HD3 - Regulation and Provision of Child Day Care in Virginia

  • Published: 1990
  • Author: Joint Legislative Audit and Review Commission
  • Enabling Authority: House Joint Resolution 116 (Regular Session, 1988)

Executive Summary:
Child day care is a State and national issue. For the most part, growing public interest has stemmed from the large number of mothers with young children entering the workplace and the concerns of parents about the adequacy and affordability of care.

There are two primary roles the State can fulfill regarding child day care: the regulation of day care and the promotion of quality and availability. The General Assembly recognized the importance and interdependence of these roles and included aspects of both in mandating this study of child day care.

Current regulation of child day care primarily involves the licensing of child care centers and family day care homes which meet the definitions set out in State law. Specific legislative exclusions to licensure for centers are generally based on sponsorship, while for homes they are generally based on the number of children in care.

Recent initiatives to improve the provision of child day care in Virginia have addressed problems with availability, affordability, and quality. These initiatives included supporting a child care center for State employees, funding child day care for low-income families, and creating a council to plan, coordinate, and evaluate day care and early childhood education programs for at-risk four-year olds.

This report examines the State's roles in regulating and improving the provision of child day care. Study findings and recommendations are referenced in abbreviated form in the summary. Detailed explanations and specific recommendations are contained in the text of this report. The suggested changes and options are consistent with Senate Joint Resolution 41 and House Joint Resolution 116, passed by the 1988 General Assembly, requesting the Joint Legislative Audit and Review Commission (JLARC) to design a system which equalizes the impact of regulation on all types of care. While other courses of action in improving the regulatory system are possible, and have been used in other states, the recommendations in this report reflect the specific nature of child day care in Virginia and the general system of regulation already adopted by the State.

The State can improve its regulation of child day care by: (1) revising the current standards to focus on the health, safety, and wellbeing of children, (2) applying the minimum standards to an expanded number of day care providers, and (3) providing parents with information to help them locate and evaluate the appropriate type of day care for their children. The regulatory option proposed in this report assumes that many of the standards not related to ensuring health, safety, and wellbeing would be revised or eliminated.

WHY VIRGINIA REGULATES CHILD DAY CARE

All states are involved in some way in regulating child day care. Through regulation, the Commonwealth has legal authority and resources beyond those of parents and providers that can be used to protect the children in day care. Although the State cannot guarantee absolute protection when children are in care, regulation can ensure that obvious safety and health threats are eliminated in day care situations -- thereby reducing the risks for physical and emotional harm.

Minimal standards can be set for individuals in a caregiving role as well as the facilities where care is provided. In addition, when parents or regulatory staff observe problems in day care subject to regulation, corrective action can be taken. However, the State's ability to monitor and correct problems in unregulated situations is limited to criminal prosecution -- after children have been harmed or abused. Therefore, children in unregulated day care situations are at greater risk. This report contains numerous case examples to support a preventive rather than reactive approach to day care regulation.

STATE GOALS FOR REGULATING CHILD DAY CARE NEED TO BE CLEARLY STATED

Even though the need to regulate child day care has been recognized and undertaken by the Commonwealth since the 1920's, the State's current role in regulating child day care is neither clear nor comprehensive. In fact, no goal for the child day care regulatory system has been clearly identified by the State. In addition, the regulatory system has not been grounded in solid regulatory principles to ensure that regulation is broadly and consistently applied, flexible, and reasonable and enforceable.

The lack of goals and principles is a serious shortcoming because in increases the likelihood that regulation will be without clear purpose and might be inconsistently applied. When providers are not treated consistently and equitably, children in care are not afforded regulatory protection. In addition, the lack of goals can result in under- or over-regulation of the providers of care.

Given the vulnerability of children, the most important goal of State regulation should be to protect children in care. To ensure their protection, regulatory treatment should be fair and consistent statewide -- both in terms of who is regulated and the manner in which regulation is enforced. In Virginia, most child care is not covered by State regulation and regulation is inconsistently applied.

THE MAJORITY OF CHILDREN ARE IN UNREGULATED CHILD CARE ARRANGEMENTS

The majority of children in Virginia attend care arrangements that are not regulated as day care. No accurate estimate of the number of children in these arrangements had been made prior to the completion of this study. This study surveyed a representative sample of Virginia households to arrive at such an estimate. The survey sample was randomly selected and based on standard research methods.

