WSR 17-09-048 PROPOSED RULES DEPARTMENT OF EARLY LEARNING [Filed April 17, 2017, 12:07 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-15-051.
Title of Rule and Other Identifying Information: New WAC 170-297-1370 Safe water sources; amending WAC 170-297-0001 Authority, 170-297-0010 Definitions, 170-297-1035 Fire inspection/certification, 170-297-1250 License application packet—Contents, 170-297-1275 Licensing process—Application processing, 170-297-1325 Fees—When due, 170-297-1360 Lead and arsenic hazards—Tacoma smelter plume, 170-297-2600 Furnaces and other heating devices, 170-297-2625 Electrical motors, 170-297-3000 Fire extinguishers, 170-297-3700 Carpets, 170-297-3950 Pest control, 170-297-4000 Lead, asbestos, arsenic and other hazards, 170-297-4250 Indoor temperature, 170-297-4275 Fans, air conditioning or cross ventilation, 170-297-4300 Window coverings, 170-297-4350 Electrical outlets, cords and power strips, 170-297-4360 Area lighting, 170-297-4375 Lighting safety, 170-297-4550 Windows, 170-297-4625 Toileting facility, 170-297-4635 Handwashing sinks, 170-297-4650 Bathroom floors, 170-297-4700 Water temperature, 170-297-4925 Licensed outdoor space, 170-297-4950 Playground equipment—Ground cover—Fall zones, 170-297-5000 Play equipment, 170-297-5125 Outdoor areas and daily physical activities, 170-297-5200 Swimming pools defined—Barriers and supervision, 170-297-5225 Bodies of water or water hazards on the licensed premises, 170-297-7580 Drinking fountains, 170-297-7750 Food preparation area and 170-297-7800 Food storage; and repealing WAC 170-297-1300 Withdrawing an incomplete application, 170-297-1375 Private septic system—Inspection and maintenance, and 170-297-1400 Private well and water system.
Hearing Location(s): Department of Early Learning (DEL), State Office, 1110 Jefferson Street S.E., Room 113, Olympia, WA, on May 24, 2017, at 10:00 a.m.
Date of Intended Adoption: May 26, 2017.
Submit Written Comments to: Rules Coordinator, DEL, P.O. Box 40970, Olympia, WA 98504-0970, email rules@del.wa.gov, fax (360) 725-4925, by May 25, 2017.
Assistance for Persons with Disabilities: Contact DEL rules coordinator by May 18, 2017, (360) 725-4670.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Clarify that DEL does not regulate the physical facility environment, including buildings and other premises, of an early learning program that operates in facilities used by public or private schools. Reformatting structurally aligns application sections in chapter 190-297 [170-297] WAC with application sections in new chapter 170-300 WAC. New WAC 170-297-1370 requires programs not operating in facilities used by public or private schools to test faucets and fountains used for drinking water and food preparation to detect unsafe levels of lead or copper in pipes and plumbing.
Reasons Supporting Proposal: Public and private schools' physical facility environments are subject to regulation outside of chapter 43.215 RCW. DEL defers to those regulations and is removing from chapter 170-297 WAC, licensed school age child care standards any provisions applicable to the physical facility environment, including requirements pertaining to buildings and other physical structures attached to buildings and premises, for licensed programs that operate in public or private school facilities. New WAC 170-297-1370 complies with Governor Inslee's Directive 16-06 to reduce children's exposure to lead.
Statutory Authority for Adoption: RCW 43.215.070; chapter 43.215 RCW; and chapter 231, Laws of 2016.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: In response to Governor Inslee's Directive 16-06 and the department of health's recommended requirements intended to reduce exposure to lead and other environmental hazards where children live, learn, and play, DEL is in the process of adopting new environmental safety standards applicable to licensed child care programs serving children five years of age and younger. See WSR 16-24-086 and 17-05-071. New WAC 170-297-1370 will align school-age program water testing requirements with those for programs that serve younger children.
Name of Proponent: DEL, governmental.
Name of Agency Personnel Responsible for Drafting: Heather West, 1110 Jefferson Street S.E., Olympia, WA, (425) 917-7967; Implementation and Enforcement: DEL licensing offices, statewide.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
Proposed WAC 170-297-1370, a rule concerning safe water sources.
Date: April 17, 2017.
1. Describe the proposed rule, including:
Lead and copper pose serious health risks, particularly to young children. According to the United States Environmental Protection Agency (EPA), lead can affect almost every organ and system in the human body and "children six years old and younger are most susceptible to the effects of lead." Lead and copper enter drinking water mainly through plumbing materials, and exposure may cause health problems that range from stomach complications to brain damage. Lead affects the central and peripheral nervous systems, cardiovascular system, kidney, blood, gastrointestinal system, immune system, and reproductive system. Even low levels of lead can result in behavior and learning problems, lower IQ, hyperactivity, slowed growth, hearing problems, and anemia.
In response to Governor Inslee's Directive 16-06, the department of health issued recommendations for DEL and other agencies that are intended to reduce exposure to lead and other environmental hazards where children live, learn, and play. While the governor's directive requires testing in buildings built before 1978, DEL and health have determined that water quality testing for lead and copper in all licensed buildings is needed to achieve health and safety goals and protect young children who are the most vulnerable demographic. The proposed rule was developed using science-based, cost-effective recommendations for reducing lead consumption in young children.
Proposed WAC 170-297-1370 would require an early learning program serving only school-age children but not operating in facilities used by public or private schools to:
1. Determine the lead and copper levels of any water source used for food or infant formula preparation or drinking water and remediate when unsafe levels are detected. Providers must conduct an initial test within six months of the rule's effective date and test at least once every six years thereafter. Water testing would also be required as part of the application process for prospective providers; and
2. Test private well water for coliform bacteria and nitrates and remediate when unsafe levels are detected. (Not a new requirement; currently required by WAC 170-297-1400.)
