Or. Admin. Code § 414-175-0080 - Eligibility of Child Care Providers
(1) The Department must approve a child care
provider if information available to the Department provides no basis for
denying eligibility unless it is determined that the provider or other subject
individual (see OAR 125-007-0210,
407-007-0210(12)(a)(K),
and 414-061-0030) is not eligible to
provide care.
(2) The Department
may approve a child care provider who is legally exempt (see section (11) of
this rule) as a child care provider for a child (see OAR
461-001-0000) in their
household, if all members of the household have an enrollment (see OAR
414-061-0020(18)),
conditional enrollment (see OAR
414-061-0020(9)),
or limited enrollment (see OAR
414-061-0020(25)(b))
in the Central Background Registry (see OAR
414-061-0000) and all of the
following requirements are met:
(a) There is
no criminal history consisting of a disqualifying crime listed in
45 CFR
98.43(c).
(b) The household member with the criminal or
child abuse and neglect history is a parent (see OAR
461-001-0000) or caretaker
relative (see OAR 461-001-0000) of the child
needing child care.
(c) The child
care is necessary pursuant to OAR
414-175-0023.
(d) The approval for Department payments only
applies for the child of the household member, or a child for whom the
household member is a caretaker relative.
(3) Ineligibility for payment may result from
any of the following and begins on the date of occurrence:
(a) A violation of a requirement under
section (7) of this rule. When a provider fails to keep daily attendance
records as required under subsection (7)(e) of this rule, the "date of
occurrence" begins on the day for which there is no required record.
(b) A finding of "denied".
(A) A provider may be "denied" if they are
not enrolled in or are suspended from the Central Background Registry, if they
have submitted an application for enrollment in the Central Background Registry
that has been denied for cause, or if they have been removed for cause from the
Central Background Registry by final order of the Child Care Licensing Division
(CCLD) and have not been re-enrolled. A subject individual who has been denied
enrollment in the Central Background Registry due to a determination of
unsuitability shall not be eligible for enrollment in the Central Background
Registry for five years from the date of denial.
(B) A subject individual may appeal CCLD's
determination not to enroll the subject individual in the Central Background
Registry, for an enrollment, conditional enrollment, or limited enrollment as
defined in OAR 414-061-0020(25),
pursuant to OAR 414-061-0120.
(c) A finding of "failed".
(A) A provider may be "failed" if the
Department determines, based on a specific eligibility requirement and
evidence, that a provider does not meet an eligibility requirement of this rule
not covered in paragraph (d)(A) of this section.
(B) While the provider is in "failed" status:
(i) The Department does not pay any other
child care provider for child care at the "failed" provider's site.
(ii) The Department does not pay a child care
provider at another site if the "failed" provider is involved in the child care
operation unless the Department determines that the reasons the provider is in
"failed" status are not relevant to the new site.
(C) A provider with a status of "failed" may
reapply at any time by providing the required documents and information to the
Department for review.
(d) A finding of "suspended".
(A) A provider may be "suspended" if the
Department determines and provides notice that the provider does not meet an
eligibility requirement in the following subsections and paragraphs of section
(7) of this rule: (b), (d), (e), (h), (i), (j), (k), (l), (p)(H), (p)(I),
(p)(L), (u), or in section (10) of this rule. A provider who has been
"suspended" may challenge this status by requesting a contested case
hearing.
(B) While the provider is
in "suspended" status:
(i) The provider is
ineligible for payment for at least six months.
(ii) The Department does not pay any other
child care provider for child care at the "suspended" provider's
site.
(iii) The Department does not
pay a child care provider at another site if the "suspended" provider is
involved in the child care operation unless the Department determines that the
reasons the provider is in "suspended" status are not relevant to the new
site.
(C) A provider
with a status of "suspended" may be eligible for payments after the six month
ineligibility period ends when the provider has been approved following
reapplication, including providing the required documents and information to
the Department for review.
