No. 42745 (Repeal and Reenact): Rule R430-8. Exemptions From Child Care Licensing

(Repeal and Reenact)

DAR File No.: 42745
Filed: 03/30/2018 11:03:02 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of these changes is mostly to clarify the rule language, to add needed subsections, and to delete some unnecessary subsections, so changes in statute, federal requirements, and rule committee and the Department of Health (Department) decisions can take effect. This rule needed to be rewritten to clearly define who is to be legally exempt and what is truly required of those who are exempt.

Summary of the rule or change:

The whole rule has been rewritten to make exemptions easier to understand, and to clearly define who is to be legally exempt and what is truly required of those who are exempt. The new drop-in exempt type has been added, the background screening piece has also been added, and clarification on the requirements for exempt facilities has been included.

Statutory or constitutional authorization for this rule:

• Title 63G, Chapter 3

Anticipated cost or savings to:

the state budget:

The proposed reenacted rule adding drop-in child care to the exempt facilities is expected to have a fiscal impact on state government revenues because there are background checks required for all covered individuals in those facilities. Each background check is $18 plus fingerprints for $37 per individual. However, the full impact cannot be estimated because these facility types are not identified as such in the NAICS and there is no data available to make the estimates another way. Only after onsite visits are completed to facilities that might meet the definition, data could start being collected and available. In the same way and depending on the number of these facilities, there may be expenditures for the state budget in workload that cannot be calculated without the necessary data. The Department does not anticipate any additional costs or savings due to the other proposed rule changes.

local governments:

These proposed changes are not expected to have any fiscal impact on local governments' revenues or expenditures because there is only one change that may affect facilities not yet identified as drop-in child care. No data is currently available to determine if there are any of this type that are part of a local government. There is only one business in the child care industry (NAICS 624410) in Utah operated by a local government, but that facility is exempt from the requirements of this rule. The Department does not anticipate any additional costs or savings due to the other proposed rule changes.

small businesses:

Since no data is currently available to determine if there are any drop-in child care facilities not yet registered with Child Care licensing, the Department cannot determine how the rule will impact small businesses. Each background check is $18 plus fingerprints for $37 per individual. The number of new covered individuals these facilities will employ, if any, cannot be calculated because there is no data available to do so. The Department does not anticipate any additional costs or savings due to the other proposed rule changes.

persons other than small businesses, businesses, or local governmental entities:

Because no data is currently available to determine if there are any drop-in child care facilities not yet registered with Child Care licensing, the Department cannot determine how the rule will impact businesses, individuals, local governments, and persons that are not small businesses. Only one rule that requires all covered individuals in the facility to submit background checks will have a fiscal impact, however, no data is available to make those calculations. The Department does not anticipate any additional costs or savings due to the other proposed rule changes.

Compliance costs for affected persons:

Since background checks and fingerprints will be required of any drop-in child care provider, all new exempt providers that meet this definition will have to comply with the costs. Background checks are $18 per individual and $37 for fingerprints. All covered individuals will be required to pay for fingerprints with no exceptions if they have not already done so. The Department cannot project the number of new exempt facilities since there is no data available to make those calculations.

Comments by the department head on the fiscal impact the rule may have on businesses:

The purpose of the changes was to delete unnecessary subsections, clearly define those legally exempt, and list requirements for exemption. Per the program: The whole rule has been rewritten to make exemptions easier to understand, and to clearly define who is to be legally exempt and what is truly required of those who are exempt. The new drop-in exempt type has been added, the background screening piece has also been added, and clarification on the requirements for exempt facilities has been included. The Department has no data to determine if there are any drop-in child care facilities not yet registered with Child Care licensing. Therefore, the fiscal impact on businesses cannot be determined at this time. After conducting a thorough analysis, it was determined that this proposed rule will not result in a fiscal impact to businesses.

Joseph K. Miner, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Health
Family Health and Preparedness, Child Care Licensing
3760 S HIGHLAND DR
SALT LAKE CITY, UT 84106

Direct questions regarding this rule to:

• Simon Bolivar at the above address, by phone at 801-803-4618, by FAX at 801-237-0786, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2018

This rule may become effective on:

05/28/2018

Authorized by:

Joseph Miner, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2018

FY 2019

FY 2020

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Person

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

The reenacted rule is not expected to have any fiscal impact on large businesses revenues or expenditures because the 13 large businesses in the child care industry (NAICS 624410) in Utah are either licensed or licensed exempt, and they are already in compliance with the requirements of the current rule. The reenacted rule will not affect them because the proposed rule does not increase or decrease costs for services they currently provide.

