RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 3130, 3680, 3710, 3800, 3810, 5310 AND 6400]
Child Residential and Day Treatment Facilities
[29 Pa.B. 3295] Statutory Authority
The Department of Public Welfare (Department), by this order, under the authority of Articles IX and X of the Public Welfare Code (62 P. S. §§ 901--922 and 1001--1080) adopts amendments to read as set forth in Annex A.
Notice of proposed rulemaking was published at 28 Pa.B 953 (February 14, 1998).
Background
The purpose of these amendments is to establish requirements to protect the health, safety and well-being of children who receive services in residential or day treatment facilities within this Commonwealth. These amendments strengthen health and safety requirements based on current information and research and reduce duplication and inconsistencies within multiple chapters of licensing regulations.
This regulatory reform initiative is the first of many regulatory reform initiatives of the Cross-System Licensing Project (Project). The purpose of the Project is to improve existing human service licensing functions within State government by strengthening health and safety protections and reducing duplication and inefficiency within the licensing process. The Departments of Public Welfare, Health and Aging are working jointly with external stakeholders to improve, strengthen and streamline the licensing function for all human service disciplines including child welfare, child care, personal care, mental health, mental retardation, drug and alcohol and aging. While the Project includes many initiatives, such as the development of new human service licensing legislation, automation, inferential inspection systems and training of licensing staff, the regulatory reform initiative is one of the most critical of the Project's activities.
These regulatory amendments are the first of ten regulatory amendments planned by the Project to be completed over the next 4 years. In February 1998, the Project presented a regulatory consolidation proposal to external stakeholders to consolidate and combine at least 28 chapters of existing licensing regulations into ten chapters. These regulations are intended to protect the health, safety and well-being of consumers receiving services by the regulated facilities and agencies.
The development and adoption of a single set of regulations applicable to a variety of program models and settings is being done to reduce duplication and inconsistency among chapters of regulations that are intended to care for children who are exposed to similar health and safety risks. The consolidation of multiple chapters of regulations is an effort to reduce the many, and often conflicting and duplicative sets of regulations that now apply to a single corporation or business. Many human service providers operate different types of human service facilities and therefore must meet several sets of regulations. This is very difficult and requires administrative and staff time and attention to devote to regulatory compliance. Moreover, from a health and safety perspective, there is little value to having multiple sets of regulations where the risks to the consumers is similar. It is anticipated that eliminating some of the burden of complying with multiple sets of disparate regulations will enable facilities to improve their ability to comply with regulations and to spend more time and effort in providing direct services to consumers. The primary intent of regulation consolidation is to improve services and protections to consumers by focusing provider effort on fundamental health and safety regulatory compliance and thus improving the provision of consumer services.
Scope
These amendments apply to a variety of child residential and part-day program types currently operating within this Commonwealth. The amendments apply equally to profit and nonprofit facilities, including service providers who do and do not receive public funds.
The amendments apply to facilities currently governed by Chapter 3810 (relating to residential child care facility), including, but not limited to, facilities and programs such as group homes generally serving no more than 12 children in a small, home-like setting; residential treatment facilities serving children with mental illness or serious emotional disturbance in a short-term specialized mental health treatment environment; and nonsecure residential facilities serving both dependent and delinquent children in various sizes and types of physical structures and diverse program models ranging from the more traditional residential settings to alternative programs and settings such as boot camps, outdoor wilderness programs, mobile programs and transitional living located in large settings. Approximately 450 residential facilities are currently certified under Chapter 3810.
The amendments will also apply to non-State operated, secure residential facilities currently licensed under Chapter 3680 (relating to administration and operation of a children and youth social service agency) and previously governed by requirements for training schools (formerly uncodified Title 6500) in which the building itself is kept locked or there is secure fencing around the perimeter of the building. Fewer than 20 secure residential facilities are currently certified in this Commonwealth. The amendments also govern 21 secure detention facilities currently certified in accordance with Chapter 3760 (relating to secure detention facility), where children are held temporarily awaiting court disposition, in which the facility is locked or the perimeter is fenced.
Also included within the scope of these amendments are maternity homes, which are currently certified in accordance with Chapter 3710 (relating to maternity homes) serving an average of 5 expectant or new mothers who are under 18 years of age. Only 11 maternity homes are currently certified in this Commonwealth. The Department has been transitioning certification of these maternity homes from Chapter 3710 to Chapter 3810.
These amendments also will apply to community residential mental retardation facilities serving exclusively children. There are approximately 30 facilities currently certified under Chapter 6400 (relating to community homes for individuals with mental retardation). These facilities provide specialized care for children with mental retardation.
