Effective Date of Rule: July 22, 2011.

     Purpose: The department is amending sections in the department of early learning (DEL) child care licensing WAC chapters to establish a nonexpiring child care license process as required by SB 5625. The bill is effective July 22, 2011. This filing includes sections of WAC:

•	Chapter 170-151 WAC, School-age child care center minimum licensing requirements;
•	Chapter 170-295 WAC, Minimum licensing requirements for child care centers; and
•	Chapter 170-296 WAC, Child care business regulations for family home child care (note, the sections of chapter 170-296 WAC included in this filing are proposed for repeal when new chapter 170-296A WAC is adopted and effective - see proposed rules filed as WSR 11-09-081. The sections of chapter 170-296 WAC in this filing will be in effect until replaced by comparable sections of new chapter 170-296A WAC).

     Citation of Existing Rules Affected by this Order: Repealing WAC 170-296-0260; and amending WAC 170-151-010, 170-151-085, 170-151-097, 170-151-098, 170-151-992, 170-295-0010, 170-295-0090, 170-295-0110, 170-295-0140, 170-295-7040, 170-295-7080, 170-296-0020, 170-296-0330, 170-296-0340, 170-296-0350, 170-296-0410, 170-296-0440, 170-296-0540, and 170-296-0860.

     Statutory Authority for Adoption: RCW 43.215.060, 43.215.070 (2)(c), chapter 43.215 RCW.

     Other Authority: SB 5625 (chapter 297, Laws of 2011).

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: When SB 5625 takes effect on July 22, 2011, certain DEL licensing rules regarding child care license application, transition from "initial" to "full" license, license renewal, and enforcement will be obsolete and may conflict with the law. Failure of child care licensees to follow new requirements to obtain or retain a nonexpiring child care license may result in a prompt expiration of the license as provided in SB 5625. Emergency rules are needed so that child care business owners may understand the new annual licensing conditions and requirements for a nonexpiring license under SB 5625, and so prevent unnecessary child care license expirations that could impact the safety, health and welfare of the children in care or welfare of the child care licensee's business. Emergency rules are also expected to result in cost savings to the state by reducing most of the current administrative paperwork for DEL child care licensing staff surrounding the tri-annual license renewal process for each of the approximately 7,250 licensed child care facilities statewide. Achieving such efficiencies is consistent with the Governor's Executive Order 06-02 to develop innovative regulatory best practices, and to promote effective on-going regulatory improvement.

     Establishment of a nonexpiring full license is generally supported by regulated child care licensee businesses. The process provided in SB 5625 and these rules is expected to significantly reduce the volume and complexity of license renewal paperwork that licensees must complete every three years now.

     Proceeding with these rules is consistent with state office of financial management guidance regarding Executive Order 10-06 suspending noncritical rule making, but allowing rules to proceed that are, "required by federal or state law or required to maintain federally delegated or authorized programs," and "beneficial to or requested or supported by the regulated entities, local governments or small businesses that (the rule) effects."

     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 2, Amended 19, Repealed 1.

     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 0, Amended 0, Repealed 0.

     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 2, Amended 19, Repealed 1.

     Date Adopted: July 20, 2011.

Elizabeth M. Hyde

Director

OTS-4139.2

AMENDATORY SECTION(Amending WSR 08-08-012, filed 3/19/08, effective 4/19/08)

WAC 170-151-010   What definitions are important for the school-age child care center program?   The following definitions are important under this chapter:

     "Capacity" means the maximum number of children the licensee is authorized to have on the premises at a given time.

     "Child abuse or neglect" means the injury, sexual abuse, sexual exploitation, or negligent treatment or maltreatment of a child as defined in RCW 26.44.020 and chapter 388-15 WAC.

     "Department" means the state department of early learning (DEL), or its predecessor the department of social and health services (DSHS), the state agency with the legal authority to regulate and certify school-age child care centers.

     "Department of health" means the state department of health.

     "I," "you," and "your" refer to and mean the licensee or applicant for child care license.

     "License" means a permit issued by the department to a person or organization to operate a school-age child care center and affirming the licensee meets requirements under licensure.

     "Licensee" means the person, organization, or legal entity named on the facility license and responsible for operating the center.

     "Licensor" means the person employed by the department to regulate and license a school-age child care center.

     "Nonexpiring license" or "nonexpiring full license" means a full license that is issued to a licensee following the initial licensing period as provided in WAC 170-151-087.

     "Premises" means the building where the center is located and the adjoining grounds over which the licensee has control.

     "School-age child" means a child five years of age through twelve years of age enrolled in a public or private school.

     "School-age child care center" means a program operating in a facility other than a private residence, accountable for school-age children when school is not in session. The program must meet department licensing requirements, provide adult-supervised care, and a variety of developmentally appropriate activities.

     "Staff" means a person or persons employed by the licensee to provide child care and to supervise children served at the center.

     "The Washington state training and registry system (STARS)" means the entity approved by the department to determine the classes, courses, and workshops licensees and staff may take to satisfy the department's training requirements.

     "We" or "our" refer to and mean the department of early learning (DEL), including DEL licensors.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-151-010, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-151-010, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapter 74.15 RCW, RCW 74.08.090. 02-16-062, § 388-151-010, filed 8/2/02, effective 10/1/02. Statutory Authority: RCW 74.15.020. 01-02-031, § 388-151-010, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 98-24-052, § 388-151-010, filed 11/25/98, effective 12/26/98. Statutory Authority: Chapter 74.15 RCW. 93-02-020 (Order 3493), § 388-151-010, filed 12/30/92, effective 1/30/93.]

