CHILDREN, YOUTH, AND FAMILIES

[Filed October 4, 2021, 4:25 p.m.]

Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).

Title of Rule and Other Identifying Information: WAC 110-300-0355 Family home capacity, ratio, and group size and 110-300-0358 Capacity waiver for family home providers.

Hearing Location(s): On November 9, 2021, telephonic. Oral comments may be made by calling 360-902-8084 and leaving a voicemail that includes the comment and an email or physical mailing address where the department of children, youth, and families (DCYF) will send its response. Comments received through and including November 9, 2021, will be considered.

Date of Intended Adoption: November 10, 2021.

Submit Written Comments to: DCYF Rules Coordinator, P.O. Box 40975, email dcyf.rulescoordinator@dcyf.wa.gov, submit comments online at https://www.dcyf.wa.gov/practice/policy-laws-rules/rule-making/participate/online, by November 9, 2021.

Assistance for Persons with Disabilities: Contact DCYF rules coordinator, phone 360-902-7956, email dcyf.rulescoordinator@dcyf.wa.gov, by November 5, 2021.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Establish conditions for waiving licensed family home child cares' capacity to serve more than 12 children, namely, the licensee's years of experience providing early learning services, the available square footage, staffing qualifications, staff-to-child ratios and age group limits, the intended use of licensed space, the emergency preparedness plan, the number of working, accessible toilets and sinks, the number and variety of early learning materials, and the total capacity the provider is requesting.

Reasons Supporting Proposal: The proposals comply with section 313, chapter 199, Laws of 2021, which directs DCYF to establish, by rule, the conditions for waiving the limit that restricts family home providers from serving not more than 12 children. The proposed conditions will allow greater flexibility for family homes and promote the health, safety, and well-being of children served.

Statutory Authority for Adoption: RCW 43.216.692.

Statute Being Implemented: RCW 43.216.692.

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, 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). Further, DCYF does not voluntarily make that section applicable to the adoption of this rule.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.

AMENDATORY SECTION(Amending WSR 18-15-001, filed 7/5/18, effective 7/5/18)

WAC 110-300-0355Family home capacity, ratio, and group size.

(1) The department issues initial or nonexpiring family home licenses for up to twelve children. The department will not issue a family license to care for more children than permitted by the rules in this chapter but may issue a license to care for fewer than the maximum allowable enrolled children. Family home licenses state:

(a) The maximum number of children that may be in care at any one time (total capacity); and

(b) The age range of children allowed in care.

(2) The department determines capacity for a family home early learning program after considering:

(a) Square footage of the early learning program;

(b) An early learning provider's years of experience in licensed child care (experience must be from working as a center director, program supervisor, lead teacher, family home licensee, or another similar role in a child care setting);

(d) The age range requested or approved by the department;

(e) The amount of developmentally appropriate equipment, materials, and toys an early learning program can provide children to use;

(f) A provider's licensing history with the department; and

(g) The number of qualified staff available to meet staff-to-child ratios.

(3) A family home licensee must not exceed the total capacity or age range stated on the child care license at any time except as provided in this section and WAC 110-300-0358. All children on the premises, signed in to child care, on an off-site trip from the early learning program, or being transported by the early learning program staff are counted in capacity including the children of staff.

(a) A family home licensee must receive department approval to care for a child with special needs, pursuant to WAC 110-300-0300, if the child is older than the maximum age identified on the license. A child with documented special needs may be in care up to age nineteen and must be counted in both capacity and staff-to-child ratio.

(b) A child with special needs who requires individualized supervision pursuant to WAC 110-300-0300 counts towards capacity but does not count in the staff-to-child ratio.

(c) A child who turns thirteen years old permitted by chapter 110-15 WAC and who must be counted in both capacity and staff-to-child ratio.

(4) Any child birth through twelve years old on the premises, signed in to the child care, on an off-site trip from the early learning program, or being transported counts in capacity. This includes a family home licensee's own children, children of staff, or visiting children not accompanied or supervised by an adult.

(5) A family home licensee must provide qualified staff to fulfill the staffing requirements and staff-to-child ratios during operating hours, including off-site activities and when transporting children in care.

(6) A family home licensee must provide additional staff, pursuant to WAC 110-300-0350, when children are participating in water activities or activities near water.

(7) When applying for an initial or nonexpiring family home license, a family home licensee with less than one year of experience may request from the department a capacity of up to six children, birth through twelve years of age.

(a) A maximum of three children may be under two years of age.

(b) If there are three children under two years of age, one of these children must be able to walk independently.

(8) When applying for an initial or nonexpiring family home license, a family home licensee with at least one year but less than two years of experience and:

(a) Working alone may request a capacity of up to eight children ages two through twelve years of age, with a maximum of four children under three years of age.

