WSR 03-14-110

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 30, 2003, 4:02 p.m. , effective August 1, 2003 ]

Date of Adoption: June 27, 2003.

Purpose: The Department of Social and Health Services, Economic Services Administration (ESA) is repealing all sections of chapter 388-150 WAC, Minimum licensing requirements for child day care centers, and replacing those WAC with new chapter 388-295 WAC, Minimum licensing requirements for child care centers.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-150-005 Authority, 388-150-010 Definitions, 388-150-020 Scope of licensing, 388-150-040 Local ordinances and codes, 388-150-050 Waivers, 388-150-060 Dual licensing, 388-150-070 Application and reapplication for licensing -- Investigation, 388-150-080 Licensed capacity, 388-150-085 Initial license, 388-150-090 When can my license application be denied and when can my license be suspended or revoked?, 388-150-092 Civil penalties, 388-150-093 Civil penalties -- Amount of penalty, 388-150-094 Civil penalties -- Posting of notice of penalty, 388-150-095 Civil penalties -- Unlicensed programs, 388-150-096 Civil penalties -- Separate violations, 388-150-097 Civil penalties -- Penalty for nonpayment, 388-150-098 Probationary license, 388-150-100 Activity program, 388-150-110 Learning and play materials, 388-150-120 Staff-child interactions, 388-150-130 Behavior management and discipline, 388-150-140 Rest periods, 388-150-150 Evening and nighttime care, 388-150-160 Off-site trips, 388-150-165 Transportation, 388-150-170 Parent communication, 388-150-180 Staff pattern and qualifications, 388-150-190 Group size and staff-child ratios, 388-150-200 Staff development and training, 388-150-210 Health care plan, 388-150-220 Health supervision and infectious disease prevention, 388-150-230 Medication management, 388-150-240 Nutrition, 388-150-250 Kitchen and food service, 388-150-260 Drinking and eating equipment, 388-150-270 Care of young children, 388-150-280 General safety, maintenance and site, 388-150-290 Water safety, 388-150-295 Water supply, sewage and liquid wastes, 388-150-310 First aid supplies, 388-150-320 Outdoor play area, 388-150-330 Indoor play area, 388-150-340 Toilets, handwashing sinks, and bathing facilities, 388-150-350 Laundry, 388-150-360 Nap and sleep equipment, 388-150-370 Storage, 388-150-380 Program atmosphere, 388-150-390 Discrimination prohibited, 388-150-400 Religious activities, 388-150-410 Special requirements regarding Native American children, 388-150-420 Child abuse, neglect and exploitation, 388-150-430 Prohibited substances, 388-150-440 Limitations on person on premises, 388-150-450 Child records and information, 388-150-460 Program records, 388-150-470 Personnel policies and records, 388-150-480 Reporting of death, injury, illness, epidemic or child abuse, 388-150-490 Reporting of circumstantial changes, 388-150-500 Posting requirements, 388-150-990 Purpose and authority, 388-150-991 Waiver of fees, 388-150-992 Fee payment and refunds, and 388-150-993 Denial, revocation, suspension and reinstatement.

Statutory Authority for Adoption: Chapters 74.12 and 74.15 RCW.

Adopted under notice filed as WSR 03-09-005 on April 2, 2003.

Changes Other than Editing from Proposed to Adopted Version:


SUMMARY OF CHANGES MADE FROM PROPOSED TO ADOPTED VERSION (other than editing) LANGUAGE CHANGED OR DELETED FROM THE PROPOSED OR ADOPTED VERSION
An addition to WAC 388-295-0001 What gives the authority to the department of social and health services (DSHS) to license child care and charge licensing fees?, was made to make "technical changes." Establishing licensing fees under authority of RCW 43.20.110 had been in the previous WAC but was inadvertently omitted during the revision process. The two changes were: (1) The subsection title question was changed to include "and charge licensing fees." (2) Additional language was added stating the authority to establish licensing fees are adopted under RCW 43.20B.110. WAC 388-295-0001 title questions now reads as follows: What gives the authority to the department of social and health services (DSHS) to license child care "and charge licensing fees." The language in WAC 388-295-0001(2) has been changed to state: "The rules establishing licensing fees are adopted under authority of RCW 43.20B.110."
Two definitions were added to WAC 388-295-0010 What definitions under this chapter apply to licensed child care providers?. Definitions were added for "Supervised Access" and "Unsupervised Access" to provide more clarity in interpretation of the rules with regards to who must have a criminal history and background inquiry clearance. The following language has been added to WAC 388-295-0010: "Supervised access" refers to those individuals at a child care center who have no responsibility for the operation of a center and do not have unsupervised access to children. These individuals are not required to submit a criminal history form. This included those persons on the premises for "time limited" activities whose presence is supervised by a center employee and does not affect provider/child ratios or the normal activities or routine of the center. Examples include: (1) A person hired to present an activity to the children in care such as a puppet show, cooking activity, and story telling; (2) Parent participation as part of a special theme; or (3) A relative visiting a child on the premises. "Unsupervised access" refers to those individuals at a child care center who can be left alone with children in the child care center. These individuals must have received a full criminal history and background authorization clearance."
An addition was made to WAC 388-295-0050 Can I get a waiver (exception) to the minimum licensing requirements?, licensing fee information from the previous WAC was omitted during the revision process.


