Rule-making Standards and Procedures



STATEMENT OF BASIS AND PURPOSE

Each year a few pieces of new state legislation affect the rules regulating child care facilities. In the 2012 session House Bills 12-1228 and 12-1276 contained language that require changes to be made to child care rules. These rule changes are quite narrow and very specific.

● House Bill 12-1228 affects the Neighborhood Youth Organization (NYO) license type. This license type was created in 2010 with the passage of HB 10-1044. The bill originated through the efforts of Colorado’s Boy’s and Girls Clubs, whose activities had always fallen outside of licensing regulations and laws, as children come and go of their own volition. When the bill passed, the Department worked closely with the Boy’s and Girl’s Clubs to draft the current set of regulations.

House Bill 12-1228 reinstated the criminal background check options that had been a part of H.B. 10-1044, which had been removed by H B 11-1145, which brought universal Federal Bureau of Investigation (FBI) checks to all licensed care. This bill allows NYOs to instead conduct one of the following on their employees and volunteers that work with youth: 1) a background check by the Colorado Bureau of Investigation (CBI), 2) an FBI background check if the person has lived in Colorado less than two years, 3) a comparison search using ICON, the state’s judicial records system, or 4) a background check by a private entity. These background checks must be done every two years.

● House Bill 12-1276 is a bill that grew directly out of licensing violations cited against facilities that were using classroom learning materials with children under thirty-six (36) months of age that posed choking and laceration hazards. Specifically, Montessori schools use learning stations that contain small elements that could present a choking hazard. Once the Department started citing facilities in 2011 for violation of this rule, appeals of this citation began to be received by the Department. The appeals were denied.

As a result, child care providers were able to work with legislators to advance H.B. 12-1276, which has two effects. First, it changes the composition of the appeals panel. Second, it sets a framework for the management of appeals, and sets a very specific appeals process for denied appeals related to materials waivers. While the bill does not define materials, the Department interprets materials to mean any item used in a child care classroom as part of the learning environment. The Department interpreted H.B. 12-1276 as a strong message from the legislature to allow flexibility in materials. For this reason, the Department has granted over thirty (30) material waivers to Montessori schools since the passage of H.B. 12-1276. The bill requires that the state board promulgate rules to implement the law.

|Initial Review | 11/08/2013 |Final Adoption | 12/06/2013 |

|Proposed Effective Date |02/01/2014 |EMERGENCY Adoption | N/A |

_______________

[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.]

STATEMENT OF BASIS AND PURPOSE (continued)

An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:

| |to comply with state/federal law and/or |

| |to preserve public health, safety and welfare |

Explain:

Authority for Rule:

State Board Authority: 26-1-107, C.R.S. (2013) - State Board to promulgate rules; 26-1-109, C.R.S. (2013) - State Board rules to coordinate with federal programs; 26-1-111, C.R.S. (2013) - State Board to promulgate rules for public assistance and welfare activities; 26-6-105.7(4), C.R.S. (2013) - requires the state board to promulgate rules for implementation of material waivers.

Program Authority:

26-6-103.7(2), C.R.S. (2013) - CDHS is authorized to make rules regarding Neighborhood Youth Organizations;

26-6-105.7, C.R.S. (2013) - creates appeal rights related to materials waivers/appeals filed by licensed child care centers;

26-6-107, C.R.S. (2013) - the state board is authorized to promulgate rules

| |Yes |X |No |

|X |Yes | |No |

Does the rule incorporate material by reference?

Does this rule repeat language found in statute?

If yes, please explain.

Repeating Language Found in Statute: 7.701.13, E through J, include new rules regulating general waivers and appeals and more specific rules for materials waivers. Some language found in Section 26-6-105.7, C.R.S., is repeated for ease of reference for licensed child care providers regarding their rights and the processes available for filing and resolving appeals.

The program has sent this proposed rule-making package to which stakeholders?

This rule package has been posted on the Division of Early Learning and Care Website with a link to an Internet based comment option. All licensed providers have been sent an e-mail regarding the proposed rule package and the opportunity for comment. This includes family child care home providers, child care center providers, pre-schools, school aged programs, residential camps, and all 24-hour license types.

Attachments:

Regulatory Analysis

Overview of Proposed Rule

Stakeholder Comment Summary

REGULATORY ANALYSIS

(complete each question; answers may take more than the space provided)

1. List of groups impacted by this rule:

Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?

All licensed child care facilities.

Boys and Girls Clubs?

2. Describe the qualitative and quantitative impact:

How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?