(e) The Department has referred an
overpayment against the provider for collection and the claim is
unsatisfied.
(4) The
provider must submit a completed Child Care Provider Listing Form (Form 7494)
to the Department within 30 calendar days from the date the Department issues
the listing form to the client.
(5)
To receive payment or authorization for payment, the provider must comply with
at least one of the following subsections:
(a)
If the provider is not legally exempt:
(A) Be
currently certified or registered with CCLD under OAR
414-205-0000 to
414-205-0170, 414-305-0000 to
414-305-1620,
414-310-0100 to
414-310-0720, or
414-350-0000 to 414-350-0450 and
be in compliance with the applicable rules;
(B) Complete the Department's listing
process; and
(C) Be approved by the
Department.
(b) If the
provider is legally exempt and a legally exempt relative (see section (11) of
this rule):
(A) Complete the Central
Background Registry enrollment under OAR
414-061-0090;
(B) Complete the Department's listing
process; and
(C) Be approved by the
Department.
(c) If the
provider is legally exempt and not a legally exempt relative for all children
in care:
(A) Meet all CCLD Regulated Subsidy
Provider requirements under OAR
414-180-0005 through
414-180-0100;
(B) Submit to and pass a site visit at the
location where care will be provided;
(C) Complete the Central Background Registry
enrollment under OAR 414-061-0090;
(i) For center-based care, a minimum of one
individual must be enrolled in the Central Background Registry. All other
subject individuals must be enrolled or conditionally enrolled in the Central
Background Registry.
(D)
Complete the Department's listing process; and
(E) Be approved by the Department.
(d) In the case of a child care
facility licensed by a sovereign tribal nation:
(A) Must receive annual health and safety
inspections from the Indian Health Services;
(B) Each individual who may have unsupervised
access to a child in care must be enrolled in the Central Background
Registry;
(C) Complete the
Department's listing process; and
(D) Be approved by the Department.
(6) Each provider and
each subject individual must have a history of behavior that indicates no
substantial risk to the health or safety of a child in the care of the
provider.
(7) Each provider must:
(a) Obtain written approval from their
certifier or certifier's supervisor if the provider is also certified as a
foster parent.
(b) Be 18 years of
age or older and meet all of the following:
(A) Be enrolled in and not suspended from the
Central Background Registry or be in an approved status by the
Department;
(B) Have competence,
sound judgment and self-control when working with children; and
(C) Be mentally, physically and emotionally
capable of performing duties related to child care.
(c) Not be in the same ERDC or TANF filing
group (see OAR 461-110-0330 and
461-110-0350) as the child cared
for the parent (see OAR
461-001-0000) of a child in the
filing group; or a sibling living in the home of the child.
(d) Allow the Department to visit or inspect
the site of care while child care is provided.
(e) Keep and provide daily records as
follows:
(A) Attendance records must
accurately record the arrival and departure times for each child in
care.
(B) Written attendance and
billing records for each child receiving child care benefits from the
Department must be retained for a minimum of 12 months.
(C) All records of attendance and billing
must be provided to the Department upon request.
(D) Records for absent days billed to the
Department under OAR 461-155-0150 must record the
hours the child was scheduled to be in care and indicate the child was
absent.
(f) Be the
individual or facility listed as providing the child care.
(g) Only use someone else to supervise a
child on a temporary basis if all of the following are met:
(A) The person was included on the most
current listing form;
(B) The
person is enrolled in the Central Background Registry; and
(C) The provider notified the Direct Pay Unit
(DPU).
(h) Not bill a
Department client for an amount collected by the Department to recover an
overpayment or an amount paid by the Department to a creditor of the provider
because of a lien, garnishment, or other legal process.
(i) Report to DPU within five days of
occurrence:
(A) Any arrest, indictment, or
conviction of any subject individual or individual described in section (5) of
this rule.
(B) Any involvement of
any subject individual or individual described in section (5) of this rule with
CPS; the Office of Training, Investigations and Safety (OTIS); or any other
agencies providing child or adult protective services.