The amendments will also apply to approximately 45 community mental health residential facilities serving exclusively children currently certified under Chapter 5310 (relating to community residential rehabilitation services for the mentally ill). The mental health children's facilities are residential care facilities providing community care for children with mental illness.
In addition to the various types of residential programs that the amendments will govern, the amendments also apply to approximately 75 child part-day service facilities currently certified under Chapter 3680. These are full-day and extended-day alternative education and service programs for children who are transitioning from a more intense residential program back to their families or who need special services for the child to remain at home and avoid more intensive residential placement.
These amendments do not apply to Department-operated facilities that provide secure and nonsecure care to children who are adjudicated delinquent. While Department Youth Development Centers and Youth Forestry Camps will not be certified, it is the Department's intent to apply the same regulatory and inspection instruments to these facilities as those applied with private facilities.
Regulatory Formulation Process
A work plan describing the process and time frames for the regulatory development and promulgation of these amendments was developed in January 1997. The plan provided for ongoing and active consultation and involvement with many external advocacy, consumer and provider organizations. Throughout the 2-year regulatory formulation process, the plan called for external stakeholder participation through many and varied opportunities such as formal and informal meetings, discussing issues and submitting written comment.
In February 1997, March 1997, October 1997, March 1998 and June 1998, individual meetings were held with several Statewide provider, advocacy and consumer organizations. The meetings were convened to give briefings on the scope and content of the amendments and to obtain input on major issues of particular concern to the different organizations.
To allow for dialogue and to obtain specific feedback from those most directly affected by the amendments, a regulation work group was formed and met for several days during May 1997, July 1997 and August 1998. Work group members included over 55 individuals representing consumers, families, advocates, providers, county government, other professionals in the field of child residential and day treatment services and regional licensing inspectors. Provider participants represented a cross section of geographic areas, program types and sizes of facilities. Written drafts of the amendments were also sent to work group members on several occasions for written review and comment.
In accordance with section 201 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1201) (CDL), the amendments were also published as proposed rulemaking in the Pennsylvania Bulletin on February 14, 1998, with a 60-day public comment period. The Department received 145 letters submitting recommendations for changes to the proposed amendments.
Through the regulatory process, including the various public comment forums and the proposed rulemaking public comment period, many valuable comments and suggestions were received from the many external stakeholders who participated in the process. The Department values the comments submitted and has incorporated many of the suggested changes in the final-form regulations. The Department appreciates the time and expertise external stakeholders have given to make the final regulatory document an effective regulatory tool for protecting the children served in these facilities.
Format
These amendments apply to a variety of types of facilities with diverse program approaches to the care and supervision of children, operated in varied types of physical site settings. The final-form regulations are formatted so that the first 75% of the requirements are universal requirements for all facility types (§§ 3800.1--3800.245). The last 25% of the final-form regulations include exceptions or additions that apply for special facility types such as facilities serving nine or more children, secure care, secure detention, outdoor and mobile programs, transitional living and day treatment (§§ 3800.251--3800.312).
Need for Amendments
These amendments are needed to protect children who receive care and services in residential or day treatment settings away from their homes and families. The amendments will protect the health, safety and well-being of children who are not under the direct care and supervision of responsible parents or caregivers, until such time as the caregivers reassume parenting responsibility.
These amendments cover some types of facilities, such as secure care, day treatment, transitional living, outdoor programs and mobile programs, for which no facility-based requirements now exist. These amendments are needed to protect the health, safety and well-being of the children. Current regulations for several facility types, including maternity homes and community residential rehabilitation facilities, were promulgated over 17 years ago and do not address current issues and research related to health and safety risks. These amendments will ensure that children receive care in a safe and healthy manner in the various facility types covered by this chapter.
Affected Individuals and Organizations
Child residential and day treatment facilities as defined in the scope of the amendments are directly affected and must comply with these amendments to operate. The children receiving care and services in licensed facilities are directly affected by these amendments since they are the consumers the amendments are aimed at protecting. Families of the children receiving care and services are affected in their interest to assure healthy, safe and quality care for their children. Purchasers of service and placement agencies such as county government agencies and State entities, are affected by the amendments in that they purchase and monitor the quality of the services. Juvenile courts are affected in that they use these facilities as a resource when making placement decisions regarding children who are adjudicated dependent or delinquent.