     (a) Can demonstrate compliance with the rules contained in this chapter pertaining to the health and safety of the child in care; but

     (b) Cannot demonstrate compliance with the rules pertaining to:

     (i) Staff-child interactions((,));

     (ii) Group size and staff-child ratios((,));

     (iii) Behavior management and discipline((,));

     (iv) Activity programs((,));

     (v) Child records and information((,)); and

     (vi) Other rules requiring department observation of the applicant's ability to comply with rules((.)); and

     (c) Can provide a plan, acceptable to the department, to comply with rules found in subsection (1)(b) of this section.

     (2) The department may issue an initial license ((to you)) for a period not to exceed six months, renewable for a period not to exceed two years, which may continue to remain valid so long as the licensee meets the requirements for a nonexpiring full license as provided in WAC 170-151-087.

     (3) The department must evaluate ((your)) an applicant's ability to comply with all rules contained in this chapter during the period of initial licensure prior to issuing a nonexpiring full license.

     (((4) The department may issue a full license to you if you demonstrate your compliance with all rules contained in this chapter at any time during the period of initial licensure.

     (5) The department must not issue a full license to you if you do not demonstrate the ability to comply with all rules contained in this chapter during the period of initial licensure.))

[06-15-075, recodified as § 170-151-085, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.15.020. 01-02-031, § 388-151-085, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 96-20-095, § 388-151-085, filed 10/1/96, effective 11/1/96.]

     (a) Demonstrates full compliance with the health and safety requirements of this chapter at any time during the period of initial licensure;

     (b) Demonstrates substantial compliance with the other requirements of this chapter at any time during the period of initial licensure; and

     (c) Meets the other requirements for a nonexpiring full license as provided in this section.

     (2) To qualify for a nonexpiring full license, a licensee must submit the following to the department on an annual basis:

     (a) An annual nonrefundable licensing fee;

     (b) A declaration to the department on a department-approved form indicating:

     (i) The intent to continue operating a licensed child care program; or

     (ii) The intent to cease operation on a date certain;

     (c) A declaration on a department-approved form of compliance with all licensing rules; and

     (d) Documentation of completed background check applications as determined by the department-established schedule.

     (3) The requirements in this section must be met within one calendar year of the date on the initial license and every twelve months thereafter. The nonexpiring full license is valid for one calendar year from the date a first initial license or previous nonexpiring full license was issued, unless otherwise suspended or revoked, or the department issues a probationary license.

     (4) If a licensee fails to meet the requirements in this section for continuation of a nonexpiring full license, the license expires and the licensee must submit a new application for licensure.

     (5) Nothing about the nonexpiring license process in this section may interfere with the department's established monitoring practice.

     (6) A licensee has no right to an adjudicative proceeding (hearing) to appeal the expiration, nonrenewal, or noncontinuation of a full nonexpiring license as a result of the licensee's failure to comply with the requirements of this section.

[]

[06-15-075, recodified as § 170-151-097, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapter 74.15 RCW and RCW 34.05.395. 02-13-073, § 388-151-097, filed 6/14/02, effective 7/15/02. Statutory Authority: RCW 74.15.020. 01-02-031, § 388-151-097, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 96-20-095, § 388-151-097, filed 10/1/96, effective 11/1/96.]

     (a) Willful or negligent noncompliance by ((you,)) the licensee;

     (b) History of noncompliance((,));

     (c) Extent of deviation from the requirements((,));

     (d) Evidence of a good faith effort to comply((,)); and

     (e) Any other factors relevant to the unique situation.

     (2) Where the negligent or willful violation of the licensing law does not present an immediate threat to the health and well-being of the children but would be likely to do so if allowed to continue, the department may issue a probationary license in addition to civil penalties or other sanctions. Such situations may include:

     (a) Substantiation that a child (or children) was abused or neglected while in the care of the center((,));

     (b) Disapproved fire safety or sanitation report((,));

     (c) Use of unauthorized space for child care((,));

     (d) Inadequate supervision of children((,));

     (e) Understaffing for the number of children in care((,)); or

     (f) Noncompliance with requirements addressing:

     (i) Children's health((,));

     (ii) Proper nutrition((,));

     (iii) Discipline((,));

     (iv) Emergency medical plan((,)); or

     (v) Sanitation and personal hygiene practices.

     (3) ((You)) The licensee must notify parents of all children in care or who may apply for care when the department issues a probationary license ((to you)). The licensee must:

     (a) ((You must)) Notify the parents or guardians of all children in care of the program's probationary status within five working days of receiving the department's notification that the department has issued a probationary license;

     (b) ((You must)) Notify parents and guardians in writing, and the department must approve the notice before ((you)) the licensee sends the notification; and

     (c) ((You must)) Provide documentation to the department that ((you have)) he or she has notified parents or guardians of all children in care within ten working days after ((you)) the licensee receives notification that the department has issued a probationary license. Documentation must consist of a copy of the letter ((you have)) the licensee has sent to the parents((;)) or guardians.

     (((d))) (4) The department may issue a probationary license for up to six months, and at the department's discretion, the department may extend the probationary license for an additional six months.

[06-15-075, recodified as § 170-151-098, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.15.020. 01-02-031, § 388-151-098, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 96-20-095, § 388-151-098, filed 10/1/96, effective 11/1/96.]

     Except as otherwise provided in these rules, fees shall be paid for a minimum of one year.

     (2) Fees for licenses issued for other than yearly periods shall be prorated based on the stated annual fee.

     (3) When the department issues a license for more than one year:

     (a) Fees may be paid for the entire licensing period by paying at the rate established at the time the application or continuation was submitted((,)); or

     (b) If the licensee does not pay the fee for the entire license period, annual fees shall be due thirty days prior to each annual anniversary date of the license, at the annual fee rate established by these rules at the time such fee is paid.

