WSR 11-09-081




[ Filed April 20, 2011, 8:39 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-24-051.

     Title of Rule and Other Identifying Information: Proposing new chapter 170-296A WAC, Licensed family home child care standards, and repealing all sections of current chapter 170-296 WAC.

     Hearing Location(s): The public may join the following hearings at anytime during the posted times:

     1. Saturday, June 11, 2011, at 11:00 a.m. to 1:30 p.m. by video conference at Renton, Educational Service District 121, Puyallup Room, 800 Oaksdale [Oakesdale] Avenue S.W., Renton, WA 98057, and University Center at Everett Community College, Gray Wolf Hall, Room 160, 2000 Tower Street, Everett, WA 98201-1390, free parking is in lots B and C west of Gray Wolf Hall.

     2. Wednesday, June 15, 2011, at 6:30 p.m. to 9:00 p.m. by video conference at Vancouver, Educational Service District 112, Clark/Pacific Rooms, 2500 N.E. 65th Avenue, Vancouver, WA 98661-6812, and Olympia/Tumwater, Educational Service District 113, 6005 Tyee Drive S.W., Olympia, WA 98512 (new location - between Costco and Home Depot, 1/2 mile south of I-5 exit 102).

     3. Saturday, June 18, 2011, at 11:00 a.m. to 1:30 p.m., Yakima, Children's Village, 3801 Kern Road, Yakima, WA 98902.

     4. Saturday, June 25, 2011, at 11:00 a.m. to 1:30 p.m. by video conference at Spokane, Northeast Washington Educational Service District 101, 4202 South Regal, Spokane, WA 98223-7738, and Pasco, Educational Service District 123, Blue Mountain Room, 3918 West Court Street, Pasco, WA 99301.

     The deadline for sending written comments on the proposed rules is midnight on Sunday, June 26, 2011. See the "submit written comments to" section of this notice about how to submit written input on this proposed rule.

     Everyone who comments on the proposed rules either in writing or at a public hearing will receive the department's combined written response, called a concise explanatory statement. This statement is also available to anyone who requests it, by contacting the department of early learning (DEL) rules coordinator, or by e-mailing

     DEL encourages the public to use the department Facebook and DEL blog pages on the internet to post input about DEL programs and initiatives. However, for a written comment to be considered part of the official record for this proposal, and for the sender to receive the department's concise explanatory statement, the comment must be received at the on-line, e-mail, fax or postal mail locations as described in this notice under "submit written comments to."

     Date of Intended Adoption: After July 1, 2011.

     Submit Written Comments to: DEL Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, DEL Online Comment Web Site, e-mail, fax (360) 725-4939, by 11:59 p.m., June 26, 2011.

     Assistance for Persons with Disabilities: Contact DEL rules coordinator by 5:00 p.m., June 2, 2011, (360) 725-4397.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department proposes to adopt a new WAC chapter setting requirements for obtaining and maintaining a DEL family home child care license. The rules set the health, safe and early learning standards for persons who provide care in the family living quarters of their own home for not more than twelve children under RCW 43.215.010 (1)(c).

     Reasons Supporting Proposal: The current chapter 170-296 WAC was adopted in 2004 when child care licensing was under the department of social and health services (DSHS). In 2006, DEL was created as a separate state agency, and the legislature transferred child care licensing authority from DSHS to DEL (see chapter 265, Laws of 2006). Child care licensing rules were transferred from DSHS to DEL in July 2006, including the rules that became DEL chapter 170-296 WAC, Child care business regulations for family home child care (see WSR 06-15-075).

     RCW 43.215.200 establishes the DEL director's authority to establish requirements for licensing child care facilities regulated under chapter 43.215 RCW, including family home child care (FHCC).

     The 2004 DSHS FHCC rules resulted in one hundred thirty-eight rule-making petitions filed under RCW 34.05.330 requesting that various sections of chapter 388-296 WAC be revised or repealed. DSHS accepted some of those petitions and planned to open the FHCC for revision. But by mid-2006, DSHS had not begun rule making related to these petitions when DEL was created and chapter 388-296 WAC was transferred from DSHS to DEL.

     In the same year DEL was created, the legislature passed a law (now RCW 43.215.350) requiring then DSHS and now DEL to engage in "negotiated rule making" with FHCC providers, their exclusive bargaining representative (Service Employees International Union Local 925 (SEIU)) and other affected interests before adopting requirements that affect FHCC licensees. Negotiated rule making is a process briefly described in RCW 34.05.310 (the Washington Administrative Procedure Act) where the individuals or businesses regulated by a set of rules participate directly in developing or revising the rules.

     In autumn 2006, DEL staff began discussions with SEIU on revising the FHCC rules to respond to the 2004 rule-making petitions, and on using a negotiated rule-making process.

     DEL and SEIU held joint public forums in January 2007 on how the rule development process should proceed. A joint decision was made to review the entire FHCC WAC chapter, rather than review only the sections subject to the rule-making petitions. A thirty member negotiated rule-making team (NRMT) was formed comprised of FHCC licensees, SEIU staff, parent advocates, provider advocates, child care resource and referral (CCR&R) network representatives and DEL staff. The NRMT's charge was to review the current FHCC rules, research child development and child health and safety resources plus other state regulations, and make comprehensive recommendations for revising chapter 170-296 WAC.