Paperwork Requirements
Paperwork requirements have been reduced from the existing child residential regulations. Paperwork reductions include the elimination of requirements for some policies and procedures, independent audits, hiring practices, personnel records, job descriptions and staff discipline procedures from the current regulations governing administration and operation of children and youth facilities (Chapter 3680). While the existing regulations may support best practice for facility operation, they are not considered to be directly related to the health, safety and well-being protection of children. Providers or funding sources may choose to continue to maintain current practices in these areas.
Departmental forms that are required, such as the reportable incident form, will be shared in draft form with external stakeholders for review and comment prior to implementation.
Summary of Public Comment and Changes
Written comments, suggestions and objections regarding the proposed amendments were requested within a 30-day period following publication of proposed rulemaking. In response to requests from several external stakeholders, the Department extended the public comment period by an additional 30 days. A total of 145 letters were received by the Department within the 60-day public comment period, in response to the proposed rulemaking. Following is a summary of the major comments received and the Department's response to those comments. A summary of all major changes from proposed rulemaking is also included.
General--consolidation
Many comments were received both in support of and in opposition to the consolidation of eight chapters of regulations into one. The Independent Regulatory Review Commission (IRRC) recommended that separate regulations for day treatment and secure detention be developed. Those who supported the consolidation did so due to the ease of regulatory burden for providers who now operate under various duplicative and conflicting regulations. Those who opposed the consolidation raised concern about the need to address differences for day treatment and secure detention facilities and concern that the result of the consolidation was lessened requirements from existing regulations.
Response
While the amendments include the requirements for several service types in one chapter, unique program differences are retained. The amendments include special requirements for programs such as secure care, detention, day treatment, outdoor programs, mobile programs and transitional living. As the Department discussed this issue further with external stakeholders, the commentators in opposition to the consolidation explained that their concerns were largely based on content issues that they believed were not addressed for specific program types, rather than objections based on Pennsylvania Code format and style issues.
While the Department is proceeding with the consolidation effort, concerns expressed by those in opposition were reviewed and considered. In response to concerns about the differences in day treatment and secure detention facilities, significant time was devoted to additional research, visits to facilities and discussions related to secure detention and day treatment both at individual meetings with commentators during the spring of 1998, and at the regulation work group meeting in August 1998. As a result of public comment and subsequent discussions with commentators, many additional requirements and new exceptions were added for day treatment and secure detention facilities as described in §§ 3800.271--3800.312 of this comment and response section.
In response to concerns about lessening of requirements, the amendments are not reduced protections for children. Rather, they include many new and strengthened protections from those that exist in current regulations. Improved and strengthened areas of the regulations include: new facility-specific requirements for many service types such as secure care, transitional living, day treatment and outdoor and mobile programs; reportable incident requirements; medication administration; restrictive procedures; fire safety; physical plant; program planning; child health; staffing; and staff training.
The Department believes that consolidation of regulations increases safeguards to consumers. Many of the providers of service regulated by these regulations operate various types of day and residential programs for children. For example, of the 21 licensed secure detention facilities, nine operate nonsecure care within the same building as secure detention, one is a private corporation that operates many other types of facilities under the scope of these regulations, and two new applications for secure detention to be operated by multifacility, private companies are being processed. The regulatory consolidation allows providers of various service types to focus less time on unnecessary regulatory compliance with multiple and inconsistent sets of regulations, and more time on quality direct services for children.
In addition, many of the children served in programs covered by these amendments move regularly within these various service types. For example, it is not uncommon for a child to move from a secure detention facility, to a secure facility, and then back home with his family to receive day treatment services. Currently, varied and sometimes conflicting requirements apply that are confusing for the child and the child's family to understand, as well as for the provider to understand and comply. By having one set of consistent requirements applicable for all types of children's facilities, the Department believes that the interests and needs of the child are best met. The consolidation supports equal and consistent protections for children and continuity of care and services for children who receive various services. The need for health, safety and well-being protections for children served in these facilities is similar regardless of any treatment need, while program and treatment needs of the child should be met on an individualized basis based upon each child's unique needs.
General--program and quality of care
IRRC and several commentators raised concern about reduction in program standards, placement issues and the difficulty of adopting universal program standards for children with many different needs.
Response
In response to these concerns, the Department reevaluated the existing regulations to determine where, if any, reductions in program standards occurred. As suggested by commentators, the Department found the reductions largely in the areas of service description, admissions and placement. Based on public comment, the Department has made additions to the final-form regulations to address these areas (§§ 3800.221--3800.223). In response to the concerns about the prevention of inappropriate placement of children in facilities that cannot meet the child's needs, application of these three new sections will assure that a child is placed in an appropriate facility that can meet the child's needs. The Department also added several new sections to the content of the individual program plan in § 3800.226 in response to public comments. With these amendments, the regulations do not reduce program protections to children, but instead include many additional and updated requirements to protect the health, safety and well-being of children in care.