(C) Any change to the provider's name or
address including any location where care is provided.
(D) The addition of any subject
individual.
(E) Any reason the
provider no longer meets the requirements under this rule.
(j) Report suspected child abuse of any child
in the provider's care to the child abuse and neglect hotline or a law
enforcement agency.
(k) Supervise
each child in care at all times. This includes being within sight or sound of
all children; being aware of what each child is doing; being near enough to
children to respond when needed; and being physically present when
kindergarten-age or younger children are playing outside, unless the play area
is fully fenced and hazard free.
(l) Prevent any individual who behaves in a
manner that may harm children from having access to a child in the care of the
provider. This includes anyone under the influence (see section (11) of this
rule).
(m) Allow the custodial
parent of a child in the provider's care to have immediate access to the child
at all times.
(n) Inform a parent
of the need to obtain immunizations for a child and have a completed,
up-to-date Oregon shot record called the "Certification of Immunization Status"
(CIS) form, or a non-medical or medical Exemption form, on file for each child
in care.
(o) Take reasonable steps
to protect a child in the provider's care from the spread of infectious
diseases.
(p) Ensure that the home
or facility where care is provided meets all of the following standards:
(A) Each floor level used by a child has two
usable exits to the outdoors (a sliding door or window that can be used to
evacuate a child is considered a usable exit). If a second floor is used for
child care, the provider must have a written plan for evacuating occupants in
the event of an emergency.
(B) The
home or facility has water that is safe for drinking and preparing food (see
section (14) of this rule).
(C) The
home or facility has a working smoke detector on each floor level and in any
area where a child naps.
(D) Each
fireplace, space heater, electrical outlet, wood stove, stairway, pool, pond,
and any other hazard has a barrier to protect a child. Any gate or barrier may
not pose a risk or hazard to any child in care.
(E) Any firearm, ammunition, and other items
that may be dangerous to children, including but not limited to alcohol,
inhalants, tobacco and e-cigarette products, matches and lighters, any legally
prescribed or over-the-counter medicine, cleaning supplies, paint, plastic
bags, and poisonous and toxic materials are kept in a secure place out of a
child's reach.
(F) The building,
grounds, any toy, equipment, and furniture are maintained in a clean, sanitary,
and hazard-free condition.
(G) The
home or facility has a telephone in operating condition.
(H) No one may smoke or carry any lighted
smoking instrument, including e-cigarettes or vaporizers, in the home or
facility or within ten feet of any entrance, exit, window that opens, or any
ventilation intake that serves an enclosed area, during child care operational
hours or anytime child care children are present. No one may use smokeless
tobacco in the home or facility during child care operational hours or anytime
child care children are present. No one may smoke or carry any lighted smoking
instrument, including e-cigarettes and vaporizers, or use smokeless tobacco in
motor vehicles while child care children are passengers.
(I) No one may consume alcohol or use
controlled substances (except legally prescribed and over-the-counter
medications) or marijuana (including medical marijuana) on the premises (see
section (11) of this rule) during child care operational hours or anytime child
care children are present. No one under the influence of alcohol, controlled
substances (except legally prescribed and over-the-counter medications) or
marijuana (including medical marijuana) may be on the premises during child
care operational hours or anytime child care children are present. No one may
consume alcohol or use controlled substances (except legally prescribed and
over-the-counter medications) or marijuana (including medical marijuana) in
motor vehicles while child care children are passengers.
(J) Is not a half-way house, hotel, motel,
shelter, or other temporary housing such as a tent, trailer, or motor home. The
restriction in this paragraph does not apply to licensed (registered or
certified) care approved in a hotel, motel, or shelter.
(K) Is not a structure -
(i) Designed to be transportable;
and
(ii) Not attached to the
ground, another structure, or to any utilities system on the same
premises.
