Other Entities Regulate Childcare Providers

Childcare providers must comply with several different regulatory requirements.

Childcare providers must comply with local zoning, building and fire safety, and health and sanitation codes, when applicable, in addition to DFS licensing requirements.  We found there has been confusion over the roles of different childcare regulators in Wyoming for several years.  Specifically, policymakers have raised concerns about whether multiple regulators duplicate efforts in inspecting childcare facilities and whether these inspections create an undue burden on the provider.

Childcare experts stress that a lack of coordination between agencies that regulate childcare providers can frustrate new and existing providers and undermine the overall effectiveness of the regulatory system.  If providers react by going underground, children in their care are at risk.  Local requirements can also discourage potential providers from entering the market, or some providers may choose to operate illegally.  For these reasons, it is important for DFS to coordinate its role with those of other state and local regulators.

Finding 6:

Childcare Facilities are Inspected
by Additional Regulatory Entities

Some confusion exists as to why different agencies
 inspect childcare facilities.

We found confusion over the roles of different agencies that inspect childcare facilities as well as concerns about whether DFS and other entities were performing duplicative inspections.  However, we found the agencies involved in inspecting childcare facilities do not duplicate each other’s efforts.  Multiple inspections enhance the protection of children in out-of-home care and provide additional opportunities for providers to receive education and technical assistance.  Also, specific expertise is needed to ensure compliance with certain requirements, and the inspections need to be conducted under different conditions.  

Regulatory Inspections Do
Not Duplicate Each Other

Only one state conducts consolidated inspections.

In Wyoming, four state agencies inspect childcare providers.

Experts recommend that inspections of childcare facilities be coordinated and streamlined so that overlap is reduced to a minimum. Although the inspections of childcare facilities are not streamlined, we found the agencies that inspect childcare facilities do not duplicate one another because each inspector examines different aspects of the childcare operation. 

In maintaining separate inspections, Wyoming’s process mirrors the regulatory environment in most states, where multiple entities are responsible for inspecting different aspects of childcare provision.  Utah is the only state we identified where licensers conduct consolidated health, sanitation, and fire inspections as part of licensing.

In Wyoming, four state agencies, or their local counterparts, are responsible for conducting inspections of childcare facilities.  The agencies are:  DFS, the Fire Marshal’s Office, the Department of Agriculture, and the Department of Education.  The responsibilities of each are explained below.

DFS Inspects for Compliance
with Childcare Licensing Rules

DFS inspects
for compliance
with the portion of the rules that require childcare expertise.

DFS inspections focus on examining facilities for compliance with those agency rules related to health and safety issues that do not relate to fire safety and sanitation issues.  Licensers specifically inspect facilities for compliance with the portions of the rules that require childcare expertise.  The on-site contact allows them to explain the underlying purpose of licensing requirements to providers. 

NAEYC recommends that rules and inspections be coordinated between the licensing agency and other agencies responsible for building and fire safety and health and sanitation codes so that any overlap is reduced to a minimum. DFS’ licensing rules include sections on fire and sanitation requirements, but those inspections are usually carried out by other agencies, as described in the next two sections.

Currently, licensing rules require DFS licensers to conduct an abbreviated fire and sanitation inspection in facilities that care for fewer than six children.  Rules allow DFS licensers to call fire and sanitation inspectors into these facilities on a consulting basis.  As part of the licensing inspection for facilities that care for more than six children, DFS licensers simply look for records of current fire and sanitation inspections; they do not perform inspections for fire and sanitation in the larger facilities.

DFS Requires Providers to
Obtain Annual Fire Inspections

The Fire Marshal’s Office inspects for compliance with state fire codes.

Facilities caring for more than six children are the only facilities currently required to have an annual fire inspection, while all facilities will be required to have fire inspections under the proposed rules.

The Department of Fire Prevention and Electrical Safety (Fire Marshal’s Office) conducts the fire inspections for DFS, except in communities that have requested “home rule” fire inspection authority.   The Fire Marshal’s Office grants “home rule” authority to municipalities and counties requesting authority to enforce state fire standards.  In these areas, the Fire Marshal’s Office relinquishes jurisdiction for enforcement of fire standards to local officials.  As of May 2001, 35 political subdivisions were enforcing fire codes locally.  The Fire Marshal’s Office estimates its jurisdiction covers half the state’s square mileage, representing about half the state’s population.    