The approach used in the amendments is to provide similar, comprehensive health and safety protections for all children, while maintaining, and even requiring, individual program planning for each child based on the child's needs. The amendments require individualized health and safety assessments for each child upon admission (§ 3800.141), detailed individual health assessments and screenings for each child (§§ 3800.143--3800.146), individual service plans based upon the needs of the child with content of the plan expanded from all chapters of existing regulations (§ 3800.226), and individual restrictive procedure plans for each child that now exist only in regulations for community mental retardation facilities (§ 3800.203). These requirements, coupled with the new additions of admission, service description, placement (§§ 3800.221--3800.223) and increased program plan content (§ 3800.226) that were added from proposed rulemaking to final-form regulations include a comprehensive package of service protections based upon each child's needs.
In addition, these licensing regulations by definition are minimum requirements necessary to operate a child residential or day treatment facility in this Commonwealth, they are just one piece of a total quality of care system. Other protections continue to apply, such as the Mental Health Procedures Act (50 P. S. §§ 7101--7503) and Chapter 5100 (relating to mental health procedures) addressing consent issues and program planning, county children and youth program regulations and Chapter 3130 (relating to administration of county children and youth social services programs) governing family service planning, placement, and case management, and the mental retardation system include long-term planning for children. These licensing regulations apply in tandem with many other existing applicable laws, regulations, monitoring systems and training programs.
General--cost
Some commentators suggested that the amendments will create a significant financial burden on providers of service, particularly related to staff training, reportable incident reporting and physical site changes.
Response
While there are some additional requirements in the staffing and physical site areas, many providers are already meeting higher standards than currently required. The cost impact of meeting any new regulations is outweighed by the potential benefits to children. Reference the Fiscal Impact section of this preamble for further fiscal analysis and discussion.
§ 3800.1. Purpose
One commentator suggested that the purpose section of the amendments reference the Child and Adolescent Service System Program (CASSP) as a foundation for the amendments.
Response
The Department fully supports the principles of CASSP in the provision of services for children, and these amendments reflect CASSP principles. CASSP principles advance family involvement, child-centered programming, multisystem service planning, cultural competence, least restrictive settings and community-based services, and these amendments include tangible requirements that support CASSP principles.
§ 3800.3(1). Exemptions--Department-operated facilities
Five commentators suggested that facilities operated by the Department be required to meet these amendments. IRRC requested clarification as to why the Department's facilities should not meet the same standards as private facilities, and whether these amendments apply to State-owned buildings that are operated by a private corporation.
Response
These amendments apply to State-owned buildings if the facility is operated by a private company. The exemption applies only for facilities that are directly operated by the Department.
The Department believes that the same standards should be applied to Department-operated facilities as to private facilities to provide equal protection to children. The Department will manage, supervise and monitor the Department-operated facilities to achieve and maintain compliance with the amendments. While Department Youth Development Centers and Youth Forestry Camps will not be certified, it is the Department's intent to apply the same regulatory and inspection instruments to these facilities as those applied with private facilities.
In addition to the application of the amendments, the Department's facilities have rigorous and extensive reportable incident procedures. The Department intends to maintain this rigorous reporting system that provides for routine and immediate follow-up whenever there are unusual occurrences. Also, the Department plans to continue its peer review system in which a comprehensive monitoring tool is applied to each Department-operated facility, using juvenile probation officers and other State facility staff to conduct the reviews. These intensive peer reviews address regulatory compliance, as well as compliance with internal Departmental policies and procedures.
With these protections, the Department is confident that children served in facilities that are operated by the Department will be provided protection equal to that of children served in private facilities.
§ 3800.3(9). Exemptions--drug and alcohol facilities
Seventeen comments were received about drug and alcohol facilities not being covered by this chapter. Eight commentators suggested that children's drug and alcohol facilities should be included in the scope of the amendments, while nine commentators supported the proposed exemption for drug and alcohol facilities.
Response
The Department of Health in accordance with 28 Pa. Code Chapters 709 and 711 (relating to standards for licensure of freestanding treatment facilities; and standards for certification of treatment activities which are a part of a health care facility) currently licenses, and will continue to license, child residential drug and alcohol facilities. Due to the requirements of section 202 of the CDL (45 P. S. § 1202), expansion of the scope of these amendments to include facilities not covered in the proposed rulemaking, may not be considered. Further discussion of this issue and the appropriate licensure for children's drug and alcohol facilities will likely occur in the future in a separate regulatory forum.
