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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2016

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Regulatory Flexibility Act Form

Authenticated PDF Version

(29 Del.C. §9003(7); 31 Del.C. §§341-345)
9 DE Admin. Code 103
The legal base for these Licensing Rules is in the Delaware Code, Title 31, Welfare, In General, Chapter 3, Child Welfare, Subchapter III, The Delaware Child Care Act, Subsections 341 – 345 and Title 29, State Government, Part VIII, Departments of Government, Chapter 90, Department of Services For Children, Youth And Their Families, Subsection 9003 (7).
"Administrator" means the individual responsible for the supervision and administration of the Office of Child Care Licensing.
"Administrative Action" means the term applied to a group of enforcement actions initiated by the Office of Child Care Licensing against an Applicant or Licensee.
Administrative Appeal Hearing” means the hearing provided to an Applicant or Licensee when the Applicant or Licensee has requested an appeal of the Division’s decision to deny an application or revoke a Family Child Care License.
"Administrative Review Hearing" means the hearing provided to a Licensee when the Licensee has requested an appeal of the Office of Child Care Licensing's decision on violations of these Rules.
Adult” means a person who has reached his or her eighteenth (18th) birthday.
"Agreement of Understanding" means a formal written document that is part of an administrative action, part of a corrective action plan, or used when a formal agreement is deemed necessary between the Licensee and the Office of Child Care Licensing which clearly explains and memorializes what actions a Licensee must take in order to maintain licensure.
Applicant” means any person applying for a Family Child Care License through the Office of Child Care Licensing.”
Background check” means a State (Delaware) and Federal (National) report of a person’s entire criminal history, a search of the Department’s child abuse and neglect records, and when applicable, a search of the Department of Health and Social Services’ adult abuse registry. or any other checks as required by State or Federal law.
Business Day(s)” means any weekday Monday through Friday. It does not include any weekend day (Saturday and Sunday) or any State of Delaware legal holiday that falls on a weekday.
"Change of Shift" means the two (2) hour period of time overlapping between two (2) full shifts of child care. A full shift shall be at least eight (8) hours long.
"Child" means any person who has not reached the age of eighteen (18) years.
"Child Abuse" means the abuse of a child as defined in Delaware Code, Title 16, Chapter 9.
Child Care” means the providing of care, education, protection, supervision or guidance of children in a Family Child Care Home.
Child Care Licensing Specialist” means an employee of the Department of Services for Children, Youth and their Families, Division of Family Services, Office of Child Care Licensing who is responsible for performing regulatory activities including investigations, enforcement actions and decisions for licensure as set forth in Delaware Code and these Rules.
"Child Care Licensing Supervisor" means an employee of the Department of Services for Children, Youth and their Families, Division of Family Services, Office of Child Care Licensing who is responsible for performing supervisory and regulatory activities including investigations, enforcement actions and decisions for licensure as set forth in Delaware Code and these Rules.
Child Neglect” means the neglect of a child as defined in Delaware Code, Title 16, Chapter 9.
Child Sex Abuse” means any act against a child that is described as a sex offense as defined in Delaware Code, Title 11, Subsection 761 (d) or in subpart D. “sexual offenses” of subchapter I of Chapter 5 of Title 11 of the Delaware Code.
Child with Disabilities” means a child who has been diagnosed by a qualified professional as having a physical, intellectual, emotional, developmental or chronic medical condition(s) or impairment(s) which would require modification(s) in the regular program of activities for that child or as defined by applicable Federal and State Laws.
Clock Hour(s)” means the actual number of hours or time a licensee or staff member spends attending the instructional portion of a training to develop or enhance child care competencies.
Complaint” means an accusation that a Licensee is not in compliance with these Rules or any applicable laws. Complaints may be written or oral and may be anonymous.
"Complaint Investigation" means the process followed by the Office of Child Care Licensing to effectively investigate an accusation that a Licensee is not in compliance with these Rules or any applicable laws. The Licensee is notified of the complaint generally at the time of an unannounced visit regarding the particular complaint(s) and a written report is created stating the results of the investigation to the Licensee.
