Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM 37.95.102, 37.95.103, 37.95.106, 37.95.161, and 37.95.162, pertaining to the federal Child Care and Development Block Grant Reauthorization Act requirements for child care facilities

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO: All Concerned Persons

1. On August 31, 2018, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed amendment of the above-stated rules.

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on August 17, 2018, to advise us of the nature of the accommodation that you need. Please contact Todd Olson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; t4elephone (406) 444-9503; fax (406) 444-9744; or e-mail [email protected].

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

37.95.102 DEFINITIONS (1) through (11) remain the same.

(12) "Early childhood assistant teacher (ECAT)" or "assistant teacher" means a facility staff member who carries out assigned care-giving and teaching tasks under the ~~direct supervision~~ guidance and oversight of an early childhood lead teacher or center director.

(13) remains the same.

(14) "Early childhood teacher (ECT)" or "teacher" means a facility staff member who is responsible for the direct care, teaching, and supervision of children in a day care or child care facility. This term includes directors, substitutes, ECAT, and ECLT.

(15) through (60) remain the same.

AUTH: 52-2-704, 53-4-212, 53-4-503, MCA

IMP: 52-2-702, 52-2-703, 52-2-704, 52-2-713, 52-2-723, 52-2-725, 52-2-731, 52-2-735, 52-2-736, 53-2-201, 53-4-211, 53-4-212, 53-4-601, 53-4-611, 53-4-612, MCA

37.95.103 FAMILY, FRIEND, AND NEIGHBOR (FFN) AND RELATIVE CARE EXEMPT (RCE) PROVIDERS ~~(RCP)~~: REQUIREMENTS AND PROCEDURES (1) The applicant and all adults who reside in the applicant's home must provide authorization for background checks pursuant to ARM 37.95.161~~(1)~~.

(2) and (3) remain the same.

(4) FFN providers must also meet the following requirements to be registered under this chapter:

(a) through (d) remain the same.

(e) hold current certification for infant, child and adult CPR, infant choking response, and standard first aid. CPR certification must be completed in a hands-on setting; ~~and~~

(f) complete at least eight hours of approved annual training per year~~. This training must include health and safety training.~~ ; and

(g) complete a health and safety review course at least every three years. The health and safety review course may count towards the annual training required in (f).

(5) The department may investigate and inspect the conditions and qualifications of any FFN provider and the home that care is provided in.

(6) FFN providers must meet the applicable requirements of ARM 37.95.115, 37.95.121, 37.95.124, 37.95.126, 37.95.127, 37.95.171, 37.95.172, 37.95.182, 37.95.184, 37.95.706, 37.95.708, 37.95.1001, 37.95.1003, 37.95.1005, 37.95.1011, 37.95.1015, and 37.95.1016.

(7) ~~Relative care~~ RCE providers are exempt from (4)(e) and (f), (5), and (6).

AUTH: 52-2-704, MCA

IMP: 52-2-704, 52-2-713, 52-2-721, 52-2-722, 52-2-731 MCA

37.95.106 CHILD CARE FACILITIES, REGISTRATION, OR LICENSING

(1) Any individual, agency, or group may apply for a license to operate a ~~day~~ child care center, or may apply for a registration certificate to operate a family ~~day~~ child care ~~home~~ facility or a group ~~day~~ child care ~~home~~ facility. Applications may be obtained from the Department of Public Health and Human Services, Quality Assurance Division, Licensure Bureau, P.O. Box 202953, 2401 Colonial Drive, Helena, MT 59620-2953.

(2) remains the same.

(3) Before a regular child care center license may be granted, the applicant must have the following:

(a) and (b) remain the same.

(d) through (f) remain the same.

(g) ~~meet~~ satisfactory background check ~~requirements~~ ~~pursuant to ARM 37.95.161 on the provider and staff, over age 18~~ results;

(h) through (j) remain the same.

(4) Before a regular group or family child care facility registration certificate may be granted, the applicant must have the following:

(a) remains the same.

(b) proof of current fire and liability insurance coverage for the provision of ~~day~~ child care in the ~~home~~ facility;

(c) a criminal background and child and adult protective services check on the provider or staff member over age 18 and persons over age 18 residing in the day care facility prior to any services being provided by an individual covered by this requirement satisfactory background check results;

(d) a written emergency disaster plan in accordance with ARM 37.95.124. For registration certificate renewal there must also be documentation of eight annual emergency evacuation practices, including when each drill took place and how long it took to evacuate everyone from the facility; and

(e) and (5) remain the same.

(6) A ~~day~~ child care facility may not provide care for more than the number of children permitted at any one time by its ~~day~~ child care license or registration certificate.

(7) and (8) remain the same.

AUTH: 52-2-704, 53-4-503, MCA

IMP: 52-2-704, 52-2-722, 52-2-723, 52-2-731, 53-4-504, 53-4-507, MCA

37.95.161 CHILD CARE FACILITIES: ~~CRIMINAL~~ FINGERPRINT AND BACKGROUND CHECKS REQUIREMENTS (1) A satisfactory criminal background, motor vehicle, and child and adult protective services check is required for each child care provider, on all staff members over the age of 18, and all persons over the age of 18 residing in the child care facility or who stays in the child care facility regularly or frequently.