     (4) ((Except as otherwise provided in these rules,)) If an application or continuation is withdrawn prior to issuance or denial, ((one-half of)) the fee shall not be refunded.

     (5) If there is a change of or by the licensee requiring a new license, the fee paid for a period beyond the next license anniversary date shall not be refunded. Changes requiring a new license shall require a new application and payment of fee as provided herein.

     (6) If there is a change by the applicant or licensee that requires an amendment placing the licensee in a higher fee category, the additional fee shall be prorated for the remainder of the license period.

     (7) Fees becoming due on or after the effective date of this chapter shall be at the rates provided herein.

     (8) ((To the extent fees are reduced through regular rule adoption of this chapter on or before December 31, 1982, fees shall be refunded.

     (9))) Fee payments shall be by mail. Payment shall be by check, draft, or money order.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-151-992, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-151-992, filed 7/13/06, effective 7/13/06. 00-23-088, recodified as § 388-151-992, filed 11/20/00, effective 11/20/00. Statutory Authority: 1982 c 201. 82-13-011 (Order 1825), § 440-44-010, filed 6/4/82.]

OTS-4140.2

AMENDATORY SECTION(Amending WSR 08-10-041, filed 4/30/08, effective 5/31/08)

WAC 170-295-0010   What definitions under this chapter apply to licensed child care providers?   "American Indian child" means any unmarried person under the age of eighteen who is:

     (1) A member or eligible for membership in a federally recognized Indian tribe, or who is Eskimo, Aleut, or other Alaska Native and a member of an Alaskan native regional corporation or Alaska Native Village;

     (2) Determined or eligible to be found Indian by the Secretary of the Interior, including through issuance of a certificate of degree of Indian blood, or by the Indian health service;

     (3) Considered to be Indian by a federally recognized or nonfederally recognized Indian tribe; or

     (4) A member or entitled to be a member of a Canadian tribe or band, Metis community, or nonstatus Indian community from Canada.

     "Anti-bias" is an approach that works against biases and recognizes when others are treated unfairly or oppressively based on race, color, national origin, marital status, gender, sexual orientation, class, religion, creed, disability, or age.

     "Capacity ((that you are licensed for))" means the maximum number of children that ((you are)) a licensee is authorized to have on the premises of the child care at any one time.

     "Center" means the same as "child care center."

     "Certification" means department approval of a person, home, or facility that does not legally need to be licensed, but wants evidence that they meet the minimum licensing requirements (also see "Tribal certification").

     "Child abuse or neglect" means the physical abuse, sexual abuse, sexual exploitation, abandonment or negligent treatment or maltreatment of a child by any person indicating the child's health, welfare, and safety is harmed.

     "Child-accessible" means areas where children regularly have access such as: Entrances and exits to and from the center, classrooms or child care areas, playground area including equipment and fencing, parking areas, walkways, decks, platforms, stairs and any items available for children to use in these areas.

     "Child care center" means the same as a "child day care center" or a facility providing regularly scheduled care for a group of children one month of age through twelve years of age for periods less than twenty-four hours.

     "Clean" means to remove dirt and debris from a surface by scrubbing and washing with a detergent solution and rinsing with water. This process must be accomplished before sanitizing a surface.

     "CACFP" means child and adult care food program established by congress and funded by the United States Department of Agriculture (USDA).

     "Commercial kitchen equipment" means equipment designed for business purposes such as restaurants.

     "Communicable disease" means a disease caused by a microorganism (bacterium, virus, fungus, or parasite) that can be transmitted from person to person via an infected body fluid or respiratory spray, with or without an intermediary agent (such as a louse, or mosquito) or environmental object (such as a table surface).

     "Cultural relevancy" creates an environment that reflects home cultures, communities and lives of children enrolled in the program.

     "Department," "we," "us," or "our" refers to and means the state department of early learning (DEL) and its predecessor agency the department of social and health services (DSHS).

     "Developmentally appropriate practice":

     (1) Means that the provider should interact with each child in a way that recognizes and respects the child's chronological and developmental age;

     (2) Is based on knowledge about how children grow and learn; and

     (3) Reflects the developmental level of the individual child, and interactions and activities must be planned with the needs of the individual child in mind.

     "Director" means the person responsible for the overall management of the center's facility and operation, except that "DEL director" means the director of the department of early learning.

     "Disinfect" means to eliminate virtually all germs from inanimate surfaces through the use of chemicals or physical agents.

     "Domestic kitchen" means a kitchen equipped with residential appliances.

     "External medication" means a medication that is not intended to be swallowed or injected but is to be applied to the external parts of the body, such as medicated ointments, lotions, or liquids applied to the skin or hair.

     "I," "you," and "your" refer to and mean the licensee or applicant for a child care license.

     "Inaccessible to children" means stored or maintained in a manner preventing children from reaching, entering, or using potentially hazardous items or areas. Examples include but are not limited to: Quantities of water, sharp objects, medications, chemicals, electricity, fire, mechanical equipment, entrapment or fall areas.

     "Individual plan of care" means that the center's health policies and procedures do not cover the needs of the individual child so an individual plan is needed. Examples may include children with allergies, asthma, Down syndrome, tube feeding, diabetes care such as blood glucose monitoring, or nebulizer treatments.

     "Infant" means a child one-month through eleven months of age.

     "Lead teacher" means the person who is the lead child care staff person in charge of a child or group of children and implementing the activity program.

     "License" means a permit issued by the department authorizing ((you)) a licensee by law to operate a child care center and certifying that ((you)) the licensee meets the minimum requirements under licensure.

