ 3270.27, 3270.119, 3280.26, 3280.119, 3290.24 and 3290.118; and by deleting §§ 3270.201--3270.210; 3280.201--3280.209, 3290.201--3290.208, 3300.1--3300.4, 3300.11--3300.13, 3300.31--3300.36, 3300.51--3300.54, 3300.101, 3300.102, 3300.111--3300.113, 3300.121 and 3300.131 to read as set forth in Annex A, with ellpises referring to the existing text of the regulations.
(b) The Secretary of the Department shall submit this Order and Annex A to the Offices of General Counsel and Attorney General for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify and deposit this Order and Annex A with the Legislative Reference Bureau as required by law.
(d) This Order shall take effect September 22, 2008, except for §§ 3270.102(c) and (e) and 3280.102(c) and (e) (relating to condition of play equipment) which shall take effect September 22, 2010. See 38 Pa.B. 2469 (May 24, 2008).
ESTELLE B. RICHMAN,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 2132 (May 3, 2008).)
Fiscal Note: Fiscal Note 14-506 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 55. PUBLIC WELFARE
PART V. CHILDREN, YOUTH AND FAMILIES MANUAL
Subpart D. NONRESIDENTIAL AGENCIES, FACILITIES AND SERVICES
ARTICLE I. LICENSING/APPROVAL
CHAPTER 3270. CHILD DAY CARE CENTERS
GENERAL PROVISIONS § 3270.4. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ACIP--The Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, United States Department of Health and Human Services.
Act--The Public Welfare Code (62 P. S. §§ 101--1411).
Age level--The grouping category appropriate for the child's age.
(i) Infant--A child from birth to 1 year of age.
(ii) Young toddler--A child from 1 to 2 years of age.
(iii) Older toddler--A child from 2 to 3 years of age.
(iv) Preschool child--A child from 3 years of age to the date the child enters kindergarten in a public or private school system.
(v) Young school-age child--A child who attends kindergarten to the date the child enters the 4th grade of a public or private school system.
(vi) Older school-age child--A child who attends the 4th grade of a public or private school system through 15 years of age.
* * * * * Child with special needs--A child who has one or more of the following:
(i) A disability or developmental delay identified on an IEP, an IFSP or a service agreement.
(ii) A written behavioral plan that has been determined by a licensed physician, licensed psychologist or certified behavior analyst.
(iii) A chronic health condition diagnosed by a licensed physician, physician's assistant or CRNP that requires health and related services of a type or amount beyond that required by children generally.
* * * * * IEP--Individualized education program as defined in 22 Pa. Code §§ 14.101 and 14.131--14.133 (relating to definitions; and IEP).
IFSP--Individualized family service plan as defined in §§ 4226.5 and 4226.71--4226.77 (relating to definitions; and IFSPs).
Inspection summary--A document prepared by an agent of the Department describing each regulatory noncompliance item confirmed as a result of a facility inspection.
* * * * * Service agreement--A service agreement as defined in 22 Pa. Code §§ 15.2 and 15.7 (relating to definitions; and service agreement).
* * * * *
GENERAL REQUIREMENTS § 3270.11. Application for and issuance of a certificate of compliance.
(a) A legal entity shall obtain a valid certificate of compliance to operate at a specific location. The certificate of compliance will be issued by the Department to a legal entity prior to commencement of operation at a specified location.
(b) A legal entity or a representative of the legal entity shall participate in an orientation training provided by the Department within 12 months prior to commencing operation of the child day care center. The orientation does not count toward the annual minimum of 6 hours of child care training required in § 3270.31(e) (relating to age and training).
(c) Application for a certificate of compliance shall be submitted to the appropriate regional day care office in accordance with Chapter 20 (relating to the licensure or approval of facilities and agencies).
(d) A certificate of compliance is issued in the manner described in Chapter 20, for a period not to exceed 12 months from the date of issue.
(e) A facility will be inspected at least once every 12 months by an agent of the Department.
(f) The facility is subject to announced and unannounced inspections in accordance with § 3270.24(b) (relating to Departmental access).
(g) Sanctions relating to the status of a certificate of compliance are applied under the authority of applicable sections of the act, Chapter 20 and this chapter.
(h) A facility whose certificate of compliance is current as of September 22, 2008, will not be inspected under this chapter until the current certificate of compliance is due to be renewed or when a regulatory violation is alleged and the Department responds to the alleged violation with an inspection.
§ 3270.15. Building codes.
A certificate of compliance will not be granted by the Department until the legal entity provides a certificate of occupancy as proof of compliance with the applicable requirements of the Department of Labor and Industry in 34 Pa. Code § 403.23 (relating to child day care facilities).
§ 3270.17. Service to a child with special needs.
(a) The operator shall make reasonable accommodation to include a child with special needs in accordance with applicable Federal and State laws.