~~(2) If the provider, staff member, volunteer, or resident has always lived in Montana, a Montana based criminal background check will be conducted based upon a name based criminal records check.~~

(3) If the provider, staff member, volunteer, resident of the facility, or any person who regularly or frequently stays in the facility, has lived outside of Montana for any portion of the previous five years, that person must submit a completed fingerprint card so that a fingerprint based criminal records check can be requested

(4) If an applicant has lived in states other than Montana, a check will be made of the violent offender and criminal history registries if this information is available for states in which the applicant has lived.

(5) If after 45 days, the department has been unable to obtain results of a criminal records check for an applicant who has lived in Montana for at least five years, the applicant must sign an affidavit attesting to his lack of criminal history or to the details of existing criminal history. The affidavit will be accepted in lieu of receipt of results from a criminal history check.

(6) An applicant who has not lived in Montana for at least five years cannot be licensed without receipt of results of a criminal records check from every state in which the applicant has lived since the age of 18.

(7) Persons formerly licensed as day care providers will be treated as new applicants if the former provider has not been licensed for a period of more than one year or if the provider has lived out-of-state for any period of time since being licensed in Montana.

(8) A name based check for criminal records will be used for applicants who have lived in Montana since the expiration of their previous license or registration if it has been less than one year since the expiration of the license.

(1) A fingerprint background check by the Montana Department of Justice and Federal Bureau of Investigation is required prior to working in a child care facility and every five years thereafter.

(a) Fingerprints must be processed by a trained individual within a certified fingerprinting agency. Results will be transmitted electronically to the department by the Montana Department of Justice.

(b) Satisfactory results of background checks must be received prior to approval of any new application or staff approval. Unsatisfactory results are those crimes and offenses listed in ARM 37.95.173 and 37.95.176, or the adverse licensure actions described in ARM 37.95.175.

(2) A check of the Montana Sex Offender Registry and the national Sexual Offender Registry from the National Criminal Information Center (NCIC) is required prior to working in a child care facility and annually thereafter.

(3) A child protective services check for Montana and any state where the individual has resided in the preceding five years is required prior to working in a child care facility and annually thereafter.

(4) A name-based criminal records check for Montana and any state where the individual has resided in the preceding five years is required prior to working in a child care facility and annually thereafter.

AUTH: 52-2-704, MCA

IMP: 52-2-704, 52-2-723, 52-2-731, MCA

37.95.162 CHILD CARE FACILITIES: REQUIRED ANNUAL TRAINING

(1) through (5) remain the same.

(6) All directors, substitutes, ECTs, ECLTs, and ECATs must complete a health and safety review course at least every three years. The health and safety review course will count towards the annual training required in (1).

AUTH: 52-2-704, MCA

IMP: 52-2-704, 52-2-723, 52-2-731, MCA

4. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (department) proposes to amend ARM 37.95.102, 37.95.103, 37.95.106, 37.95.161, and 37.95.162, pertaining to licensing requirements for child care facilities.

As a result of the Child Care and Development (CCDF) Block Grant Reauthorization Act (Act), the U.S. Office of Child Care has directed states to implement new requirements which focus on child care health and safety in addition to improving the quality of care that children receive from licensed or registered child care providers. While a majority of these requirements are in place, there are additional rule amendments that the department must implement by September 30, 2018 in order to substantially comply with the Act and continue to receive federal funding after September 30.

The department also proposes some general updates in terminology, which are necessary to promote consistency across the Child Care Licensing Program (CCLP)'s varied provider types and reflect current practices and verbiage used in the industry and the Act.

ARM 37.95.102

The department propose to amend the supervisory language in (12) to permit providers flexibility in staffing. Without this amendment, providers face challenges meeting the staffing requirements set forth in the rule. In (14), the department proposes to amend the types of staff to which the requirements apply.

ARM 37.95.103 and 37.95.162

The Act require states to include ongoing health and safety training. The proposed amendment reflects the department's interpretation of this requirement for Family, Friend, and Neighbor (FFN) and child care facilities providers. The department believes the proposed amendments meet this federal requirement with minimum impact.

ARM 37.95.106

The department proposes to amend this rule to include staff of any age. It is also proposed that language in this rule is revised to exclude staff from working in a facility prior to receiving satisfactory background check results.

ARM 37.95.161

The Act require states to adopt more comprehensive background check procedures and criminal history analysis for providers, staff employed by providers, or those persons over the age of 18 who reside in, or are regularly present around child care facilities. The proposed amendments are necessary to meet this detailed federal requirement.

FISCAL IMPACT

The department believes that there is no direct, determinable fiscal impact. The rule amendments will require additional resources, including data base changes, the development of new training curriculum, and fingerprint processing. CCDF funds will be the funding source.

As for providers, there may be an increased cost to providers who elect to pay for fingerprint and background checks for their staff. A fingerprint background check will be required for all staff at all child care facilities.

5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Todd Olson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., September 10, 2018.

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

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

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

/s/ Flint Murfitt /s/ Sheila Hogan

Flint Murfitt Sheila Hogan, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State July 31, 2018.