Corrective Action Plan” means a plan developed with the Licensee by the Office of Child Care Licensing which specifies any non-compliance, what the Licensee shall do to become compliant, and the time frame in which the non-compliance shall be corrected.
"Department" means the Department of Services for Children, Youth and Their Families.
Denial” means the refusal by the Office of Child Care Licensing to issue a Family Child Care License after the receipt of an original or renewal application and the completion of an investigation. This constitutes refusal of official permission for the Applicant or Licensee to provide regulated service.
Direct Voice Contact” means a Licensee speaking directly with a Child Care Licensing Specialist, Child Care Licensing Supervisor, or the Administrator from the Office of Child Care Licensing through a telephone call or face-to-face contact. A voice mail message is not acceptable and does not constitute direct voice contact.
"Division" means the Division of Family Service within the Department.
"Division Director" means the Director of the Division of Family Services within the Department.
"Family Child Care Home" means a private home in which a Licensee resides and provides a licensed child care service.
"Family Child Care License" means a formal written document issued by the Office of Child Care Licensing permitting a person to operate a Family Child Care Home and verifying that he/she has demonstrated compliance with the Delacare: Rules for Family Child Care Homes and the applicable codes, regulations, and laws.
“Health Care Provider” means a professionally licensed physician, advance practice nurse, (nurse practitioner), or physician assistant, such license being issued by an established licensing body.
Household member(s)” means persons living together permanently or temporarily without regard to whether they are related to each other by marriage or blood and without regard to the length of time or continuity of such residence, and it may include persons who previously lived in the household such as paramours of a member of the household.
"Infant" means any child who is under the age of twelve (12) months.
"Informal Conference" means a meeting between the Office of Child Care Licensing and the Licensee to discuss non-compliance of a serious or repeated nature which, if not corrected on time and in an acceptable manner, may result in administrative action.
"Institutional Child Abuse or Neglect" means child abuse or neglect which has occurred to a child in the Department’s custody and/or while placed in a facility, center or home operated, contracted or licensed by the Department.
"Licensee” means the person who is issued the Family Child Care License, has legal responsibility for the Family Child Care Home, resides in the Family Child Care Home, provides child care, has control over the furnishings and use of space, and meets the qualifications and requirements of a Licensee as defined in these Rules.
"Licensure" means the issuing of a Family Child Care License by the office of Child Care Licensing when the Applicant has demonstrated compliance with Delacare: Rules for Family Child Care Homes and applicable codes, regulations, and laws.
Meal” means breakfast, lunch, or dinner.
Night Child Care” means child care provided in the evening and/or overnight between the hours of 8:00 P.M. and 6:00 A.M
"Office of Child Care Licensing" means the governmental organization within the Department authorized under Delaware Code, Title 31, Chapter 3, Subchapter III, to prescribe, by regulations or otherwise, any reasonable standards for the conduct of child care facilities, institutions, agencies, associations or organizations and may license such of these to conform to such standards.
"Parent(s)/guardian(s)" means a birth or adoptive parent, legal guardian or any other person having responsibility for, or legal custody of, a child.
"Preschool-Age Child" means a child who is between thirty-six (36) months and five (5) years of age who is not yet attending a public or private kindergarten program outside of the Family Child Care Home. If a child is older than five (5) years of age and is not yet attending a public or private kindergarten program that child shall be considered in the preschool-age group until attending kindergarten or first grade which ever comes first.
"Private Home" means a non‑public residence such as a house, duplex, townhouse, apartment or mobile home where the Licensee resides and has control over the furnishings and use of space. An individual unit in public housing and university housing complexes may be considered a private home.
"Regularly or on a regular basis" means child care services which are available and provided at a Family Child Care Home on more than one (1) day in any one (1) week or for periods longer than three (3) weeks in any calendar year.
