65CER11-1: General Information
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: Chapter 2010-161, sections 17 & 18, Laws of Florida, eliminated the Department of Health’s (DOH) authority to license and inspect food preparation and food service in child care facilities (i.e. daycare). The Department currently has minimal rules providing standards for food preparation and food service. A rule amendment is needed to provide the standards and an enforcement process to provide for minimal food safety in child care facilities. The Department enacted an Emergency rule on July 29, 2010, that incorporated 64E-11 F.A.C. along with an interchange agreement with DOH to continue conducting food service inspections in child care facilities until the end of the FY 2010-11. During which time the Department published a notice of rule development, held public two workshops, held a public hearing, and revised proposed rule language based on public comment/feedback and to satisfy concerns presented by JAPC. The proposed rule language was ultimately approved by JAPC to continue with rule adoption. However, based on constituent concerns and guidance provided the Office of Fiscal Accountability and Regulatory Reform; the Department is withdrawing the rule and a new rule amendment has been developed and is under review. Upon review the Department will move forward with a new Notice of Rule Development and host public workshops. The intent of this emergency rule revision is to create the necessary verbiage that will appropriately reflect food hygiene standards for continued safety and well-being of the children served by Department of Children and Families. This emergency rule revision will allow the Department to inspect the food hygiene standards in child care facilities that provide food service.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: Chapter 65C-22, Florida Administrative Code is the most efficient means of providing guidance to protect the health, safety, and welfare of children attend child care licensed by the Department.
SUMMARY: The new rule provides standards for the regulation of food hygiene in licensed child care programs.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Dinah Gallon, Child Care Program Office, 1317 Winewood Boulevard, Building 6, Room 388, Tallahassee, Florida 32399, Phone: (850)488-4900, Email: Dinah_Gallon@dcf.state.fl.us
THE FULL TEXT OF THE EMERGENCY RULE IS:
65CER11-1 (65C-22.001) General Information.
(1) Application.
(a) Application for a license or for renewal of a license to operate a child care facility must be made on CF-FSP Form 5017, March 2009, Application for a License to Operate a Child Care Facility, which is incorporated by reference. CF-FSP Form 5017 may be obtained from the department’s website at www.myflorida.com/childcare.
(b) Each completed CF-FSP Form 5017 must be submitted with the licensure fee pursuant to Section 402.315, F.S.
(c) The completed CF-FSP Form 5017 must be signed by the individual owner, prospective owner, or the designated representative of a partnership, association, or corporation, and must include submission of background screening documents for the owner/operator, and an approved fire and environmental health inspections.
(d) A completed CF-FSP Form 5017 for renewal of an annual license must be submitted to the licensing authority at least 45 days prior to the expiration date of the current license to ensure that a lapse of licensure does not occur. Failure to submit a completed CF-FSP Form 5017 at least 45 days prior to the expiration date of the current license constitutes a licensing violation as defined in paragraph 65C-22.010(2)(d), F.A.C.
(e) Urban Child Care.
1. In order to be classified as an urban child care facility, the applicant, prior to submitting an application for licensure must:
a. Obtain written documentation from the local governing body that confirms the geographical area has been declared urban; and
b. Consult with the licensing authority to verify that the required outdoor play space, required by subsection 65C-22.002(4), F.A.C., does not exist or cannot be made available. Urban designation will not be granted if the licensing authority determines space for an outdoor play area is available. Outdoor play space is “available” if appropriate space:
(I) Is adjacent to the facility, or
(II) Can be reached by a route that is free of hazards and is within 1/8 mile of the facility.
2. If requirements in subparagraph 1., above, are met, the applicant must complete and submit the CF-FSP Form 5017.
3. No application for an urban child care facility designation will be approved by the licensing authority without the above criteria being met.
(2) License.
(a) A child care facility license is issued in the name of the owner. The owner may be an individual, partnership, association, or corporation.
(b) At least one week prior to changing ownership of a child care facility, in compliance with Section 402.305(18), F.S., one of the following methods of notification to custodial parents or legal guardians must be observed:
1. Posting a notice in a conspicuous location at the facility;
2. Incorporating information into an existing newsletter; or
3. Individual letters or flyers.
(c) The total number of children in care on-site and while on field trips may never exceed the facility’s licensed capacity.