(b) The operator shall permit an adult individual who provides specialized services to a child with special needs to provide those services on the facility premises as specified in the child's IEP, IFSP or written behavioral plan.
(c) The operator shall make staff persons and parents aware of community resources for the family of a child who may have special needs. The Department will provide to the operator information regarding community resources.
§ 3270.24. Departmental access.
(a) A staff person shall provide to agents of the Department immediate access to the facility and, upon request, to the children and the files and records.
(b) An inspection will be conducted during normal business hours except when there is reasonable cause to believe that inspections at other times are necessary to detect violations of applicable laws and regulations.
(c) An agent of the Department will inspect for compliance with this chapter in all areas of the facility premises that are accessible to children.
§ 3270.25. Availability of certificate of compliance and applicable regulations.
(a) The facility's current certificate of compliance and a copy of the applicable regulations under which the facility is certified shall be posted in a conspicuous location used by parents, with instructions for contacting the appropriate regional day care office posted at the same location.
(b) The operator shall post a copy of each inspection summary issued by the Department in a conspicuous location used by parents. The inspection summary must remain posted until an agent of the Department verifies that each regulatory noncompliance item cited on the inspection summary has been corrected.
§ 3270.27. Emergency plan.
(a) The facility shall have an emergency plan that provides for:
(1) Shelter of children during an emergency including shelter in place at the facility and shelter at locations away from the facility premises.
(2) Evacuation of children from the facility building and evacuation of children to a location away from the facility premises. The evacuation routes and evacuation plans to exit the building may be the same as those required by § 3270.94(f) and (g) (relating to fire drills).
(3) A method for facility persons to contact parents as soon as reasonably possible when an emergency situation arises.
(4) A method for facility persons to inform parents that the emergency has ended and to provide instruction as to how parents can safely be reunited with their children.
(b) The operator shall review the emergency plan at least annually and update the plan as needed. Each review and update of the emergency plan shall be documented in writing and kept on file at the facility.
(c) Each facility person shall receive training regarding the emergency plan at the time of initial employment, on an annual basis and at the time of each plan update. The date of each training and the name of each facility person who received the training shall be documented in writing and kept on file at the facility.
(d) The emergency plan shall be posted in the facility at a conspicuous location.
(e) The operator shall provide to the parent of each enrolled child a letter explaining the emergency procedures described in subsection (a). The operator shall also provide to the parent of each enrolled child a letter explaining any subsequent update to the plan.
(f) The operator shall send a copy of the emergency plan and subsequent plan updates to the county emergency management agency.
FACILITY PERSONS § 3270.31. Age and training.
(a) A volunteer shall be 16 years of age or older and shall be directly supervised at all times.
(b) A staff person shall be 18 years of age or older.
(c) An individual 16 years of age or older who is enrolled in an approved training curriculum may be used as a staff person, if the guidelines in this section are met.
(d) Child care professional credentials are equivalent to the staff qualifications:
(1) A Child Development Associate (CDA) credential or a Certified Childcare Professional (CCP) credential is equivalent to 9 credit hours from an accredited college or university in early childhood education or child development and 1 year of experience with children.
(2) A Pennsylvania school-age professional credential is equivalent to 9 credit hours from an accredited college or university in elementary education or child development and 1 year of experience with children.
(e) A staff person shall obtain an annual minimum of 6 clock hours of child care training.
(1) Acceptable training is conducted in one or more of the following settings:
(i) By a secondary or postsecondary institution approved by the Department of Education and accredited by an accrediting agency recognized by the United States Department of Education or the Council of Postsecondary Accreditation and acceptable to the Department of Education.
(ii) By an entity that is licensed or certified professionally competent in the training topic.
(iii) In conferences or workshops.
(iv) With audio-visual materials recognized by child care professionals.
(2) Acceptable training topics include the following:
(i) Child or staff health.
(ii) Child development, early childhood education and special education.
(iii) Supervision, discipline and guidance of children.
(iv) Nutrition for children.
(v) Child care program development.
(vi) Child care staff person or volunteer professional development.
(3) Other training topics may be submitted for the Department's review and approval.
(4) Depending on the provisions of the appropriate regulation, training may be required for certain staff persons. The following constitutes competence in training areas:
(i) First-aid training. Competence is the completion of training by a professional in the field of first-aid. First-aid training will be renewed on or before expiration of certification or every 3 years, as applicable.
(ii) Firesafety training. Staff persons shall participate, at least annually, in firesafety training conducted by a fire protection professional. Staff persons and volunteers shall receive training in maintenance of smoke detectors, the duties of facility persons during a fire drill and during a fire and the use of the facility's fire extinguishers, not including discharge of the fire suppressant agent.
(iii) Lifeguard training. Competence is the completion of lifeguard training, including first-aid training and cardiopulmonary resuscitation (CPR) for child and infant.