Based on responses from this survey, the number of children in various types of child care arrangements was estimated. As of December 1988, one-third of the children under age 13 were cared for by someone other than their parent of guardian at least once a week. These arrangements ranged from self-care in the child's own home to full-time attendance at a child care center. An estimated 178,000 of all children in care were cared for in family day care homes, 155,000 in child care centers or other children's programs, and 76,000 in the children's own homes.

Comparing the estimated number of children in different types of child care (409,000 including children in multiple arrangements) with the capacity of licensed child care centers and family day care homes (83,580) indicates that only 20 percent of children in Virginia attend arrangements that are regulated as child day care. (Approximately three percent of the providers are regulated.) Although not all of these care arrangements are child day care or should be regulated as such, the number of children in day care situations that are not protected by regulation is substantial. Examining family day care homes, for example, shows that only one percent of homes are State regulated. While not all of these homes should be required to be regulated, the small portion of regulated homes raises questions about the adequacy of State regulation to protect the basic health and safety of Virginia's children.

THE SCOPE OF THE REGULATORY SYSTEM IS NARROW

Child day care regulation has been narrowly and inconsistently applied because the definitions for child day care have not changed as the child day care industry has changed and many types of providers are specifically excluded from regulation. Although the provision of child day care has expanded and changed, the State's definitions for child day care providers have not evolved to accommodate these changes. Further, many recognized providers of child day care have been statutorily excluded from regulation through exceptions or exemption.

DEFINITION OF DAY CARE. While child day care is not specifically defined in statute, two types of care -- child care centers and family day care homes -- are defined for regulatory purposes. However, child day care services can no longer be classified solely in terms of home or center care. Recent increases in the demand for child day care have prompted the provision of care through a number of different arrangements and settings. The State's definitions for child day care providers have not expanded to encompass these changes. Consequently, many providers are not subject to regulation.

EXCEPTIONS AND EXEMPTION. Day care statutes also except or exempt many facilities and individuals from licensure based on the sponsorship of the program or the number of children in care. These exclusions from regulation raise questions about the adequacy of the protection for children as well as the equity in the treatment of providers. The State does not have regulatory authority over excepted caregivers or centers. These centers and caregivers are neither monitored to ensure protection of children not prohibited from operating when there are serious problems with the care provided.

For example, Virginia is one of four states that does not regulate family day care homes with five or fewer children in care. Family day care homes are the most prevalent form of day care used by parents in Virginia. Nearly 178,000 children, or 44 percent of all children in day care, are cared for in this type of arrangement. If serious problems occur in an unregulated family day care home, parents have little recourse except to find another provider. Often, however, parents may not even be aware of the problems. Because many of these providers are not regulated by the State, it cannot intervene on behalf of children that appear to be at risk.

While the current exceptions afford no regulatory protection for the children in care, the exemption process for religiously-sponsored centers creates an illusion of protection when in fact little protection really exists. The Department of Social Services (DSS) does not have the authority to validate that exemption requirements have been met or to monitor for protection of children. Other mechanisms to monitor these centers through local agencies have not been effective in ensuring the protection of children in care.

If the State's primary goal for regulation of child day care is protection of the children in care, the reasons for not regulating all day care providers should be compelling. In order to equalize the impact on all providers as called for in SJR 41 and HJR 116, all child care centers, regardless of sponsorship, should be considered for regulation. Likewise, some form of regulation should be considered for family day care homes. However, the regulation of in-home providers (care provided in the child's own home), relatives, and cooperative arrangements among friends or neighbors would be intrusive, unenforceable, and would not result in additional protection. Parents must be responsible for monitoring these particular day care providers.

RECOMMENDATIONS. To address concerns about the current scope of regulation for child day care, the Secretary of Health and Human Resources should prepare a comprehensive proposal for improvements to the State's regulatory system for child day care and submit it to the Joint Subcommittee Studying Early Childhood and Day Care Programs. The proposal should include the following components:

• A definition of child day care.

• Elimination of the exceptions for nursery schools and hospital-sponsored care from the definition of a child care center, as well as the exceptions from the definition of a family day care home, should be considered.

