CABINET FOR HEALTH AND FAMILY SERVICES

Department for Community Based Services

Division of Child Care

(New Administrative Regulation)

 

††††† 922 KAR 2:280. Background checks for child care staff members, reporting requirements, and appeals.

 

††††† RELATES TO: KRS 17.165, 17.500-17.580, 199.011(14), 199.466, 199.894, 336.220, 620.050-620.120, 45 C.F.R. 98.43, 34 U.S.C. 20921, 42 U.S.C. 9857-9858q

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 199.896(2), 199.8965(8), 199.8982(1)(f), 199.8994(6)

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary to promulgate administrative regulations necessary to implement programs mandated by federal law, qualify for the receipt of federal funds, and necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its program. KRS 199.896(2), 199.8982(1)(f), and 199.8994(6) authorize the cabinet to promulgate administrative regulations pertaining to standards of a child-care center, family child-care home, and a child care provider that receives a child care subsidy administered by the cabinet, including criminal convictions that impact the safety and security of children in care. KRS 199.8965(8) requires the cabinet to promulgate an administrative regulation necessary to implement child care staff member background checks in accordance with 42 U.S.C. 9858f and implementing federal rule. This administrative regulation establishes background check requirements for child care staff members, reporting requirements, and appeals.

 

††††† Section 1. Definitions. (1) "Address check" means a cabinet search of the Kentucky or National Sex Offender Registry to determine if a personís residence is a known address of a registered sex offender.

††††† (2) "Cabinet" is defined by KRS 199.894(1).

††††† (3) "Child-care center" is defined by KRS 199.894(3).

††††† (4) "Child care provider" is defined by 45 C.F.R. 98.43(a)(2)(i).

††††† (5) "Child care staff member" is defined by 45 C.F.R. 98.43(a)(2)(ii).

††††† (6) "Family child-care home" is defined by KRS 199.894(5).

††††† (7) "Kentucky National Background Check Program" or "NBCP" means a background screening program administered by the cabinet in accordance with 906 KAR 1:190.

††††† (8) "Rap back system" is defined by KRS 199.011(13).

††††† (9) "Type II child-care center" means the primary residence of the licensee in which child care is regularly provided for at least seven (7), but not more than twelve (12), children including children related to the licensee.

 

††††† Section 2. Applicability and Exceptions. This administrative regulation shall apply to a child care staff member age eighteen (18) or older, including:

††††† (1) An owner, operator, or employee of a child care provider;

††††† (2) A child-care center licensee or director;

††††† (3) An adult household member of a Type II child-care center, family child-care home, or provider registered in accordance with 922 KAR 2:180;

††††† (4) An employee or volunteer who is present during the time a child is receiving care;

††††† (5) Any person with supervisory or disciplinary control over a child in care; and

††††† (6) Any person having unsupervised contact with a child in care.

 

††††† Section 3. Implementation and Enforcement. (1) A person who is a child care staff member prior to January 1, 2018, shall submit to and complete background checks in accordance with this administrative regulation no later than September 30, 2018.

††††† (2) A child care staff member hired on or after January 1, 2018, shall:

††††† (a) Have completed the background checks required in accordance with this administrative regulation and been found to have no disqualifying offense prior to becoming a child care staff member; or

††††† (b)1. Have submitted to the background checks required in accordance with this administrative regulation;

††††† 2. Not be left unsupervised with a child in care pending the completion of the background checks in accordance with this administrative regulation; and

††††† 3. Be dismissed or relocated from the residence if the person is found to have a disqualifying background check result.

††††† (3) To assure timely processing of background checks and organize background checks of existing child care staff members, the cabinet shall prioritize the processing of background checks for an individual who is a:

††††† (a) New hire on or after January 1, 2018; or

††††† (b) Child care staff member before January 1, 2018, using the following schedule:

Background Check Submission and Fingerprinting Month

Renewal Month of the Child Care Providerís License, Certification, or Registration

January or February 2018

April or May

March 2018

June or July

April 2018

August

May 2018

September or October

June 2018

November or December

July or August 2018

January or February

September 2018

March

††††† (4) A current or prospective child care staff member shall be subject to background checks in accordance with Sections 4 and 5 of this administrative regulation at intervals pursuant to 45 C.F.R. 98.43(d).