 

There is only one business in the child care industry (NAICS 624410) in Utah operated by the local government, but that facility is exempt from the requirements of this rule.

 

Other business that may meet the definitions of a facility that needs to be license exempt cannot be clearly identified. The clarification of this rule will allow Child Care Licensing the ability to identify and register these facility types.

 

Department Head Comments:

The purpose of the changes was rewritten to delete unnecessary subsections, clearly define those legally exempt, and list requirements for exemption.

 

Per the program: The whole rule has been rewritten to make exemptions easier to understand, and to clearly define who is to be legally exempt and what is truly required of those who are exempt. The new drop - in exempt type has been added, the background screening piece has also been added, and clarification on the requirements for exempt facilities has been included.

 

The Department has no data to determine if there are any drop-in child care facilities not yet registered with Child Care licensing. Therefore, the fiscal impact on business cannot be determined at this time.

 

After conducting a thorough analysis, it was determined that this proposed rule will not result in a fiscal impact to businesses.

 

 

R430. Health, Family Health and Preparedness, Child Care Licensing.

R430-8. Exemptions From Child Care Licensing.

[R430-8-1. Legal Authority.

 

R430-8-2. Purpose.

This rule defines what constitutes child care that is exempt from regulation by the Utah Department of Health, Bureau of Child Care Licensing.

 

R430-8-3. Definitions.

(1) "Parochial education institution" means an institution that meets all of the following criteria:

(a) operates as a substitute for, and gives the equivalent of, instruction required in public schools for any grade from first through twelfth grade;

(b) has a governing board that actively supervises and directs the educational curriculum used by the institution and exercises oversight over the health and safety of the children in the program;

(c) is owned and operated by a religious institution that is registered with the federal government as 501(c)(3) religious organization;

(d) is not directly funded at public expense;

(e) does not receive:

(i) child care subsidy funds, directly or indirectly, from the Department of Workforce Services; or

(ii) child care food program funds, directly or indirectly, from the State Office of Education; and

(f) does not provide instruction in the home in lieu of instruction required in public schools for any grade from first through twelfth grade.

(2) "Private education institution" means an institution that meets all of the following criteria:

(a) operates as a substitute for, and gives the equivalent of, instruction required in public schools for any grade from first through twelfth grade;

(b) has a governing board that actively supervises and directs the educational curriculum used by the institution, and exercises oversight over the health and safety of the children in the program;

(c) is not directly funded at public expense;

(d) does not receive:

(i) child care subsidy funds, directly or indirectly, from the Department of Workforce Services; or

(ii) child care food program funds, directly or indirectly, from the State Office of Education; and

(e) does not provide instruction in the home in lieu of instruction required in public schools for any grade from first through twelfth grade.

(3) "Public school" means a school, including a charter school, that is directly funded at public expense and is regulated by a board of education governed by Title 53A, Chapter 3, Local School Boards.

(4) "Related children" means children for whom the child care provider is the:

(a) parent, legal guardian, or step-parent;

(b) grandparent, step-grandparent, or great-grandparent;

(c) sibling or step-sibling; or

(d) aunt, uncle, step-aunt, step-uncle, great-aunt, or great-uncle.

 

R430-8-4. Care Not in Lieu of Parental Care.

(1) A license is not required for care that meets all of the following:

(a) the parent is physically present in the building where the care is provided, at all times while the care is being provided, and is near enough to reach his or her child to provide care within five minutes if needed;

(b) the duration of the care is less than four hours for any individual child in any one day;

(c) the program does not diaper children; and

(d) the program does not prepare or serve meals to children.

 

R430-8-5. Care Under Other Government Oversight.

(1) A license is not required for care provided at a facility that is owned or operated by the federal government.

(2) A license is not required for care provided by a program that is owned or operated by the federal government.

(3) A license is not required for care provided as part of a summer camp that operates on federal land pursuant to a federal permit.

(4) A license is not required for care provided by an organization that qualifies for tax exempt status under Section 501(c)(3) of the Internal Revenue Code, if:

(a) the care is provided pursuant to a written agreement with a local municipality or a county;

(b) the local municipality or county provides oversight of the program; and

(c) all of the children in care are over age four.

(5) A license is not required for care provided at a residential support program that is licensed by the Department of Human Services.

 

R430-8-6. Mental Health Counseling.

A license is not required for group counseling of children provided by a mental health therapist who is licensed to practice in this state, as defined in Utah Code 58-60-102.

 

R430-8-7. Relative Care.

The Department does not issue licenses or certificates to persons who only care for related children.

 

R430-8-8. Care in the Home of the Provider.

