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| Montana Administrative Register Notice 37-577 | No. 6 03/22/2012 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On April 11, 2012, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules. 2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on April 4, 2012, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov. 3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined: 37.95.102 DEFINITIONS (1) through (11) remain the same. (12) "Family day care home" means a private residence in which day care is provided to three to six children on a regular basis. In addition to the previous definitional language found at 52-2-703, MCA, the term also means a day care facility providing care to no more than three children under two years of age unless care is provided (13) "Group day care home" means a private residence or other structure in which day care is provided to seven to 12 children on a regular basis. In addition to the previous definitional language found at 52-2-703, MCA, the term also means a day care facility providing care to seven to 12 children with no more than six children under two years of age, unless care is provided for infants only. For facilities providing care only for infants, group day care home means a place in which supplemental parental care is provided for up to eight infants. No other children shall be in attendance. (a) Facilities caring (b) Facilities may not provide care to more than three children under the age of two years while also caring for children over two years of age when only one caregiver is present. (14) through (16) remain the same. (17) "Infant" means a child under (18) through (48) remain the same. (49) "Toddler" means a child who is (50) through (52) remain the same. AUTH: 52-2-704, 53-4-212, 53-4-503, MCA IMP: 52-2-702, 52-2-703, 52-2-704, 52-2-713, 52-2-723, 52-2-725, 52-2-731, 52-2-735, 52-2-736, 53-2-201, 53-4-212, 53-4-601, 53-4-611, 53-4-612, MCA 37.95.128 DOCUMENTATION OF THE ABSENCE OF UNUSUAL HEALTH RISKS FOR AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.132 TRANSPORTATION (1) through (7) remain the same. (8) Facilities providing transportation for children under six years of age or children six years of age but weighing less than 60 pounds shall comply with the following requirements: (a) through (c) remain the same. (d) there shall be one adult in addition to the driver for each four (e) through (9) remain the same. AUTH: 52-2-704, MCA IMP: 52-2-704, 52-2-723, 52-2-731, 52-2-733, MCA 37.95.184 DAY CARE FACILITIES: HEALTH HABITS (1) through (2)(c) remain the same. (3) If a child has an accident causing wet or soiled clothes, the child must be changed promptly. AUTH: 52-2-704, MCA IMP: 52-2-704, 52-2-723, 52-2-731, MCA 37.95.623 DAY CARE CENTERS: CHILD-TO-STAFF RATIOS (1) The child-to-staff ratio for a day care center is: (a) 4:1 for (b) through (d) remain the same. (2) (3) Only the day care center director, primary caregivers, and aides may be counted as staff when determining the staff ratio. AUTH: 52-2-704, MCA IMP: 52-2-703, 52-2-704, 52-2-723, 52-2-731, MCA 37.95.702 GROUP DAY CARE AND FAMILY DAY CARE HOMES, STAFFING, AND ADDITIONAL REQUIREMENTS (1) remains the same. (2) There shall be no more than six (3) A family day care facility that cares exclusively for children under the age of two may not have more than four children present. A group day care facility that cares exclusively for children under the age of two must have no more than four children present unless there are two caregivers. (3) through (5) remain the same, but are renumbered (4) through (6). AUTH: 52-2-704, MCA IMP: 52-2-704, 52-2-723, 52-2-731, MCA 37.95.1001 (6) (7) All toilet articles shall be (8) remains the same. (9) Toilet training shall be initiated when the AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1002 AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1003 (2) A day's supply of formula or breast milk in nursing bottles or formula requiring no more preparation than dilution with water shall be provided by the parents, unless an alternative agreement is reached between the parents and provider ensuring that the infant's nutritional needs are sufficiently met. Bottles of formula or breast milk shall be clearly labeled with each infant's name and date and immediately refrigerated. After use bottles shall be thoroughly rinsed before returning to the parent at the end of the day. Special dietary foods required by (3) Bottles shall not be propped. Infants too young to sit in high chairs shall be held in a semi-sitting position for all bottle feedings. (a) Infants and toddlers who use a bottle shall not be allowed to lie on their backs when drinking from the bottle. (b) Older infants and toddlers must be fed in safe high chairs or at baby feeding tables. (c) Infants six months of age or over who show a preference for holding their own bottles may do so provided an adult remains in the room and within observation of the infant. (d) Bottles and spill-proof cups (sippy cups) must be taken from the infant or toddler when they finish feeding, when the bottle or cup is empty, and while they are sleeping. (4) If the parent is unable to bring sufficient or usable formula or breast milk, the facility may use commercially prepared and packaged formulas. Older infants and toddlers shall be provided suitable foods which encourage freedom in self-feeding. Unused (5) remains the same. (6) If bottles and nipples are to be used by the facility, they must be AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1004 (a) (b) bathing materials shall be sanitized after bathing (c) remains the same. (d) arrangements shall be made so (e) the bathing area shall be out of drafts and provisions should be made so the AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1005 (2) Unless the (3) Each infant shall be provided with a crib or play pen for sleeping. (a) Infants and toddlers shall not be routinely allowed to sleep in a car seat, infant swing, or other infant apparatus. (b) remains