• A requirement that all programs and individuals providing child day care services be regulated, including services operated by State and local governments, should be considered. An exception should be considered for three types of care: family day care provided to relatives only, in-home care, and cooperative arrangements.

• Elimination of the exemption for religiously-sponsored child care centers should be considered. If the option for exemption for religiously-sponsored child care centers is continued, the proposal should as a minimum: (i) authorize DSS to conduct on-site inspections at the time of initial application and annually thereafter, and (ii) include criminal records checks of staff.

• If existing exclusions to licensure as a child care center are continued, the proposal should consider granting the Commissioner of DSS the authority to investigate all complaints at excepted or exempt child care centers. In Addition, the proposal should consider granting the Commissioner of DSS the authority to seek injunctive action in instance in which children are found to be at risk.

THE REGULATORY SYSTEM LACKS FLEXIBILITY

The State's reliance on licensure to protect the children in child day care has resulted in a regulatory system that has little flexibility. Over-reliance on licensure, coupled with the narrow definitions of a child care center and family day care home, has meant that the majority of children attend unregulated child day care programs. In addition, many providers who wish to be licensed cannot be because they do not meet the definition of a center or home and DSS will not voluntarily license them.

CHILD CARE CENTERS. The state should continue to license child care centers. Licensure is necessary for child care centers because of the number of children in care. In addition, no other regulatory authority inspects the programs for child-specific concerns, and assurance is needed on a continual basis that minimal standards continue to be met. In order for licensure to be successfully implemented however, the current standards should be revised to focus on the health, safety, and well-being of the children in care.

FAMILY DAY CARE HOMES. The state currently has no means of regulating family day care homes that care for fewer than six unrelated children, even though these providers are recognized as child day care providers. Therefore, local government agencies, without proper State authority, are currently regulating some of these providers in order to offer the children in care some protection and to provide services to parents and providers. The State should consider registering these small day care homes in some form. If the goal to protect the children in care is accepted, mandatory registration would be most appropriate.

Large family day care homes, those caring for more than five children, should continue to be licensed by the State. Children who are related to the provider are not currently considered when determining whether a provider should be licensed as a family day care home. Related children (other than the provider's own children) are counted in determining subjectivity to child care center standards. This inconsistency is very confusing for licensing staff and day care providers. The State should begin to count all related children when determining the total number of children in care within a family day care home and a child care center for definitional and regulatory purposes.

RECOMMENDATIONS. Some of the problems with the State's current regulatory system could be eliminated or reduced: by requiring all child day care providers (other than relatives and in-home providers) to be mandatorily regulated through licensure or registration; by making the definitions used for child care centers, group day care homes, and small day care homes consistent with other State regulatory requirements; and by making the regulatory definitions and system flexible. As a component of the Secretary of Health and Human Resources' proposal, the following actions would enhance the State's role in regulating child day care:

• Definitions of a child care center, group day care home, and small day care home should be included.

• A requirement to license child care centers, group day care homes, and family day-care systems and some form of registration of small day care homes should be included. In addition, in-home providers and relatives providing publicly subsidized child day care should also be allowed to be voluntarily regulated.

REASONABLENESS AND ENFORCEABILITY OF STANDARDS

Certain standards appear to be inappropriate and intrusive for the care provided by some segments of the industry. Although a detailed review of standards for child care centers and family day care homes was not a part of this study, JLARC staff noted several indicators that suggest problems with the reasonableness and enforceability of standards. These indicators were (1) concerns raised by regulatory staff at DSS, (2) comments from day care providers, and (3) the number and types of variances to the standards requested by providers.

REGULATORY STAFF RAISE QUESTIONS ABOUT STANDARDS. In the JLARC staff surveys of licensing administrators and licensing specialists, these regulatory staff expressed a number of concerns about the licensing standards. For example, about one-half of the licensing specialists reported that the child care center standards are unreasonable or unnecessary and that they did not receive clear explanations of new or modified standards. Such concerns may have an impact on the effectiveness of the regulatory system, and on the ability of regulatory staff to provide proper oversight of day care providers. It is not clear why such concerns have not been fully addressed by DSS, the State Board of Social Services, or the Child Day-care council.

