C-21-01: Waiver of Child Care Facility Regulations

C-21-01

Waiver of Child Care Facility Regulations

To:

Bureau of Certification Staff
Child Care Center, Group Child Care Home, and Family Child Care Home Operators

From:

Tracey Campanini,
Deputy Secretary, Office of Child Development & Early Learning

Issue Date: April 1, 2021
Effective Date: April 1, 2021
End Date: N/A

This announcement replaces Bulletin 00-11-01, Waiver of Child Care Facility Regulations.

Purpose

To inform child care center, group child care home, and family child care home operators of the procedures for requesting a waiver of the Department of Human Services (DHS) regulations (see 55 Pa. Code §3270.13, §3280.13, and §3290.25, relating to waivers).

Background

A waiver is a written statement from DHS that excuses an operator from meeting a specific regulation and substitutes another standard which the operator must meet. The substituted standard has the same legal effect as the regulatory standard. Granting a waiver is discretionary. A waiver is granted to a specific operator for a specific child care facility location and cannot be transferred to a different operator or location. A waiver is not a substitute for correcting regulatory noncompliance cited as the result of an inspection.

DHS regulations permit an operator to request a waiver of the following regulations:

Child care centers (see 55 Code §3270.13(c)(1)-(4)):
Accreditation requirements which apply to §§3270.34—3270.36 (relating to director qualifications and responsibilities; group supervisor qualifications and responsibilities; and assistant group supervisor qualifications and responsibilities).
Physical site requirements in §3270.61—3270.82 (relating to physical site).
Equipment requirements in §3270.101—3270.108 (relating to equipment).
Program requirements in §3270.111—3270.118 (relating to program).
Group child care homes (see 55 Code §3280.13(c)(1)-(4)):
Accreditation requirements which apply to 3280.34 (relating to primary staff person qualifications and responsibilities).
Physical site requirements in §3280.61—3280.81 (relating to physical site).
Equipment requirements in §3280.101—3280.108 (relating to equipment).
Program requirements in §3280.111—3280.118 (relating to program).
Family child care home (see 55 Code §3290.25(c)(1)(2):
Physical site requirements in § 3290.61—3290.78 (relating to physical site).
Equipment requirements in § 3290.101—3290.107 (relating to equipment).

An operator must submit a waiver request form (CD 357 – Request For Waiver of Child Care Facility Regulation) to the Regional Office of Child Development and Early Learning (OCDEL) Certification Representative responsible for certifying the facility.

DHS staff evaluate the waiver request in accordance with the provisions of the regulation at 55 Pa. Code §3270.13(c) and (d), §3280.13 (c) and (d), or §3290.25(c) and (d), DHS policy, and health and safety factors. The following DHS staff evaluate the waiver request:

The OCDEL Certification Representative assigned to the facility;
The Certification Representative’s immediate Supervisor and/or Regional Manager;
A staff person assigned to the Division of Regulatory Administration in OCDEL’s Bureau of Certification Services (BCS); and
The BCS Director or the Director’s

DHS determines whether to:

grant the waiver as requested;
grant a portion of the waiver request;
deny the waiver request; or
dismiss the waiver request without further

DHS may also impose stipulations regarding the granting of a waiver request.

The BCS Director sends written notification of the waiver decision to the operator. The written notification includes the basis for the decision, stipulations imposed upon a waiver, and the right to appeal if all or part of the waiver request is denied.

Discussion

A. Operator’s Responsibilities

An operator may submit a request for a waiver prior to the DHS inspection for an initial certificate of compliance or at any time during the certification period prior to the inspection for the renewal of a certificate of compliance. It is suggested that the operator submit a waiver request prior to inspection because a waiver cannot be used as a substitute for regulatory noncompliance.

The operator submits the waiver request to the appropriate regional office on a form provided by DHS. A Request for Waiver of Child Care Facility Regulation form may be obtained by contacting the regional office.

The operator must complete the Request for Waiver of Child Care Facility Regulation form to include the following information:

The name and physical address of the facility for which the waiver is being requested;
The name and mailing address of the legal entity;
The name, title and telephone number of the person submitting the waiver request;
The specific regulation for which the waiver is requested;
The reason the operator is unable to comply with the regulation;
The operator’s plan to achieve the objective of the regulation;
The operator’s signed and dated statement certifying that the operator will meet regulatory standards related to the health, safety and rights of children; and
Additional supporting documentation when requesting a waiver of a regulation as specified in Appendices A, B, and C. The supporting documentation is submitted as an attachment to the Request for Waiver of Child Care Facility Regulation

B. Inspection While Waiver Request is Pending

A waiver request may be pending at the time of an inspection. If during an inspection noncompliance is noted regarding the regulation specified in the waiver request, the operator may submit a plan of correction stating that a waiver request is pending. If DHS denies the waiver request, the operator is required to correct the noncompliance by complying with the regulation. If DHS grants the waiver request, the operator is required to correct the noncompliance by complying with the terms of the waiver.

C. Monitoring Requirements

The Certification Representative will review each waiver granted to an operator/facility when conducting an inspection to renew the certificate of compliance in order to determine continuing need for the waiver and compliance with the terms of the waiver.

DHS may rescind a waiver when the condition for which the waiver was granted no longer exists or when the operator is not in compliance with the terms of the waiver. When the operator or the Certification Representative determines the waiver is no longer needed, the Certification Representative and/or Supervisor prepares a memorandum to the BCS Director regarding the need to rescind the waiver and the basis for rescission of the waiver.

If the Certification Representative observes noncompliance with the terms of a waiver, DHS affords the operator an opportunity to comply with the terms of the waiver.

Noncompliance with the terms of a DHS waiver is cited in the same manner as noncompliance with a DHS regulation. The operator is required to submit a written plan of correction for review and approval by DHS. If the operator fails to correct the noncompliance, or fails to submit an acceptable plan to correct the noncompliance, the Certification Representative and/or Supervisor prepares a memorandum to the BCS Director regarding the need to rescind the waiver and the basis for rescission of the waiver.

The BCS director notifies the operator in writing of DHS’ decision regarding rescission of a waiver. The operator is then required to comply with the regulation as written in 55 Pa. Code Chapter 3270, 3280, or 3290.

D. Operator’s Right of Appeal

The operator has the right to appeal the denial of a waiver request or the rescission of a waiver. In the appeal, the operator must specifically allege that by denying or rescinding the waiver, DHS acted in bad faith, acted fraudulently or committed an abuse of discretion. Appeals must be made in writing and be received by DHS within 30 days of the mailing date on the waiver denial letter or waiver rescission letter. Appeals are forwarded to the DHS Bureau of Hearing and Appeals at the following address

Bureau of Hearings and Appeals Department of Human Services
P.O. Box 2675
Harrisburg, PA 17105-2675

Next Steps

Child care providers must:

Read this announcement
Direct questions to regional office

OCDEL staff must:

Be familiar with this information and direct questions to a supervisor or regional manager.

COMMENTS AND QUESTIONS REGARDING THIS ANNOUNCEMENT SHOULD BE DIRECTED TO REGIONAL OFFICES OF CHILD DEVELOPMENT AND EARLY LEARNING:

Central Region, 800-222-2217
Southeast Region, 800-346-2924
Western Region, 800-222-2149
Northeast Region, 800-222-2108

View full announcement as a PDF.