The proposed rule reduces the risk of children enrolled in licensed child care from being exposed to dangerous substances by dictating steps that will protect children enrolled in the early learning programs in the event these tests reveal unsafe levels of lead or copper at or above the standards set by EPA or unsafe bacteria and nitrate levels.
Both of the tests required under proposed WAC 170-297-1370 must be performed by a Washington state certified water laboratory, certified by the Washington state department of ecology. The lab provides a test kit that includes sampling instructions and water bottles. Licensed providers and license applicants draw water samples and deliver them to the lab for testing. The lab issues written test results, which must be kept on the licensed premises.
2. Identify which businesses are required to comply with the proposed rule using the North American Industry Classification System (NAICS) codes and what the minor-cost thresholds are.
3. Analyze the probable cost of compliance. Identify the probable costs to comply with the proposed rule, including: Cost of equipment, supplies, labor, professional services and increased administrative costs. Based on input, describe how compliance with the rule may cause lost sales or revenue.
Water testing costs vary across Washington state. Nine labs were contacted around the state to determine a range of $25 to $112 with an average cost of $47 to test for lead and copper. Testing private well water for bacteria ranged from $45 to $71, with an average cost of $56.
Testing is not expected to exceed the minor cost threshold for any provider. For the majority of providers, the only ongoing costs would be those associated with buying kits to test faucets and private wells, where applicable, between one and six years. The majority of programs will be testing an assumed one faucet and one drinking fountain. This cost does not take into account follow-up testing to identify potential "false-positive" readings.
Remediation costs are indeterminate should any test reveal unsafe levels of lead or copper in drinking water or bacteria or nitrates in drinking water. Remediation costs may include repairing plumbing systems or private wells, or providing bottled or packaged water to meet the safety needs for preparing food or infant formula, drinking, and cooking. These would be one-time or short-term costs. Remediation is not a new requirement – current rules require program providers to maintain safe water sources.
4. Explain how you determined the rule may impose more-than-minor costs on businesses in the industry.
The testing requirement does not impose more-than-minor costs on businesses in the industry. This statement is supplied since any remediation costs would likely exceed the minor threshold. However, as explained above, those costs are variable and indeterminate. Furthermore, current rules require remediation of unsafe water sources, so this should not be considered a new cost.
5. Determine whether the proposed rule may impose a disproportionate impact on small businesses compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule.
Use one or more of the following as a basis for comparing costs:
The proposed rule impacts only small businesses, however the new costs imposed do not exceed the minor cost threshold.
6. If the proposed rule is likely to impose a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses. Include consideration of each of the following cost mitigation strategies:
(a) Reducing, modifying, or eliminating substantive regulatory requirements.
(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements.
(c) Reducing the frequency of inspections.
(d) Delaying compliance timetables.
(e) Reducing or modifying fine schedules for noncompliance.
(f) Any other mitigation techniques suggested by small businesses or their advocates.
If the costs cannot be reduced, provide a clear explanation of why.
The proposed lead and copper test complies with current EPA testing standards to determine whether any faucet supplying water has an unsafe concentration of lead or copper, or whether a private well has unsafe levels of bacteria or nitrates. DEL believes imposing this minor cost is necessary to ensure the safety of children who participate in the programs DEL regulates. The one-time and short-term costs identified above necessary to remediate any unsafe water source to reduce the risk of children's exposure to harmful toxins could not be mitigated.
7. Describe how small businesses were involved in the development of the proposed rule.
WAC 170-300-0400, which DEL intends to adopt before April 28, 2017, enacts identical provisions for early learning programs serving children five years of age and younger. A working draft of that rule was distributed to all licensees on January 12, 2017, with a solicitation for comment. Thirteen comments were received and revisions were made based on those comments. Additional comments about proposed WAC 170-300-0400 were received during the public comment period. The changes to draft and proposed WAC 170-300-0400 have been made to proposed WAC 170-297-1370.
8. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule.
The requirement of testing faucents [faucets] and, where applicable, private wells would most likely not impact a licensee's hiring decision. The need to repair or replace plumbing may impact a licensee's decision to employ paid staff, or the number of hours that the licensee uses paid staff in a given year. As explained above, remediation is required by current rules.
9. Summarize the results of the analysis, including the determination if costs are disproportionate.
Proposed WAC 170-297-1370 requires school-age early learning program providers to regularly test faucets for unsafe levels of lead and copper. The proposed rule also requires that private well water be tested for unsafe levels of bacteria and nitrates, as currently required by WAC 170-297-1400. The cost of testing is not expected to exceed the minor cost threshold. Repairs are required or an alternative source of water must be provided when the tests reveal that the water is unsafe for children. Current rules require remediation of unsafe water sources, so the cost to repair water systems should not be considered a new cost imposed by the proposed rule.
A copy of the statement may be obtained by contacting Rules Coordinator, P.O. Box 49070, 1110 Jefferson Street S.E., Olympia, WA 98504-9070, phone (360) 725-4670, fax (360) 725-4925, email rules@del.wa.gov.
A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328 (5)[(a)](i). Further, DEL does not voluntarily make that section applicable to the adoption of this rule.
April 17, 2017
Ross Hunter
Director
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-0001 Authority.
The department of early learning was established under chapter 265, Laws of 2006. Chapter 43.215 RCW establishes the department's responsibility and authority to set and enforce licensing requirements and standards for licensed child care agencies in Washington state, including the authority to adopt rules to implement chapter 43.215 RCW. The provisions of this chapter governing the physical facility environment, including buildings and other physical structures attached to buildings and premises, do not apply to licensed early learning programs that operate in facilities used by public or private schools. The department regulates only health, safety, and quality standards that do not relate to the physical facility environment for programs operating in facilities used by public or private schools.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-0010 Definitions.