For licensed child care centers, the materials waiver/appeal rights afforded under the new law will be operationalized in rule. The rules relating to appeal rights of a denied waiver will apply to denials of materials waivers/appeals only.

3. Fiscal Impact:

For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category. If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.

State Fiscal Impact (Identify all state agencies with a fiscal impact, including any Colorado Benefits Management System (CBMS) change request costs required to implement this rule change)

No fiscal impact is anticipated.

County Fiscal Impact

No fiscal impact is anticipated.

Federal Fiscal Impact

No fiscal impact is anticipated.

Other Fiscal Impact (such as providers, local governments, etc.)

At the time of the bill’s passage, there were twelve Neighborhood Youth Organizations seeking licensure.

The only fiscal impact anticipated will be on the savings Neighborhood Youth Organizations may realize by using alternate forms of criminal background checks found at 26-6-103.7(4)(a-d), C.R.S. An FBI check is $22.00 while the Colorado Bureau of Investigation check costs $17.00.

REGULATORY ANALYSIS (continued)

4. Data Description:

List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?

No data or studies were relied upon for this rule-making.

5. Alternatives to this Rule-making:

Describe any alternatives that were seriously considered. Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule? Explain why the program chose this rule-making rather than taking no action or using another alternative.

No alternative exists for the rule-making related to Neighborhood Youth Organizations as the rules being repealed exceed statutory authority and the appropriate reference to the law is being added.

No alternative exits for rule-making related to licensed child care centers and materials waivers/appeals because the statute passed in 2012 requires further definition in rule.

OVERVIEW OF PROPOSED RULE

Compare and/or contrast the content of the current regulation and the proposed change.

|Section Numbers |Current Regulation |Proposed Change |Stakeholder Comment |

|7.701.13 |Rules regulating waivers and appeals |Amends the rules to comply with standards |X |Yes |__ |No |

| | |under HB 12-1276, including deadlines for | | | | |

| | |appeal hearings, standards for materials | | | | |

| | |waivers, and waiver/appeal review rights | | | | |

|7.701.33 |NYO background check rules |Repeal existing rule and replace with |X |Yes |__ |No |

| | |reference to the statutory background | | | | |

| | |check requirements | | | | |

| | | | | | | |

| | | | | | | |

STAKEHOLDER COMMENT SUMMARY

DEVELOPMENT

The following individuals and/or entities were included in the development of these proposed rules (such as other Program Areas, Legislative Liaison, and Sub-PAC):

This rule package has been posted on the Division of Early Learning and Care Website with a link to an Internet based comment option. All licensed providers have been sent an e-mail regarding the proposed rule package and the opportunity for comment. This includes family child care home providers, child care center providers, pre-schools, school aged programs, residential camps, and all 24-hour license types.

● Boys and Girls Clubs of Colorado (our currently licensed and prospective NYO licenses).

● All licensed providers were given the opportunity for notice and comment as the changes to material waiver/appeal denial appeal rights affect all license types.

THIS RULE-MAKING PACKAGE

The following individuals and/or entities were contacted and informed that this rule-making was proposed for consideration by the State Board of Human Services:

● Boys and Girls Clubs of Colorado (our currently licensed and prospective NYO licenses).

● All licensed child care facilities as material waiver/appeal rights apply to all license types.

Are other State Agencies (such as Colorado Department of Health Care Policy and Financing) impacted by these rules? If so, have they been contacted and provided input on the proposed rules?

| |Yes |X |No |

Have these rules been reviewed by the appropriate Sub-PAC Committee?

|X |Yes | |No |

Date presented January 2013. Were there any issues raised? ____ Yes _X_ No

If not, why.

Comments were received from stakeholders on the proposed rules:

|X |Yes | |No |

STAKEHOLDER COMMENT SUMMARY (continued)

● Summary of Comments for Change to Section 7.701.13

Generally the comments appreciated the clean-up and adjustment of the appeals process. Some took issue with the sixty-day timelines that are mandated by statute. The rules were thought to be fine and fair.

Department response: House Bill 12-1276 sets the timelines in statute, so there is no flexibility.

● Summary of Comments for Change to Section 7.701.33

Some commenters agreed with the change and that it is important. Others were concerned about Neighborhood Youth Organizations not having to follow the same rules as other license types.

Department response: These rules do not comport with the changes made by H.B. 12-1228; therefore, rule language is being amended to align with the new law.

(12 CCR 2509-8)

7.701.13 Waivers

A. A person who has applied for or been issued a certificate or license to operate a child care facility or child placement agency has the right to request a waiver of any rule or regulation which, in his/her opinion, works an undue hardship on the person, facility, or the community, or has been too stringently applied by a representative of the Department.