Based on public comment, one change was made to further clarify the exemption. Concern was expressed that the amendments as proposed would no longer allow dual licensure by the Departments of Health and Public Welfare if both types of programs were provided in one setting. This is clearly allowed and there is no intent to change current practice. Therefore, the exemption was clarified to exempt programs in which the residents' sole need is the treatment of drug and alcohol dependence. The Department of Health has reviewed and concurred with this amended language.
§ 3800.4. Inspections and certificates of compliance
IRRC suggested that this section be moved from the applicability section and placed in a separate section.
Response
This change was made.
§ 3800.5. Definition of ''child''
Two commentators suggested that ''through counsel'' be deleted.
Response
This change was made.
§ 3800.5. Definition of ''child''
The Department clarified the definition to be consistent with 42 Pa.C.S. § 6302 (relating to definitions).
§ 3800.5. Definition of ''ISP--individual service plan''
IRRC suggested a more complete definition of ''ISP--individual service plan.''
Response
This change was made.
§ 3800.5. Definition of ''relative''
Three commentators suggested adding ''legal guardian.'' One commentator suggested adding ''or other extended family member as defined and designated by the child and family.''
Response
The terms ''child's guardian or custodian'' was added to accurately reflect the meaning of ''relative'' as used in § 3800.3(11) (relating to exceptions).
§ 3800.5. Definition of ''secure care''
Based on informal discussions with stakeholders, and a review of existing secure detention facilities, the Department clarified that secure care can be in a portion of a building. A facility can provide both secure care and nonsecure care within the same building. The special requirements for secure care apply for the secure portion of the building.
§ 3800.5. Definitions of ''secure care'' and ''secure detention''
A comment was received suggesting clarification that secure care and secure detention are limited to delinquent or alleged delinquent children.
Response
This change was made.
§ 3800. Definitions--new
IRRC suggested adding definitions for ''child care supervisor,'' ''child care worker,'' ''day treatment center,'' ''pressure point techniques'' and ''serious communicable disease.'' No public comments were received relating to defining these terms.
Response
The term ''child day treatment center'' is clearly defined in § 3800.3. All staffing positions, including supervisor and worker positions, are clearly explained by the responsibilities specified in §§ 3800.54(c) and 3800.55(f) (relating to child care supervisor; and child care worker). Further definition of ''pressure point techniques'' has been added in § 3800.208(a) (relating to pressure points), which is the correct location of a definition used only in one or a few specific sections of the chapter. ''Serious communicable disease'' is clarified as one which may be spread through causal contact, where these terms are used, including §§ 3800.151 and 3800.152 (relating to staff health statement; and serious communicable diseases).
§ 3800.14 Fire safety approval
The Department revised this section to reference applicable State law and regulation, rather than specifically address current fire and panic law and regulation. This change was made so that the regulations would remain current in the event of an amendment in the State fire and panic law or regulations.
§ 3800.15(b) Child abuse.
The Department added a new subsection to reference requirements of 23 Pa.C.S. §§ 6301--6385 (relating to Child Protective Services Law) requiring a plan of supervision if there is an allegation of child abuse involving facility staff persons.
§ 3800.16(a) Reportable incidents
Sixty-three comments were received on the definition of ''reportable incident.'' IRRC also submitted comments on this subsection. One commentator suggested changing the proposed term ''unusual'' to ''reportable.'' Six commentators stated the definition was too broad and would require increased paperwork. Eight commentators requested clarification of ''action taken by a child to commit suicide,'' with three of those suggesting the addition of the term ''physical'' action. Seventeen commentators and IRRC suggested a more narrow definition and clarification of ''injury, trauma or illness.'' Two commentators requested clarification of ''intimate sexual contact.'' One commentator suggested adding civil rights as examples of child's rights. Two commentators suggested deletion of assault on staff persons. Eleven commentators and IRRC either raised questions about, or objected to, the 30-minute time frame for child absences. One commentator requested deletion of abuse or misuse of child funds or property. Two commentators and the IRRC requested further limitation on reporting of incidents requiring the services of a fire department.
Response
The majority of the requested changes were made. The term ''unusual'' was changed to ''reportable'' as suggested to more accurately reflect the meaning of this subsection.