The following definitions apply throughout this chapter unless the context clearly indicates otherwise. Certain definitions appear in the section the term is used if the definition applies only to a specific section or sections:
"Accessible to children" means areas of the facility and materials that the children can easily get to on their own.
"Agency" as used in this chapter, has the same meaning as in RCW 43.215.010 (1)(c).
"Applicant" is the individual or entity that seeks a license to provide early learning services under this chapter.
"Available" means accessible and ready for use or service.
"Bathroom" means any room containing a built-in flush-type toilet.
"Capacity" means the maximum number of children the licensee is authorized by the department to have in care at any given time.
"Child" means a child not less than five years of age through twelve years of age who is attending kindergarten or school.
"Child abuse or neglect" has the same meaning as "abuse or neglect" under RCW 26.44.020 and chapter 388-15 WAC.
"Child care" means the developmentally appropriate care, protection, and supervision of children that is designed to promote positive growth and educational experiences for children outside the child's home for periods of less than twenty-four hours a day.
"Clean" or "cleaning" means to remove dirt and debris (such as soil, food, blood, urine, or feces) by scrubbing and washing with a soap or detergent solution and rinsing with water. Cleaning is the first step in the process of sanitizing or disinfecting a surface or item.
"Confidential" means the protection of personal information, such as the child's records, from persons who are not authorized to see or hear it.
"Denial of a license" means department action to not issue a child care license to an applicant for an initial license, or to a licensee operating under an initial license seeking a nonexpiring full license, based on the applicant's or initial licensee's inability or failure to meet the requirements of chapter 43.215 RCW or requirements adopted by the department pursuant to chapter 43.215 RCW.
"Department" or "DEL" means the Washington state department of early learning.
"Developmentally appropriate" means curriculum, materials or activities provided at a level that is consistent with the abilities or learning skills of the child.
"Discipline" means a method used to redirect a child in order to achieve a desired behavior.
"Disinfect" or "disinfecting" means to eliminate virtually all germs on a surface by the process of cleaning and rinsing, followed by:
(a) A chlorine bleach and water solution of one tablespoon of chlorine bleach to one quart of cool water, allowed to stand wet for at least two minutes; or
(b) Other disinfectant product if used strictly according to the manufacturer's label instructions including, but not limited to, quantity used, time the product must be left in place, adequate time to allow the product to dry or rinsing if applicable, and appropriateness for use on the surface to be disinfected. Any disinfectant used on food contact surfaces or toys must be labeled safe for food contact surfaces.
"DOH" means the Washington state department of health.
"DSHS" means the Washington state department of social and health services.
"Enforcement action" means a department issued:
(a) Denial, suspension, revocation or modification of a license;
(b) Probationary license;
(c) Civil monetary penalty (fine); or
(d) Disqualification from having unsupervised access to children in care.
"Fine" has the same meaning as "civil monetary penalty," "civil fines," or "monetary penalty" under chapter 43.215 RCW.
"Inaccessible to children" means an effective method or barrier that reasonably prevents a child's ability to reach, enter, or use items or areas.
"Licensed space" means the indoor and outdoor space on the premises approved by the department for the purpose of providing licensed child care.
"Licensee" for the purposes of this chapter, means the individual listed on a school age child care license issued by the department of early learning authorizing that individual to provide child care under the requirements of this chapter and chapter 43.215 RCW.
"Licensor" means an individual employed by the department and designated by the director to inspect and monitor an agency or other child care facility for compliance with the requirements of this chapter and chapter 43.215 RCW.
"MERIT" means the managed education registry information tool used to track professional development for early learning professionals. See also "STARS."
"Modification of a license" means department action to change the conditions identified on a current license.
"Nonexpiring full license" or "nonexpiring license" means a full license with no expiration date that is issued to a licensee following the initial licensing period as provided in WAC 170-297-1430.
"Nonprescription medication" means any of the following:
(a) Nonaspirin fever reducers or pain relievers;
(b) Nonnarcotic cough suppressants;
(c) Cold or flu medications;
(d) Antihistamines or decongestants;
(e) Vitamins;
(f) Ointments or lotions specially intended to relieve itching;
(g) Diaper ointments and talc free powders specially used in the diaper area of children;
(h) Sun screen;
(i) Hand sanitizer gels; or
(j) Hand wipes with alcohol.
"Personal needs" means an individual's hygiene, toileting, medication, cleansing, eating or clothing needs. Personal needs does not mean smoking or use of tobacco products, illegal drug use or misuse of prescription drugs, conducting business or related activities, sleeping or napping, screen time, or leaving children in care unattended.
"Physical facility environment" means all of the physical structures maintained within or attached to the structural building and premises.
"Physical restraint" means the practice of rendering a child helpless or keeping a child in captivity.
"Poison" for the purposes of this chapter includes, but is not limited to, substances, chemicals, chemical compounds (other than naturally occurring compounds such as water or salt), or similar items, that even in small quantities are likely to cause injury or illness if they are swallowed or come into contact with a child's skin, eyes, mouth, or mucus membranes.
"Premises" means the licensed or unlicensed space at the licensed address including, but not limited to, buildings, land and residences.
"RCW" means Revised Code of Washington.
"Revocation" or "revoke" means the formal department action to close a child care business and take the license due to the licensee's failure to comply with chapter 43.215 RCW or requirements adopted pursuant to chapter 43.215 RCW.