(1) A license or certificate is not required for care provided in the home of the provider for less than four hours per day, or for fewer than five children in the home at one time.

(2) The Department does not issue licenses or certificates for care provided in the home of the provider on a sporadic basis only.

 

R430-8-9. Care Provided by an Educational Institution.

(1) A license is not required for care provided by or at a public school or as part of a course of study at a public school.

(2) A license is not required for care provided at a public or private institution of higher education if the care is provided in connection with a course of study at the institution of higher education.

(3) A license is not required for:

(a) care provided as part of a course of study at a private education institution; or

(b) care provided as part of a program administered by a private education institution.

(4) A license is not required for care provided by a parochial education institution.

 

R430-8-10. Care for Less Than Three Days a Week.

(1) A license or certificate is not required if the provider offers care on no more than two days during any calendar week. A calendar week means from Sunday through Saturday.

 

R430-8-11. Voluntary Licensure.

(1) A child care provider defined as exempt under this rule may voluntarily receive a license and agree to be subject to all of the terms and conditions of the license, except for the following:

(a) relative care under section R430-8-7 above: and

(b) care provided in the home of the provider on a sporadic basis only under subsection R430-8-8(2) above.]

R430-8-1. Legal Authority and Purpose.

(1) This rule is enacted and enforced in accordance with Utah Code, Title 26, Chapter 39.

(2) This rule defines what constitutes child care that is excluded from all or some of the regulatory requirements of the Utah Department of Health, Child Care Licensing Program.

 

R430-8-2. Definitions.

(1) "Background Finding" means information that may result in an individual failing to pass a background check from Child Care Licensing.

(2) "Background Check Denial" means that an individual has failed to pass the background check and is prohibited from being involved with a child care program.

(3) "Calendar Week" means from Sunday through Saturday.

(4) "CCL" means the Child Care Licensing Program in the Department of Health that is delegated with the responsibility to enforce the Utah Child Care Licensing Act.

(5) "Child Care" means continuous care and supervision of 5 or more qualifying children that is:

(a) in place of care ordinarily provided by a parent in the parent's home,

(b) for less than 24 hours a day, and

(c) for direct or indirect compensation.

(6) "Child Care Program" means a person or business that offers child care.

(7) "Covered Individual" means any of the following individuals involved with a child care program:

(a) an owner;

(b) a director;

(c) a member of the governing body;

(d) an employee;

(e) a caregiver;

(f) a volunteer, except a parent of a child enrolled in the child care program;

(g) an individual age 12 years or older who resides in the facility; and

(h) anyone who has unsupervised contact with a child in care.

(8) "Department" means the Utah Department of Health.

(9) "Facility" means a child care program or the premises used for child care.

(10) "Involved with Child Care" means to do any of the following at or for a child care program:

(a) provide child care;

(b) volunteer at a child care program;

(c) own, operate, direct, or be employed at a child care program;

(d) reside at a facility where child care is provided; or

(e) be present at a facility while care is being provided, except for authorized guests or parents who are dropping off a child, picking up a child, or attending a scheduled event at the child care facility.

(11) "LIS Supported Finding" means background check information from the Licensing Information System (LIS) database for child abuse and neglect, maintained by the Utah Department of Human Services.

(12) "Parochial Education Institution" means an institution that meets all of the following criteria:

(a) operates as a substitute for, and gives the equivalent of, instruction required in public schools for any grade from first through twelfth grade;

(b) has a governing board that actively supervises and directs the educational curriculum used by the institution and exercises oversight over the health and safety of the children in the program;

(c) is owned and operated by a religious institution that is registered with the federal government as 501(c)(3) religious organization;

(d) is not directly funded at public expense;

(e) does not receive:

(i) child care subsidy funds, directly or indirectly, from the Department of Workforce Services; or

(ii) child care food program funds, directly or indirectly, from the State Office of Education; and

(f) does not provide instruction in the home in lieu of instruction required in public schools for any grade from first through twelfth grade.

(13) "Private Education Institution" means an institution that meets all of the following criteria:

(a) operates as a substitute for, and gives the equivalent of, instruction required in public schools for any grade from first through twelfth grade;

(b) has a governing board that actively supervises and directs the educational curriculum used by the institution, and exercises oversight over the health and safety of the children in the program;

(c) is not directly funded at public expense;

(d) does not receive:

(i) child care subsidy funds, directly or indirectly, from the Department of Workforce Services; or

(ii) child care food program funds, directly or indirectly, from the State Office of Education; and

(e) does not provide instruction in the home in lieu of instruction required in public schools for any grade from first through twelfth grade.