(d) The Department may issue a provisional license allowing a facility to operate for a designated period of time while working to correct one or more licensing standard(s) not met, provided the owner is making adequate provisions to ensure the health and safety of the children in care. A provisional license is a not a disciplinary sanction.
(3) Minimum Age Requirements. In the absence of the operator, there must be a staff person at least 21 years of age in charge of the child care facility, and on the premises at all times.
(4) Ratios.
(a) The staff-to-child ratio, as established in Section 402.305(4), F.S., is based on primary responsibility for the direct supervision of children, and applies at all times while children are in care.
(b) Mixed Age Groups.
1. In groups of mixed age ranges, where children under one year of age are included, one staff member shall be responsible for no more than four children of any age group, at all times.
2. In groups of mixed age ranges, where children one year of age but under two years of age are included, one staff member shall be responsible for no more than six children of any age group, at all times.
(c) For every 20 children, a child care facility must have one credentialed staff member pursuant to Section 402.305(3), F.S.
(5) Supervision.
(a) Direct supervision means watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of each child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children, and be present with that group of children at all times. When caring for school-age children, child care personnel shall remain responsible for the supervision of the children in care, shall be capable of responding to emergencies, and are accountable for children at all times, including when children are separated from their groups.
(b) During nap time, supervision requires that staff be in close proximity, within sight and hearing of all the children. All other staff required to meet the staff-to-child ratio shall be within the same building on the same floor, and must be readily accessible and available to be summoned to ensure the safety of the children. Nap time supervision, as described in this section, does not include supervision of children up to 24 months of age, who must be directly supervised at all times.
(c) No person shall be an operator, owner, or employee of a child care facility while using or under the influence of narcotics, alcohol, or other drugs that impair an individual’s ability to provide supervision and safe child care.
(d) Additional Supervision Requirements.
1. In addition to the number of staff required to meet the staff-to-child ratio, for the purpose of safety, one additional adult must be present on all field trips away from the child care facility to assist in providing direct supervision.
2. If a child care facility uses a swimming pool that exceeds three feet in depth or uses beach or lake areas for water activities, the child care facility must provide one person with a certified lifeguard certificate or equivalent unless a certified lifeguard is on duty and present when any children are in the swimming area. In situations where the child care facility provides a person with a certified lifeguard certificate or equivalent, that person can also serve as the additional adult to meet the requirement in subparagraph (d)1., above.
3. A telephone or other means of instant communication shall be available to staff responsible for children during all field trips. Cellular phones, two-way radio devices, citizen band radios, and other means of instant communication are acceptable.
(6) Transportation. For the purpose of this section, vehicles refer to those that are owned, operated or regularly used by the child care facility and vehicles that provide transportation through a contract or agreement with an outside entity. Parents’ personal vehicles used during field trips are excluded from meeting the requirements in paragraphs 65C-22.001(6)(a)2., (b) and (c), F.A.C.
(a) When any vehicle is regularly used by a child care facility to provide transportation, the driver shall have the following:
1. A valid Florida driver’s license,
2. An annual physical examination which grants medical approval to drive, and valid certificate(s) of course completion for first aid training and infant and child cardiopulmonary resuscitation (CPR) procedures.
(b) All child care facilities must comply with the insurance requirements found in Section 316.615(4), F.S.
(c) All vehicles regularly used to transport children shall be inspected annually by a mechanic to ensure proper working order. Documentation by the mechanic shall be maintained in the vehicle.
(d) The maximum number of individuals transported in a vehicle may not exceed the manufacturer’s designated seating capacity or the number of factory installed seat belts.
(e) Each child, when transported, must be in an individual factory installed seat belt or federally approved child safety restraint, unless the vehicle is excluded from this requirement by Florida Statute.