"Relative" means a person having any of the following relationships by blood, marriage, or adoption between the Licensee, Substitute, household member and the child in child care: parent, grandparent, great-grandparent, brother, sister, aunt, uncle, stepparent, stepbrother, and stepsister. A cousin, for the purpose of this definition, shall not be considered a relative.
Revocation” means the process of rescinding a Family Child Care License during the effective dates of the Family Child Care License. If the process concludes with the decision of the Secretary of the Department to revoke the Family Child Care License, the Licensee shall cease operation of a Family Child Care Home within thirty (30) days of the decision.
Rule(s)” means a baseline or minimum standard required for a particular aspect of child care provided in a Family Child Care Home as established by the Office of Child Care Licensing and known as Delacare: Rules for Family Child Care Homes. A Licensee of a Family Child Care Home may and is encouraged to exceed the baseline or minimum standard required by these Rules.
"Secretary" means the Cabinet Secretary of the Department of Services for Children, Youth and Their Families.
School-age care” means child care for school-age children who attend kindergarten or higher grade in a public or private school outside of the Family Child Care Home and are present at the Family Child Care Home during any of the following circumstances: before and/or after school; during school holidays; and/or summer months.
"School‑age Child" means any child age five (5) years or older who is attending kindergarten or higher grade outside of the Family Child Care Home. A child shall be considered school-age beginning the first day attending kindergarten or first grade; which ever comes first.
Snack” means supplemental food served between meals.
"Substitute" means an adult designated by the Licensee, and approved by the Office of Child Care Licensing to provide child care in the Family Child Care Home when the Licensee is not present due to emergency or specific planned, non-emergency situation(s) and who meets the qualifications and requirements of Substitute as defined in these Rules.
Supervision” means the Licensee or Substitute is physically present in the area or room where the children are being cared for and is constantly aware of where each child is, what each child is doing, how each child is managing, and is readily available to respond to each child's requests and any emergency.
Suspension Hearing” means an informal hearing between the Division Director or his/her designee, and the Licensee in order to determine whether the Family Child Care License remains suspended.
Suspension Order” means a notice issued by the Office of Child Care Licensing to the Licensee directing that Family Child Care services be discontinued on a specified date. The Licensee shall not provide Family Child Care services during the term of a Suspension Order.
"Toddler" means a child between the age of twelve (12) months and under thirty-six (36) months.
Training” means the successful participation in an organized professional development activity that is approved or accepted by the Office of Child Care Licensing in order to develop or enhance child care competencies of the Licensee and Substitute of the Family Child Care Home.
"Variance" means the nontransferable written authorization issued by the Division after the Licensee has demonstrated an alternative means by which to meet the intent of a specific Rule. A variance is a conditional approval to operate outside of these Rules and is based on the need(s) or circumstance(s) of the Licensee and Family Child Care Home and does not endanger the health, care, safety, protection and supervision of children in child care.
7.3 The Applicant shall apply for a Family Child Care License on a form provided by the Office of Child Care Licensing. an application shall be required for initial licensure. A renewal application received by the Office of Child Care Licensing at least thirty (30) days prior to the expiration date of a Family Child Care License shall be required when seeking to continue the operation of a Family Child Care Home.
7.10 The Applicant shall sign a release of employment history form provided by the Office of Child Care Licensing that permits the Office of Child Care Licensing to obtain service letters as per Delaware Code, Title 19, Chapter 7, Section 708 from a current or most recent previous employer for him or herself, and any health care and/or child care facility for which the Applicant was employed within the past five (5) years of application for initial licensure.
13.1 The Office of Child Care Licensing shall investigate when a complaint is received regarding Delacare: Rules for Family Child Care Homes. The Office of Child Care Licensing shall notify the Licensee that a complaint is being investigated. The results of the Office of Child Care Licensing’s investigation shall be reported in writing to the Licensee investigated. If the complaint is substantiated or if other violations are found as a result of the investigation, the Licensee shall be required to correct the violations and come into compliance with these Rules and any applicable Federal, State or local laws or regulations.