††††† (5) This administrative regulation shall govern a pilot of child care staff memberís background check that shall:

††††† (a) Commence in December 2018; and

††††† (b) Include volunteer child care providers representing differing provider types and geographical areas of the state.

 

††††† Section 4. Procedures and Payments. (1) To initiate the process for obtaining background checks on a prospective child care staff member, the child care provider shall:

††††† (a) Request that the prospective child care staff member provide a copy of his or her driverís license or other government-issued photo identification and verify that the photograph clearly matches the prospective child care staff member;

††††† (b) Request that the prospective child care staff member complete and sign the:

††††† 1. DCC-500, Applicant Child Care Staff Member Waiver Agreement and Statement; and

††††† 2. DCC-501, Disclosures to Be Provided to and Signed by the Applicant Child Care Staff Member; and

††††† (c) Log on to the NBCP portal and enter the prospective child care staff memberís demographic information for a check of the:

††††† 1. Child abuse and neglect central registry pursuant to 922 KAR 1:470;

††††† 2. National Crime Information Centerís National Sex Offender Registry in accordance with 34 U.S.C. 20921; and

††††† 3. Sex Offender Registry established in accordance with KRS 17.500 through 17.580.

††††† (2)(a) In accordance with KRS 199.8965(8), 336.220, and 45 C.F.R. 98.43(f), a child care provider shall submit payment via credit or debit card for a state and national fingerprint-supported criminal history background check performed by the Department of Kentucky State Police (KSP) and the Federal Bureau of Investigation (FBI), including the rap back system. If a child care staff memberís rap back has not expired, a new fingerprint check shall not be needed.

††††† (b) A child care provider enrolled in the Kentucky NBCP shall pay a fee not to exceed twenty-five (25) dollars in addition to any fees charged in accordance with paragraph (a) of this subsection for the actual cost of processing a fingerprint-supported state and national criminal background check and for providing rap back services.

††††† (3) To the extent funds are available, the:

††††† (a) Race to the Top-Early Learning Challenge Grant in accordance with Pub. L. 112-10 shall cover the cost of background checks performed in accordance with subsection (1) of this section until close of the grant or exhaustion of grant funds, whichever occurs first; or

††††† (b) Cabinet shall absorb, in whole or in part, fees using funding in accordance with 42 U.S.C. 9857-9858q.

††††† (4)(a) Upon submission of payment in accordance with subsections (2) and (3) of this section, the child care provider shall print a copy of the DCC-504, Applicant Child Care Staff Member Live Scan Fingerprinting Form, from the NBCP portal and provide the form to the child care staff member.

††††† (b) The child care staff member shall:

††††† 1. Have no more than ninety (90) calendar days from the date of payment pursuant to subsections (2) and (3) of this section to submit the child care staff memberís fingerprints at an authorized collection site for NBCP; and

††††† 2. Present the DCC-504 and driverís license or other government-issued photo identification to the designated agent at an authorized collection site prior to fingerprint submission.

††††† (5) Upon completion of the background checks in accordance with this section and Section 5 of this administrative regulation, the cabinet:

††††† (a) Shall provide notice to the child care provider in accordance with 45 C.F.R. 98.43(e) that the prospective child care staff member is:

††††† 1. Eligible for hire; or

††††† 2. Not eligible for hire if the prospective child care staff member is found by the cabinet to have a disqualifying background check result in accordance with Section 6 of this administrative regulation;

††††† (b) May release any record of state criminal history found in the files of the Kentucky centralized criminal history record information system to the child care provider or another entity provided on the waiver in accordance with subsection (1)(b) of this section; and

††††† (c) Shall, upon receipt of written request from an applicant, send a copy of a KSP or FBI criminal history report to the prospective child care staff member by certified mail, restricted delivery service. The prospective child care staff member shall show proof of identity and sign to receive his or her criminal history report from the local post office.