(iv) Water safety instruction. Competence is the completion of basic instruction in water safety from a certified lifeguard.
(f) Completion of training shall be documented by the signature and title of a representative of the training entity and include the date training was completed. Documentation shall be retained in the facility person's file.
STAFF:CHILD RATIO § 3270.52. Mixed age level.
When children are grouped in mixed age levels, the age of the youngest child in the group determines the staff:child ratio and maximum group size in accordance with § 3270.51 (relating to similar age level).
PHYSICAL SITE § 3270.61. Measurement and use of indoor child care space.
(a) A facility shall provide indoor child care space for individual and group small muscle activity.
(b) Indoor child care space may not be used simultaneously as play space.
(c) Indoor child care space is measured within permanent stationary partitions or walls. The allowable number of children in a space is determined by dividing the total square feet in a space by 40.
(d) Measured indoor space includes space occupied by cupboards, shelves, furniture and equipment.
(e) Measured indoor space excludes space occupied by halls, bathrooms, offices, kitchens and locker rooms.
(f) Indoor space in which children are receiving care may not be used simultaneously for other business, commercial, social or another purpose unrelated to the child care being offered.
(g) Preschool and school-age children may not be involved in small or large muscle activity in the same group space in which children are sleeping or resting.
(h) The capacity established for an indoor space may not be exceeded except in the following situations:
(1) At naptime, when toddler or preschool children are resting on rest equipment described in § 3270.106 (relating to rest equipment) if the following conditions are met:
(i) At naptime, the capacity is determined by the requirement for placement of rest equipment described in § 3270.106(f).
(ii) At naptime, the capacity may be exceeded for a period not longer than 2 1/2 consecutive hours, no more than twice in a program day.
(2) When older toddler, preschool or school-age children are participating in a program activity if the following conditions are met:
(i) The capacity of the indoor child care space may be exceeded for no more than two separate 1/2 hour time periods daily.
(ii) Each time period shall be designated on the facility's schedule of daily activities.
(iii) The space may not be occupied by children of the infant or young toddler age levels during a time period when the capacity is exceeded.
(iv) The number of children present in the space may not be more than twice the measured capacity of the space.
(3) When a meal is served in a space designated and measured as indoor child care space if the following conditions are met:
(i) The capacity of a space may be exceeded when children are eating for no more than 1 hour daily.
(ii) The meal time shall be designated on the facility's schedule of daily activities.
(iii) The number of children present in the space may not be more than twice the measured capacity of the space.
(i) The total number of children receiving child day care services at the facility at any one time may not exceed the facility's maximum capacity.
§ 3270.70. Indoor temperature.
(a) The indoor temperature must be at least 65° F.
(b) If the indoor temperature exceeds 82° F in a child care space, a means of mechanical air circulation must be operating.
§ 3270.75. First-aid kit.
(a) A first-aid kit must be in a child care space.
(b) A first-aid kit must be inaccessible to children.
(c) A first-aid kit must contain the following: soap, an assortment of adhesive bandages, sterile gauze pads, tweezers, tape, scissors and disposable, nonporous gloves.
(d) One first-aid kit per child care group must accompany children and facility persons on excursions from the facility. Each first aid kit taken on an excursion must contain a bottle of water in addition to the items specified in subsection (c).
§ 3270.82. Toilet areas.
(a) The following ratio of flushing toilets to toilet-trained children applies:
Similar
Age LevelsNumber of Toilet-Trained Children Toilets Young or older
toddler and preschool15 1
School-age 20 1 (b) The following ratio of sinks to children applies:
Similar
Age LevelsNumber of Toilet-Trained Children Sinks Young or older
toddler and preschool25 1 School-age 30 1 (c) A sink must be located in or near a toilet area.
(d) A training chair is not a flushing toilet. A training chair shall be emptied and sanitized after each use. An acceptable sanitizing solution is 1/4 cup of bleach combined with 1 gallon of water. A sanitizing solution shall be treated as a toxic. See § 3270.66 (relating to toxics).
(e) Toilets and sinks must be at proper heights for children using them or must be easily approached by means of platforms or steps.
(f) Toilets and training chairs may not be located in an area used for cooking or eating.
(g) Toilet areas and fixtures shall be cleaned daily and be in good repair.
(h) A facility person and an able child shall wash their hands after toileting and before eating. A sign on which this requirement is written shall be posted at each toilet, training chair, diapering area and sink in the facility.
(i) A toilet area, training chair area, diapering area and sink area shall be equipped with a clean, lidded waste receptacle.
(j) A source of running water for handwashing must be present in infant and toddler diapering areas. If the running water does not flow directly into a drain that is connected to a sewage system, a receptacle shall be provided to contain the water used for washing. The receptacle shall be emptied into an approved sewage system at least once a day.
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