the same. (4) Cribs shall be made of durable, cleanable, nontoxic material, and have secure latching devices. Cribs shall have no more than 2 and 3/8 inches of space between the vertical slats. http://www.dphhs.mt.gov/earlychildhood/cribrequirements.shtml, or by contacting the Montana Child Care Licensing Program at P.O. Box 202953, Helena, Montana 59620; Phone: (406) 444-2012. (5) Mattresses must fit snugly to prevent the infant from being caught between the mattress and crib siderail. Crib mattresses must be waterproof and easily sanitized. Cribs, cots, or mats must be thoroughly cleansed before assignment to another infant or toddler. (a) If a lightweight blanket is used, the child's feet must be placed at the foot of the crib or play pen and the blanket must be tucked along the sides and foot of the mattress. The blanket should not come up higher than the child's chest. (10) The provider and any caregiver who provides care to children under age two must receive training in an approved safe-sleep curriculum before providing care to children under two. Facilities licensed or registered before the effective date of these rules will have until July 31, 2013 to complete this training. (11) Providers must develop a written policy that describes the practices to be used to promote safe sleep when children under age two are napping or sleeping. (12) All caregivers shall sign an acknowledgement indicating that they have read and understood the provider's policy outlined in (11). AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1011 (2) An infant or toddler who is awake shall not spend more than 30 minutes of consecutive time confined in a crib, playpen, jump chair, walker, or highchair. (3) Each infant and toddler shall have individual personal contact and attention by the same adult on a regular daily basis at least once each hour during nonsleeping hours. Examples of personal contact and attention include being held, rocked, taken on walks inside and outside the center, talked to, and played with. (a) remains the same. (4) There shall be provisions for the infant and toddler to safely explore and investigate the environment. There shall be both stimulation and time for quiet activity. Infants and toddlers shall be taken outside for some period during each day in good weather. (5) Each infant and toddler shall be allowed to maintain the child's own pattern of sleeping and waking period according to instructions from the parents. AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1015 (2) (3) and (4) remain the same. AUTH: 52-2-704, MCA 37.95.1016 (2) The facility shall provide AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 37.95.1021 (2) Individual storage space (3) Each infant shall be assigned a (4) remains the same. (5) Play areas for infants shall be separate from AUTH: 52-2-704, MCA IMP: 52-2-731, MCA 4. STATEMENT OF REASONABLE NECESSITY The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.95.102, 37.95.128, 37.95.132, 37.95.184, 37.95.623, 37.95.702, 37.95.1001, 37.95.1002, 37.95.1003, 37.95.1004, 37.95.1005, 37.95.1011, 37.95.1015, 37.95.1016, and 37.95.1021. In 2008, several child care providers through their local representative Senator Roy Brown requested the department address regulatory concerns about infant care. As a result of this request, the department conducted child care provider forums throughout Montana focusing on the subject of infant/toddler care in child care facilities. These meetings were held in Helena, Bozeman, Billings, Great Falls, Kalispell, Miles City, and Missoula. One specific concern consistently addressed throughout the forums was the need to change the definition of "infants" and "toddlers." The department agreed with this recommendation; in making this change, the new definition would be more consistent with national recommendations which uniformly apply to developmentally appropriate practices. In addition to the comments received through the child care provider forums, department staff conducted significant research concerning infant/toddler care. The department reviewed recommendations and guidelines established through the American Academy of Pediatrics (AAP), the National Resource Center for Health and Safety in Child Care (NRCHSCC), Zero to Three and The National Association for the Education of Young Children (NAEYC). The department also contacted the National Child Care Information Center (NCCIC) and received additional information from surrounding states concerning infant/toddler care, ratios, and age definitions. The Consumer Product Safety Commission implemented new federal guidelines in December 2010 with regard to infant/toddler cribs. Specifically, the commission has banned "drop side" cribs. This was due in part to the high number of serious injuries reported. Montana DPHHS along with most states has agreed to prohibit "drop side" cribs in child care facilities in order to protect the health and well-being of children in child care facilities. This change may require additional costs from providers in order to purchase equipment that meets these requirements. However, these are costs associated with child care facilities that would be necessary in order to provide equipment needed for children in care. In addition, there are opportunities to obtain funding through provider mini-grants in order to assist providers in purchasing sleep equipment that would meet the new standards. As part of a periodic review, the department is amending its rules throughout to eliminate outdated and unnecessary provisions, clarify language as a result of definitional changes, and align terminology with language currently used within the industry. Many of the changes are being made to implement better organization, proper rule numbering, and to correct grammatical and spelling errors. Punctuation is amended to comply with ARM rule formatting requirements. ARM 37.95.102 The department is proposing to amend the definitions as follows: In (12) and (13) the definition of "family day care home" and "group day care