When a prospective provider applies for a license, the fire inspector conducts an on-site inspection of the facility to determine compliance with state fire codes.  This inspection occurs before the applicant is granted a license to operate.  Once licensed, providers fill out a self-inspection form at the time of license renewal indicating compliance with fire standards.  To verify the reports, each year the Fire Marshal’s Office randomly selects a portion of providers for on-site inspections. All providers are inspected at least once every three years.

Providers Must Also Obtain
Annual Sanitation Inspections

The Department of Agriculture inspects for compliance with state sanitation requirements.

Current licensing rules require facilities caring for more than six children to undergo a separate annual health and sanitation inspection.   Under the proposed rules, all facilities must have an annual inspection. 

The Department of Agriculture’s Division of Consumer Health Services inspects these facilities for compliance with sanitation requirements on behalf of DFS, except in communities with local health departments.  Laramie, Natrona, Teton, Sweetwater, and Sublette Counties, and the City of Laramie maintain health departments whose inspectors perform these inspections locally.

The inspectors conduct an annual on-site inspection of childcare providers, but the Department of Agriculture is considering changing to a self-inspection process for home providers similar to the process the Fire Marshal’s Office uses.  The purpose of the change would be to accommodate the increased workload presented by DFS’ new rules requiring inspection of all providers.  

Sanitation inspectors review a childcare provider’s food preparation and food service process, and inspect the facility for compliance with state health requirements.  For example, inspectors may test water pressure and temperature, sewage and waste disposal systems, and food temperatures.  Inspectors also inspect the lavatories and diapering areas of the facility to ensure they are clean.  

Facilities Participating in the Federal Nutrition
Program Must Undergo Additional Inspections

Providers who participate in a  federal nutrition program also receive on-site inspections.

As a condition of being licensed, providers must agree to DFS, fire, and sanitation inspections.  Additionally, providers who participate in a voluntary federal nutrition program must allow periodic on-site monitoring visits.  This program, known as the Child and Adult Care Food Program (CACFP), reimburses childcare providers for some of the costs of meals and snacks provided to children in care. 

The Wyoming Department of Education administers CACFP at the state level and is mandated to monitor the food services of all facilities receiving federal nutrition subsidies.  Inspections occur three times per year to ensure participating providers are complying with nutrition program requirements.  This program’s inspectors are precluded by federal law from performing any other regulatory functions. 

Multiple Inspections Enhance
Protection of Children in Care

Experts recommend that states protect children in care from several different types of harm.

Regulators who inspect childcare facilities provide additional assurances of health and safety for children in care, and also offer providers technical assistance and educational opportunities. 

Childcare advocates note that individuals with different expertise can enhance the protection of children in care.  NAEYC recommends that basic protection of children include procedures to prevent the spread of disease, fire in buildings as well as other structural safety hazards, personal injury, child abuse or neglect, and developmental impairment.  We found the inspections performed by DFS, the Fire Marshal’s Office, and the Department of Agriculture serve these purposes.

While sanitation inspectors and fire inspectors are not trained in early childhood development, their visits help to ensure provider compliance with DFS standards.  If a regulatory inspector notices that a provider is out of compliance with other licensing requirements, the inspector can contact DFS.  In essence, other agencies’ inspectors can become additionaleyes and ears for the state throughout the year, as well as offeringeducational opportunities and technical assistance to providers.  Each inspector has different expertise, and licensers often approach them with questions and requests for assistance.  The expertise these regulators bring to their inspections enhance the health, safety and welfare of children in care. 

Inspections Require Different
Expertise and Circumstances

It would not be practical for one inspector to conduct a consolidated inspection.

 Inspections

require different education, knowledge,
and skills.

Conducting these various inspections requires different expertise and circumstances, making it impractical for one inspector to conduct all inspections jointly.  The Day Care Licensing Task Force came to the same conclusion in 1998, finding that inspections of childcare facilities were not duplicative.  According to the task force’s report, “It became apparent that the various childcare inspections represent different areas of jurisdiction and expertise integral to the safety and well-being of young children.”  One participant concluded, “All of the inspections that are done on providers are needed for different regulatory requirements and because we all have different expertise.”   