††††† (6) A child care provider shall not be obligated to employ or offer employment to an individual who has been found by the cabinet to be eligible for hire pursuant to subsection (5)(a) of this section.

††††† (7) A child care staff member may submit a request for a protection and permanency record in accordance with 922 KAR 1:510.

 

††††† Section 5. Checks of Other States. (1) In accordance with 45 C.F.R. 98.43(b)(3), a prospective child care staff member who resides in or has resided in another state within the last five (5) years shall:

††††† (a) Request from each state of current or prior residency, in accordance with the stateís laws, policies, and procedures, with a courtesy notice to the cabinet:

††††† 1. An in-state criminal records check by:

††††† a. Means of fingerprints for the state of residence; or

††††† b. Any means accepted by a state of prior residency;

††††† 2. A check of the stateís sex offender registry or repository; and

††††† 3. A check of the state-based child abuse and neglect registry and database; and

††††† (b) Direct results of the checks required in paragraph (a) of this subsection to the Department for Community Based Services, Division of Child Care, 275 East Main Street, 3C-F, Frankfort, Kentucky 40601.

††††† (2) If the prospective child care staff memberís current or prior state of residency participates in the FBIís National Fingerprint File Program, a prospective child care staff member shall be exempt from the requirements of subsection (1)(a)1. of this section.

††††† (3) In accordance with KRS 336.220, a child care provider shall pay any fee charged by another state for a background check as permitted pursuant to 45 C.F.R. 98.43(f) for a prospective child care staff member.

††††† (4) If another state fails to respond to a check submitted in accordance with subsection (1) of this section within thirty (30) calendar days from the date of the background checkís request as verified by the child care staff member, the cabinet shall:

††††† (a) Process a child care staff memberís background checks and issue notice to the child care provider in accordance with Section 4(5) of this administrative regulation to ensure compliance with 45 C.F.R. 98.43(e); and

††††† (b) Send notice in accordance with Section 4(5) of this administrative regulation if:

††††† 1. Another state provides requested background check results at a later date; and

††††† 2. A disqualifying background check result is identified.

††††† (5) A child abuse and neglect central registry check in accordance with 922 KAR 1:470 may be requested by a:

††††† (a) Parent or legal guardian in accordance with KRS 199.466; or

††††† (b) Child care staff member in another state.

 

††††† Section 6. Disqualifying Background Check Results. (1) Unless a rehabilitative review pursuant to Section 9 of the administrative regulation determines the individual is eligible to be hired, an individual shall be ineligible to:

††††† (a) Be hired or otherwise serve as a child care staff member if the individual:

††††† 1. Meets a criterion specified in 45 C.F.R. 98.43(c);

††††† 2. Has been convicted of, or has entered an Alford plea, a plea of guilty, or a plea of nolo contendere to, a:

††††† a. Drug-related felony, and five (5) years has not elapsed since the person was fully discharged from imprisonment, probation, or parole;

††††† b. Sex or violent crime pursuant to KRS 17.165; or

††††† c. A felony offense under:

††††† (i) KRS Chapter 506, inchoate offenses;

††††† (ii) KRS Chapter 511, burglary and related offenses;

††††† (iii) KRS Chapter 515, robbery;

††††† (iv) KRS Chapter 520, escape and other offense related to custody;

††††† (v) KRS Chapter 525, riot, disorderly conduct, and related offenses;

††††† (vi) KRS Chapter 527, offense relating to firearms and weapons;

††††† (vii) KRS Chapter 529, prostitution offenses; or

††††† (viii) KRS Chapter 530, family offenses;

††††† 3. Is listed on the:

††††† a. Central registry established in accordance with 922 KAR 1:470; or

††††† b. Another stateís state-based child abuse and neglect registry or database;

††††† 4. Has been convicted of, or has entered an Alford plea, plea of guilty, or a plea of nolo contendere to, an offense under a criminal statute of the United States or of another state similar to an offense specified in this paragraph;

††††† 5. Has an open warrant;

††††† 6. Has a criminal background check result indicating that the individual should be approached with caution by authorities; or

††††† 7. Has a pending charge for a criminal offense specified in this paragraph; or

††††† (b) Serve as a child-care centerís applicant, licensee, or director if the individual has been convicted of, or has entered an Alford plea, a plea of guilty, or a plea of nolo contendere to, a felony offense involving fraud, embezzlement, theft, or forgery.

