December 17, 2017
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Concerned groups force Maine Legislature to scrutinize DHHS child care rules

By Matthew Stone, BDN Staff
Updated:
Stock photo | BDN
Stock photo | BDN
Organizations representing child care providers, parents and others have filed a petition to force a legislative review of new child care rules proposed by the LePage administration that relax licensing requirements for in-home child care providers.

A LePage administration proposal to relax licensing requirements for in-home child care providers will receive the scrutiny of a legislative committee, after the administration indicated it would implement the new requirements without securing the Legislature’s approval.

The review of rule changes proposed by Maine’s Department of Health and Human Services comes after four organizations representing child care providers, parents and others gathered enough voter signatures and filed petitions to force the review by the Legislature’s health and human services committee. Committee members are planning to meet Thursday at 4 p.m.

Maine DHHS in April proposed several revisions to state licensing requirements for in-home child care providers, who are allowed to look after up to 12 children in their homes. The changes reduce the amount of staff supervision the providers are required to provide, and they remove requirements that parents be allowed to visit their children at any time during the day and be informed of licensing deficiencies found by state inspectors.

“We feel that these rules are significantly weakening the rights of parents, that they literally throw out almost anything that has to do with quality,” said Rita Furlow, senior policy analyst for the Maine Children’s Alliance, one of the organizations that signed onto the request for the legislative review, using a state law that allows at least 100 registered voters affected by a rule change to sign a petition asking for a review.

Maine DHHS says it’s trying to streamline the state’s family child care licensing requirements, which were last updated in 2009, in an effort to entice more in-home child care providers to open their doors, particularly in rural parts of the state. The newly proposed rule is 32 pages long, compared with the 65 pages it would be replacing.

Portions of DHHS’ proposed changes would normally require approval from the state Legislature, while others wouldn’t. But DHHS says it plans to implement the sections that would typically require the Legislature’s OK on an emergency basis, which allows the rule revisions to take effect without the Legislature weighing in.

Under state law, agencies can adopt emergency rules when they find it’s “necessary to avoid an immediate threat to public health, safety or general welfare,” and the rules take effect for up to a year without the Legislature’s approval. Legislators would have to review the rules at some point during that year.

Asked about the “immediate threat to public health, safety or general welfare” prompting DHHS to adopt rules on an emergency basis, department spokeswoman Samantha Edwards wrote in an email that the agency wanted to ensure that all portions of the revised licensing rule — whether subject to legislative approval or not — would take effect at the same time. In addition, Edwards said, DHHS didn’t want the yearlong period during which the emergency rules are temporarily in effect without legislative approval to end at a time when the state Legislature wasn’t in session and couldn’t act. The Legislature will next be in session for a sustained period in the winter.

“The Department has determined that the immediate adoption of the major substantive parts of this rule is necessary,” Edwards wrote in her email.

The review by the Legislature’s health and human services committee is scheduled for Thursday at 4 p.m., when the full Legislature returns to Augusta for one of its final sessions of the year. The session, which is open to the public, will take place in Room 209 of the Cross State Office Building in Augusta.

The panel won’t have the power to directly change DHHS’ rules, but members could draft legislation that limits the department’s authority to rewrite family child care licensing requirements. That legislation would then require approval from the House and Senate at a time when the Legislature is in its final days and has already delayed its adjournment date by weeks.

“The big question in my mind is how logistically to pull this off,” said Republican Sen. Eric Brakey of Auburn, the committee’s Senate chair.

In their application for a legislative review of the rule, the four organizations spearheading the effort list their objections to many of the changes Maine DHHS is proposing to the licensing requirements:

— For example, the new rule removes a list of qualifications that in-home child care providers must meet in order to be granted a license, such as a “record and reputation for honest and lawful conduct in business and personal affairs.” The organizations also oppose the elimination of provisional child care licenses in the proposed rule. DHHS currently can issue a provisional license to a new family child care provider for up to a year before issuing a full license.

— The new rule from DHHS removes parents’ rights to visit the facility and observe activities at any time during the day, to be informed of state licensing rules by the child care provider, and to be informed of any licensing deficiencies at the business that state licensing inspectors have found.

— The rules also reduce the level of supervision child care businesses must provide. For example, if the revised requirements take effect as they’re currently written, family child care providers would no longer have to count their own children toward child-to-staff member ratios that are meant to ensure an appropriate level of supervision for children based on their age.

— The rules also redefine age groups in a way that would allow family child care providers to look after some of the youngest children — those between ages 2 and 2 ½ — with fewer staff.

— The rule proposal from DHHS also defines a child care provider as someone who can be as young as 16, and would require fire drills every other month as opposed to the monthly fire drills the current rules require.

The revisions to the rules come three years after the U.S. Department of Health and Human Services’ inspector general cited Maine for insufficient oversight of child care facilities — both home-based facilities and larger child care centers.

DHHS’ decision to implement these rules on an emergency basis compelled the coalition to challenge them, Furlow said.

“This is the method that the Department of Health and Human Services has found to avoid legislative review, is by filing them by emergency,” she said. “We felt this was our only opportunity to make sure the Legislature was aware of this, and that the public was aware of this.”

In her email to the BDN, Edwards wrote, “The purpose of the Family Child Care rulemaking was to streamline the rule to focus on the health and safety of the children in care, remove language that is contained in State statute and clarify subjective language to describe evidence-based standards, wherever possible.”

She wrote that decisions about parents’ ability to visit their children during the day “should more appropriately be decided privately between parents and a provider, and not mandated in a State rule.”

Rep. Patricia Hymanson, D-York, the health and human services committee’s House chair, said she’d like to see the Legislature pass a moratorium halting the rules.

“I think these rules are atrocious,” she said. “I can’t even imagine why a rule would be written that says, ‘As a parent, you can’t come to see your child in the day care center.’”

Brakey said he’s heard from child care providers who struggle to maintain the required child-to-staff ratios in an industry with high employee turnover.

“As far as the ratios go, I think it would be worthwhile to look at what’s the norm in other states,” he said.

Maine Focus is a journalism and community engagement initiative at the Bangor Daily News. Questions? Write to mainefocus@bangordailynews.com.

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