Inspectors from the Fire Marshal’s Office and the Department of Agriculture have different expertise than DFS licensers; this expertise enables them to proficiently conduct fire and sanitation inspections.  We reviewed position descriptions and vacancy notices for the three different types of inspectors and found a wide divergence in theirprerequisites.  Each of these positions requires different education, knowledge, and skills.

Because of the need for specialized expertise, many DFS licensers reported they do not feel comfortable conducting abbreviated fire inspections of childcare homes, and are concerned they may “miss something” that could affect the safety of children in care.  Officials from the Fire Marshal’s Office agree, noting that inspecting for compliance with fire codes is extremely technical.  They believe only certified fire inspectors should be conducting fire inspections of childcare facilities.  

However, many DFS licensers said they are more comfortable conducting sanitation inspections in childcare homes.  The Department of Agriculture believes sanitation inspections of childcare providers are fairly simple, compared to inspecting full-service food operations.  Agriculture believes it could train DFS licensers to perform sanitation inspections for childcare homes, but perhaps not for centers. 

Nevertheless, given the problems with turnover among DFS licensers, we do not believe DFS should conduct its own sanitation inspections at this point.  Unless DFS can reduce turnover, making an investment in training childcare licensers to conduct sanitation inspections would not be worthwhile at this time.  

Inspections Require
Different Conditions

Inspectors evaluate different aspects of childcare provision.

Fire and sanitation inspectors evaluate different aspects of childcare provision and thus requires different conditions for the inspection.  The Fire Marshal’s Office inspects the physical structure and prefers to make initial inspections before occupancy.  By contrast, the Department of Agriculture prefers to inspect during the food preparation process to ensure compliance with food safety standards.  In this case, the provider must already be in operation for a sanitation inspection to occur.  The Department of Education inspects only facilities that participate in the reimbursement program.

Many Providers Support
Multiple Inspections

Policymakers are concerned about the regulatory burden on childcare providers.

Policymakers are concerned that dealing with several different regulators may represent an undue burden on childcare providers and may provide a disincentive to be licensed.  However, we found indications that many providers welcome these inspections, believing they help to protect the children in their care and are part of operating a small business.

When DFS began its current round of rule revisions, it surveyed providers and found many agreed that all facilities should undergo annual fire and sanitation inspections.  DFS also held town meetings around the state during the summer of 2000 to obtain feedback about the proposed rule changes.  Of the 147 participants who provided written comments on the proposed changes to the fire and sanitation inspections, 135 agreed that all childcare facilities should receive an annual fire and health inspection.

Recommendation:  The different entities currently involved in inspecting childcare facilities should continue to conduct separate inspections.

Under the new
rules, separate
fire and sanitation inspections will be required in all facilities.

We recommend that entities currently involved in regulating childcare providers continue to conduct separate inspections.  Under the new rules, separate fire and sanitation inspections for all facilities will be required.

The Fire Marshal’s Office is supportive of expanding its inspection process to include all childcare facilities, but reports that it may need additional staff to accommodate the increased workload.  The Department of Agriculture is also concerned about the adequacy of its resources to conduct inspections of all facilities. 

DFS should continue to work with the Department of Agriculture to develop a mutually agreeable process to accommodate sanitation inspections in all childcare facilities, including the possibility ofadopting a self-inspection process similar to the system the Fire Marshal’s Office is currently using for renewal inspections.

Finding 7:

Childcare Facilities Are
Subject to Local Regulation

Local regulations can limit the
capacity of
providers.

As a condition of operating, some childcare providers in Wyoming must meet local requirements that are more stringent than DFS rules.  These requirements can limit the capacity of childcare providers. The state does not exempt childcare providers from local zoning requirements and has not engaged local officials in a dialogue about ways to increase the supply of care in the state. 

Some Local Regulations are More
Stringent than State Requirements

Local requirements range from city zoning ordinances

to homeowners’ association  covenants.

Experts recommend streamlining the regulatory process by removing
local barriers.

Providers in some communities are required to meet additional local requirements to operate in certain areas, as a condition of being licensed by the state.  These requirements range from city zoning ordinances to covenants in local homeowners’ associations. 