The Department agrees with the commentators that the proposed definition of ''reportable incident'' was too broad and burdensome. Further, the Department agrees that by requiring more reports than are necessary, more important incidents that need to be quickly and carefully investigated may go unnoticed and unattended to in a paperwork backlog, thus placing children at risk.
The Department added the word ''physical'' to further clarify suicide acts as suggested.
The Department narrowed the definition of ''injury, trauma or illness'' by requiring reporting of all inpatient hospital care, but only outpatient hospital care for serious injuries or traumas. Illnesses, sprains, cuts and other less serious treatment received on an outpatient basis are no longer included as reportable. The regulation work group, which included advocates, providers and other professionals, supported this revised definition.
As requested by commentators, an assault on a staff person was removed from the definition of ''reportable incident'' as it relates to nonsecure care, but it continues to apply for secure care as specified in § 3800.274(2) (relating to additional requirements). Since this relates largely to staff safety, this was removed from the definition. It was retained in secure care however, to indicate potential staff supervision issues that are more likely to occur with the secure care population.
The Department revised and narrowed the circumstances under which child absences must be reported to include those where a child is absent for more than 4 hours or for more than 30 minutes if the child may be in immediate jeopardy.
In response to specific concerns, the Department did remove abuse or misuse of a child's ''property,'' while retaining ''funds.''
The Department did not change the terms covering intimate sexual contact, violation of rights or fire department services. Regarding the comment about the fire department services, these regulations have been in effect for over 10 years for community mental retardation facilities and the Department has found no unreasonable reporting. Reporting only incidents where a fire has caused actual damage or injury is not sufficient. Even when a child pulls a false alarm, or when a fire department arrives in time to avert major property damage, children are placed at risk and the incident should be reported. Frequent false fire alarms could indicate serious staff supervision issues at the facility, as well as create the risk of failure to evacuate in the event of a real fire.
§ 3800.16(c) Reportable incidents
IRRC and one commentator requested clarification of the proposed subsection regarding the meaning of ''immediately'' and who must do the reporting.
Response
The Department agrees that this was confusing and deleted this requirement. This was intended to refer to internal facility reporting procedures leading up to the 12 or 24 hour reporting requirement in subsections (c) and (d). However, in accordance with subsection (b) the facility must write its own internal reporting procedures which may reasonably vary from facility to facility. It is not necessary for the Department to dictate internal reporting procedures, as long as appropriate offices are notified within 12 or 24 hours.
§ 3800.16(d). Reportable incidents
Several comments were received suggesting an oral report for more serious incidents.
Response
The Department agrees and has made this change to require oral reporting within 12 hours for a fire requiring relocation of the children, an unexpected death of a child and a missing child if police have been notified for assistance.
§ 3800.16(e). Reportable incidents
One commentator suggested that the investigation be completed within 10 days.
Response
The Department clarified that investigations must be completed within a reasonable period of time.
§ 3800.16(f). Reportable incidents
One commentator suggested a specific time frame for submission of final reports and three questioned the necessity and cost of submitting a final report.
Response
No change was made. Because initial reports of reportable incidents must be filed very quickly, there are often additional internal and external investigations and follow-up corrective action that need to occur. A final report is necessary for the Department and the contracting agency to be informed of the resolution of the incident. It would be unreasonable to specify a time frame for the final report since investigation and follow-up for each incident may vary greatly.
§ 3800.16(h). Reportable incidents
One commentator suggested adding ''individual'' to modify court order. Two commentators requested immediate notification of the child's parent and attorney in the event of a reportable incident.
Response
The word ''individual'' was added as suggested. The child's parent must be notified immediately as specified in this subsection. The child's attorney was not added as this is not appropriate for routine reporting procedures for all children.
§ 3800.17. Recordable incidents
Eleven comments were received on this section. Some commentators suggested that medication errors, suicidal gestures and child absences be eliminated. Others suggested adding use of restrictive procedures.
Response
The Department eliminated medication errors, since recording of medication errors is required in § 3800.185(a) (relating to medication errors). The Department clarified reporting of child absences, injuries, traumas and illnesses, in accordance with the changes made in § 3800.16(a). The use of restrictive procedures was not added, since separate, very comprehensive reporting of each restrictive procedure use is required in § 3800.213 (relating to restrictive procedure records). Suicidal gestures was not eliminated since these are incidents of warnings of problems and must be logged and monitored to avoid serious injury or death.
§ 3800.18. Child funds
One commentator suggested adding a section under child rights to protect a child's funds.
Response
The Department agrees this was an oversight in the proposed amendments and has added a new section covering protection of child funds. This section is based on current regulations found in § 6400.22 (relating to individual funds and property).