(b) Working with a qualified assistant may request a capacity of up to nine children birth through twelve years of age with a maximum of four children under two years of age.

(9) When applying for an initial or nonexpiring family home license, a family home licensee with at least two years' experience and:

(a) Working alone may request a capacity of up to ten children ages three years through twelve years of age;

(b) Working alone may request a capacity of up to twelve children for school age children only; and

(c) Working with a qualified assistant, may request a capacity of up to twelve children birth through twelve years of age with a maximum of six children under two years of age with two children being able to walk independently.

(10) A family home licensee, with two years of experience, may request a license for birth to twenty-four months of age with a maximum group size of eight when:

(a) There are two staff present with the group consisting of one staff who meets the qualification of the licensee and another who meets the qualifications to be counted in ratio;

(b) The staff-to-child ratio is 1:4;

(d) A second staff member is present whenever:

(i) More than two children in care do not walk independently; or

(ii) When there are more than four children in care.

(11) The staff-to-child ratio is determined by the ages and number of children in care. Two early learning program staff are required anytime:

(a) More than six children are in care and any child in care is under two years of age;

(b) More than eight children are in care and any child in care is under three years of age; or

WAC 110-300-0358Capacity waiver for family home providers.

(1) Pursuant to section 313, chapter 199, Laws of 2021, the department may waive the limit established in RCW 43.216.010 (1)(c) that restricts family home providers from serving more than 12 children.

(2) A family home provider must apply to the department in writing to request a waiver to serve more than 12 children. To apply in writing, a family home provider must use the process prescribed by the department.

(3) The department will consider the following criteria to determine whether to grant a waiver to a family home provider's total capacity of 12 children:

(a) The licensee's years' of experience providing early learning services. A family home provider must have at least three years' of experience to be eligible for a waiver under this section. To satisfy the three years' experience requirement, the family home provider must have served for a total of three years or more in one or more of the following child care roles: Center director, program supervisor, family home licensee, or other similar role in a child care setting.

(b) Available square footage:

(i) There must be at least 35 square feet of licensed, accessible indoor space for each child included in the total capacity.

(ii) There must be an additional 15 square feet of licensed, accessible indoor space for each infant or toddler included in the total capacity.

(iii) There must be at least 75 square feet of licensed, accessible outdoor space for each child included in the total capacity. Alternatively, a family home provider may develop a plan to rotate groups of children to play outdoors or a department approved plan to use an off-site play area.

(c) Staffing qualifications. The licensee and at least one lead teacher working on-site must have an ECE short certificate when operating with 13 or more children.

(d) Staff-to-child ratios and age group limits:

(i) A family home provider must not exceed a maximum staff-to-child ratio of 1:6 when operating with 13 or more children.

(ii) A family home provider licensed to care for children under two years of age may have up to six children under two years of age attend at any one time under the following conditions:

(A) Five children under two years of age may attend at any one time if at least one of those children can walk independently;

(B) Six children under two years of age may attend at any one time if at least two of those children can walk independently.

(iii) A family home provider licensed to care for children under two years of age must not have more than six children under two years of age attend at any one time;

(e) The intended use of licensed space. Plans to use the space must include details regarding napping, supervision, and diapering, if applicable.

(f) The emergency preparedness plan. The emergency plan must account for the total capacity of children requested.

(g) The number of working, accessible toilets and sinks.

(i) There must be a ratio of at least one working flush toilet and one handwashing sink for every 15 household members, staff, and requested capacity of children. A child in diapers does not count for purposes of toilet calculations until the child begins toilet training.

(ii) A family home provider whose facility relies on a private septic system must provide to the department verification from the local health jurisdiction the system can accommodate the total number of household members, staff, and requested capacity of children.

(h) The provider's licensing history.

(i) The number and variety of early learning materials. For the total capacity requested there must be a sufficient number and variety of materials to engage children in the early learning program.

(j) The total capacity the provider is requesting.

(4) A waiver granted under this section may be time specific or may remain in effect for as long as the family home provider continues to comply with the waiver's conditions. If the waiver is time limited, the provider must not exceed the time frame established by the department.

(5) Before the family home provider implements a waiver under this section, the waiver must be approved in writing by the department secretary or the secretary's designee.

(6) A denial of a waiver request is not an enforcement action as described in RCW 43.216.010 and is not subject to an appeal by a provider.

(7) The department may rescind a waiver granted under this section at any time including, but not limited to, the following reasons:

(a) The provider no longer meets the criteria described in this section;

(b) The department issues an enforcement action against the provider;

(d) The department determines that continued operation under the waiver does or may harm the health, safety, or well-being of enrolled children; or

(e) A licensing rule that was considered in granting the waiver is repealed or amended.

(8) A family home provider granted a waiver under this section must inform the parents and guardians of enrolled children of the approved waiver prior to operating with 13 or more children.