Childcare experts recommend streamlining the regulatory process by removing local zoning barriers to obtaining and maintaining a license.  NAEYC believes centers and family childcare homes should be regarded as a needed community service rather than as a commercial development and should be permitted in any residential zone.  However, Wyoming providers must comply with all applicable local regulations, in addition to DFS regulations, as a condition of being licensed.  

DFS does not track how local ordinances and homeowners’ association covenants impact childcare providers.  DFS believes it is each provider’s responsibility to understand local zoning requirements that may impact their facility.  Consequently, we do not know how many providers are affected by local regulations.  Nevertheless, we found several indications that providers are impacted by local requirements. 

Licensers reported that some communities in their areas impose additional regulations on providers.  For example, in Laramie County, group home providers are not allowed to care for more than 11 children, so they cannot care for three additional after-school children, as allowed under current licensing rules.  Furthermore, 40 respondents to our survey (18 percent) reported that they are required to meet more stringent local zoning requirements than what DFS requires. 

Local Regulations Can
Diminish Childcare Capacity

Local regulations have reduced the supply of care in some communities.

Childcare experts report that local restrictions have limited the development of licensed childcare services around the country.  In many communities, restrictions on local land use, building, and zoning act as barriers to building childcare supply.  Citizens concerned about the character of their neighborhoods, noise levels, property values and traffic have sought to restrict childcare provision in residential areas.

In Wyoming, it is clear that local regulations have diminished the available capacity of some providers.  For example, some local regulations impose more restrictive limits on the number of children a provider can take, while others prohibit a childcare facility from operating in certain neighborhoods.  Still others do not allow providers to employ additional staff in their homes, effectively limiting the number of children they can care for by themselves.  Some local ordinances do not allow fencing in residential areas, yet providers must provide fencing or other natural barriers in outdoor play areas to obtain a license from DFS. 

State Allows Local Entities to Impose Additional Regulations on Providers

Some states have exempted childcare providers from local regulations.

Wyoming’s state and local leaders have not collaborated
to maximize childcare capacity. 

Through broad zoning authority granted by the state, local jurisdictions may impose additional requirements on childcare providers.  In its licensing application packet, DFS notes that it cannot grant any license without being assured that the facility meets city or county ordinances on zoning and other regulations these governmental entities may require.  Rules require applicants to show evidence of zoning approval, when required locally. 

Wyoming has not developed a procedure for working with local jurisdictions to address the issue of childcare capacity in local communities.  By contrast, some states have exempted childcare providers from local regulations.  Such “preemption laws” prohibit local zoning and private homeowners’ associations from placing restrictions on childcare providers.  These laws typically state that family childcare is a permitted residential use requiring no further approval.  According to the National Conference of State Legislatures (NCSL), at least nine states have recently enacted zoning preemption laws for childcare providers.  For example, NCSL reports:

·         Connecticut prohibits municipal zoning commissions from banning the operation of daycare homes in residential areas. 

·         Hawaii requires childcare homes to be zoned residential and permitted in all residential zones with no limitations. 

·         Maryland prevents homeowners’ associations from prohibiting the use of a residence as a family childcare home. 

·         Nebraska allows licensed family day care homes in residential areas regardless of city zoning ordinances. 

·         New Hampshire took a slightly less restrictive approach, passing a law that urges municipal planning and zoning boards to take care not to discourage or eliminate family-based childcare when developing regulations. 

However, preemption laws are not the only alternative available to address this issue. According to NARA, states can better coordinate zoning, building, fire safety, health, and licensing agencies to minimize barriers to licensing.  NAEYC recommends reform at a statewide level, since different requirements derive from different laws and are implemented by various agencies.  In Wyoming, state and local leaders are not systematically working together to minimize barriers to entry in the childcare market. 

Recommendation:  The Legislature should consider options to eliminate barriers to childcare supply.

A tension exists between maintaining local control and building greater capacity.

The Legislature may wish to consider exempting childcare facilities from local regulations to expand childcare supply.  However, the impact of local regulations on childcare supply creates a tension between local control and childcare capacity.  Alternatively, if the Legislature wishes to continue the tradition of local control in this arena, it should engage local officials as part of a larger childcare debate to increase supply, as will be discussed in the next chapter.  The state may be able to balance both issues by including local officials in an ongoing forum dedicated to addressing childcare issues in the state.