     "Licensee" or "you" means the person, organization, or legal entity responsible for operating the center.

     "Maximum potential capacity based on square footage" is the maximum number of children ((you)) a licensee can be licensed for based on the amount of useable space (square footage) in ((your)) the licensee's center. ((You)) The licensee may be licensed for less than the maximum potential capacity. ((You)) A licensee may not be licensed for more than the maximum potential capacity.

     "Moisture impervious" or "moisture resistant" means a surface incapable of being penetrated by water or liquids.

     "Nonexpiring license" or "nonexpiring full license" means a full license that is issued to a licensee following the initial licensing period as provided in WAC 170-295-0095.

     "Parent" means birth parent, custodial parent, foster parent, legal guardian, those authorized by the parent or other entity legally responsible for the welfare of the child.

     "Pesticides" means chemicals that are used to kill weeds, pests, particularly insects.

     "Potentially hazardous food" means any food or ingredient that requires temperature control because it supports rapid growth of infectious or toxin forming microorganisms.

     "Potable water" means water suitable for drinking by the public as determined by the state department of health or local health jurisdiction.

     "Premises" means the building where the center is located and the adjoining grounds over which ((you have)) the licensee has control.

     "Preschool age child" means a child thirty months through five years of age not attending kindergarten or elementary school.

     "Program supervisor" means the person responsible for planning and supervising the center's learning and activity program.

     "Sanitize" means a surface must be clean and the number of germs reduced to a level that disease transmissions by that surface are unlikely. This procedure is less vigorous than disinfection.

     "Satellite kitchen" means a food service establishment approved by a local health jurisdiction where food is stored, prepared, portioned or packaged for service elsewhere.

     "School-age child" means a child not less than five years through twelve years of age who has begun attending kindergarten or elementary school.

     "Staff" means a child care giver or group of child care givers employed by the licensee to supervise children served at the center who are authorized by DEL to care for or have unsupervised access to children under chapter 170-06 WAC.

     "Supervised access" refers to those individuals at a child care center who have no responsibility for the operation of the center and do not have unsupervised access to children. These individuals are not required to submit a background check form. This includes 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.

     "The Washington state training and registry system (STARS)" means the entity approved by the department to determine the classes, courses, and workshops licensees and staff may take to satisfy training requirement.

     "Toddler" means a child twelve months through twenty-nine months of age.

     "Terminal room cleaning" means thorough cleaning of walls, ceiling, floor and all equipment, and disinfecting as necessary, in a room which has been used by a person having a communicable disease before it is occupied by another person.

     "Tribal certification" means that the department has certified the tribe to receive state payment for children eligible to receive child care subsidies.

     "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 background authorization clearance under chapter 170-06 WAC.

     "Useable space" means the areas that are available at all times for use by the children that do not cause a health or safety hazard.

[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-295-0010, filed 4/30/08, effective 5/31/08. 06-15-075, recodified as § 170-295-0010, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 03-14-110, § 388-295-0010, filed 6/30/03, effective 8/1/03.]

     (1) ((We)) The department may issue an initial license when ((you)) an applicant can show that ((you are)) he or she is following the rules regarding the child's health and safety.

     (2) ((We)) The department may issue an initial license if ((you have)) an applicant has not yet opened for business, and so ((are)) is not yet able to show that ((you are)) he or she is complying with the rules pertaining to:

     (a) Staff to child interactions;

     (b) Group size and staff to child ratios;

     (c) Behavior management and discipline;

     (d) Activity programs;

     (e) Child records and information; and

     (f) Other rules that require us to observe ((your)) the facility's ability to comply with rules.

     (3) ((You)) Applicants must provide ((us)) the department with a plan to comply with the rules listed in subsection (2)(a) through (f) of this section. ((We)) The department must approve of that plan.

     (4) ((We)) The department may issue an initial license to an applicant for a period not to exceed six months, renewable for a period not to exceed two years, which will continue to remain valid so long as the licensee meets the requirements for a nonexpiring full license as provided in WAC 170-295-0095.

     (5) When ((you have)) a licensee has an initial license ((we:

     (a) Evaluate your)) the department evaluates the licensee's ability to comply with all rules contained in this chapter prior to issuing a nonexpiring full license((;

     (b) May issue a full license to you when you have demonstrated compliance with chapter 170-295 WAC; and

     (c) Do not issue a full license to you if you do not demonstrate the ability to comply with all rules contained in chapter 170-295 WAC)).

     (6) ((You must pay licensing fees at the time you apply for an initial license and when your license is being renewed.)) Fees are due with applications for initial licenses or continuations of a nonexpiring full license.

     (7) ((We do)) The department does not process ((your)) an application or continuation until ((you have)) the applicant or licensee, as applicable, has paid the required fee.

     (8) ((You)) Applicants or licensees can pay licensing fees for:

     (a) A minimum of one year; or

     (b) ((The entire length of your)) Multiple years of their license.

     (9) ((You pay your fee)) Applicants and licensees pay their fees by mailing a check or money order for the required amount to the department, according to instructions on the licensing application to continuation.

     (10) If ((you pay your)) fees are paid one time per year, ((you pay)) the annual rate must be paid each time. The annual fee is due thirty days before each annual anniversary date of the license.

     (11) If ((you pay)) fees are paid 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)) the licensee wants to pay the licensing fee for the entire period at once, ((you multiply)) the annual fee is multiplied by three years, and ((pay)) that amount ((at the time of your license application or renewal)) must be paid.

     (12) If there is a change in ((your)) a facility that places ((your)) the facility in a higher fee category, ((we)) the department prorates the additional fee amount over the remainder of the license period.