(L) Controlled
substances (except lawfully prescribed and over-the-counter medications),
marijuana (including medical marijuana, marijuana edibles, and other products
containing marijuana), marijuana plants, derivatives, and associated
paraphernalia may not be on the premises during child care operational hours or
anytime child care children are present.
(q) Complete and submit a new listing form
every two years, or sooner at the request of the Department, so that the
Department may review the provider's eligibility.
(r) Provide evidence of compliance with the
Department's administrative rules, upon request of Department staff.
(s) Comply with state and federal laws
related to child safety systems and seat belts in vehicles, bicycle safety, and
crib standards under 16 CFR 1219 and 1220.
(t) Place infants to sleep on their
backs.
(u) Not hold a medical
marijuana card; or distribute, grow, or use marijuana (including medical
marijuana) or any controlled substance (except lawfully prescribed and
over-the-counter medications).
(v)
Develop and communicate expulsion and suspension policies to parents and
caretakers.
(w) Provide care at a
location within the state of Oregon.
(8) Legally exempt providers must complete
the "Introduction to Child Care Health and Safety" two-hour, web-based training
prior to Department approval.
(9)
Legally exempt providers must complete the two part orientation provided by the
Department or a Child Care Resource and Referral agency within 90 days of being
approved by the Department if the provider begins providing child care services
after June 30, 2010, or resumes providing child care services, after a break of
more than one year that began after June 30, 2010.
(10) Child care providers and any individual
supervising, transporting, preparing meals, or otherwise working in the
proximity of child care children and those completing daily attendance and
billing records shall not be under the influence.
(11) For purposes of these rules:
(a) "Premises" means the home or facility
structure and grounds, including indoors and outdoors and space not directly
used for child care.
(b) "Under the
influence" means observed abnormal behavior or impairments in mental or
physical performance leading a reasonable person to believe the individual has
used alcohol, any controlled substances (including lawfully prescribed and
over-the-counter medications), marijuana (including medical marijuana), or
inhalants that impairs their performance of essential job function or creates a
direct threat to child care children or others. Examples of abnormal behaviors
include, but are not limited to hallucinations, paranoia, or violent outbursts.
Examples of impairments in physical or mental performance include, but are not
limited to slurred speech as well as difficulty walking or performing job
activities.
(c) "Legally exempt"
means the child care provider is exempt from licensing with the CCLD because
the provider is not subject to the licensing requirements under OAR
414-205-0000 to
414-205-0170, OAR 414-350-000 to
414-350-0405, and OAR
414-305-0000 to 414-300-1620.
(d)
"Legally exempt relative" means a legally exempt provider who is a relative to
all children in care including a great-grandparent, grandparent, aunt, uncle,
or sibling not living in the home of any child in care.
(12) Legally exempt providers that are not a
legally exempt relative to all children in care must meet all of the
requirements in this section:
(a) Before
approval by the Department:
(A) Have an
up-to-date, in-person infant and child CPR and first aid certification or have
a currently valid waiver of this requirement from the Child Care Resource and
Referral program.
(B) Complete the
Recognizing and Reporting Child Abuse and Neglect (RRCAN) web-based or
classroom training.
(b)
After approval by the Department:
(A) Complete
six hours of ongoing education in each two-year listing period as provided in
this subsection. All trainings must be accepted by the Oregon Center for Career
Development (OCCD) and be part of the OCCD's 10 Core Knowledge Categories
recognized by Oregon Registry Online to count toward the six hours.
(i) Two of the six hours must fall under the
"Human Growth and Development" category; and
(ii) Two of the six hours must cover
"Understanding & Guiding Behavior".
(B) Complete a Health and Safety training
offered by OCCD annually.
(C)
Complete the Child Development training offered by OCCD, as follows:
(i) Providers approved on or after October 1,
2022 must complete the training within 90 days of ODHS approval.
(ii) Providers approved before October 1,
2022 must complete the training by December 31, 2022 to remain
approved.