"Sanitize" means to reduce the number of microorganisms on a surface by the process of:
(a) Cleaning and rinsing, followed by using:
(i) A chlorine bleach and water solution of three-quarters teaspoon of chlorine bleach to one quart of cool water, allowed to stand wet for at least two minutes; or
(ii) Another sanitizer product if used strictly according to manufacturer's label instructions including, but not limited to, quantity used, time the product must be left in place, and adequate time to allow the product to dry, and appropriateness for use on the surface to be sanitized. If used on food contact surfaces or toys, a sanitizer product must be labeled as safe for food contact surfaces; or
(b) For laundry and dishwasher use only, "sanitize" means use of a bleach and water solution or temperature control of a minimum 140 degrees Fahrenheit.
"Screen time" means watching, using or playing television, computers, video games, video or DVD players, mobile communication devices, and similar devices.
"Staff" means a person or persons employed by the licensee to provide child care and to supervise children served at the center.
"STARS" means the state training and registry system.
"Suspension of a license" means a formal department action to immediately stop a license pending a department decision regarding further enforcement action.
"Unlicensed space" means the indoor and outdoor areas of the premises not approved as licensed space by DEL that the licensee must make inaccessible to the children during child care hours.
"Unsupervised access" has the same meaning as unsupervised access in WAC 170-06-0020.
"WAC" means the Washington Administrative Code.
"Weapons" means an instrument or device of any kind that is used or designed to be used to inflict harm including, but not limited to, rifles, handguns, shotguns, antique firearms, knives, swords, bows and arrows, BB guns, pellet guns, air rifles, electronic or other stun devices, or fighting implements.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-1035 Fire inspection/certification.
(1) The license applicant/licensee must conform to rules adopted by the state fire marshal's office, establishing standards for fire prevention and protection of life and property from fire, under chapter 212-12 WAC.
(2) The department must not issue a license until the state fire marshal's office has certified or inspected and approved the facility.
(3) The licensee must continue to comply with state and local fire code following the state fire marshal inspection.
(4) The provisions in this section do not apply to any program that operates on public or private school premises.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-1250 ((License application packet—Contents.)) Licensing process—Application materials and fees.
(1) ((The individual or entity seeking a license under this chapter is the license applicant.
(2) The license)) The applicant must submit a complete license application packet that includes:
(a) Professional and background information about the applicant:
(i) A completed department application form;
(((b))) (ii) A copy of the applicant's orientation certificate;
(((c) Completed background clearance forms for each staff person or volunteer having unsupervised or regular access to the child in care;
(d) Parent, staff and operation policies (handbooks). See WAC 170-297-2350, 170-297-2375, 170-297-2400, and 170-297-2425;
(e) A floor plan, including proposed licensed and unlicensed space with emergency exits and emergency exit pathways identified;
(f))) (iii) A Washington state business license, or a tribal, county, or city business or occupation license, ((as)) if applicable;
(((g))) (iv) Liability insurance, if applicable;
(v) Certificate of incorporation, partnership agreement, or similar business organization document, if applicable;
(vi) The license fee;
(vii) Copy of current photo identification issued by a government entity;
(viii) Copy of Social Security card under 42 U.S.C. 666(a)(13) and RCW 26.23.150 regarding child support or sworn declaration stating the applicant does not have one;
(ix) Employer identification number, if applicant plans to hire staff;
(x) Employment or education verification (e.g., diploma or transcripts) or a sworn declaration stating that the applicant cannot verify education requirements;
(b) Information about the facility to be licensed:
(i) A floor plan, including identified use of proposed licensed and unlicensed space with identified emergency exits and emergency exit pathways;
(ii) Copy of a certificate of occupancy for any program that is not directly located on public or private school premises;
(iii) An on-site septic system inspection report within six months of the inspection, if applicable under WAC 170-297-1375;
(((h))) (iv) Well water testing results within six months of testing, if applicable under WAC 170-297-1400;
(((i))) (v) A lead or arsenic evaluation agreement, only for a site located in the Tacoma smelter plume (counties of King, Pierce, and Thurston) under WAC 170-297-1360;
(((j) The license fee under WAC 170-297-1325;
(k) A federal employer identification number; and
(l) A staffing plan to include:
(i) The number and position types and qualifications of staff to meet the projected capacity of the facility;
(ii) How the applicant or licensee will verify that staff hired meet the qualifications as provided in this chapter; and
(iii) Projected staff training plan for the first year of the program.
(3) In addition to subsection (2)(a) through (l) of this section, if the license applicant is an individual, the following must be submitted with the license application:
(a) A copy of a current government issued photo identification;
(b) A copy of the license applicant's Social Security card under 42 U.S.C. 666(a)(13) and RCW 26.23.150 regarding child support, or, if the license applicant does not have a Social Security card, a sworn declaration stating that he or she does not have a Social Security card.
(4) In addition to subsection (2)(a) through (l) of this section, if the license applicant is an entity, a copy of the certificate of incorporation, partnership agreement or similar business organization document must be submitted with the license application.
(5) The licensee must submit a copy of the federal Internal Revenue Service letter showing the applicant's employer identification number (EIN) if the applicant plans to employ staff.)) (vi) Lead and copper test results for drinking water. See WAC 170-297-1370.
(c) Program hours of operation, including closure dates and holiday observances;
(d) Information about program staff:
(i) List of staff persons and volunteers, required to complete the background check process under chapter 170-06 WAC;
(ii) Resume for applicant, center director and program supervisor;
(iii) Three letters of professional reference for applicant, director and program supervisor;
(iv) Staffing plan that includes:
(A) The number and position types and qualifications of staff to meet the projected capacity of the facility;
(B) How the applicant or licensee will verify that staff hired meet the qualifications required under this chapter; and
(C) Projected staff training plan for the first year of the program.
(e) Program policy documents, including:
(i) Parent and program policies;
(ii) Staff policies;
(iii) An emergency preparedness plan;
(iv) Health policies; and
(v) A plan for the prevention of exposure to blood and body fluids.
(2) An applicant must submit the completed application packet ninety calendar days or more prior to the opening of the early learning program.
