Or. Admin. R. 461-165-0180 - [Effective 2/27/2023] Eligibility of Child Care Providers
(1) The Department must approve a child care
provider to receive payment for child care if information available to the
Department provides no basis for denying eligibility unless the Department
determines, following a final fitness determination (see OAR 125-007-0260 and
407-007-0320) or Child Protective Service (CPS) records checks, that the
provider or other subject individual (see OAR 125-007-0210 and
407-007-0210(8)(a)(J)) is not eligible for payment.
(2) The Department may approve a child care
provider who is legally exempt (see section (12) of this
rule)as a child care provider for a child (see OAR
461-001-0000) in their household, despite the criminal or CPS history of
another member of this household, if 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
CPS 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 needed for the
household member with the criminal or CPS history to participate in the JOBS
program, or the education or employment covered by the ERDC program.
(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 (8) of this rule.
(b) A finding of "denied".
(A) A provider may be "denied" under OAR
461-165-0410 and 461-165-0420. If, after conducting a weighing test as
described in OAR 407-007-0300, the Department finds substantial risk to the
health or safety of a child in the care of the provider, the
provider must be "denied" and is ineligible for payment.
(B) A provider who has been "denied" has the
right to a hearing under OAR 407-007-0335.
(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 (c)(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
(8) of this rule: (b), (d), (e), (h), (i), (j), (k), (L), (o)(H), (o)(I),
(o)(L), (t), or in section (11) of this rule. A provider who has been
"suspended" may challenge this status by requesting a contested case hearing
subject to the requirements and limitations of OAR 461-025.
(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 (DHS 7494) to
the Department within 30 calendar days from the date the Department issues the
listing form to the client. The provider and each individual identified under
section (4) of this rule must complete and sign the authorization for a records
check through the Criminal History (CH) record system maintained by the Oregon
State Police (OSP), Federal Bureau of Investigation (FBI), and the Child
Protective Service (CPS) record system maintained by the Department and, if
necessary, an authorization to release information and fingerprint cards. The
provider, each individual described in section (5) of this rule, and each
subject individual described in OAR 125-007-0210 and
407-007-0210(8)(a)(J) must fully disclose all requested information as part of
the records check.
(5) This rule
also establishes additional requirements for the following individuals:
(a) The site director of an exempt child care
facility and each individual in the facility who may have unsupervised access
to a child in care.
(b) The child care provider and each
individual the provider uses to supervise a child in his or
her absence.
(c) In the case of a
provider who provides care for a child in the provider's
home--
(A) Each individual 16 years of age or
older who lives in the provider's home; and
(B) Each individual who visits the home of
the provider during the hours care is provided and may have unsupervised access
to a child in care.
(6) 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 the Office of Child Care (OCC) of the
Oregon Department of Education (ODE) under OAR 414-205-0000 to 414-205-0170,
414-300-0000 to 414-300-0440, or 414-350-0000 to 414-350-0250 and be in
compliance with the applicable rules;
(B) Complete the Department's background
check process;
(C) Complete the
Department's listing process; and
(D) Be approved by the Department.
(b) If the provider is
legally exempt and a legally exempt relative
(see section (12) of this rule):
(A) Complete
the Department's background check process;
(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 OCC 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 Department's background
check process;
(D) Complete the
Department's listing process; and
(E) Be approved by the Department.
(d) In the case of a tribally
licensed child care facility:
(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 Early Learning Division
Office of Child Care Central Background Registry or approved by the Department
of Human Services Background Check Unit;
(C) Complete the Department's listing
process; and
(D) Be approved by the
Department.
(7)
Each individual described in section (5) of this rule must:
(a) Allow the Department to conduct a
national criminal history records check through the Oregon State Police and the
Federal Bureau of Investigation as specified in OAR 407-007-0250.
(b) Provide, in a manner specified by the
Department, information required to conduct CH, FBI, OSP, and CPS records
checks and determine whether the provider meets health and safety
requirements.
(c) Have a history of
behavior that indicates no substantial risk to the health or safety of a
child in the care of the provider.
(8) 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 in such physical and mental health as will not affect
adversely the ability to meet the needs of safety, health, and well-being of a
child in care; and
(A) Have
competence, sound judgment and self-control when working with
children;
(B) 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 daily attendance records showing the
arrival and departure times for each child in care.
(A) Times must be recorded as the child care
children arrive and depart.
(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.
(f) Be the
individual or facility listed as providing the child care. The provider may
only use someone else to supervise a child on a temporary
basis if the person was included on the most current listing form and the
provider notifies the Department's Direct Pay Unit.
(g) 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.
(h) Report
to the Department's Direct Pay Unit 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 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 or individual described in section (5) of
this rule.
(E) Any reason the
provider no longer meets the requirements under this rule.
(i) Report suspected child abuse of any
child in his or her care to CPS or a law enforcement
agency.
(j) 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.
(k) 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 (12) of this rule).
(l) Allow the custodial parent of a
child in his or her care to have immediate access to the
child at all times.
(m) 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.
(n)
Take reasonable steps to protect a child in his or her care
from the spread of infectious diseases.
(o) 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 (15) 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 (12) 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.
(p) 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.
(q) Provide evidence
of compliance with the Department's administrative rules, upon request of
Department staff.
(r) 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.
(s) Place infants to sleep on
their backs.
(t) 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).
(u)
Develop and communicate expulsion and suspension policies to parents and
caretakers.
(v) Provide care at a
location within the state of Oregon.
(9)
Legally exempt providers
must complete the "Introduction to Child Care Health and Safety" two-hour,
web-based training prior to Department approval.
(10)
Legally exempt
providers must complete an 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.
(11) 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.
(12) 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 OCC 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 414-300-0000 to
414-300-0415.
(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.
(13)
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 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) Providers approved on or after October 1,
2019 must also complete a Health and Safety training offered by the OCCD
annually.
(C) Providers approved
before October 1, 2019 must also complete a Health and Safety training offered
by the OCCD by the two-year re-evaluation and annually thereafter.
(14) Child care centers
or programs that are legally exempt from certification or
registration with the OCC, are located in a commercial or institutional
facility, and receive payment from the Department on behalf of a family
receiving a child care subsidy, may not exceed the following 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.
(15) Except as noted otherwise below, the
requirements of this section are in effect starting September 30, 2018. 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 prior to September
30, 2018. This section applies to legally exempt providers who
submit a completed Child Care Provider Listing form for Department-approval
starting September 30, 2018. 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 the
Department or the Office of Child Care (OCC), in the Department of Education,
Early Learning Division.
(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 OCC 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 OCC 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 OCC 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 OCC.
(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.
(16) 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.
Notes
Statutory/Other Authority: ORS 181.537, 329A.500, 409.050, 411.060 & 411.070
Statutes/Other Implemented: ORS 181.537, 329A.340, 329A.500, 409.010, 409.050, 409.610, 411.060, 411.070 & 411.122
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