     (13) If ((you)) an applicant or licensee withdraws ((your)) an application or continuation before ((we deny)) the department denies or issues a license, ((we refund one-half of)) the fee shall not be refunded.

     (14) If there is a change that requires a new license, ((we refund any fee that remains after your)) the fee paid for the period beyond the next licensing date shall not be refunded. A new license requires a new application and fee.

     (15) If ((we deny, revoke, or suspend your license, we do not refund your)) the department denies, revokes or suspends a license, the department does not refund the licensing fee.

     (16) If ((you reapply)) a licensee reapplies for a license after ((we)) the department revokes or suspends ((your)) a license, ((you)) the licensee must pay a new license fee.

     (17) If ((you do)) a licensee does not pay licensing fees when they are due, ((we)) the department suspends or ((deny your)) denies the licensee's license.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-295-0090, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-295-0090, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 04-09-093, § 388-295-0090, filed 4/20/04, effective 5/21/04; 03-14-110, § 388-295-0090, filed 6/30/03, effective 8/1/03.]

     (a) Demonstrates full compliance with the health and safety requirements of this chapter at any time during the period of initial licensure;

     (b) Demonstrates substantial compliance with the other requirements of this chapter at any time during the period of initial licensure; and

     (c) Meets the other requirements for a nonexpiring full license as provided in this section.

     (2) To qualify for a nonexpiring full license, a licensee must submit the following to the department on an annual basis:

     (a) An annual nonrefundable licensing fee;

     (b) A declaration to the department on a department-approved form indicating:

     (i) The intent to continue operating a licensed child care program; or

     (ii) The intent to cease operation on a date certain;

     (c) A declaration on a department-approved form of compliance with all licensing rules; and

     (d) Documentation of completed background check applications as determined by the department-established schedule.

     (3) The requirements in this section must be met within one calendar year of the date on the initial license and every twelve months thereafter. The nonexpiring full license is valid for one calendar year from the date a first initial license or previous nonexpiring full license was issued, unless otherwise suspended or revoked, or the department issues a probationary license.

     (4) If a licensee fails to meet the requirements in this section for continuation of a nonexpiring full license, the license expires and the licensee must submit a new application for licensure.

     (5) Nothing about the nonexpiring license process in this section may interfere with the department's established monitoring practice.

     (6) A licensee has no right to an adjudicative proceeding (hearing) to appeal the expiration, nonrenewal, or noncontinuation of a full nonexpiring license as a result of the licensee's failure to comply with the requirements of this section.

[]

     (a) A description of the violation and a quote of the law or rule that ((you have)) the licensee has failed to meet;

     (b) A statement of what ((you)) the licensee must do to come into compliance;

     (c) The date by which ((we)) the department requires compliance;

     (d) Information about the maximum allowable penalty ((we)) the department can impose if ((you do)) the licensee does not come into compliance by the given date;

     (e) How ((you)) the licensee can get technical assistance services provided by ((us)) the department or by others; and

     (f) Information about how ((you)) the licensee can request an extension to the date ((you must)) to be in compliance, if ((we)) the department decides ((you have)) he or she has a good reason.

     (2) The length of time ((we establish)) the department establishes for ((you)) the licensee to come into compliance depends on:

     (a) The seriousness of the violation;

     (b) The potential threat to the health, safety and welfare of children in ((your)) the licensee's care; or

     (c) If ((you have)) the licensee has had previous opportunities to correct the deficiency and ((have)) has not done so.

     (3) ((We)) The department uses the following criteria to determine if ((we)) the department imposes a civil fine based on, but not limited to, these reasons:

     (a) The child care center has previously been subject to an enforcement action for the same or similar type of violation for the same statute or rule; or

     (b) The child care center has previously been given notice of the same or similar type of violation of the same law or rule; or

     (c) The violation represents a potential threat to the health, safety, and/or welfare of children in care.

     (4) ((We can)) The department may impose a civil fine in addition to or at the same time as other disciplinary actions against a child care center. These include probation, suspension, or other action.

     (5) ((You)) A licensee must pay any civil fines no more than twenty-eight days after ((you receive)) receiving the notice that ((you have)) he or she has a fine. ((We)) The department may specify a later date.

     (6) ((We can)) The department may waive the fine if ((your)) the licensee's center comes into compliance during the notification period.

     (7) ((You)) A licensee must post the final notice of a civil fine in a noticeable place in ((your)) his or her center. The notice must remain posted until ((we notify you)) the department notifies the licensee that ((we have)) the department has received ((your)) the payment.

     (8) Each violation of a law or rule is a separate violation. ((We can)) The department may penalize each violation. ((We can)) The department may impose a penalty for each day the violation continues or as a flat amount of the maximum allowable penalty.

     (9) If ((you)) a licensee fails to pay ((your)) a fine within ten days after the assessment becomes final, ((we can)) the department may suspend, revoke, or not ((renew your)) continue his or her license.

     (10) ((You)) Licensees have the right to a hearing when ((we assess)) the department assesses a civil fine under RCW 43.215.307 and chapter 170-03 WAC.

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-295-0110, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-295-0110, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 04-09-093, § 388-295-0110, filed 4/20/04, effective 5/21/04; 03-14-110, § 388-295-0110, filed 6/30/03, effective 8/1/03.]

     (a) ((Your)) The licensee's willful or negligent failure to comply with the regulations;

     (b) ((Your)) The licensee's history of noncompliance with the regulations;

     (c) How far ((you)) the licensee deviates from the regulations;

     (d) Evidence of ((your)) the licensee's good faith effort to comply with the regulations; and

     (e) Any other factors relevant to ((your)) the licensee's unique situation.

