WSR 20-08-114
PROPOSED RULES
DEPARTMENT OF
CHILDREN, YOUTH, AND FAMILIES
[Filed March 31, 2020, 1:53 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 19-21-136.
Title of Rule and Other Identifying Information: WAC 110-300-0185 Menus, milk, and food.
Hearing Location(s): On May 5, 2020, at 1:00 p.m., at 1110 Jefferson Street S.E., Baker Conference Room, Olympia, WA.
Date of Intended Adoption: May 6, 2020.
Submit Written Comments to: DCYF Rules Coordinator, P.O. Box 40975, email dcyf.rulescoordinator@dcyf.wa.gov, fax 360-902-7903, submit comments online at https://dcyf.wa.gov/practice/policy-laws-rules/rule-making/participate/online, by May 5, 2020.
Assistance for Persons with Disabilities: Contact Department of children, youth, and families (DCYF) rules coordinator, phone 360-902-7956, fax 360-902-7903, email dcyf.rulescoordinator@dcyf.wa.gov, by May 1, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: An early learning program licensed under chapter 43.216 RCW must provide meals, snacks, and beverages in accordance with standards developed by the United States Department of Agriculture (USDA). Under those standards, a snack consists of two components the program chooses from five prescribed components. WAC 110-300-0185(2) currently requires a fruit or vegetable be included in at least one snack that a program serves each day and count as one of the two required components. The proposed rule allows the program to count the fruit or vegetable as one of the two USDA-required components or to serve a fruit or vegetable in addition to the snack.
Reasons Supporting Proposal: The USDA proposed the current snack standards at 7 C.F.R. 226.20(e). The proposed rules included optional best practices, one of which was to require one snack per day that included a fruit or vegetable serving. The USDA did not include the best practices in its final rules stating that including optional best practices in rule may cause confusion. (See 81 F.R. 24364 April 25, 2016, available with this notice at https://www.dcyf.wa.gov/practice/policy-laws-rules/rule-making-filings. The USDA instead issued policy guidance encouraging early learning programs to implement the best practices, including serving a fruit or vegetable as part of a daily snack, to further improve the nutritional value of meals. (See USDA Policy Memo CACFP 15-2016, p. 2, also available with this notice on the DCYF website.) DCYF agrees that the policy guidance will further improve the nutritional value of meals, which is a critical part of the foundation for better brain health of Washington's littlest learners.
Statutory Authority for Adoption: RCW 43.216.065, 43.216.250, and 43.216.255.
Statute Being Implemented: RCW 43.216.255; chapter 43.216 RCW
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DCYF, governmental.
Name of Agency Personnel Responsible for Drafting: Tyler Farmer, Seattle, Washington, 360-628-2151; Implementation and Enforcement: DCYF, statewide.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. DCYF is not among the agencies listed as required to comply with RCW 34.05.328 (5)[(a)](i). DCYF does not voluntarily make that section applicable to the adoption of the proposed rules.
The proposed rule does impose more-than-minor costs on businesses.
Small Business Economic Impact Statement
1. Describe the proposed rule, including:
•A brief history of the issue.
•An explanation of why the proposed rule is needed.
•A brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need in order to comply with the proposed rule.
In June 2018, the former department of early learning adopted WAC 110-300-0185 which requires preschool programs, family home child cares, and child care centers to comply with the USDA's meal, snack, and beverage standards. WAC 110-300-0185(2) requires one fruit or vegetable serving in a daily snack, which varies from the USDA snack standard that allows a licensed program to choose two components from five prescribed components. WAC 110-300-0185(2) was negotiated with preschool and child care representatives and adopted under the authority granted in RCW 43.215.070 and 43.215.2201 (recodified as RCW 43.216.065 and 43.216.255). DCYF received a petition for the repeal [of] WAC 110-300-0185(2) and initiated this rule making in response.
SECTION 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.
Table A:
NAICS Code
(4, 5 or 6 digit)
NAICS Business Description
# of Businesses in WA
Minor-Cost
Threshold =
1% of Average Annual Payroll
Minor-Cost
Threshold =
0.3% of Average Annual Receipts
624410
child day care services
2228*
$1,548
937.9591562
*
Based on data from the 2012 U.S. Census.
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.
The probable costs of compliance are the cost of the fruit or vegetable serving per child, per day and the staff preparation time.
There are two thousand forty-two licensed child care centers statewide: forty-three percent are licensed for up to fifty children, twenty-one percent are licensed for fifty-one to one hundred children, and twenty-one percent are licensed for more than one hundred children. The average center enrollment rate is sixty-nine children.*
•The annual cost of compliance for a large child care center is assumed to be $16,900 (factoring one hundred enrolled children and one hour of labor for food prep).