B. Requests for waivers must be submitted to the department in writing within sixty (60) calendar days of the date on which the rule allegedly was too stringently applied or created the hardship. Requests must include the name and address of the facility, its assigned license number, the citation of the rule for which a waiver is being sought, and all relevant information regarding the alleged hardship or evidence of the rule being too stringently applied.

C. Pursuant to Section 26-6-105.7, C.R.S., materials waivers are different than general waivers in several ways. Child Care Centers MAY apply for a waiver to use certain materials in its program pursuant to Section 26-6-105.7(2)(a), (b), C.R.S.

C. D. The Department will designate, pursuant to the Child Care Licensing Act, Section 26-6-106(3), C.R.S., an appeal panel, which will meet to review appeal requests and make recommendations to the Executive Director of the Colorado Department of Human Services, and the Director will issue a decision. Decisions of the Executive Director are final and not subject to judicial review. Requests for an appeal should be submitted to the Division of Child Care Services shall be submitted to the Office of Early Childhood.

E. The Department shall make a decision on waiver requests and notify the child care center of its decision no later than sixty (60) calendar days of receipt of the request.

D. F. If a child care facility or agency is aggrieved by the decision of the appeal panel, the facility or agency has a right to a formal hearing pursuant to Section 24-4-105, C.R.S., if the facility or agency petitions the Department in writing within 30 calendar days of receipt of the written appeal decision. If a child care facility or agency is aggrieved by the decision of the appeal panel, the facility or agency has the following rights:

1. If the denial of a waiver request relates to a request for a materials waiver/appeal, the facility or agency may petition the Colorado Department of human services (“The Department”) in writing up to forty-five (45) calendar days to appeal the denial decision.

2. If the appeal/waiver relates to any other rule than a materials waiver/appeal, the facility has a right to a formal hearing pursuant to Section 24-4-105, C.R.S., if the facility or agency petitions the Department in writing within thirty (30) calendar days of receipt of the written appeal decision.

G. For appeals of materials Waiver/Appeal Denials, the Executive director or designee shall act upon the appeal within forty-five (45) calendar days and shall provide notice of his/her decision on the appeal within ten (10) calendar days.

H. For appeals of materials Waiver/Appeal Denials, the appealing child care center has the right to request a meeting in person with Department personnel regarding the appeal.

I. For appeals of materials Waiver/Appeal Denials, the entire appeals process shall last no longer than one hundred (100) calendar days after the date of the notice of the denial of the waiver request.

E. J. Written decisions of the appeal panel shall must be posted beside the child care license, but posting of the decision shall not occur until the appeal is final. The Department shall not post the decision to deny a waiver on its web site until the appeal is final.

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7.701.33 Criminal Record Check [Rev. eff. 6/1/12]

A. Criminal records checks are required under the following circumstances:

1. Each applicant listed below shall submit to the Colorado Bureau of Investigation (CBI) and the Federal Bureau of Investigation (FBI) a complete set of fingerprints taken by a qualified law enforcement agency to obtain any criminal record held by the CBI and FBI. Payment of the fee for the criminal record check is the responsibility of the individual being checked, identified as follows:

a. Each applicant for an original license for a center, facility, or agency and any adult eighteen (18) years of age or older who resides in the licensed center, facility or agency.

b. Each exempt family child care home provider who provides care for a child and each individual who provides care for a child who is related to the individual (referred collectively in this section as a "qualified provider"), if the child’s care is funded in whole or in part with money received on the child’s behalf from the publicly funded Colorado Child Care Assistance Program; and, any adult eighteen (18) years of age or older who resides with a qualified provider where the care is provided.

c. Applicants for an original certificate for a foster care home, and any adult eighteen (18) years of age or older who resides in the certified foster care home.

d. Specialized group home parents and any person working in a twenty-four (24) hour child care facility.

2. Each applicant for an original license for a Neighborhood Youth Organization shall comply with the criminal background check requirements found at section 26-6-103.7(4), C.R.S. complete a criminal background check and shall require all employees and volunteers who work directly with or will work directly with youth members five or more days in a calendar month to obtain, prior to employment a fingerprint-based criminal history check through the Colorado Bureau of Investigation (CBI) and the Federal Bureau of Investigation (FBI).

The applicant shall ascertain whether the person being investigated has been convicted of felony child abuse as specified in Section 18-6-401, C.R.S., or a felony offense involving unlawful sexual behavior as defined in Section 16-22-102(9), C.R.S. The Neighborhood Youth Organization shall not hire a person as an employee or approve a person as a volunteer after confirmation of such a criminal history.

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