     (2) ((We can)) The department may issue a probationary license to ((you)) a licensee when the willful or negligent violation of the licensing requirements does not present an immediate threat to the health and well being of the children, but would be likely to do so if allowed to continue. ((We can)) The department may also issue civil fines or other sanctions in this case. Such situations can include:

     (a) Substantiation that a child was abused or neglected while in the care of the center;

     (b) A fire safety inspection or health/sanitation inspection report that has been disapproved;

     (c) Use of unauthorized space for child care;

     (d) Inadequate supervision of children;

     (e) Under staffing for the number of children in care; and

     (f) Noncompliance with requirements addressing children's health, proper nutrition, discipline, emergency medical plan, sanitation and personal hygiene practices.

     (3) ((You)) Licensees are required to notify parents when a probationary license is issued. ((You)) The licensee must:

     (a) Notify in writing the parents or guardians of all children in care that the center is in probationary status. This notification must be within five working days of ((your)) receiving notification of being placed on probationary status or being issued a probationary license. ((We)) The department must approve the notification before ((you)) the licensee sends it; and

     (b) Provide documentation to ((us)) the department that parents or guardians of all children in care have been notified. ((You)) The licensee must provide this documentation within ten working days of being notified that ((you have)) he or she has been issued a probationary license.

     (4) A probationary license ((can)) may be issued for up to six months and ((can)) may be extended at ((our)) the department's discretion for an additional six months.

[06-15-075, recodified as § 170-295-0140, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 03-14-110, § 388-295-0140, filed 6/30/03, effective 8/1/03.]

     (2))) copies of the most recent child care center((s)) monitoring checklist and facility licensing compliance agreement for any deficiencies noted.

[06-15-075, recodified as § 170-295-7040, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 04-09-093, § 388-295-7040, filed 4/20/04, effective 5/21/04; 03-14-110, § 388-295-7040, filed 6/30/03, effective 8/1/03.]

     (1) The center's child care license issued under this chapter;

     (2) A schedule of regular duty hours with the names of staff;

     (3) A typical activity schedule, including operating hours and scheduled mealtimes;

     (4) Meal and snack menus for the month;

     (5) Fire safety record and evacuation plans and procedures, including a diagram of exiting routes;

     (6) Emergency telephone numbers near the telephone;

     (7) Nondiscrimination poster;

     (8) For the staff, ((you)) the licensee must post:

     (a) Dietary restrictions and nutrition requirements for particular children;

     (b) Handwashing practices;

     (c) Diaper changing procedures, if applicable;

     (d) Disaster preparedness plan; and

     (e) Center policies and procedures.

     (9) ((You)) The licensee must post a notification advising parents that ((you are)) the licensee is required to keep ((the following licensing information available)) a file on-site for their review((:

     (a) Copies of the most recent child care center checklist for licensing renewal and facility licensing compliance agreement for any deficiencies noted; and

     (b))) containing copies of the most recent child care center((s)) monitoring checklist and facility licensing compliance agreement for any deficiencies noted.

[06-15-075, recodified as § 170-295-7080, filed 7/13/06, effective 7/13/06. Statutory Authority: Chapters 74.12 and 74.15 RCW. 03-14-110, § 388-295-7080, filed 6/30/03, effective 8/1/03.]

OTS-4141.2

AMENDATORY SECTION(Amending WSR 08-10-041, filed 4/30/08, effective 5/31/08)

WAC 170-296-0020   ((What)) Definitions ((do I need to know to understand this chapter?)).   For the purpose of this chapter:

     "Accessible to children" means areas of the facility and materials that children can easily get to on their own.

     "Age appropriate" means the developing stages of growth typical of children within a given age group.

     "American Indian child" means any unmarried person under the age of eighteen who is:

     (1) A member of or eligible for membership in a federally recognized Indian tribe, or who is Eskimo, Aleut or other Alaska Native and a member of an Alaskan native regional Corporation or Alaska Native Village;

     (2) Determined or eligible to be found to be Indian by the Secretary of the Interior, including through issuance of a certificate of degree of Indian blood;

     (3) Considered to be Indian by a federally recognized Indian tribe; or

     (4) A member or entitled to be a member of a Canadian tribe or band, Metis community, or nonstatus Indian community from Canada.

     "Antibias" is an approach that recognizes when others are treated unfairly or oppressively based on race, color, national origin, marital status, sexual orientation, gender, class, religion, creed, disability, or age.

     "Assistant" means a person fourteen years or older (whether a volunteer or an employee) who assists a licensed home provider in the operation of the family home child care and is not solely responsible for the supervision of children.

     "Capacity" means the highest number of children ((you)) a licensee can care for at any time, as written on ((your)) his or her license.

     "Child" means a person who has not yet reached the age of twelve years.

     "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 of their home for periods of less than twenty-four hours a day.

     "Child abuse and neglect" means the injury, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child by any person indicating that the child's health, welfare, and safety is harmed.

     "Communicable disease" means an illness that can be spread from one person to another, in the child care setting, by either direct or indirect contact.

     "Conditions of the license" means what ((you)) a licensee must do to keep a license.

     "Confidentiality" means the protection of personal information, such as the child's records, from persons who are not authorized to see or hear it.

     "Corporal punishment" means the infliction of pain by any means for the purpose of punishment, correction, discipline, instruction or any other reason.

     "Cultural relevancy" means an environment in which the learning experiences, play materials and activities are meaningful, inclusive and respectful for the participating children, their families and the community at large.

     "Department," "we," "us," or "our" refers to and means the state department of early learning (DEL), and its predecessor agency the department of social and health services (DSHS).

