Currently there is a two-stage review process for reviewing licensing violations. The new process outlined in the proposed draft is a single stage and reduces what little protection programs currently have. The current system allows for programs to dispute a regulation with a first-step review, followed by a second-step review if the problem is not resolved. More than 20% of first-step reviews are not solved and a second step review is pursued.

Both of these reviews are internal to the department. This process is not sufficient. An external review is sorely needed. I encourage the board to consider a peer review or advisory board review process in addition to the process outlined in the proposed regulations. External reviews are widely used across industries because they provide access for additional voices and a potentially unbiased perspective.  If an outside review is not possible, retaining the two-step review process is critical for programs to have recourse to resolve disputes with the department. 

The proposed general procedures contain a number of broad grants-of-authority that would allow the superintendent to add requirements to programs. While I understand there are times that additional requirements may be needed, this authority could intentionally or unintentionally be used to discriminate against specific programs or protected classes. While I know the superintendent is not intending discrimination, common sense protections should be put in place to protect against discrimination because humans are biased and historically discrimination has occurred. 

For example, 8VAC20-821-40 A. 5. allows “additional information as required by the superintendent” to be an added requirement in applications for licensure. I propose that either this clause be stricken or an additional clause be added. An additional clause that could provide protection for programs might read, “Additional information required by the superintendent in accordance with 8VAC20-821-40 A. 5 shall be required of all programs.”

Another example is 8VAC20-821-110 H: “All determinations of qualifications shall be at the discretion of the superintendent. Failure to demonstrate qualifications for licensure shall constitute grounds for denying a license renewal.” This gives too much power to the superintendent.  Proposed regulation 8VAC20-821-40 B.  references the “good character and reputation” of the director.  This terminology is vague, not measurable, and not appropriate.

Throughout the proposed document, the term ‘order by the superintendent’ is frequently used. Neither order, special order, nor final order is defined.. Is everything that the superintendent says an order? Are there limitations to what an order could be or when it could be put into place? How would a program know if something was an order? I find the use of “order” most problematic in 8VAC20-821-120 A, which allows the superintendent to deny the license based on failure to comply with an order. 

Programs most often apply for allowable variances when they realize they were not in compliance with a standard, thus proposed regulation 8VAC20-821-70 G is harmful and contains punitive new language. Variances should either be allowed or not allowed based on the content of the request, not in a punitive manner. The department still has the authority to issue violations based on non-compliance with a standard. Allowable variances are issued for programmatic hardship in addition to philosophical reasons. Some standards may be easy to come into compliance with while awaiting variance results, but many are not. 

Consider the case where a program added large built-in cabinets which reduced their square footage under the required 35 square feet per child and then applied for an allowable variance to have 34.9 square feet per child in this classroom. The program mistakenly built permanent equipment which put them out of compliance. If this is grounds to deny the variance, the program would need to either kick a kid out of care or remove the new cabinets to avoid denial. Just the cabinet’s existence with the enrollment numbers should not be the basis for denial.

8VAC20-821-50 D. states the building used by an applicant as a child day center shall meet all “functional design requirements”. Problematically, the functional design requirements are not identified in either this document or the licensing standards. All requirements made by the department shall reflect regulations set forth by the board. This regulation is confusing and should be stricken. If necessary the Standards could indicate functional design requirements.

8VAC20-821-270 E. is duplicative. Operating out of the bounds of your license or in a way that is not in compliance with the standards is already prohibited and stating it again here is unnecessary and amplifies fear and restrictions. 

8VAC20-821-50  E is not a regulation. Regulations need to describe what must happen or not happen. This is guidance and should go elsewhere.

I know physically posting documents is current practice, but it is already antiquated and quickly becoming even more antiquated given how rarely the standards are updated. I wonder if there are alternative words the department could use such as, “notify customers”? Most programs use a digital system that would be more likely to be seen by families and just as easy to verify as physically posting. I know in our program even if a document is posted in a prominent place many families don’t enter the building at all. 

8VAC20-821-150 A The fees have quadrupled. What are licensing fees used for? Child care is a very low margin field, every fee charged decreases funds available for teacher salaries. Anything the state can do to minimize fees is preferable. Considering how much early childhood need is out there, reducing or eliminating fees would be a way to support programs starting and growing.