14.1.4 Refusal to furnish information, files, and records to representative(s) of the Office of Child Care Licensing and other authorized State or local officials for the purposes of determining compliance and/or investigating complaints of non-conformity with applicable provisions of these Rules, and any other applicable codes, regulations, and laws;
17.7 Any person who has been convicted of any offense defined as child sex abuse in Delaware Code, Title 11 shall not reside or provide child care in a Family Child Care Home.
19.2 The Licensee who, before the effective date of these Rules, was licensed as Level I Family Child Care Home may continue to qualify based on Delacare: Requirements for Family Child Care Homes (1994) and provide child care as a Level I Family Child Care Home. The qualification as stated in the Rule 20.3.1 - 20.3.3, shall be required in addition to any Level II Family Child Care Home qualifications when moving from Level I Family Child Care Home to Level II Family Child Care Home.
20.3.3 Qualified as at least an Early Childhood Assistant Teacher as per Delacare: Rules for Early Care and Education and School-Age Centers (2007).
20.4 The Licensee who, before the effective date of these Rules, was licensed as a Level II Family Child Care based on Delacare: Requirements for Family Child Care Homes (1994) shall have two (2) years from the effective date or no later than January 1, 2011 to meet one (1) of the qualifications as required in Rule 20.3.1 - 20.3.3.
30.1 The Licensee shall have an organized system of respectful communication with parent(s)/guardian(s) that includes verbally discussing the following information during the enrollment process and on-going as needed.
The legal base for these licensing regulations is in 31 Del.C. §§341-345 and 29 Del.C. §9003(7).
"Administrative hearing" means the hearing provided to a licensee or applicant when requesting an appeal of OCCL's decision to place the facility on an enforcement action, such as warning of probation, probation, suspension, revocation, or denial. A licensee or applicant must show evidence to dispute the action. Licensees or applicants, at their expense, may appeal hearing decisions for revocations and denials to Delaware Superior Court for a final review.
"Administrator" means the person responsible for the supervision and administration of OCCL.
"Agreement of understanding" means a document that is part of a corrective action plan or used when necessary to ensure regulation compliance.
"Applicant" means a person or entity applying for a child care license through OCCL.
"Associate caregiver" means a staff member who works under the supervision of a caregiver and provides child care at a large family child care home licensed before January 1, 2009. The associate caregiver is renamed large family assistant in these regulations.
"Background check" means a State of Delaware and federal (national) fingerprinted report of a person's entire criminal history, a Department of Services for Children, Youth and Their Families child protection registry check, and other checks as required by State or federal law.
"Business day" means a weekday Monday through Friday not including State of Delaware legal holidays that fall on a weekday.
"Capacity" means the total number of children, excluding school-age household members that may be present at one time.
"Caregiver" means the staff member responsible for the total program including providing child care at a large family child care home that was licensed before January 1, 2009. The caregiver is renamed large family provider in these regulations.
"Child abuse" means a person causes or inflicts sexual abuse on a child; or a person that has care, custody, or control of a child causes or inflicts physical injury through unjustified force, emotional abuse, torture, exploitation, maltreatment, or mistreatment as defined in 10 Del.C. §901.
"Child care" means providing care, education, protection, supervision, or guidance of children in a family or large family child care home.
"Child care licensing specialist" or "licensing specialist" means an OCCL employee responsible for performing regulatory activities including monitoring child care facilities, investigating complaints, monitoring the need for enforcement actions, and making recommendations for licensure as set forth in Delaware Code and these regulations.
"Child care licensing supervisor" or "licensing supervisor" means an OCCL employee responsible for performing supervisory and regulatory activities including monitoring child care facilities, investigating complaints, monitoring the need for enforcement actions, and making recommendations for licensure as set forth in Delaware Code and these regulations.