Changes were made to correct the error providing additional information necessary to clarify what a provider must do to obtain a waiver for licensing fees. In addition, sentence rearrangement was made moving subsection (5) to subsection "(7) You have no appeal rights to the denial of a waiver request under chapter 34.05 RCW."

The language in WAC 388-295-0050 now includes the following changes: (1) The title has been changed to state: "Can I get a waiver (exception) to the minimum licensing requirements or to licensing fees?"


The additional information was also added "(5) Any person or agency can submit a request for a waiver of licensing fees. We may waive fees when collection of the fee would (a) Not be in the best interest of public health and safety; (b) Be to the financial disadvantage of the state. (6) To request a waiver to the requirement to pay a licensing fee, you must; (a) Submit a sworn, notarized petition requesting a waiver of fees; (b) Mail or deliver the petition to your local child care licensing office; and (c) Submit any additional documentation that we may consider relevant to your request for a waiver." Subsection (5) was rearranged to subsection (7) for clarity purposes.

Changes were made to WAC 388-295-0055 Can I get a dual license?, as a result of comments made about requesting social security cards for persons other than employees, changes were made to this subsection. The purpose of the Social Security card or verification of employer identification number is to allow us to file correctly with the Internal Revenue Services (IRS). IRS requires us to report monies paid to providers accurately. We can only do so if we have the Social Security card or the employer identification number (EIN) verification.


WAC 388-296-0055(4) was deleted and added to WAC 388-295-0070 (2)(a), (b), (c), (d), for clarification purposes.

WAC 388-295-0055 has been changed to read: "(2) The application packet must include the following attachments: (ii) "Social security card that is valid for employment or verification of your employer identification number."


The following language was deleted from WAC 388-295-0055 "(4) You must provide us any additional reports or information regarding you, any assistant, volunteers, or any other person having access to the child in care. This includes but is not limited to: (a) Sexual deviancy evaluations; (b) Substance abuse evaluations; (c) Psychiatric evaluations; and medical evaluations."

Changes were made to WAC 388-295-0070 deleting and then rewriting wording as a result of a comment made with regard to submission of additional reports submitted to licensing. Additional background information may be requested when the licensor has substantial information indicating the applicant or provider may have a behavioral or personality problem that could constitute a risk to the health, safety and well-being of children in care. This investigation could include, but is not limited to, accessing criminal histories and law enforcement files and records. Additional background information may be requested when the licensor has substantial information indicating the applicant or provider may have a behavioral or personality problem that could constitute a risk to the health, safety and well-being of children. The licensor must thoroughly discuss with the applicant/licensee the need to obtain additional background information such as a psychiatric, psychological, chemical dependency or other evaluations. Due process dictates that the request for additional information must be logically related to the assumption there is a potential problem constituting a risk to children. The language has been reworded and rewritten in WAC 388-295-0070 (1)(b), (2)(a) through (d), what personal characteristics do my volunteers, all staff and I need to provide care to children? and reads as follows: (1) You must have the following personable characteristics in order to operate or work in a child care facility: (b) Be qualified by our background inquiry check (chapter 388-06 WAC) prior to having unsupervised access to children; "This includes your not having committed or been convicted of child abuse or any crime involving harm to another person;"


The language has been reworded and rewritten in WAC 388-295-0070 (2)(a) through (d), what personal characteristics do my volunteers, all staff and I need to provide care to children?) "If we decide it is necessary, you must provide to us any additional reports or information regarding you, any assistants, volunteers, members of your household or any other person having access to the child in care if any of those individuals may be unable to meet the requirements in Chapter 388-295 WAC. This could include: (a) Sexual deviancy evaluations; (b) Substance abuse evaluations; (c) Psychiatric evaluations; and (d) Medical evaluations."