††††† (2) An individual who has received a pardon for a disqualifying offense, has had the record expunged, or has evidenced dismissal of a warrant or disqualifying charge may serve as a child care staff member.

††††† (3) Unless there is a pending informal review, rehabilitative review, or appeal in accordance with Section 7 of this administrative regulation, a child care provider shall be ineligible for the Child Care Assistance Program and shall be subject to a cabinet action against the child care providerís license in accordance with 922 KAR 2:090, certification in accordance with 922 KAR 2:100, or registration in accordance with 922 KAR 2:180, if the child care provider:

††††† (a) Employs a child care staff member who is ineligible for employment under subsections (1) and (2) of this section; or

††††† (b) Is a registered child care provider, certified family child-care home, or Type II licensed child-care center and includes an adult household member who has a disqualifying background check result in accordance with subsections (1)(a) and (2) of this section.

 

††††† Section 7. Notice of a Disqualifying Background Check Result and Appeals. (1) The cabinet shall notify each prospective or current child care staff member determined to have a disqualifying background check result in accordance with Section 6 of this administrative regulation.

††††† (2) In addition to the cabinetís notification in accordance with subsection (1) of this section, a child care provider that receives notice from the cabinet that a prospective or current child care staff member has been determined to have a disqualifying background check result in accordance with Section 6 of this administrative regulation shall notify the child care staff member of the cabinetís determination within three (3) business days of receipt of the notice.

††††† (3) Pursuant to 45 C.F.R. 98.43(e)(3), a prospective or current child care staff member who receives notice of having a disqualifying background check result in accordance with Section 6 of this administrative regulation may:

††††† (a) Challenge the accuracy of the cabinetís determination by submitting a written request for informal review, including any information the individual wishes to be considered, to the Department for Community Based Services, Division of Child Care, 275 East Main Street, 3C-F, Frankfort, Kentucky 40621, within ten (10) calendar days of the date of notice in accordance with subsection (1) of this section; or

††††† (b) Request a rehabilitative review pursuant to Section 9 of this administrative regulation.

††††† (4) Upon completion of an informal review upon request pursuant to subsection (3)(a) of this section, the cabinet shall provide written notice of the cabinetís decision to uphold or rescind the notice of disqualifying background check result to the prospective or current child care staff member.

††††† (5) A prospective or current child care staff member may appeal the results of an informal review or a rehabilitative review pursuant to Section 9 of this administrative regulation and 45 C.F.R. 98.43(e)(3), in accordance with 922 KAR 2:260.

††††† (6) If a prospective or current child care staff member wishes to challenge the accuracy of a criminal background check, the cabinet shall refer the individual to the appropriate state or federal law enforcement agency.

††††† (7) If a prospective or current child care staff member challenges the finding that he or she is the true subject of the results from a registry or repository check, the cabinet shall refer the individual to the agency responsible for maintaining the registry or repository.

 

††††† Section 8. Termination or Relocation of a Child Care Staff Member upon Receipt of Notice of a Disqualifying Background Check Result. (1) If a prospective or current child care staff member has not requested an informal review or a rehabilitative review in accordance with Section 9 of this administrative regulation, the child care provider shall:

††††† (a)1. Terminate the child care staff member no later than ten (10) calendar days after receipt of notice of the cabinetís determination, including the disqualifying background check result; or

††††† 2. Change residence of an adult household member in the child care providerís home no later than fifteen (15) calendar days after receipt of notice of the cabinetís determination, including disqualifying background check result; and

††††† (b) Use the NBCP to provide electronic notification to the cabinet affirming the child care staff memberís dismissal or household memberís change in residence within three (3) business days of termination or residence change.