     "Department of health" means the state department of health.

     "Developmentally appropriate" means activities and interactions that recognize and address how children learn and what they can do at each stage of development - socially, emotionally, cognitively, and physically.

     "Discipline" means a process of guiding children to develop internal, positive social behaviors through methods that include consistent use of the following: Modeling appropriate behavior, positive reinforcement, active listening, limit setting, redirecting and modifying the environment.

     "Facility licensing compliance agreement" means a written notice of rule violations and the intention to initiate enforcement, including a corrective action plan.

     "Family home" means a single dwelling unit and accessory buildings occupied for living purposes by a family which provides permanent provisions for living, sleeping, eating, cooking, and sanitation.

     "Family home child care" means a facility licensed to provide direct care, supervision and early learning opportunities for twelve or fewer children, in the home of the licensee where the licensee resides and is the primary provider.

     "Family home child care provider" means a person who provides direct care, supervision, behavior management, and early learning opportunities for twelve or fewer children in their family home living quarters for periods of less than twenty-four hours.

     "I," "you," and "your" refer to and mean the licensee or applicant for a child care license.

     "Inaccessible to children" means areas kept or items stored in a manner that makes it impossible for children to reach, enter, or use potentially hazardous items or areas. Examples of how this can be accomplished are through the use of locks, gates, or other means that are effective to prevent access by the children in ((your)) a licensee's care.

     "Infant" means a child birth through eleven months of age.

     "License" means an official document that certifies ((you have)) a licensee has been granted permission by the department to operate a family home child care in compliance with the rules.

     "Licensed space," means the indoor and outdoor space approved by the department as useable space where children in care may be present, or space that is otherwise accessible to children.

     "Licensee" means the person or persons named on the license as having been issued the license and who are responsible for maintaining compliance with the regulations.

     "Licensor" means the person with authority to grant licenses.

     "Nonexpiring licensee" or "nonexpiring full license" means a full license that is issued to a licensee following the initial licensing period as provided in WAC 170-296-0350.

     "Parent" means a child's parent or legal guardian.

     "Premises" means the buildings where the home is located and the adjoining grounds (at the same address) over which the licensee has control.

     "Preschool age child" means a child thirty months through five years of age not attending kindergarten or elementary school.

     "Primary staff person" means a person who has been authorized by DEL to care for or have unsupervised access to children in child care under chapter 170-06 WAC, age eighteen years or older, who has responsibilities for the operation of the program and the direct supervision, behavior management and care of children.

     "Provider" means the same as licensee.

     "Repeatedly" means a violation of a licensing regulation that is written on a facility licensing compliance agreement that occurs more than once during a twelve-month time frame.

     "Reportable communicable disease" means an illness that can be spread from one person to another by either direct or indirect contact, and is of the type that is required by law to be reported to the department of health. Examples include Hepatitis, measles, smallpox, and tuberculosis.

     "Revocation" means the formal act of closing ((your)) a licensee's child care business and taking ((your)) a license from ((you)) a licensee due to ((your)) the licensee's failure to follow the rules.

     "Sanitize" means a surface must be clean and the number of germs reduced to a level where disease transmissions by that surface are unlikely.

     "Staff" means a child care giver or group of child care givers employed by the licensee to assist with or supervise children served at the family home child care who have been authorized by DEL to care for or have unsupervised access to children in child care under chapter 170-06 WAC.

     "STARS" (Washington state training and registry system) means the entity approved by the department to determine the classes, courses, and workshops that licensees and staff may take to satisfy training requirements.

     "Summary suspension" means the formal act of immediately stopping your license for a certain time because the health, safety or well being of a child is at risk.

     "Supervision of children," means the knowledge of and responsibility for the activity and whereabouts of each child in care and assuring immediate intervention of staff to safeguard a child from harm.

     "Terms of the license" means the address, number and ages of children, and the beginning and ending dates listed on the license issued by the department.

     "Toddler" means a child twelve months through twenty-nine months of age.

     "Useable space" means the space actually available for children to engage in developmentally appropriate activities, that has been inspected and approved by the department for providing child care.

     "Weapons" means an instrument or device of any kind that is designed to be used to inflict harm on another person. For example, BB guns, pellet guns, air rifles, stun guns, antique guns, bows and arrows, handguns, rifles, shotguns, knives.

[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-296-0020, filed 4/30/08, effective 5/31/08. Statutory Authority: Chapter 43.215 RCW and oral ruling in DeLaO v. Arnold-Williams and Fernandez v. DSHS. 07-24-028, § 170-296-0020, filed 11/28/07, effective 12/29/07. 06-15-075, recodified as § 170-296-0020, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0020, filed 8/31/04, effective 10/1/04.]

     (1) Initial (see WAC 170-296-0340);

     (2) Nonexpiring full (see WAC 170-296-0350); and

     (3) Probationary (see WAC 170-296-0440).

[Statutory Authority: Chapter 43.215 RCW and 2006 c 265. 08-08-012, § 170-296-0330, filed 3/19/08, effective 4/19/08. 06-15-075, recodified as § 170-296-0330, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0330, filed 8/31/04, effective 10/1/04.]

     (a) Cannot demonstrate compliance with the rules pertaining to:

     (i) Supervision;

     (ii) Capacity;

     (iii) Behavior management;

     (iv) Activity and routines; and

     (v) Child records and information.

     (b) Can provide a plan that is acceptable to ((us)) the department, to comply with rules found in subsection (1)(a) of this section.

     (2) ((We)) The department may issue an initial license ((to you)) for a period not to exceed six months, renewable for a period not to exceed two years, which may continue to remain valid so long as the licensee meets the requirements for a nonexpiring license as provided in WAC 170-296-0350.