(13) Child care centers or programs that are
legally exempt from certification or registration with CCLD, are located in a
commercial or institutional facility, and receive payment from the Department
on behalf of a family receiving a child care subsidy, must comply with the
following minimum staff to children in care ratios:
(a) Six weeks through 23 months of age, the
minimum number of staff to children is one to four. The maximum number of
children in a group is eight.
(b)
24 months through 35 months of age, the minimum number of staff to children is
one to five. The maximum number of children in a group is 10.
(c) 36 months of age to attending
kindergarten, minimum number of staff to children is one to 10. The maximum
number of children in a group is 20.
(d) Attending kindergarten and older, the
minimum number of staff to children is one to 15. The maximum number of
children in a group is 30.
(e) In a
mixed-age group of children, the number of staff and group size shall be
determined by the age of the youngest child in the group.
(14) As used in this section, "drinking water
faucet or fixture" means any plumbing fixture on the premises used to obtain
water for drinking, cooking, preparing infant formula or preparing food. This
section only applies to a provider who is legally exempt and not a legally
exempt relative. This section applies to legally exempt providers approved to
receive Department subsidy payments and who submit a completed Child Care
Provider Listing form for Department-approval. This section does not apply to
care provided in the child's home when the legally exempt provider lives
somewhere else.
(a) In locations where care
is provided, lead testing is required for each drinking water faucet or
fixture.
(b) Providers must test
each drinking water faucet or fixture at least once every six years from the
date of the last test. Providers who have had a drinking water faucets or
fixture tested within six years prior to the effective date of this rule will
need to submit the results to CCLD.
(c) If a home or facility does not use any of
the on-site plumbing fixtures to obtain water for drinking, cooking, preparing
infant formula, or preparing food, the provider must:
(A) Submit a written statement to the
Department or CCLD identifying the alternative source of water and confirming
that the provider does not use any on-site plumbing fixtures for drinking,
cooking, preparing infant formula, or preparing food; and
(B) Notify the Department or CCLD in writing
if the alternative source of water changes.
(d) All sample collection and testing must be
in accordance with the Environmental Protection Agency (EPA)'s 3Ts for Reducing
Lead in Drinking Water in Schools and Child Care Facilities, Revised Manual
from October 2018, adopted by this reference.
(A) If test results show water from any
drinking water faucet or fixture has 15 parts per billion (ppb) or more of
lead, the provider must:
(i) Prevent access
to that drinking water faucet or fixture immediately after receiving the test
results; and
(ii) Continue to
prevent access to that drinking water faucet or fixture until mitigation is
completed in accordance with paragraph (B) of this subsection.
(B) Following receipt of test
results showing that water from any drinking water faucet or fixture has 15
parts per billion (ppb) or more of lead, the provider must comply with all of
the following sub-paragraphs:
(i) Submit a
corrective action plan to the Department or CCLD for approval within 60 days of
receiving the test results. The corrective action plan must identify an
appropriate mitigation strategy in accordance with Module 6 of the EPA's 3Ts
for Reducing Lead in Drinking Water in Schools and Child Care Facilities,
Revised Manual from October 2018, adopted by this reference.
(ii) Implement the mitigation method within
30 days of approval by CCLD.
(C) A provider who fails to submit a
corrective action or a mitigation method is no longer eligible to receive child
care subsidy payments.
(e) The provider must keep a copy of the most
recent test results on-site at all times.
(f) Providers must follow the routine
practices identified in Module 6 of the EPA's 3Ts for Reducing Lead in Drinking
Water in Schools and Child Care Facilities, Revised Manual from October
2018.
(15) A child care
provider approved to receive payment may become retroactively ineligible for
payment starting on the date the provider violates a requirement under this
rule, regardless of the date of the finding.
(16) The Oregon Department of Human Services
Background Check Unit (BCU) shall retain their authority to determine
eligibility for any child care providers whose applications, including
incomplete applications, were submitted before September 1, 2022.
Notes
Statutory/Other Authority: ORS 329A.500
Statutes/Other Implemented: ORS 329A.500
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