(f) When transporting children, staff-to-child ratios must be maintained at all times. The driver may be included in the staff-to-child ratio. Prior to transporting children and upon the vehicle(s) arrival at its destination, the following shall be conducted by the driver(s) of the vehicle(s) used to transport the children:
1. Driver’s Log. A log shall be maintained for all children being transported in the vehicle. The log shall be retained for a minimum of four months. The log shall include each child’s name, date, time of departure, time of arrival, signature of driver, and signature of second staff member to verify the driver’s log and that all children have left the vehicle.
2. Upon arrival at the destination, the driver of the vehicle shall:
a. Mark each child off the log as the children depart the vehicle;
b. Conduct a physical inspection and visual sweep of the vehicle to ensure that no child is left in the vehicle; and
c. Sign, date and record the driver’s log immediately, verifying that all children were accounted for, and that the visual sweep was conducted.
3. Upon arrival at the destination, a second staff member shall:
a. Conduct a physical inspection and visual sweep of the vehicle to ensure that no child is left in the vehicle; and
b. Sign, date and record the driver’s log immediately, verifying that all children were accounted for and that the log is complete.
(g) Each vehicle shall be equipped with contact information for all children being transported. When transporting children with chronic medical conditions (such as asthma, diabetes or seizures), their emergency care plans and supplies or medication shall be available. The responsible adult shall be trained to recognize and respond appropriately to the emergency.
(7) Planned Activities.
(a) Each age group or class must have a written and followed plan of scheduled daily activities posted in a conspicuous location accessible to parents. The written plan must meet the needs of the children being served and include scheduled activities that:
1. Promote emotional, social, intellectual and physical growth;
2. Include quiet and active play, both indoors and outdoors; and
3. Include meals, snacks and nap times, if appropriate for the age and the times the children are in care.
(b) Providers are encouraged to advise parents or legal guardians of their child’s activities on a daily basis and to participate in the program’s activities.
(c) Parents or legal guardians must be advised in advance of each field trip activity. The date, time and location of the field trip must be posted in a conspicuous location at least two working days prior to each field trip. Written parental permission must be obtained in the form of a general permission slip. If special circumstances arise where notification of an event cannot be posted for two working days, individual permission slips must be obtained from the custodial parent or legal guardian for each child participating on the field trip. Documentation of parental permission for field trips shall be maintained for a minimum of four months from the date of each field trip.
(8) Child Discipline.
(a) Verification that the child care facility has provided, in writing, the disciplinary policy used by the facility shall be documented on the enrollment form with the signature of the custodial parent or legal guardian.
(b) All child care personnel must comply with the facility’s written disciplinary policy. Such policies shall include standards that prohibit children from being subjected to discipline which is severe, humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited for all child care personnel.
(c) A copy of the facility’s current written disciplinary policy must be available to the licensing authority to review for compliance with Section 402.305(12), F.S.
(9) Access. A child care facility must provide the custodial parent or legal guardian access, in person and by telephone, to the child care facility during the facility’s normal hours of operation or during the time the child is in care.
(10) Attendance. Daily attendance of children shall be taken and recorded by the child care facility personnel, documenting the time when each child enters and departs a child care facility or program. The custodial parent or guardian may document the time when their child(ren) enter and depart the child care facility or program. However, child care facility personnel are responsible for ensuring that attendance records are complete and accurate. Such records shall be maintained for a minimum of four months. Attendance forms used for Voluntary Pre-Kindergarten or School Readiness may be used if applicable.
(11) Child Safety.
(a) Acts or omissions that meet the definition of child abuse or neglect provided in Chapter 39, F.S., constitute a violation of the standards in Sections 402.301-.319, F.S., and shall support imposition of a sanction, as provided in Section 402.310, F.S.
(b) Failure to perform the duties of a mandatory reporter pursuant to Section 39.201, F.S., constitutes a violation of the standards in Sections 402.301-.319, F.S.
Rulemaking Authority 402.305, 402.309 FS. Law Implemented 402.305, 402.309, 402.3055, 402.308, 402.310 FS. History–New 6-1-97, Amended 3-17-99, 7-26-00, 1-4-01, 7-13-03, 9-12-04, 4-12-07, 5-1-08, 1-13-10, 12-15-11.