     (3) ((We)) The department must evaluate ((your)) an applicant's ability to follow all the rules contained in this chapter during the initial licensing period prior to issuing a nonexpiring full license.

[06-15-075, recodified as § 170-296-0340, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0340, filed 8/31/04, effective 10/1/04.]

     (a) Demonstrates full compliance with ((all rules contained in)) health and safety requirements of this chapter at any time during the period of initial licensure:

     (b) Demonstrates substantial compliance with other requirements of this chapter at any time ((that you have an)) during the period of initial ((license)) licensure; and

     (c) Meets the other requirements for a nonexpiring full license as provided in this section.

     (2) ((We must not issue a full license to you if you do not demonstrate the ability to comply with all rules contained in this chapter during the period you have an initial license.)) To qualify for a nonexpiring full license, a licensee must submit the following to the department on an annual basis:

     (a) An annual nonrefundable licensing fee;

     (b) A declaration to the department on a department-approved form indicating:

     (i) The intent to continue operating a licensed child care program; or

     (ii) The intent to cease operation on a date certain;

     (c) A declaration on a department-approved form of compliance with all licensing rules; and

     (d) Documentation of completed background check applications as determined by the department-established schedule.

     (3) The requirements in this section must be met within one calendar year of the date on the initial license and every twelve months thereafter. The nonexpiring full license is valid for one calendar year from the date a first initial license or previous nonexpiring full license was issued, unless otherwise suspended or revoked, or the department issues a probationary license.

     (4) If a licensee fails to meet the requirements in this section for continuation of a nonexpiring full license, the license expires and the licensee must submit a new application for licensure.

     (5) Nothing about the nonexpiring license process in this section may interfere with the department's established monitoring practice.

     (6) A licensee has no right to an adjudicative proceeding (hearing) to appeal the expiration, nonrenewal, or noncontinuation of a full nonexpiring license as a result of the licensee's failure to comply with the requirements of this section.

[06-15-075, recodified as § 170-296-0350, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0350, filed 8/31/04, effective 10/1/04.]

[06-15-075, recodified as § 170-296-0410, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0410, filed 8/31/04, effective 10/1/04.]

     (2) ((We)) The department must base our decision about whether to issue a probationary license on the following:

     (a) Intentional or negligent noncompliance with the licensing rules;

     (b) A history of noncompliance with the rules;

     (c) Current noncompliance with the rules; and

     (d) Any other factors relevant to the specific situation.

     (3) When ((we)) the department issues ((you)) a licensee a probationary license ((you)), the licensee must give notification of ((your)) his or her probationary license status to:

     (a) The parents or guardians of all children in ((your)) the licensee's care, within five working days of receiving notification from ((us)) the department; and

     (b) New applicants for child care, before enrolling new children.

     (4) The notification must be in writing and must be approved by ((us)) the department prior to being sent.

     (5) Within ten working days of receiving notification of the probationary license, ((you)) the licensee must provide documentation to ((us)) the department that parents or guardians of all children in ((your)) the licensee's care have been notified.

     (6) ((We)) The department may issue a probationary license for up to six months((. We)), and at the department's discretion, may extend the probationary license for an additional six months.

     (7) ((You)) The licensee must return ((your)) his or her nonexpiring full license to ((us)) the department.

[06-15-075, recodified as § 170-296-0440, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0440, filed 8/31/04, effective 10/1/04.]

     (1) The home's child care license issued under this chapter;

     (2) Evacuation plans and procedures, that include a written record of the required monthly fire drills and smoke detector checks;

     (3) Emergency telephone numbers;

     (4) Any civil penalty imposed; and

     (5) ((You must post)) A notification advising parents that ((you are)) the licensee is required to keep ((the following licensing information available)) a file on-site for their review((:

     (a) Copies of the most recent family home child care checklist for licensing renewal and facility licensing compliance agreement for any deficiencies noted; and

     (b))) containing copies of the most recent family home child care monitoring checklist and facility licensing compliance agreement for any deficiencies noted.

[06-15-075, recodified as § 170-296-0540, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0540, filed 8/31/04, effective 10/1/04.]

     (2) ((You, your)) A licensee, the licensee's staff, and volunteers with a reportable communicable disease in an infectious stage, as defined by the department of health, must not be on duty until ((you, your)) the licensee, the licensee's staff, and volunteers have approval from the local health department for returning to work.

     (3) Applicants for a license, staff, volunteers and persons sixteen years and older authorized to have access to children in a family home child care must have a tuberculin (TB) skin test by the Mantoux method of testing. They must have this skin test upon being employed or licensed unless the person has evidence:

     (a) Of negative testing within the previous twelve months;

     (b) That they have a negative chest X ray since previously having a positive skin test; or

     (c) Of having completed adequate preventive therapy or adequate therapy for active tuberculosis.

     (4) The department does not require a tuberculin skin test if a physician indicates that the test is medically unadvisable.

     (5) Persons whose tuberculosis skin test is positive must have a chest X ray within thirty days following the skin test.

     (6) The department does not require retesting at the time of license ((renewal)) continuation, unless the licensee or staff person believes they have been exposed to someone with tuberculosis or if their health care provider recommends testing.

[06-15-075, recodified as § 170-296-0860, filed 7/13/06, effective 7/13/06. Statutory Authority: RCW 74.08.090, 74.15.030, chapters 74.12 and 74.15 RCW. 04-18-082, § 388-296-0860, filed 8/31/04, effective 10/1/04.]

     The following section of the Washington Administrative Code is repealed:

WAC 170-296-0260

Do I need to renew my license?

© Washington State Code Reviser's Office