(3) The license fee. Fees are nonrefundable and are due:
(a) With the applicant's initial license application packet; and
(b) Annually thereafter, thirty days prior to the anniversary date of the license.
(c) The annual fee for a school-age program is one hundred twenty-five dollars for the first twelve children, plus twelve dollars for each additional child over twelve, or as otherwise set by the legislature.
(4) If the school-age provider decides to alter the existing licensed space or moves the child care to a different building, including a different building located on the same premises, the department shall inspect the new location and determine whether it meets the requirements in this chapter. The provider must:
(a) Notify the department of the proposed change;
(b) Submit a complete application before the change occurs, but not more than ninety days before the change occurs; and
(c) Not operate in the proposed space until the new location or the change in environment has been inspected and approved by the department.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-1275 Licensing process—Application processing.
(1) The department may take up to ninety days to complete the licensing process. The ninety days begins when the department receives the license applicant's signed and dated application packet, fees, and background check forms.
(2) If an incomplete application packet is submitted, the department will inform the license applicant of the deficiencies and provide a time frame in which to provide the required information. If an application remains incomplete the department may deny the license.
(a) An applicant who is unable to successfully complete the application and licensing process within ninety days may withdraw the application and reapply when able to meet the licensing requirements.
(b) An applicant who is unable to meet the application requirements and has not withdrawn the application will be denied a license under the provisions of RCW 43.215.300.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-1325 Background check fees((—When due)).
((License fees.
(1) The annual license fee is one hundred twenty-five dollars for the first twelve children, plus twelve dollars for each additional child over twelve, or as otherwise set by the legislature.
(2) The license fee is nonrefundable and is due:
(a) With the license applicant's initial license application packet; and
(b) Annually thereafter, thirty days prior to the anniversary date of the license.
(3) Payment must be in the form of a check or money order.
Background check fees.
(4))) (1) Each ((individual)) early learning provider required to obtain a department background check ((must)) shall pay the fee established under chapter 170-06 WAC. The fee must be submitted with the individual's completed and signed background check application form.
(((5) Each individual submitting a first-time license application and each individual applying for the first time for a department background check clearance)) (2) The following early learning providers must be fingerprinted and pay the processing fee:
(a) Anyone submitting a first-time license application;
(b) Anyone applying for the first time for a department background check clearance; and
(c) Anyone whose background clearance has expired.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-1360 Lead and arsenic hazards—Tacoma smelter plume.
A child care facility ((in)) that does not operate on public or private school premises but is located within the designated Tacoma smelter plume (counties of King, Pierce, and Thurston) must contact the state department of ecology (DOE) and complete a signed access agreement with DOE for further evaluation of the applicant's property and possible arsenic and lead soil sampling.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-2600 Furnaces ((and)), other heating devices and appliances with hot surfaces.
(((1))) For any program that does not operate on public or private school premises, the licensee must:
(1) Keep paper, rubbish, or combustible materials at least three feet away from any furnace, fireplace, or other heating device((.));
(2) ((Furnaces must be)) Make any furnace inaccessible to the children((,)) by keeping the furnace isolated, enclosed or protected((.)); and
(3) Make any appliance or heating device that has a hot surface capable of burning a child ((must be made)) inaccessible to the children in care during operating hours when the appliance or device is in use or is still hot after use.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-2625 Electrical motors.
For any program that does not operate on public or private school premises, the licensee must keep electrical motors on appliances free of accumulated dust or lint.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-3000 Fire extinguishers.
(1) For any program that does not operate on public or private school premises, the licensee must have working fire extinguishers, readily available. A fire extinguisher must be:
(a) Located on each level of the licensed premises used for child care; and
(b) Mounted:
(i) Within seventy-five feet of an exit; and
(ii) Along the path of an exit.
(2) For any program that does not operate on public or private school premises, a fire extinguisher may be mounted in a closed unlocked closet. There must be:
(a) A sign on the closet door to indicate that a fire extinguisher is mounted inside; and
(b) No obstructions blocking access to the closet.
(3) The licensee of a program that does not operate on public or private school premises must have documentation on file of annual:
(a) Fire extinguisher maintenance; or
(b) Proof of purchasing new extinguishers.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-3700 Carpets.
(1) For any program that does not operate on public or private school premises, the licensee must clean installed carpet in the licensed space at least twice each calendar year, or more often when soiled, using a carpet shampoo machine, steam cleaner, or dry carpet cleaner.
(2) Where the licensee does not have decision-making authority over the licensed premises, document verification of compliance is acceptable.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-3950 Pest control.
(1) For any program that does not operate on public or private school premises, the licensee must keep the premises free from rodents, fleas, cockroaches, and other insects and pests.
(2) If pests are present in the licensed space, the licensee of a program that does not operate on public or private school premises, must:
(a) Take action to remove or eliminate pests; and
(b) Use the least poisonous method of pest management possible; or
(c) Use chemical pesticides for pest management. If chemical pesticides are used, the licensee must:
(i) Post a notice visible to parents, guardians and staff forty-eight hours in advance of the application of chemical pesticides; and
(ii) Comply with the Washington state department of agriculture's compliance guide for Pesticide use at Public Schools (K-12) and Licensed Day Care Centers in applying chemical pesticides.
(3) Where the licensee does not have decision-making authority over the licensed premises, document verification of compliance is acceptable.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4000 Lead, asbestos, arsenic and other hazards.
For any program that does not operate on public or private school premises, the licensee must take action to prevent child exposure when the licensee becomes aware that any of the following are present in the indoor or outdoor licensed space:
(1) Lead based paint;
(2) Plumbing containing lead or lead solders;
(3) Asbestos;
(4) Arsenic or lead in the soil or drinking water;
(5) Toxic mold; or
(6) Other identified toxins or hazards.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4250 Indoor temperature.