•The annual cost of compliance for a medium-sized center is assumed to be $10,920 (factoring sixty nine children and thirty minutes of labor for food prep).
•The annual cost of compliance for a small-sized center is assumed to be $8,450 (factoring fifty children and thirty minutes of labor for food prep).
A family home child care may enroll up to twelve children. The annual cost of compliance for a family home child care with twelve children enrolled is assumed to be $3,510.
Preschools are typically located within a child care center or an educational service district. The former are part of the child care center calculations above and the latter participate in school lunch programs.
Based on impacts and needs identified by negotiators when WAC 110-300-0185 was originally negotiated in 2018, DCYF does not anticipate the proposed amendment to result in lost sales or revenue for preschools or licensed child cares.
*
Source: 2018 Market Rate Survey
4. Explain how you determined the rule may impose more-than-minor costs on businesses in the industry. DCYF assumes a daily cost of 50¢ per serving of fruit or vegetable and at least thirty minutes of staff preparation time at $15/hour. The assumed annual cost is factored at 50¢ per fruit or vegetable x # of enrolled children + labor at $15/hour x 260 days of care per year.
The cost of compliance was calculated for different sized child care centers and a family home child care operating at full capacity. Variables such as part time enrolled children who are not present when the fruit or vegetable is served and programs' use of fruits and vegetables grown on site in a garden were not considered. Both variables would lessen the cost of compliance, but the annual cost would still likely exceed the minor cost threshold.
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:
•Cost per employee.
•Cost per hour of labor.
•Cost per $100 of sales.
The proposed rule impacts only small businesses.
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. Preschools and child cares licensed in Washington state must comply with the USDA food standards in order for the state to received [receive] federal appropriations that fund the state's subsidized child care program. Reducing, modifying, or eliminating the substantive regulatory requirement is not an option in this case.
(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements. The proposed rule does not contain recordkeeping or reporting requirements. There are, however, associated recordkeeping requirements elsewhere in chapter 110-300 WAC that are necessary for federal compliance described in 6(a).
(c) Reducing the frequency of inspections. Not applicable.
(d) Delaying compliance timetables. This is not applicable – the requirement to include a fruit or vegetable in a daily snack has been in effect since August 2019.
(e) Reducing or modifying fine schedules for noncompliance. All licensing rules provide a foundation of protection for children. Each rule is designed to provide for the health, safety, and development of children in licensed care. A violation of some standards poses a greater risk to children than others. Violation of the proposed rule would cause little risk to children. In 2017, the former department of early learning surveyed licensed provides [providers] and developed proposed weights for the standards contained in chapter 110-300 WAC. The weighting standards are intended to create an enforcement system that matches up with the level of risk to children. The weighting system is currently being piloted by select licensed programs and DCYF intends to adopt final weights later this year.
(f) Any other mitigation techniques suggested by small businesses or their advocates. All licensed family home child cares, all nonprofit child care centers, for-profit child care centers with at least twenty-five percent who qualify for free or reduced meals, and all head start and early childhood educational assistance preschool programs are eligible to receive USDA food subsidies.
Many licensed child cares garden as part of the early learning program. The yield from these gardens can supply the snack fruit or vegetable.
7. Describe how small businesses were involved in the development of the proposed rule. The requirement to include a fruit or vegetable serving in a daily snack was negotiated with licensed child care representatives.
8. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule. 0.
9. Summarize the results of the analysis, including the determination if costs are disproportionate. Compliance will result in more than minor costs on small business child cares. For all family homes and most child care centers, the cost can be mitigated through food subsidies paid by the USDA. Licensed child cares may have program gardens and grow their own fruits and vegetables.
March 31, 2020
Brenda Villarreal
Rules Coordinator
AMENDATORY SECTION(Amending WSR 18-15-001, filed 7/5/18, effective 7/5/18)
WAC 110-300-0185Menus, milk, and food.
To ensure proper nutrition of children in care, an early learning provider must comply with the child nutrition requirements described in this section.
(1) Meals, snack foods, and beverages provided to children in care must comply with the requirements contained in the most current edition of the USDA Child and Adult Care Food Program (CACFP) standards, or the USDA National School Lunch and School Breakfast Program standards.
(a) An early learning provider must supply dated menus.
(b) Food and beverage substitutions to a scheduled menu must be of equal nutritional value.
(c) An early learning provider must only serve water, unflavored milk or one hundred percent fruit or vegetable juice.
(d) An early learning provider must limit the consumption of one hundred percent fruit juice to no more than four to six ounces per day for children between one and six years old, and eight to twelve ounces per day for children seven through twelve years old.
(2) An early learning provider must serve a fruit or vegetable ((as one of the two required components)) during at least one snack per day. The fruit and vegetable serving may count as one of the two required snack components or as a third snack component.