§ 3800.19. Consent to treatment
Three commentators requested clarification relating to consent to treatment.
Response
This change was made.
§ 3800.20. Confidentiality
Two commentators and IRRC requested additional requirements clarifying confidentiality requirements.
Response
The Department agrees this issue was not addressed in the proposed amendments and added a new section on confidentiality. The section requires compliance with applicable laws and regulations as well as specifies requirement for specific circumstances where there is no other statutory or regulatory protection. As suggested by IRRC, the new requirements are based on §§ 3680.35 and 3760.92 (relating to release of information in client records; and confidentiality).
§ 3800.31. Notification of rights and grievances
Several commentators suggested that additional protections for children and families be added including the right to lodge grievances without fear of retaliation, communicating in an easily understood manner, communicating in the primary language or mode of communication of the child and parent, providing copies of rights and grievance procedures to the child and parent, providing notice of consent to treatment protections and posting of rights and grievance procedures. One commentator suggested that reference to ''parent, guardian or custodian'' be changed to include the parent as a necessary rather than an optional person to involve through the regulations. It was suggested that the grievance procedure requirements (§ 3800.34 as proposed) be relocated to the section relating to notification of rights and grievance procedures.
Response
These changes were made.
§ 3800.32(f). Specific rights--visits
IRRC and several commentators submitted comments regarding visits to the child. Some suggested that 2 week visits were minimal and that more frequent visits should be required or encouraged. One commentator suggested that visits every 2 weeks are difficult to arrange for mobile programs. One commentator suggested that visits should be individualized and required as specified in the individual service plan (ISP) rather than as a child right. Three commentators suggested that at times visits are clinically inappropriate. One commentator raised concerns about the child's right to refuse visits. Commentators also suggested visits that are mutually convenient for the child's family and the facility. IRRC questioned how the 2-week minimum was established.
Response
The Department carefully considered the many varying views on the issue of child visits and discussed this issue with interested groups. The Department added the requirement that visits must be at a mutually convenient time and location. The Department clarified that visits are a right and not just an opportunity. While more frequent visits are encouraged, the 2 week minimum is required to assure that family ties are not broken during the time the child is receiving services away from his/her family. In response to IRRC's question, the 2 week minimum requirement for child visits is based on the current regulations regarding child visits in § 3680.44(2) (relating to visiting and communications) and is recommended by the Department as the frequency of time necessary for the child and family to be in contact so that family ties and bonds are not broken; more frequent visits with the child's family are encouraged.
§ 3800.32(g). Specific rights--mail
IRRC and several commentators requested changes to the right regarding mail and the circumstances the child's mail may be opened in the presence of staff persons.
Response
In response to public comment, the Department revised the entire subsection on the child's rights to receive and send mail. The Department clarified the circumstances under which a child's mail may be opened in the presence of staff persons, including when there is suspicion that contraband or other materials or information that may place the child at risk may be enclosed.
§ 3800.32. Specific rights--additional
Commentators suggested the addition of several rights including communication and visits with attorneys and clergy, behavioral health treatment, appropriate clothing, protection from inappropriate discipline, privacy and the right to practice no religion.
Response
The Department added rights relating to communication with clergy and attorneys, behavioral health, clothing, religion and discipline. The right to privacy in bathrooms is included in § 3800.103(e) (relating to bathrooms).
§ 3800.33. Prohibition against deprivation of rights
A suggestion was received to add that rights may not be used as a reward or sanction.
Response
This change was made. In addition, the Department clarified that family visits may not be used as a reward or sanction.
§ 3800.34. Rights--general
One commentator recommended the addition of a requirement for each facility to have an independent ombudsman.
Response
This change was not made. Although an independent ombudsman for each facility may be a good standard for the oversight of the child's interests, this is not an appropriate minimum requirement for licensure regulations.
§ 3800.54(a) and (b). Child care supervisor--number present
IRRC and two commentators recommended that a supervisor be onsite at all times for all sizes of facilities. One commentator suggested that a supervisor does not need to be present while children are sleeping. Another commentator suggested that there should be no requirement for presence of a supervisor at all, since technology such as beepers can be used to contact a supervisor if needed.
Response
The Department strengthened the proposed amendments to change the conditions and the minimum number of children present requiring the presence of a supervisor. A supervisor must be onsite at all times 16 or more children are present in the facility. Requiring a supervisor present at all times, regardless of the size of the facility, is not necessary for the protection of the children and would be cost prohibitive for county government and providers of service.