Such required information or evaluation must be directly related to the applicant's ability to care for children and a problem that could constitute a risk to children in care.
An addition to WAC 388-295-0090 When will the department issue me an initial license?, was made to make "technical changes" to include information on when licensing fees are due. This information was in the previous WAC but was inadvertently omitted during the revision process. These changes were necessary to inform licensees when and how to pay their licensing fees. The following language was added to WAC 388-296-0090: "(8) You must pay licensing fees at the time you apply for an initial license and when your license is being renewed. (9) We do not process your application until you have paid the required fee. (10) You can pay licensing fees for: (a) A minimum one year; or (b) The entire length of your license. (11) You pay your fee by mailing a check or money order for the required amount to the department of social and health services according to instructions on the licensing application. (12) If you pay your fee one time per year, you pay the annual rate each time. The annual fee is due thirty days before each anniversary date of the license. (13) If you pay for more than one year, the total fee you pay is based on the annual fee rate. For example, if you are licensed for three years and want to pay the licensing fee for the entire period at once, you multiply the annual fee by three years, and pay that amount at the time of your license application or renewal. (14) If there is a change in your facility that places your facility in a higher fee category, we prorate the additional fee amount over the remainder of the license period. (15) If you withdraw your application before we deny or issue a license, we refund one-half of the fee. (16) If there is a change that requires a new license, we refund any fee that remains after the next licensing date. A new license requires a new application and date. (17) If we deny, revoke, or suspend your license, we do not refund your licensing fee. (18) If you reapply for a license after we revoke or suspend your license, you must pay a new license fee. (19) If you do not pay licensing fees when they are due, we suspend or deny your license."
A subsection was deleted from WAC 388-295-0110 When can I be fined for not following the minimum licensing requirements?, because the information was duplicated in WAC 388-295-0120. The following language was deleted in WAC 388-295-0110: "(8) Civil fines are set at two hundred fifty dollars per violation per day. We can assess and collect the fine with interest for each day that you fail to come into compliance."
A change was made to WAC 388-295-1020 What if the director does not meet the minimum qualifications?, was made as a result of a response to a comment. The change was necessary to provide documentation of the program supervisor twenty hour on-site requirement if the director does not meet the minimum qualifications. The following language was added to WAC 388-295-1020 (1)(c) "If we request it, you must provide documentation of the twenty hours or more a week on site supervisory duties for the program supervisor."
Changes were made to WAC 388-295-1070 What continuing state training and registry system (STARS) training is required for child care center staff?, the two changes were as follows: (1) The previous WAC require the director and the program supervisor to have required STARS training and the program supervisor requirement was inadvertently omitted during the revision process. This change was as the result of a response to comments made about the WAC revision. (2) Language was also added clarifying how many clock hours of training must be obtained from training offered in the community and how many clock hours approved agencies or organizations can offer their staff. The following language was added to WAC 388-295-1070: (2) The director and "program supervisor" must have five of the ten hours in program management and administration for the first two years in the director position. Each additional year, three of the ten hours required must be in program management and administration.


"(3) Agencies or organizations that have been approved by the Washington State Training And Registry System (STARS) may offer up to six clock hours of continuing education each year to their employees. The remaining four hours must be obtained from other training offered in the community."

As a result of a response to a comment language limiting time in swings, exercisers, and other confining equipment was deleted from WAC 388-295-2120 Are there special program requirements for infants and toddlers? The following language was deleted from WAC 388-295-2120: "You must not place them in swings, exercisers and other confining equipment for more than fifteen minutes every four hours; and"
A change was made in WAC 388-295-4020 (2)(a)-(d) How do we meet the nutritional needs of infants in our care?, to further clarify nutritional requirements around infant feeding. The following language was added to the chart in WAC 388-295-4020 (2)(a) through (d) under type of feeding: "Serve only formula or breast milk unless you have a written order from the child's health care provider."
As a result of a response to a comment a deletion was made to WAC 388-295-4120 What must I do to be sure that diaper changing is safe and does not spread infection?, and language was added to ensure that diaper changing does not spread infection. The following language was deleted from. WAC 388-295-4120 (6)(a) "Individually bagged and placed into a cleanable, covered container equipped with a water proof liner;" and the following language was added: "Placed into a covered, plastic-lined, hands free covered container."
As a result of a response to a comment language was added to WAC 388-295-5170 Can we have animals at the center?, limiting the age children are able to handle reptiles. Amphibians were also added to this category for additional clarity to ensure health and safety of children and disease control. The following language was added to WAC 388-295-5170(3): Reptiles "and amphibians" must be in an aquarium and other totally self-contained area except during educational activities involving the reptile "and amphibian. Children five years of age or less must not physically handle reptiles and amphibians."
A change was made to WAC 388-295-7030 What type of attendance records do I have to keep?, to further explain daily attendance records and expectations around signing-in upon arrival and out upon departure from the center. This change was necessary to ensure accuracy in attendance record keeping. The following language change was made to WAC 388-295-7030(1) The parent or other person authorized by the parent to take the child to and from the center must sign in the child on arrival and sign out the child at departure, using "their" full legal signature "and writing the time of arrival and departure."

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 109, Amended 0, Repealed 63.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 109, Amended 0, Repealed 63.
Effective Date of Rule: August 1, 2003.

June 27, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 03-16 issue of the Register.

Legislature Code Reviser 

Register

Washington State Code Reviser's Office