"Child neglect" means a person responsible for a child failed to provide the proper or necessary education as required by law; nutrition; or medical, surgical, or any other care necessary for the child's well-being as defined in 10 Del.C. §901.
"Child sex abuse" means an act against a child that is described as a sex offense or child exploitation as defined in 11 Del.C. §8550(2).
"Child with disabilities" means a child diagnosed by a qualified professional as having a physical, intellectual, emotional, or developmental disability, or chronic medical condition. This disability may require modifications in the regular program of activities for that child at a home as listed in an Individual Education Program or Individualized Family Service Plan or as defined by applicable federal and State laws.
"Clock hour(s)" means the actual number of hours a person spends attending the instructional portion of a training designed to develop or enhance child care skills.
"Complaint investigation" means the process followed by the division to investigate accusations that a licensee does not comply with these regulations or applicable laws.
"Compliance review" means an inspection of the home, grounds, and files to determine compliance with these regulations.
"Conference" means a meeting between OCCL and a licensee to discuss non-compliance of a serious or repeated nature. If a licensee does not correct this non-compliance as stated in a corrective action plan or agreement of understanding, this may result in an enforcement action. At a conference, a licensee may also dispute non-compliance with regulations cited by a licensing specialist during a compliance review, complaint or other monitoring visit, or discuss the denial of a variance request.
"Corrective action plan" means a document listing non-compliance a licensee must correct, how to correct it, and the date OCCL requires the corrections to be completed.
"CPSC" means the U.S. Consumer Product Safety Commission.
"Denial" means the process of refusing to grant a license after OCCL receives an application.
"Department" means the Department of Services for Children, Youth and Their Families.
"Direct supervision" (of children or staff members) means a licensee or staff members are physically present in the same room or area, including outside, with children or staff, are visually monitoring the interactions of children or staff, and are alert to problems that may occur.
"Direct voice contact" means a licensee or staff member is required to speak with an OCCL licensing specialist, licensing supervisor, or administrator by calling or visiting OCCL. When direct voice contact is required, leaving a voice mail message is not acceptable.
"Division" means the Division of Family Services within the department.
"Division director" means the director of the Division of Family Services.
"DPH" means the Division of Public Health.
"Enforcement action" means an action taken by OCCL to promote compliance, such as warning of probation, probation, suspension, revocation, or denial.
"Family child care home" or "family home" means a private home in which a licensee lives and provides licensed child care.
"Family child care license" means a document issued by OCCL allowing a person or entity to operate a family home after demonstrating compliance with these regulations and other applicable codes, regulations, and laws.
"Family provider" means the person responsible for the total program including providing child care and managing the administrative aspects of a family child care home.
"Home" means both family and large family child care homes.
"Household member" means a person living in or spending the night in a family or large family home for more than 30 days within a year.
"Infant" means a child less than 12 months old.
"Institutional abuse" means a child is the subject of abuse or neglect while in out-of-home care as defined in 10 Del.C. §901.
"Large family aide" means the staff member who works under the direct supervision of the large family provider, large family assistant, or substitute and provides child care at a large family home. This staff member may not be alone with children.
"Large family assistant" means the staff member who works under the supervision of the large family provider and provides child care at a large family home. This staff member may provide direct supervision of a large family aide and meets the qualifications listed in these regulations.
"Large family child care home" or "large family home" means a private home or a non-residential property where a licensee offers licensed child care.
"Large family child care license" means a document issued by OCCL allowing a person or entity to operate a large family home after demonstrating compliance with these regulations and other applicable codes, regulations, and laws.
"Large family provider" means the staff member responsible for the total program including providing child care and, when applicable, managing the administrative aspects of a large family child care home. This staff member may supervise large family assistants, large family aides, and substitutes and meets the qualifications listed in these regulations.
"Licensee" means the owner or entity, such as a company, corporation, business, or agency, legally responsible for a family or large family home.
"Licensure" means OCCL issued a child care license when the applicant demonstrated compliance with these regulations and other applicable codes, regulations, and laws.