For any program that does not operate on public or private school premises, the indoor temperature must be no less than sixty-five degrees Fahrenheit and no higher than seventy-five degrees Fahrenheit during the winter or eighty-two degrees Fahrenheit during the summer.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4275 Fans, air conditioning or cross ventilation.
For any program that does not operate on public or private school premises, a fan, air conditioner or cross ventilation must be used in licensed space when the inside temperature exceeds eighty-two degrees Fahrenheit. Fans and air conditioners must be kept inaccessible to the children, or a protective barrier must be used to prevent children from accessing fan blades.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4300 Window coverings.
(1) For any program that does not operate on public or private school premises, window coverings with pull cords or inner cords capable of forming a loop are prohibited as provided by RCW 43.215.360.
(2) Window coverings may be allowed that have been manufactured or altered to eliminate the formation of a loop.
(3) A window covering must not be secured to the frame of a window or door used as an emergency exit in any way that would prevent the window or door from opening easily.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4350 Electrical outlets, cords and power strips.
(1) For any program that does not operate on public or private school premises, the licensee must:
(a) Use electrical outlets that are in good working order without exposed wires or broken covers((.
(2)));
(b) Install interior outlets near sinks, tubs or toilets ((must be)) that are:
(((a))) (i) Tamper-resistant ground fault circuit interrupter (GFCI) type; or
(((b))) (ii) Made inaccessible to the children.
(((3))) (2) For all licensed programs, electrical cords must be:
(a) Secured to prevent a tripping hazard;
(b) In good working order, not torn or frayed and without any exposed wire; and
(c) Plugged directly into an outlet, or a surge protector that is plugged directly into an outlet.
(((4))) (3) Power strips with a surge protector may be used and must be made inaccessible to the children.
(((5))) (4) Extension cords may be used only for a brief or temporary purpose and must be plugged into an outlet or into a surge protected power strip.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4360 Area lighting.
For any program that does not operate on public or private school premises, all areas of the facility must have natural or artificial lighting that provides adequate illumination for facility activities.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4375 Lighting safety.
(1) For any program that does not operate on public or private school premises, ceiling-mounted light fixtures in licensed space accessible to children must have one of the following:
(a) Shatter-resistant covers; or
(b) Shatter-resistant light bulbs.
(2) The licensee of a program that does not operate on public or private school premises, must not:
(a) Allow bare light bulbs in any play space;
(b) Use lights or light fixtures indoors that are intended or recommended for outdoor use; or
(c) Use halogen lamps in any area accessible to children during operating hours.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4550 Windows.
(((1))) For any program that does not operate on public or private school premises:
(1) When a protective guard is used on any window it must not block outdoor light from entering the child care or prevent air flow into the child care((.)); and
(2) Where a window is used as an emergency exit window, the window and guards, if provided, must be equipped to enable staff to release the guard and open the window fully when emergency exit is required.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4625 Toileting facility.
(1) For any program that does not operate on public or private school premises, a toileting facility must be available for use by the children.
(((1))) The toileting facility must have at minimum:
(a) One working flush-type toilet for every thirty children based on the licensed capacity. One-third of the toilets may be replaced by a urinal;
(b) Privacy for toileting for children of the opposite sex; ((and))
(c) A mounted toilet paper dispenser and toilet paper for each toilet((.
(2) The toileting facility must be ventilated by the use of)); and
(d) Adequate ventilation provided by a window that can be opened or an exhaust fan.
(((3))) (2) For all licensed school-age programs, a diaper changing area must be provided to meet the diapering needs of the children when applicable.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4635 Handwashing sinks.
(1) For any program that does not operate on public or private school premises, handwashing facilities must be located in or immediately outside of:
(a) Rooms used for toileting; and
(b) Areas used for food preparation.
(2) Soap and warm water must be provided at each handwashing sink, as well as:
(a) Disposable paper towels; or
(b) A heated-air hand-drying device with heat guards to prevent contact with surfaces that get hotter than one hundred twenty degrees Fahrenheit.
(3) ((The)) Handwashing procedures must be posted at each handwashing sink.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4650 Bathroom floors.
For any program that does not operate on public or private school premises, bathrooms and other rooms subject to moisture must have flooring that is washable and moisture resistant. The floor must be cleaned and disinfected as provided in WAC 170-297-0010 daily or more often if needed.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4700 Water temperature.
((Water must be kept at a)) For any program that does not operate on public or private school premises, the licensee must monitor the water temperature ((of)) and maintain it at least sixty degrees Fahrenheit and not more than one hundred twenty degrees Fahrenheit.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4925 Licensed outdoor space.
(1) The licensee must provide a safe outdoor play area on the premises.
(a) The outdoor play space must contain seventy-five square feet of usable space per child for the number of children stated on the license.
(b) If the premises does not have seventy-five square feet of available outdoor space per child, the licensee may provide an alternative plan, approved by the department, to meet the requirement for all children in care to have daily opportunities for active outdoor play.
(2) ((The licensed outdoor play space must be enclosed within a fence, barrier, or identified boundary. When a fence has slats, openings between the slats must be no wider than three and one-half inches.
(3))) When the licensed outdoor play space is not adjacent to the licensed facility the licensee must:
(a) Identify and use a safe route to and from the licensed outdoor space that is approved by the department; and
(b) Supervise the children at all times when passing between the licensed outdoor space and the facility.
(((4))) (3) The licensee must provide a written plan, approved by the department, to make roadways and other dangers adjacent to the licensed outdoor play space inaccessible to children.
(((5) The department may approve all or part of the outdoor space for use by a child care program that is on school district property and has been inspected and maintained by the school district using the Consumer Product Safety Commission's Public Playground Safety Handbook.)) (4) For any program that does not operate on public or private school premises, the licensed outdoor play space must be enclosed within a fence, barrier, or identified boundary. Any opening between fence slats may be no wider than three and one-half inches.
