The regulations state: 

"A child day program or family day system shall keep background check records at its place of business for at least two years after the background check is required, unless federal or state law or regulation requires the records to be kept for longer..."


This is confusing as these regulations ARE our state regulations. Additionally, we have to do background checks every 5 years, so does that mean the that for years 3-5, we do not have to keep a copy on file? If the regulation means that we need to keep the copy for 2 years AFTER the 5 year window, that should be better explained. It should read more as "a copy of the background check must remain on file for 2 years after its experation or employees termination. 

Also, some clarification on what to do with the background checks inbetween would be helpful. For example, if I have a staff memeber that is with us for 15 years, thats 3 background checks... do I need to keep all 3 on file?  

Documentation of the refusal from the state if no search was performed; or

2. Documentation showing that the individual contacted the state in writing to obtain the results of the child abuse and neglect registry or criminal record history at least 45 days after the initial request.

Not all states will respond in writing, this should be more clear in what the type of documentation is ok. If I print from the states website that they will not release records to private facilities, is that sufficent? 

I would like to see all schools moved to 25 sf to be able to accommodate more children. The schools that do operate under the 25 sf have been proven just at safe as the schools operating under the 35 sf. With the ECE crisis and having not enough spots available, this would create more spots for families to choose from and would render a better financial outcome for the providers.

I would like the staff -students ratios be permanently changed. At random, on and off at times, ratio's have changed to 1 student extra per staff member. No follow up or motivation has ever been given if this created more incidents or if kids were less safe. 

It would help the schools to become more financially stable.

I agree with comments made by:
Anonymous #227740

and Anonymous #227739  

The hard work towards making standards more succinct needs to be applauded.  There are a few things that I would like to point out:

The standard below regarding maintenance of background check records is confusing at best.

_{8VAC20-821-210 Maintenance of background check records
A. A child day program or family day system shall keep background check records at its place of business for at least two years after the background check is required, unless federal or state law or regulation requires the records to be kept for longer. If multiple child day programs are owned by the same entity, such records may be kept at a single location and shall be made available to the superintendent upon request.}  

It seems to be saying that 2 years after the background check is required, we are not required to maintain record of the check.  Which sounds like after someone has been employed for 2 years, we don't have to maintain that record anymore.  Currently, we have to repeat background checks every 5 years (although I cannot find the actual time line in any standards/state laws)  If we are talking about after an employee is terminated, the state law says:

_{8VAC20-770-70. Keeping background check records.}

_{D. A voluntarily registered family day home must keep all background check information for two years after a person required to provide background check terminates his duties with a facility or no longer resides in the home. All other facilities must keep all background check information for one year after a person required to provide background checks terminates his duties with a facility or no longer resides in the home.}

Another background check item that needs clarification is the documentation from another state that no search was performed or contacting the state in writing. 

_{8VAC20-821-190 Out-of-state child abuse and neglect registry and criminal history record searches
A. If any individual required to get a background check has lived in another state in the past five years and the results of the request to search the child abuse and neglect registry or criminal history record maintained by that state has not been returned, the individual shall obtain the following before the background check may be considered complete:}

_{1. Documentation of the refusal from the state if no search was performed; or}

_{2. Documentation showing that the individual contacted the state in writing to obtain the results of the child abuse and neglect registry or criminal record history at least 45 days after the initial request.}

There are some states that specifically state on their websites that they will not do out of state background checks.  Can that be printed and used as documentation of refusal from another state.  It seems silly to have to contact the state in writing, when you know that they are not going to send a response.  It needs to be clarified what counts as refusal from the state.

Another issue that I think it would be proactive of the BOE is to explicitly describe how one goes about getting "scored" when it comes violations.  Some violations hold a higher "danger" rating, while others are not as high.  This scoring is used to determine renewal of licensure, and it is not made clear, nor published anywhere.  While having zero violations at all times would be the goal, at times, that is not always possible.  When you are graded on assignments, you are given a rubric or a guideline that describes how the assignment will be graded.  I feel that should be applied in this situation as well.  It needs to be clearly stated what gets you a renewal, probationary, or denial of licensure during the renewal process.

One final issue that needs to be addressed is posting findings that are being appealed.  Once the appeal process has been initiated, that violation should not be posted until there has been a final decision.  These have the potential to harm reputations.  Once something has been posted online, it can easily be saved and shared forever, whether or not that is the final finding.

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.