(14) "Public School" means a school, including a charter school, that is directly funded at public expense and is regulated by a board of education governed by Title 53A, Chapter 3, Local School Boards.

(15) "Qualifying Child" means:

(a) a child who is younger than 13 years old and is the child of a person other than the child care provider or caregiver,

(b) a child with a disability who is younger than 18 years old and is the child of a person other than the provider or caregiver, or

(c) a child who is younger than 4 years old and is the child of the provider or a caregiver.

(16) "Related Child" means a child for whom a provider is the parent, legal guardian, step-parent, grandparent, step-grandparent, great-grandparent, sibling, step-sibling, aunt, step-aunt, great-aunt, uncle, step-uncle, or great-uncle.

(17) "Relative Care" means care provided to a qualifying child by or in the home of the parent, legal guardian, step-parent, grandparent, step-grandparent, great-grandparent, sibling, step-sibling, aunt, uncle, step-aunt, step-uncle, great-aunt, or great-uncle.

(18) "Volunteer" means an individual who receives no form of direct or indirect compensation for their service.

 

R430-8-3. License or Certificate and Background Check Not Required.

(1) The following types of care do not require a child care license or certificate from, or the submission of background check documents to, the Department:

(a) Care provided on no more than two days during any calendar week;

(b) Care provided in the home of the provider for less than four hours per day, or for fewer than five children in the home at one time;

(c) Care provided in the home of the provider on a sporadic basis only;

(d) Care provided by a facility or program owned or operated by an agency of the United States government;

(e) a group counseling provided by a mental health therapist, as defined in Section 58-60-102, who is licensed to practice in this state;

(f) a health care facility licensed pursuant to Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act; or

(g) care provided at a residential support program that is licensed by the Department of Human Services.

 

R430-8-4. Background Check and Public Notice Required.

(1) The following types of care do not require a child care license or certificate from the Department, but do require the provider to meet the background check and public notice requirements outlined in this rule:

(a) Care provided to a qualifying child as part of a course of study at or a program administered by an educational institution that is regulated by the boards of education of this state, a private education institution that provides education in lieu of that provided by the public education system, or by a parochial education institution;

(b) Care provided to a qualifying child by a public or private institution of higher education, if the care is provided in connection with a course of study or program, relating to the education or study of children, that is provided to students of the institution of higher education;

(c) Care provided to a qualifying child at a public school by an organization other than the public school, if:

(i) the care is provided under contract with the public school or on school property; or

(ii) the public school accepts responsibility and oversight for the care provided by the organization;

(d) Care provided to a qualifying child as part of a summer camp that operates on federal land pursuant to a federal permit;

(e) Care provided by an organization that:

(i) qualifies for tax exempt status under Section 501(c)(3) of the Internal Revenue Code;

(ii) provides care pursuant to a written agreement with:

(A) a municipality, as defined in Section 10-1-104, that provides oversight for the program; or

(B) a county that provides oversight for the program; and

(iii) provides care to a child who is over the age of four and under the age of 13;

(f) Care provided to a qualifying child at a facility where:

(i) the parent or guardian of the qualifying child is at all times physically present in the building where the care is provided and the parent or guardian is near enough to reach the child within five minutes if needed,

(ii) the duration of the care is less than four hours for an individual qualifying child in any one day,

(iii) the care is provided on a sporadic basis,

(iv) the care does not include diapering a qualifying child, and

(v) the care does not include preparing or serving meals to a qualifying child.

(2) Providers listed in this subsection shall submit annually to the Department an application for verification of license exempt status, on the form provided by the Department.

(3) Providers listed in this subsection shall post, in a conspicuous location near the entrance of the provider's facility, a notice prepared by the Department that:

(a) states that the facility is exempt from licensure and certification; and

(b) provides the department's contact information for submitting a complaint.

(4) Substantiated complaint allegations against providers listed in this subsection will be posted by the Department on the Child Care Licensing website.

 

R430-8-5. Background Check Requirements and Appeals.

(1) The requirements of this subsection apply to all facilities listed in subsection R430-8-4(1) above.

(2) The provider shall submit to the Department background checks and fees for all covered individuals as defined in R430-8-2(7).

(3) Before a new covered individual becomes involved with child care in the program, the provider shall:

(a) have the individual submit an online background check form,

(b) authorize the individual's background check form,

(c) pay all required fees, and

(d) receive written notice from CCL that the individual passed the background check.

(4) The provider shall ensure that a CCL background check for each individual age 18 years or older includes fingerprints for a Next Generation, national criminal history check and fingerprints fees.

(5) The fingerprints shall be prepared by a local law enforcement agency or an agency approved by local law enforcement.