home" has been changed in order to accommodate changes to the definition of an "infant." In this change the term "infant" was deleted and was replaced with language specific to children under two years of age. The department has made this change accordingly throughout this proposed rule amendment. New language was also added in (13)(b) in order to clearly define the number of children, under age two, allowed when operating with one caregiver. In (17) the definition of "infant" has been changed to meet the ages consistent with national recommendations and developmentally appropriate practices. In (49) "toddler" has been changed to meet the ages consistent with national recommendations and developmentally appropriate practices. ARM 37.95.128, 37.95.132, 37.95.702, and 37.95.1005 The term "infant" was replaced with "children under age two" to reflect the proposed changes in ages as a result of amendments to definitions. ARM 37.95.184 Language regarding toilet training in (3) was moved from ARM 37.95.1002 as the regulation is specific to health issues for children of all ages, not just infants and toddlers. ARM 37.95.623 Language in (2) was added to allow for circumstances in day care centers when children can be cared for in mixed-age groupings. Further, the proposed language specifies how facilities are to consider their ratios when providing care for mixed-aged groups. Licensing surveys have found that facilities do utilize mixed-age groupings; there is a foundation under developmentally appropriate practices that agrees with this concept. Mixing ratios with the right boundaries can be beneficial for children. ARM 37.95.702 Language in (3) was added to the rule in order to define the number of infants allowed when a group day care facility provides care exclusively for children under age two. The current rule only addresses exclusive infant care for family day care providers. ARM 37.95.1002 Language in (2) was moved under ARM 37.95.184(3) as the regulation is specific to health issues for children of all ages, not just infants and toddlers. ARM 37.95.1003 The language in (3)(a) through (d) was broken down into four subsections in order to clearly differentiate between each section. The department included "spill-proof cups (sippy cups)" in (d), in addition to bottles, as the use of these cups is considered equivalent to the use of a bottle; however, current rules do not address these cups, thus making enforcement difficult. Licensing surveys have found that these cups are commonly used by infants and toddlers. These changes will allow the department to properly enforce this requirement. The language in (6) was removed because it is no longer a general accepted practice. It was replaced with "generally accepted means." In addition to boiling, there are other "generally accepted means" which is why the new language is included. This language was obtained through the National Resource Center for Health and Safety in Child Care and is considered an acceptable practice for cleaning and sanitizing bottles and nipples. ARM 37.95.1005 Language in (3) was added to specify that infants must sleep in a crib or play pen as per the recommendations from the National Resource Center for Health and Safety in Child Care. Language in (4) was added to incorporate by reference new federal requirements regarding baby cribs. Language in (7) was added to specify the use of a "lightweight" blanket which is in accordance with AAP recommendations. Language in (10) was added so that providers will be aware of additional guidelines surrounding safe-sleep practices. Language in (11) was added to emphasize the importance of safe-sleep information being shared with parents and staff members. Language in (12) was added to ensure that caregivers review a provider's safe-sleep policy. ARM 37.95.1015 In (1) the term "written" was included in order to clarify that permission for the use of sunscreen must be obtained from the parent in writing, not just verbally. Sunscreen is recognized as a topical medication, thus necessitating written permission for its use. The requirements for medication administration, found in ARM 37.95.181, further solidify that sunscreen is considered an over-the-counter (OTC) medication which needs a written authorization for its use. The language in (2) was changed to mandate that a play area must be located on the facility property. In the past, the rule allowed for a play area adjacent to the property. As a result, the department has validated a higher number of health and safety noncompliances involving the use of an adjacent play area than in the past. ARM 37.95.1021 The language "that is labeled" in (2) was struck and replaced with "and labeled for each infant and toddler." The department made this change so that the intent of the rule was clearly stated. The term "primary" in (3) was struck as it refers to the role defined as a "primary caregiver" not an individual who routinely cares for the child. This was replaced with language that clearly states the intent of the rule. Licensing surveys have revealed that the trend being implemented by child care centers often start to transition children ages 18-24 months to the next age group in order to meet the developmental needs of that child. The proposed changes in (5) will allow children over 18 months to be mixed with older children while still prohibiting children over age two being mixed with the younger children. The latter consideration allows the developmental milestone to be met while protecting the health of children younger than 18 months. 5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., April 19, 2012. 6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing. 7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department. 8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems. 9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
/s/ Kurt R. Moser /s/ Laurie G. Lamson for Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State March 12, 2012.
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