§ 3800.54(d). Child care supervisor--qualifications
Twelve comments were received on the qualifications for child care supervisor. Four commentators did not support any lowering of the qualifications. Seven commentators suggested adding an option of additional years of experience in lieu of college credit hours.
Response
In response to the concern requesting lowering of qualifications by adding an option that would require experience but no college credits, the Department prepared a draft of the final-form regulations including this option (5 years work experience). However, when the draft was shared with the regulations work group in August 1998, the majority of the work group members did not support the experience option for supervisor positions. The final-form regulations therefore reflect no change from the proposed rulemaking in regard to supervisor qualifications.
§ 3800.55(a)--(d). Child care worker---ratios
One comment was received suggesting a reduction of the ratio of staff to children to 1 staff to 6 children for facilities with 24 or more children. One commentator suggested that ratios are too low during sleeping hours. One commentator suggested that overnight staffing is not necessary.
Response
These changes were not made since it does not reflect the consensus of the regulations work group and they are not necessary for the protection of children in all types of facilities. Facilities or funding agencies are permitted and encouraged to exceed the minimum certification requirements whenever appropriate to best meet the needs of the children. The staffing ratios in these amendments are not less stringent, and in some cases are more stringent, than existing licensure regulations.
§ 3800.55(h). Child care worker-age
Eight commentators requested the minimum age for child care workers to be 18 as opposed to 21 years of age, citing various program and hiring pool concerns.
Response
The Department has carefully considered this suggestion and has revised this section to require staff persons to be at least 18 years of age if all of the children in the facility are under 18 years of age. However, if any of the children in the facility are 18 years of age or older, staff must be at least 21 years of age due the staff maturity required to effectively provide care and services in those facilities serving young adults. In response to concern about currently employed staff persons who may be 18, 19 or 20 years of age, the Department has included a grandparent clause in § 3800.56(b) (relating to exceptions for staff qualifications) to permit these young staff persons to continue to work at facilities.
§ 3800.55(g). Child care worker-qualifications
IRRC requested consideration of why child care workers are not required to have college training or work experience. Six commentators do not support lowering of qualifications for child care workers.
Response
No change was made. The qualifications of a high school degree or GED certificate were discussed and supported in large part by the regulations work group. Overall, these worker qualifications are not reduced from the current regulations. Chapter 3810 requires 50% of the workers to have at least 2 years of college or experience, while the other 50% of the workers have no minimum qualifications at all. Chapters 6400 and 5310 (relating to community homes for individuals with mental retardation; and community residential rehabilitation services for the mentally ill) have no minimum staff qualifications for workers. Hiring and retention of employes in child care worker positions continue to be major challenges for human service providers. To limit the pool of potential employes in an already stressed and thin employment pool is not responsible and could result in reduced protection to children if qualified staff could not be recruited.
§ 3800.56. Exceptions for staff qualifications
Sixteen commentators requested that the new staff qualifications not be applied to currently employed staff persons.
Response
This change was made.
§ 3800.57(a). Supervision--checks
Two commentators suggested that checking on children every hour is excessive. One commentator suggested checks on children every 10 minutes as opposed to every hour.
Response
No change was made. A minimum of hourly checks of children is necessary to protect the health and safety of the children.
§ 3800.57(d). Supervision--sleeping hours
Eight commentators requested that the exceptions for child supervision during sleeping hours not be limited to those facilities serving no children who are adjudicated delinquent.
Response
This change was made. The Department agrees it is not reasonable to limit this exception as proposed.
§ 3800.58(a). Staff training--orientation
Several questions were raised about who would require training.
Response
In response, the Department further clarified this requirement by adding ''regular and significant'' before ''direct contact with children.''
§ 3800.58(b). Staff training--training hours
IRRC suggested that both part-time and full-time staff persons should be required to have the same amount of training hours, since both staff persons may be alone with the children and would perform the same duties. Five commentators asked for an extension of time for completion of the 30 hours of training, while one commentator asked for a reduction in the time period. Three commentators recommended the number of training hours be reduced from 30 to 24 hours consistent with the current Chapter 6400 regulations for community mental retardation facilities.
Response
The Department changed the requirement for annual training in subsection (d) to apply to both full-time and part-time staff. The Department supports the request for an extension of time to complete the training and made a change to require 30 hours of training for both full-time and part-time staff, within 120 days of the person's date of hire. The Department did not reduce the number of training hours because the majority of the regulations work group members and public commentators supported the 30 hour requirement and the training requirements are considered a major health and safety protection for the children.
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