(6) If fingerprints are submitted through Live Scan (electronically), the agency taking the fingerprints shall follow the Department's guidelines.

(7) Fingerprints are not required if the covered individual has:

(a) previously submitted fingerprints to CCL for a Next Generation, national criminal history check;

(b) resided in Utah continuously since the fingerprints were submitted; and

(c) kept their CCL background check current.

(8) Background checks are valid for 1 year and shall be renewed before the last day of the month listed on the covered individual's background check card issued by the Department.

(9) At least 2 weeks before the end of the month that is written on a covered individual's background check card, the provider shall:

(a) have the individual submit an online CCL background check form,

(b) authorize the individual's background check form, and

(c) pay all required fees.

(10) The following background findings may deny a covered individual from being involved with child care:

(a) LIS supported findings,

(b) the individual's name appears on the Utah or national sex offender registry,

(c) any felony convictions,

(d) any Misdemeanor A convictions, or

(e) Misdemeanor B and C convictions for the reasons listed in R430-8-6(10).

(11) The following convictions, regardless of severity, may result in a background check denial:

(a) unlawful sale or furnishing alcohol to minors;

(b) sexual enticing of a minor;

(c) cruelty to animals, including dogfighting;

(d) bestiality;

(e) lewdness, including lewdness involving a child;

(f) voyeurism;

(g) providing dangerous weapons to a minor;

(h) a parent providing a firearm to a violent minor;

(i) a parent knowing of a minor's possession of a dangerous weapon;

(j) sales of firearms to juveniles;

(k) pornographic material or performance;

(l) sexual solicitation;

(m) prostitution and related crimes;

(n) contributing to the delinquency of a minor;

(o) any crime against a person;

(p) a sexual exploitation act;

(q) leaving a child unattended in a vehicle; and

(r) driving under the influence (DUI) while a child is present in the vehicle.

(12) A covered individual with a Class A misdemeanor background finding not listed in R430-8-6(11) may be involved with child care when:

(a) 10 or more years have passed since the Class A misdemeanor offense, and

(b) there is no other conviction for the individual in the past 10 years.

(13) A covered individual with a Class A misdemeanor background finding not listed in R430-8-6(11) may be involved with child care for up to 6 months if:

(a) 5 to 9 years have passed since the offense,

(b) there is no other conviction since the Class A misdemeanor offense,

(c) the individual provides to the Department documentation of an active petition for expungement, and

(d) the provider ensures that the individual does not have unsupervised contact with any child in care.

(14) If a petition for expungement is denied, the covered individual shall no longer be involved with child care.

(15) A covered individual shall not be denied if the only background finding is a conviction or plea of no contest to nonviolent drug offenses that occurred 10 or more years before the CCL background check was conducted.

(16) The Department may rely on the criminal background check findings as conclusive evidence of the arrest warrant, arrest, charge, or conviction; and the Department may revoke, suspend, or deny a license or employment based on that evidence.

(17) If the provider has a background check denial, the Department may suspend or deny their exemption approval until the reason for the denial is resolved.

(18) If a covered individual fails to pass a CCL background check, including that the individual has been convicted, has pleaded no contest, or is currently subject to a plea in abeyance or diversion agreement for a felony or misdemeanor, the provider shall prohibit that individual from being employed by the child care program or residing at the facility until the reason for the denial is resolved.

(19) If a covered individual is denied a license or employment based upon the criminal background check and disagrees with the information provided by the Department of Public Safety, the covered individual may appeal the information as provided in Utah Code, Sections 77-18-10 through 77-18-14 and 77-18a-1.

(20) If a covered individual disagrees with a supported finding on the Department of Human Services Licensing Information System (LIS):

(a) the individual cannot appeal the supported finding to the Department of Health, and

(b) the covered individual may appeal the finding to the Department of Human Services and follow the process established by the Department of Human Services.

(21) The Executive Director of the Department of Health may overturn a background check denial when the Executive Director determines that the nature of the background finding or mitigating circumstances do not pose a risk to children.

(22) An applicant or exempt provider may appeal any Department decision within 15 working days of being informed in writing of the decision.

 

R430-8-6. Voluntary Licensure.

(1) A child care provider who is not required to be licensed or certified under this rule may voluntarily receive a license and agree to be subject to all of the terms and conditions of the license, except for the following:

(a) relative care only as defined in R430-8-2(17); and

(b) care provided in the home of the provider on a sporadic basis only.

 

KEY: child care facilities

Date of Enactment or Last Substantive Amendment: [January 1, 2010]2018

Notice of Continuation: April 25, 2014

Authorizing, and Implemented or Interpreted Law: 26-39

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