PROVIDERS HAVE DIFFICULTIES WITH STANDARDS. Like regulatory staff, the day care providers surveyed by JLARC staff also commented on the difficulties of complying with some standards. While some complaints from regulated providers might be expected, the responses were specific, and quite different for centers and family day care homes. Few family day care providers found the standards with which they must comply difficult to meet. On the other hand, one-third of the center staff responding to the JLARC survey noted problems with the standards. In addition, over a three-year period, more than 540 requests for variances to licensing standards were made by child care centers.

RECOMMENDATIONS. The Secretary of Health and Human Resources should consider the following actions to assist in making the regulatory system for child day care more reasonable and enforceable:

• Directing the Child Day-Care council to review and amend as necessary the child care center licensing standards. The council should ensure that standards address the health, safety, and well-being of children in care, and intrude to the least possible extent into the legitimate activities of private businesses and citizens.

• Directing the Child Day-Care Council to promulgate separate child care center licensing standards for programs that serve special populations such as school-age children or children in occasional care.

• Directing the State Board of Social Services to review and amend as necessary the licensing standards for family day care systems and group day care homes and promulgate registration standards for small day care homes.

• Specifying that registration should include a written application, criminal records check, and a self-administered safety and health evaluation checklist as part of the registration process for small day care homes, if a mandatory registration system is adopted.

THE STATE COULD UNDERTAKE ADDITIONAL INITIATIVES TO PROMOTE AVAILABILITY, AFFORDABILITY, AND QUALITY OF CHILD DAY CARE

The State has a prominent role in improving the availability and affordability of child day care as well as in promoting the provision of quality care. Although the Commonwealth has already undertaken a number of initiatives in these areas, additional initiatives would promote availability, affordability, and quality of care.

AVAILABILITY. There does not appear to be a general, statewide shortage of child day care services in Virginia. Parents have reported difficulties in finding certain types of care as well as being unable to work due to problems obtaining care for their children. Several actions were favored by parents and associations in addressing these availability problems. While the use of public schools to provide much needed before- and after-school care for their students has been recommended by many other groups and studies, this option is still not available to all school boards. Even though resource and referral programs are among the most helpful services for parents who need assistance in locating appropriate care for their children, these programs do not currently operate statewide. Continuing problems in attracting and retaining qualified staff and in obtaining liability insurance were cited by many providers of care: these difficulties could affect the availability of care.

AFFORDABILITY. Although the State assists families with child day care expenses both directly and indirectly, the cost of child day care is still a concern for many parents -- especially those with incomes below $35,000. For example in 1986, Virginia initiated the Child Day Care Fee System to support low-income working families that were not eligible for other public assistance. The General Assembly has expanded this program with additional appropriations and a pilot voucher program. The State also assists parents with day care expenses by allowing an income tax deduction for dependent care costs. However, the current deduction is more beneficial for higher-income families than for lower-income families. Other income tax options which target the assistance to lower-income families are available.

QUALITY. As an important complement to regulating care, the State could promote quality child day care by making more training available to providers and enlisting the support of parents as monitors of care. Although training is currently available to licensed day care providers, the need or desire for additional training was recognized by a majority of regulated and unregulated providers. Other educational efforts should focus on parents so that they can better evaluate and select quality day care for their children. Although the State has some information available, a broad-based educational effort has not been undertaken. If parents are knowledgeable about what constitutes quality care, they can act as informal regulators by discussing with providers their concerns about undesirable practices and reporting problems to regulatory authorities.

RECOMMENDATIONS. In addition to the initiatives already begun by the State, several other actions could improve the availability, affordability, and quality of day care services in Virginia. These are:

• The General Assembly may wish to consider granting all school boards permission to sponsor day care programs that operate outside of school hours and adding resource and referral programs to the core services of the four information and referral centers currently without this service.

• The State Corporation Commission should continue to monitor the availability of liability insurance for child care centers and family day care homes.

• The Department of Social Services should provide registered family day care providers with voluntary training opportunities.

• The Department of Social Services should develop a pamphlet for parents about the regulation of child day care. The pamphlet should include telephone numbers for parents to call with complaints about regulated care and should be distributed to parents through a variety of locations.

• The resource and referral components of the information and referral system should be used to promote parent education on choosing quality day care.