††††† (2)(a) If a prospective or current child care staff member requests an informal review or a rehabilitative review in accordance with Section 9 of this administrative regulation, the child care provider:

††††† 1. May retain the child care staff member pending resolution of the informal review or rehabilitative review; and

††††† 2. Shall ensure that the child care staff member:

††††† a. Is subject to direct, onsite supervision; or

††††† b. Does not have duties or proximity that involves one-on-one contact with a child in care.

††††† (b) A child care provider shall terminate the child care staff member or relocate the adult household member if the:

††††† 1. Informal review upholds the cabinetís determination of a disqualifying background check result, or the rehabilitative review committee does not grant a waiver; and

††††† 2. Child care staff member does not request an administrative hearing in accordance with Section 7(5) of this administrative regulation, in which the child care provider shall terminate the child care staff member or relocate the adult household member no later than the thirty-first calendar day following written notice of the results of the informal review or rehabilitative review.

††††† (c) If a child care staff member requests an administrative hearing in accordance with Section 7(5) of this administrative regulation to appeal the decision from an informal review or rehabilitative review, the child care provider:

††††† 1. May retain the child care staff member pending the appealís resolution if the child care staff member:

††††† a. Remains subject to direct, onsite supervision; or

††††† b. Does not have duties or proximity that involves one-on-one contact with a child in care; and

††††† 2. Shall terminate the child care staff member or relocate the adult household member no later than the thirty-first calendar day from the issuance of the final order if the child care staff member or adult household member does not prevail.

††††† (d) Using the NBCP, the child care provider shall provide electronic notification to the cabinet affirming the individualís dismissal or relocation within three (3) business days of the termination or relocation.

 

††††† Section 9. Rehabilitative Review. (1)(a) A prospective or current child care staff member found to have a disqualifying background check result shall be eligible for consideration of rehabilitation under an independent review process.

††††† (b) Consideration of a disqualifying background check result under the rehabilitative review process described in this section shall not apply to:

††††† 1. A disqualifying felony offense that occurred less than ten (10) years prior to the date of the criminal background check;

††††† 2. Any disqualifying felony or misdemeanor offense related to abuse, neglect, or exploitation of a child;

††††† 3. Registration as a sex offender under federal law or under the law of any state;

††††† 4. A sex or violent crime as defined by KRS 17.165; or

††††† 5. A child abuse and neglect substantiated finding that:

††††† a. Occurred less than five (5) years prior to the date of the registry check; or

††††† b. Involved:

††††† (i) Sex abuse or sex exploitation of a child;

††††† (ii) A child fatality related to abuse or neglect;

††††† (iii) A near fatality of a child related to abuse or neglect; or

††††† (iv) The involuntary termination of parental rights in accordance with KRS 625.050 through 625.120.

††††† (2)(a) A prospective or current child care staff member may submit a written request for a rehabilitative review to the cabinet no later than fourteen (14) calendar days from the date of the notice of the cabinetís determination issued pursuant to Section 4(5) or 7(4) of this administrative regulation regarding a determination of a disqualifying background check result.

††††† (b) If a prospective or current child care staff member requests a rehabilitative review, the child care staff member:

††††† 1. May be retained by the child care provider pending the rehabilitative review; and

††††† 2. Shall be subject to restrictions and termination or relocation in accordance with Section 8 of this administrative regulation.

††††† (3) The request for a rehabilitative review shall include the following information:

††††† (a) A written explanation of each disqualifying background check result, including:

††††† 1. A description of the events related to the disqualifying background check result;

††††† 2. The number of years since the occurrence of the disqualifying background check result;

††††† 3. The age of the individual at the time of the disqualifying background check result; and

††††† 4. Any other circumstances surrounding the disqualifying background check result;

††††† (b) Official documentation showing that all fines, including court-imposed fines or restitution, have been paid or documentation showing adherence to a payment schedule, if applicable;

††††† (c) The date probation or parole was satisfactorily completed, if applicable;

††††† (d) Employment and character references, including any other evidence demonstrating the ability of the individual to perform the employment responsibilities and duties competently; and

††††† (e) Evidence that the individual has pursued or achieved rehabilitation with regard to a disqualifying background check result.