     There were no examples found of negotiated rule making used to develop other state agency regulations. DEL and SEIU used the state office of financial management Guide to Negotiated Rule Making as a resource. However, the process for reviewing, researching and making recommendations about the DEL FHCC rules was developed by the NRMT and an independent contractor hired to facilitate the process. This included adopting NRMT: Protocols for orderly decision making; a set of Guiding Principles that recommendations would be based upon (including that the rules must support a child's right to have safe and health[y] child care); and other organizing procedures.

     Rule Development Process. From March 2007 through December 2009, the full NRMT met in-person twenty-nine times to discuss the rules. In addition, three regional subteams of the NRMT met approximately one hundred times (mostly by conference call) during this period to conduct the detailed research and to make preliminary recommendations to the full NRMT. The subteams organized their work on matrixes (for thirteen major topic areas and about two hundred subtopics) that included the: Current WAC content; child development research and/or other state regulations; possible alternatives to the current rules; potential concerns or areas of controversy; and finally the subteam's recommended rule changes to the full NRMT. The full NRMT reviewed each subteam's work, discussed issues and concerns, and then voted on in-depth "concept" recommendations to DEL for changing most of the current rules. In some instances the NRMT recommended that certain existing FHCC requirements remain, but with revised structure or wording (an early team recommendation was to rewrite the FHCC rules without the current question-and-answer format and to restructure the WAC chapter).

     Using the NRMT's in-concept notes, a drafting team comprised of one FHCC licensee and one DEL staff person wrote an initial working draft of the new WAC chapter. A rule review group of three FHCC licensees, two DEL staff and a CCR&R representative reviewed the draft WAC for consistency with the NRMT recommendations and current law.

     As portions of the NRMT working draft rules were completed in 2009, nearly forty small forums statewide were held to gather preliminary input, mostly sponsored by the FHCC local and statewide associations or by SEIU, with participation at several forums by DEL staff and other NRMT members. The process culminated in a NRMT working draft of the new FHCC WAC that was circulated for public input in March and April 2010. See this link for more information on the NRM[T] process.

     DEL director Bette Hyde met with the NRMT on March 27, 2010, to personally present nearly thirty pages of her comments and observations of the NRMT's working draft rules. Dr. Hyde noted that about ninety-five percent of the NRMT's concept recommendations DEL could enact with little or no substantive change. But Dr. Hyde said the remainder of NRMT recommendations DEL would need to revise further into more robust standards to protect the safety and health of children in care. Dr. Hyde directed DEL staff to gather more public and staff input on the NRMT working draft before the department prepared the next draft of the FHCC WAC.

     Public Input on NRMT Working Draft Rules. DEL held eight forums statewide in April 2010 to take input on the draft, in Tumwater, Vancouver, Everett, Seattle, Kent, Spokane, Pasco and Wenatchee. Comments were also received on the DEL web site, by e-mail, fax and postal mail. In all, DEL received more than three hundred pages of comments, which are summarized at this link

     DEL Develops Proposed Rules. DEL reviewed the NRMT working draft and comments, and decided to:

     •     Reorganize and revise the NRMT's working draft;

     •     Repeal of the entire current chapter 170-296 WAC and replace it with new chapter 170-296A WAC; and

     •     Postpone proposing some changes recommended by the NRMT that would have required resources that are unavailable to DEL in the state's current budget climate, including but not limited to: Developing preservice training prior to an applicant receiving a new FHCC license; establishing new specialty licenses (and required training) for infant-toddler-only child care, age two to five-only care, and school-age-only care; and creating a comprehensive guidebook to accompany the new rules. DEL plans to continue work on these elements, and the department may propose additional rules as appropriate at a later date.

     SEIU/Licensees Seek More Discussion. DEL planned to file the proposed FHCC rules in October 2010 for public review and formal comment. However, SEIU and members of the Washington State FHCC Association requested more time to discuss changes DEL made since the NRMT working draft. From October 2010 through mid-January 2011, DEL met with SEIU and FHCC providers. DEL agreed to make some of the SEIU/licensee's requested changes, did not agree to make others, and offered to gather more research before completing the proposed rules.

     As a result, DEL developed the rules in this proposal. Please see the DEL family home child care rules web site at for comparisons of the proposed rules to the NRMT's first draft, and compared to the current chapter 170-296 WAC.

     Statutory Authority for Adoption: RCW 43.215.060, 43.215.070, 43.43.832(6), and chapter 43.215 RCW.

     Statute Being Implemented: Chapter 43.215 RCW, RCW 43.215.350 and 34.05.330.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: DEL, governmental.

     Name of Agency Personnel Responsible for Drafting: Judy Jaramillo and Andy Fernando, DEL, 649 Woodland Square Loop S.E., Lacey, WA, (360) 725-4665; Implementation: DEL child care licensing offices, statewide; and Enforcement: DEL director or designees, DEL, 649 Woodland Square Loop S.E., Lacey, WA, (360) 725-4665.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

     See Reviser's note below.

     A copy of the statement may be obtained by contacting DEL Rules Coordinator, DEL, P.O. Box 40972, Olympia, WA 98504-0972, phone (360) 725-4397, fax (360) 725-4939, e-mail

     The department invites public input on the preliminary small business economic impact statement (SBEIS) is [as] provided above (see Reviser's note below). DEL will respond to comments on the SBEIS in the concise explanatory statement required under RCW 34.05.325. A final SBEIS, with revisions as appropriate, will be available to the public when the permanent rules are filed.

     A cost-benefit analysis is not required under RCW 34.05.328. DEL is not listed among the state agencies required to comply with RCW 34.05.328.

April 20, 2011

Elizabeth M. Hyde


     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 11-10 issue of the Register.

© Washington State Code Reviser's Office