"NRTL" means Nationally Recognized Testing Laboratory, such as Underwriter's Laboratories.
"Office of Child Care Licensing" or "OCCL" means the agency within the department authorized under 31 Del.C. §§341-345 to promulgate and enforce regulations for child care, to license child care facilities, and to develop and implement policies and procedures.
"Overnight care" means care for a child between the hours of 10 PM and 6 AM, when four or more hours are during a child's normal sleeping hours.
"Parent/Guardian" means a birth or adoptive parent, legal guardian, or other person having responsibility for, or legal custody of, a child.
"Preschool-age child" means a child age three through five not yet attending kindergarten. If a child is older than age five and not attending kindergarten or a higher grade, OCCL considers that child in the preschool-age group.
"Private home" means a non-public residence, such as a house, duplex, townhouse, apartment, or mobile home, where a licensee lives and has control over the furnishings and use of space.
"Probation" means an enforcement action initiated by OCCL because of noncompliance with these regulations. The division director approves this action. This action directs a licensee to correct all non-compliances and maintain compliance or face revocation or denial.
"Provisional license" means a license issued for a maximum period of three months when a licensee is temporarily unable to comply with DELACARE Regulations. There can be no serious risk to the health, safety, and well-being of children. A licensee operates under a corrective action plan or an agreement of understanding. An extension beyond this time requires administrator approval.
"Regulation" means a minimum standard required for a specific part of child care established by OCCL and known as DELACARE: Regulations for Family and Large Family Child Care Homes.
"Revocation" means the process of rescinding a license during the license's effective dates withdrawing permission to operate.
"Secretary" means the Secretary of the Department of Services for Children, Youth and Their Families.
"School-age care" means care, education, protection, supervision, or guidance for school-age children before school, after school, during school holidays, or during summer months.
"School-age child" means a child who attends or has attended a kindergarten or a higher grade out of the home.
"Staff member" means a licensee, a large family provider, a large family assistant, a large family aide, or a substitute.
"Substitute" means an adult selected by a licensee to provide child care in a family or large family home. The substitute may provide care when a licensee, large family provider, large family assistant, or large family aide is not present due to an emergency or non-emergency situation. The substitute may be present when a licensee or staff members are present but a licensee wants another person to help provide care. OCCL must approve substitutes. OCCL considers this person a staff member.
"Suspension order" means a letter sent by OCCL stating a licensee must stop providing child care as of a specific date. While the license is suspended, a licensee cannot provide child care.
"Toddler" means a child over 12 months old and under 36 months old.
"Variance" means OCCL's approval for a licensee to meet the intent of a specific licensing regulation in a way that is different from the way the regulation specifies. OCCL will only give this approval when the change will not endanger the health, safety, or well-being of children in care.
"Volunteer, adult" or "adult volunteer" means a person at least 18 years old who provides an unpaid service or support to a family or large family home.
"Volunteer, youth" or "youth volunteer" means a person at least 13 years old who provides an unpaid service or support to a family or large family home. OCCL must approve youth volunteers before they begin volunteering.
"Warning of probation" means an enforcement action initiated by OCCL because of noncompliance with these regulations. The administrator approves this action. This action directs a licensee to correct all non-compliances and maintain compliance or face probation or another enforcement action.
6.1.9 Complete a release of employment form that allows OCCL to collect service letters as per 19 Del.C. §708. The form will list the applicant's current or most recent employer and all health care and child care facilities where the applicant worked within the past five years. If an applicant has no former employer, the applicant shall provide information for two more references;
A licensee shall provide a parent/guardian with information about the right to see the home's licensing record, as stated in 31 Del.C. §398. As a part of the inquiry process, a licensee shall require the parent/guardian to read and sign The Parents Right to Know form and shall keep the form on file. A licensee shall give a copy of the form to the parent/guardian. In the event the child does not enroll, a licensee shall keep the form for three months to show the information was provided.