††††† (4) A rehabilitative review shall be conducted by a committee of three (3) employees of the cabinet, none of whom was responsible for determining that the individual has a disqualifying background check result.

††††† (5) The committee shall consider the information required under subsection (3) of this section, and shall also consider mitigating circumstances including:

††††† (a) The amount of time that has elapsed since the disqualifying background check result;

††††† (b) The lack of a relationship between the disqualifying background check result and the position for which the individual has applied; and

††††† (c) Evidence that the applicant has pursued or achieved rehabilitation with regard to the disqualifying background check result.

††††† (6) No later than thirty (30) calendar days from receipt of the written request for the rehabilitative review, the cabinet shall send the committee's determination on the rehabilitation waiver to the prospective or current child care staff member.

††††† (7) The decision of the committee shall be subject to appeal in accordance with Section 7(5) of this administrative regulation.

††††† (8) A child care provider shall not be obligated to accept an individual who is granted a waiver pursuant to this section as a child care staff member.

 

††††† Section 10. Transparency. The cabinet shall maintain information concerning the background check processes in accordance with this administrative regulation on its Web site in accordance with 45 C.F.R. 98.43(g).

 

††††† Section 11. Status of Employment. (1) A child care provider shall maintain the employment or residential status of each child care staff member who has submitted to a fingerprint-based criminal background check by reporting the status using the NBCP web-based system.

††††† (2) The cabinet shall inspect a child care provider to verify conformity with this administrative regulation.

 

††††† Section 12. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) "DCC-500, Applicant Child Care Staff Member Waiver Agreement and Statement", 12/2017;

††††† (b) "DCC-501, Disclosures to Be Provided to and Signed by the Applicant Child Care Staff Member", 12/2017; and

††††† (c) "DCC-504, Applicant Child Care Staff Member Live Scan Fingerprinting Form", 12/2017.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

 

ADRIA JOHNSON, Commissioner

VICKIE YATES BROWN GLISSON, Secretary

††††† APPROVED BY AGENCY: December 12, 2017

††††† FILED WITH LRC: December 14, 2017 at 4 p.m.

††††† PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on January 22, 2018, at 9:00 a.m. in Suites A & B, Health Services Building, First Floor, 275 East Main Street, Frankfort, Kentucky 40621. Individuals interested in attending this hearing shall notify this agency in writing by January 12, 2018, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on this proposed administrative regulation until January 31, 2018. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to the contact person. Pursuant to KRS 13A.280(8), copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available upon request.

 

††††† CONTACT PERSON: Laura Begin, Legislative and Regulatory Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-A, Frankfort, Kentucky 40621, phone 502-564-6746, fax 502-564-2767, email Laura.Begin@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Persons: Elizabeth Caywood, phone (502) 564-3703, email Elizabeth.Caywood@ky.gov, and Laura Begin

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes background check requirements for child care staff members, reporting requirements, and appeals.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish background check requirements for child care staff members, reporting requirements, and appeals.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes through its establishment of child care staff membersí background checks, reporting requirements, and appeals.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will assist in the effective administration of the statutes through its establishment of child care staff member background checks, reporting requirements, and appeals. The emergency administrative regulation supports initiation of a pilot program and implementation of the new background check requirements in late 2017 and 2018, respectively, to ensure the stateís compliance with the federally mandated deadline and childrenís health, safety, and welfare.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: This is a new administrative regulation.

††††† (b) The necessity of the amendment to this administrative regulation: This is a new administrative regulation.

††††† (c) How the amendment conforms to the content of the authorizing statutes: This is a new administrative regulation.