(5) For any program that does not operate on public or private school premises, the department may approve all or part of the outdoor space for use by a child care program that has been maintained by using the Consumer Product Safety Commission's Public Playground Safety Handbook.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-4950 Playground equipment—Ground cover—Fall zones.
This section is applicable to any program that does not operate on public or private school premises.
(1) The licensee must not place climbing play equipment on concrete, asphalt, packed soil, lumber, or similar hard surfaces when being used by children.
(2) The ground under swings and play equipment intended to be climbed must be covered by a shock absorbing material. Grass alone is not an acceptable ground cover material under swings or play equipment intended to be climbed. Acceptable ground cover includes:
(a) Pea gravel at least nine inches deep;
(b) Playground wood chips at least nine inches deep;
(c) Shredded recycled rubber at least six inches deep; or
(d) Other department approved material.
(3) A six-foot fall zone must surround all equipment that has a platform over forty-eight inches tall that is intended to be climbed.
(4) The fall zone area must extend at least six feet beyond the perimeter of the play equipment. For swings, the fall zone must be the distance to the front and rear of the swing set equal to or greater than twice the height of the top bar from which the swing is suspended.
(5) Swing sets must be positioned further away from structures to the front and rear of the swing set. The distance to the front and rear of the swing set from any playground equipment or other structure must be a distance equal to or greater than twice the height of the top bar from which the swing is suspended.
(6) The department may approve all or part of ((a playground for use by a child care program that is on school district property and has been inspected and maintained by the school district)) the outdoor space for use by a child care program that has been maintained by using the Consumer Product Safety Commission's Public Playground Safety Handbook.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-5000 Play equipment.
For any program that does not operate on public or private school premises, the licensee must have play equipment that is developmentally appropriate and maintained in a safe working condition. The licensee must inspect play equipment at least weekly for injury hazards, broken parts, or damage. Unsafe equipment must be repaired immediately or must be made inaccessible to children until repairs are made.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-5125 Outdoor areas and daily physical activities.
(1) ((The licensed program must have an outdoor play area that promotes a variety of age and developmentally appropriate active play for the children in care.
(2) The)) Program staff must provide outdoor activities at least twenty minutes for every three hours of care unless conditions pose a health and safety risk to the children.
(((3))) (2) Conditions that may pose a health and safety risk include, but are not limited to:
(a) Heat in excess of one hundred degrees Fahrenheit;
(b) Cold less than twenty degrees Fahrenheit;
(c) Lightning storm, tornado, hurricane, or flooding, if there is immediate or likely danger to the children;
(d) Earthquake;
(e) Air quality emergency ordered by a local or state air quality authority or public health authority;
(f) Lockdown order by a public safety authority; or
(g) Other similar incidents.
(3) For any program that does not operate on public or private school premises, the licensed program must have an outdoor play area that promotes a variety of age and developmentally appropriate active play for the children in care.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-5200 Swimming pools defined—Barriers and supervision.
(1) A swimming pool is a pool that has a water depth greater than two feet.
(2) When there is a swimming pool on the premises that is not located on public or private school grounds the licensee must provide:
(a) A door alarm or bell on each door opening to the pool area to warn staff when the door is opened;
(b) A five foot high fence that blocks access to the swimming pool. ((When the fence has slats the openings between slats must not be wider than three and one-half inches wide;)) Any opening between fence slats may not be wider than three and one-half inches;
(c) Gates with a self-latching device at entrance and exit points to the swimming pool and lock each gate; and
(d) An unlocking device that is inaccessible to children but readily available to the licensee or staff.
(3) For any program that does not operate on public or private school premises, the licensee must maintain the swimming pool according to manufacturer's specifications, including cleaning and sanitizing.
(4) When the swimming pool on the premises is used by the children in care:
(a) The licensee must obtain written permission from the parent or guardian of each child using the swimming pool;
(b) There must be one person present at the swimming pool at all times who is a certified lifeguard, with a nationally recognized certification; and
(c) The licensee must provide one additional staff person more than the required staff-to-child ratio provided in WAC 170-297-5700 to help supervise the children.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-5225 Bodies of water or water hazards on the licensed premises.
(1)(a) As used in WAC 170-297-5150 through 170-297-5250, a "body of water" is a natural area or man-made area or device that contains or holds more than two inches of water.
(b) "Body of water" does not include a wading pool as defined in WAC 170-297-5175, a water activity table, small bird baths or rain puddles with a water depth of two inches or less.
(2) When children are in care the licensee must((:
(a))) directly supervise or have a primary staff person directly supervise children, with the staff-to-child ratio observed, whenever children play in any area with a body of water.
(3)(a) For any program that does not operate on public or private school premises, the licensee must make any body of water in the licensed space inaccessible with a physical barrier (not to include a hedge or vegetation barrier) or fence that is at least five feet tall. ((When a fence has slats or open grids, openings must not be wider)) Any opening between fence slats may be no wider than three and one-half inches; and
(b) Directly supervise or have a primary staff person directly supervise children, with the staff-to-child ratios observed, whenever children play in any area with a body of water.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-7580 Drinking fountains.
This section is applicable to any program that does not operate on public or private school premises.
(1) Inclined jet-type drinking fountains may be used.
(2) Bubble-type drinking fountains and drinking fountains attached to or part of sinks used for any purpose other than the drinking fountain must not be used.
(3) Drinking fountains must be cleaned and sanitized, as provided in WAC 170-297-0010, on a daily basis or more often as needed.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-7750 Food preparation area.
This section is applicable to any program that does not operate on public or private school premises.
(1) ((Program staff must clean and sanitize food preparation and eating surfaces before and after use.)) The food preparation area must:
(a) Have surfaces that are free of cracks and crevices; and
(b) Have a floor made of a material that is resistant to moisture.
(2) ((The following kitchen equipment must be available to cook and serve food:
(a))) Have a range with a properly vented hood or exhaust fan((; and
(b) A refrigerator and freezer, or a combination refrigerator/freezer)), or a properly maintained microwave, must be available to properly cook food.
(3) There must be a designated food preparation sink in the licensed facility. When the food preparation sink is used for other purposes ((during nonchild care)) outside of program operating hours, it must be thoroughly cleaned and sanitized, as provided in WAC 170-297-0010, prior to use and a colander must be used to prevent food items from coming in contact with the sink basin.
(4) There must be a handwashing sink accessible during food preparation. See WAC 170-297-4635.
(5) A calibrated and working food thermometer must be used to monitor food temperature to ensure that it is cooked, cooled, and served at the correct temperature. The thermometer must be either a metal stem-type thermometer or a digital thermometer.
REPEALER
The following sections of the Washington Administrative Code are repealed:
NEW SECTION
WAC 170-297-1370 Safe water sources.
(1) Hot and cold running water shall be supplied to the licensed program premises.
(2) A licensee for a program that does not operate on public or private school premises must use a Washington state certified water laboratory accredited by the department of ecology to analyze drinking water to test the program water supply for lead and copper within six months of the date this section becomes effective. All fixtures used to obtain water for preparing food, drinking, or cooking must be tested prior to licensing and at least once every six years. Testing must be done pursuant to current environmental protection agency standards. A copy of the water testing results must be kept on the licensed premises. If the test results are at or above the current EPA action level, the licensee must immediately:
(a) Close the program to prevent children from using or consuming water, or supply bottled or packaged water to meet the requirements of this chapter;
(b) Consult with the department of health for technical assistance;
(c) Contact and advise the department of the water test results and steps taken to protect enrolled children;
(d) Notify all parents and guardians of the test results; and
(e) Notify the department with plans to reopen the program once lead and copper levels are below the current EPA action level.
(3) If the program space receives water from a private well, the well must comply with chapter 173-160 WAC minimum standards for construction and maintenance of wells.
(a) Well water must be tested at least once every twelve months for coliform bacteria and nitrates by a Washington state certified laboratory accredited by the department of ecology to analyze drinking water. To achieve desirable results the test must indicate:
(i) No presence of coliform bacteria; and
(ii) The presence of less than ten parts per million (ppm) for nitrates. If test results for nitrates are greater than five but less than ten ppm, the water must be retested within six months.
(b) If well water tests positive for coliform bacteria, or is greater than ten ppm for nitrates, the licensee must:
(i) Immediately stop using the well water in the child care premises; and
(ii) Immediately inform the local health jurisdiction or the department of health and the department of the positive test results.
(c) If directed by the department, the program must discontinue operations until repairs are made to the water system and water tests indicate desirable results pursuant to (b) of this subsection.
(d) If the department determines that child care operations may continue while an unsafe water system is being repaired, or installs treatment, the licensee must:
(i) Provide an alternate source of water, approved by the department; and
(ii) Repair the well or install treatment as required and retest until the water meets the water quality standards pursuant to (b) of this subsection.
(4) A licensee must immediately notify the department when the water connection to the program space is interrupted for more than one hour, or the water source becomes contaminated:
(a) The department may require the licensee to discontinue program operation until the water connection is restored or the water source is no longer contaminated; or
(b) The licensee must obtain an alternative source of potable water approved such as packaged or bottled water. The amount of the alternative source of potable water must be sufficient to ensure compliance with the requirements of this chapter for safe drinking water, handwashing, sanitizing, dishwashing, and cooking.
AMENDATORY SECTION (Amending WSR 12-23-057, filed 11/19/12, effective 12/20/12)
WAC 170-297-7800 Food storage.
(1) Food must be stored:
(a) In the original containers or in clean, labeled containers that are airtight and off the floor;
(b) In a manner that prevents contamination from other sources;
(c) In an area separate from toxic materials such as cleaning supplies, paint, or pesticides;
(d) With a date that is not past the manufacturer's expiration or freshness date; and
(e) In a working refrigerator, cooler, or freezer with sufficient space for proper storage and cooling of food, if cold holding is required. A calibrated and working food thermometer must be used to monitor food temperature. The thermometer must be either a metal stem-type thermometer or a digital thermometer.
(i) Foods requiring refrigeration must be stored at forty-one degrees Fahrenheit or less. Appropriate refrigeration is required to preserve food from spoiling. Foods that may be subject to spoiling include, but are not limited to, meats, cooked potatoes, cooked legumes, cooked rice, sprouts, cut melons, cut cantaloupes, milk and cheese.
(ii) Foods requiring freezing must be stored at ten degrees Fahrenheit or less. Foods required to be frozen must not be allowed to thaw until such food is being prepared for immediate consumption. Frozen food must be thawed in a refrigerator, under cool running water inside a pan placed in a sink with the drain plug removed; or in a microwave if the food is to be cooked immediately as part of the continuous cooking process.
(2) Raw meat, poultry, or fish in the refrigerator must be stored below cooked or ready to eat foods.
(3) Foods not requiring refrigeration must be stored at least six inches above the floor in a clean dry storeroom, or in a closed cupboard or pantry.
(4) Dry bulk foods not in their original containers must be stored in containers with tight fitting covers. Containers must be labeled and dated.
(5) Prior to storing leftover food in a refrigerator, an early learning provider must label the container with the date and time when the leftover food was opened or cooked. The program may serve leftover food that originated from the program if:
(a) The food was not previously served; and
(b) It was stored at the proper temperature for less than forty-eight hours after preparation.
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