††††† (d) How the amendment will assist in the effective administration of the statutes: This is a new administrative regulation.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The department has projected upwards of 24,000 new and existing child care staff members will be subject to this administrative regulation in its first year.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Child care providers will be required to submit anyone meeting the federal definition of "child care staff member" to background checks in accordance with this administrative regulation. Federal law and related federal waiver mandate the background checks be performed on new hires and existing child care staff members no later than September 30, 2018.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Regulated entities will be required to absorb fees imposed by agencies for the provision of background checks. To the extent possible, the department plans to use its resources to absorb or offset costs for regulated entities, thereby ensuring that child care providers are paying the same or only slightly more than present day for more comprehensive background checks. In addition, the department has been successful in securing federal Race to the Top-Early Learning Challenge Grant funds to absorb all costs for providers through the exhaustion of those funds or the sunset of the grant, whichever is first. In addition, the rap back feature will help child care providers avoid costs if the child care staff member remains with the provider or within the child care provider community for five years.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Regulated entities will have access to more comprehensive background checks for child care staff members. The health, safety, and welfare of children served by regulated entities will be better preserved. The utilization of the Kentucky National Background Check Program is also consistent with federal recommendations and is unique opportunity available in Kentucky due to a prior federal grant through the Centers for Medicare and Medicaid Services.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: The department has secured federal Race to the Top-Early Learning Challenge Grant funds to assist with initial implementation, projected to be $1.5 million. If the state fails to adhere to the new federal mandate, the state risks being subject to corrective action and a minimal, initial federal penalty of no less than $4.4 million of its Child Care and Development Fund award, which will increase in amount in subsequent years of noncompliance.

††††† (b) On a continuing basis: After initial implementation, which will include checks of existing child care staff members, the department will absorb or offset costs associated with implementation of the federal mandate within its existing appropriations, including federal award, to the extent possible.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Initial implementation and enforcement of this administrative regulation will include the use of federal Race to the Top-Early Learning Challenge Grant funds. The Child Care and Development Fund Block Grant, state match, and maintenance of effort for the block grant, and limited agency funds will support the ongoing implementation and enforcement of this administrative regulation.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is no increase in fees or funding necessary to implement this administrative regulation.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: At this time, this administrative regulation does not directly establish any fees, but rather, passes along fees established by the agencies conducting the background checks, most often law enforcement. The cabinet has no control over the fees charged by law enforcement agencies. Per state law, law enforcement agencies and the cabinet cannot charge a child care provider more than the actual cost of processing the background check.

††††† (9) TIERING: Is tiering applied? Tiering is not applied, because this administrative regulation will be applied in a like manner statewide.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† (1) Federal statute or regulation constituting the federal mandate. 45 C.F.R. 98.43, 42 U.S.C. 9857-9858q

††††† (2) State compliance standards. KRS 194A.050(1), 199.896(2), 199.8965(8), 199.8982(1)(f), 199.8994(6)

††††† (3) Minimum or uniform standards contained in the federal mandate. The provisions of the administrative regulation comply with the federal mandate.

††††† (4) Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation does not impose stricter, additional or different responsibilities or requirements than those required by the federal mandate.

††††† (5) Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This administrative regulation does not impose stricter, additional or different responsibilities or requirements than those required by the federal mandate.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Cabinet for Health and Family Services will be impacted by this administrative regulation. Quasi-governmental agencies, local governments, and school districts that operate a licensed child-care center will be impacted by this administrative regulation.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1), 199.896(2), 199.8965(8), 199.8982(1)(f), 199.8994(6), 45 C.F.R. 98.43, 42 U.S.C. 9857-9858q

††††† (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will generate no revenue in its first year. Fees passed along to regulated entities will be established by the agency conducting the background check and are not allowed to exceed the actual cost of performing the check.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will generate no revenues in its subsequent years.

††††† (c) How much will it cost to administer this program for the first year? This program is anticipated to cost upwards of $1.5 million within its first year of implementation due to the federal requirement applying to new hires and existing child care staff members. The department has identified federal grant funds to cover most, if not all, these initial costs.

††††† (d) How much will it cost to administer this program for subsequent years? Ongoing costs are unknown, but are projected to be much less than the possible $4.4 million federal penalty that can be levied upon the state for the first year of noncompliance with the federal mandate. The department anticipates being able to absorb or offset costs within its existing state and federal awards. The enhanced safety measures afforded through the more comprehensive background checks will also ensure avoidance of costs that are associated with child maltreatment.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-)

††††† Expenditures (+/-):

††††† Other Explanation: