ECEA's Office

The ECEA office is open Monday through Friday from 9:00 AM to 3:00 PM, national holidays excluded.  Please feel free to send an email anytime!

Kathryn Hammerbeck
Executive Director
kathryn@coloradoecea.org

Kathleen Munroe
Administrative Assistant
kathleen@coloradoecea.org

ECEA Analysis – Proposed Center Rules

ECEA believes that licensing rules should protect the health and safety of young children in our care; and that the rules should be reasonable, measurable and equitable to all providers. 

Reasonable is defined as:

  • Rules that meet the state declaration to balance accessibility and quality in regulation
  • Where appropriate, rules that equate to a score of 3 on an ITERS/ECERS

In reviewing the proposed regulations for centers, we have found numerous instances where these proposed regulations do not meet even these very basic guidelines. Some of the rules duplicate regulatory authority found in other agencies. In other instances, the proposed rules would create a significant financial burden to providers.  Finally, we are concerned that these proposed rules do not support diverse programming, restricting parent choice. 

The extent and breadth of the proposed rules call into discussion the role of licensing. In trying to improve quality through licensing rule, a very basic part of the quality rating system is ignored. A rating system such as Qualistar or an accreditation program such as NAEYC allows a provider to not meet some standards and still be able to achieve a rating or accreditation. Unfortunately, in a licensing model, a provider must meet 100% of the rules or they will be found to be in non-compliance. Also, a program officially enters the rater's system and has a long period of time for self study, often (or usually) with the assistance of a mentor.

Therefore, ECEA believes that licensing rules should be achievable by all providers without compromising the program’s educational philosophy or its budget. 

The rules that are of concern fall within 5 categories: 

  • changes to physical plant which are costly
  • programming/training
  • conflict with existing laws
  • equitability  to all providers
  • inconsistencies within the rule package and vague language

The following rules require changes to providers’ facilities which can be costly.

The rules in this section may require structural changes in a provider’s facility.  These types of changes can cost thousands of dollars in renovation expense.

Rule 7.702.63B1: Every facility shall have accommodations and equipment in each classroom to accommodate changing a child in the event the child’s clothes become soiled.

  • This rule is not reasonable as defined above: What is the rationale behind this rule?  All facilities are required to have bathroom facilities.  Why can’t these bathrooms be used to change soiled clothing? 
  • Is this rule necessary?
  • This rule would create a financial hardship for many providers: In many of the older facilities and in those located in churches, the restrooms are located in the hallways rather than in the classroom.  Requiring accommodations can be costly.

Rule 7.702.63C2: Every Facility shall have at least one designated diaper change area for every twenty (20) preschool age children for which the facility is licensed.

  • This rule is not reasonable as defined above: What is the rationale behind this rule?  Many programs won’t take children unless they are toilet trained.
  • This rule would create a financial hardship for many providers: Rule 7.702.63C3B requires that a diaper change area have a hand-washing sink within arm’s reach.  For many of the older facilities and for those located in churches, there is no plumbing for hand-washing sinks. Compliance with this rule will be costly. 

Rule 7.70263 C3B:   Be adjacent to AND within arm's (SIC) reach of a hand-washing sink SEPARATE FROM FOOD OR BOTTLE PREPARATION -- See above


Rule 7.702.83B4: The total play area for toddler outdoor classrooms shall be a minimum of 750 square feet if licensed for 10 toddlers and 1050 if licensed for 14 or more toddlers.

  • This rule would create a financial hardship for many providers: Current licensing requires a minimum of 400 SF for infants (which are usually used for toddlers). Some programs may not have enough land space to increase their toddler playground. It will be very costly to comply with this rule change.

Rule 7.702.92B & G: Exits shall be available in each classroom or a common hallway not through another classroom.

  • This rule would create a financial hardship for many providers: There are many currently licensed providers whose classrooms have exits through another classroom.  Where that is the case, it will be very costly or impossible to comply with this rule change without significant structural changes.
  • This rule is duplicative of regulatory authority under another agency: This rule should be under the purview of the local fire department, not licensing. 

The following rules affect a provider’s programming choices (including material requirements) or the training choices that a director makes for her staff.

The overarching question in this section is: What is the role of licensing in relation to a provider’s programming? This new area of enforcement moves licensing away from health and safety standards to influence curricula and may restrict a parent’s choice of a program that meets their educational values for their children.


Rules affecting programming:


Rule 7.702.64C1A: Each child shall have one staff member who is their assigned caregiver and 7.702.64C4: ...personal contract and attention from their assigned caregiver.

  • This rule is not reasonable as defined above: Although this may be a best practice, this rule has the potential to create conflicts if a staff member doesn’t want to be assigned to a particular child. It may also be confusing to parents and has the potential to create conflict if the parent wants to dictate which staff member should be their child’s primary caregiver.   
  • Also, this is a 5 on the ITERS. The rating of 3 on ITERS reads: Continuity provided by 1 - 2 stable staff members who lead the group every day.

Rule 7.702.64C5:  INFANTS AND TODDLERS SHALL be allowed to form and observe their own pattern of sleep and waking periods.  Special provisions shall be made so that children requiring a nap time have a separate area for their nap apart from space used for play.

  • This is a significant change from current practice. Providers have a scheduled nap time for toddlers. 
    The napping area is within the play area. 

Rule 702.65A4: A wide variety of foods including fresh fruits and vegetables and whole grain products….  And 7.702.65A14, 7.702.65A15, and 7.702.65A22.

  • These rules are duplicative of regulatory authority under another agency: These rules would give authority to licensing to regulate menu planning and food service. This function is a part of CACFP which is administered by CDPHE. 

Rule 7.702.68A4. Children shall not be required to participate in an activity and shall have at least two other activities available to choose from.

  • This rule is not reasonable as defined above: This rule is a part of ITERS for art activities, and is taken out of context. 

Rule 7.702.68A5:  Art activities shall be provided for children twelve months and older at least three times per week. 

  • This rule is not reasonable as defined above: This rule is a 5.1 in ITERS

Rule 7.702.68A5, 6, & 7 Staff shall initiate at least one music activity daily…. At least one provider initiated language activity shall be offered daily…..Providers shall initiate at least one interactive musical activity weekly

  • These rules will regulate a provider’s program by licensing. Rule #7 appears to be a duplicate of Rule #5 in this section.

Rules affecting materials:

Rule 7.702.72 G (should be H)1:  Art Supplies

  • This rule is not reasonable as defined above: This rule requires a minimum of 100 pieces of art materials per preschool classroom and 25 pieces of art materials for Toddlers classrooms.
  • Is there research that determines this is an adequate amount of art materials?
  • In ITERS and ECERS “Some” is defined as at least one usable art material that will allow children to complete artwork for a scoring of 3; a 5 on the ECERS scale requires 3 – 5 different art materials from four categories. In ITERS a score of 7 requires 3 different art materials. This rule is in excess of both ITERS and ECERS recommendations.
  • Will this rule be burdensome to licensing specialists?  Will they be required to count each piece of art materials?
  • These rules seem to preclude the use of pudding painting or cornstarch glob since they are not counted in the art materials. These are art materials that are not kept on hand but are made at the time of the activity.

Rule 7.702.72G (should be H) 3A, (Books)

  • This rule is not reasonable as defined above: Rule requires a minimum of 12 book plus 1 per child in the room
  • A score of 3.1 on ITERS requires 6 books (but no less than 1 per child).
  • Requiring 12 books equates to a 5.1 on the scale.
  • A score of 3.1 on ECERS requires 1 book for half of the children allowed to attend (10 books for a group
    of 20).
  • This rule is in excess of both ITERS and ECERS recommendations for a score of 3.

Rule 7.702.72G (should be H) 3A,B,C: (Visual Displays):

  • This rule is not reasonable as defined above: This rule requires a minimum of 10 visual displays per classroom, and that 2 of the 10 shall be a realistic representation of nature and 2 of the 10 shall represent diversity.
  • This level of regulation for visual displays is not a part of ECERS/ITERS which require age appropriate materials and children’s work. ITERS requires only 3 displays for a score of 3.1.
  • This rule exceeds ITERS/ECERS recommendations

Rule 7.702.72G (should be H)4A (Infant & Toddler Dramatic Play): Infants shall have at least five toys from 5 categories ……each toddler classroom shall have at least 2 or more from 6 categories.

  • This rule is not reasonable as defined above: ITERS requires 2 or more dolls and 2 or more soft animals rather than 2 from each category (which is a total of 12).
  • Requiring 2 or more from each category is a 5.1 score on ITERS.
  • The rule for Infants needs clarification; is it a total of 5 or 5 from each category?

Rule 7.702.72G (should be H)4A (Preschool Dramatic Play:  At least five or more from each of 6 categories.

  • This rule is not reasonable as defined above: ECERS does not specify a specific number of materials for a score of 3; for a score of 5, it is recommended that three or more children use the materials at the same time.

Rule 7.702.72G (should be H)5A:  Gross motor equipment shall be available to children for indoor gross motor activities when weather prevents outdoor play.

  • This rule is not reasonable as defined above: There are gross motor activities that can be done without equipment. Gross motor equipment requires quite a bit of space, as well as activities using equipment.

Rule 7.702.72G 6B (Infant and toddler musical equipment and materials): Each toddler classroom shall have at least ten musical toys…... 

  • This rule is not reasonable as defined above: This is a 5 on the ITERS

Rule 7.702.72G 6B (Preschool and School Age musical equipment and materials): Each preschool and school age classroom shall have at least ten musical toys…... 

  • This rule is not reasonable as defined above: This is a 5 on the ECERS

Rule 7.702.72G (should be H)11A:  Nature and Science Materials.  Children shall have at least two opportunities every day to experience the natural world.

  • This rule is vague: What is meant by opportunities? 
  • Is exposure to the nature and science materials considered an opportunity?
  • Is outside play considered an opportunity?

Rule 7.702.72G (should be H)11A (Infant and Toddler): Of the pictures and books in the classroom at least half shall represent nature realistically.

  • This rule is not reasonable as defined above: What is the rationale behind this rule? 

Rule 7.702.72G (should be H)11B:  There shall be at least two (2) pieces of equipment from the following list:  microscopes, magnifying  glasses, plants or animals. 

  • This rule is vague: What is meant by equipment?  Are providers required to have 2 live animals and 2 live plants?

Rules affecting training:

Rule 7.702.51K: All staff shall complete a standard precautions training before working with children.

  • This rule is not reasonable as defined above: Universal Precautions training is not readily available. It will be difficult to hire someone and then have to wait until the next training is available before they start work.
  • A center could be in non-compliance with ratios if they can’t bring in someone as quickly as needed; or they would be in non-compliance with this rule.
  • Suggested Rewrite: ….training within 30 days of employment. Delete “before working with children."

Rule 7.702.64B11: Child care providers and children attend at least one physical activity education class
per year.

  • This rule raises several questions: Who conducts this training? Is this a part of the required 15 clock hour training for providers, or is it in addition? Does this apply to all children including infants?
  • This rule is unreasonable as defined above: What kind of physical activity education class is available to infants & toddlers?

Rule 7.702.65A23: Nutrition education is offered to child care staff at least one time per year and to children at least three times per year.

  • This rule raises several questions: Who conducts this training? Is this a part of the required 15 clock hour training for providers or is it in addition? Does this apply to all children including infants?
  • This rule is unreasonable as defined above: What kind of nutrition education class is available to infants & toddlers?

Rule 7702.51J: The trainer shall have documentation of the qualifications for each topic of training conducted which shall be available for review by representatives of the state department.

  • This rule is vague: What type of documentation will be allowed?  A director could conduct training on the center’s policy for counting children.  How will her qualification be documented?

Rule 7.702.66 F:  Physical, mechanical, and chemical restraint shall never be used. 

  • This rule is not reasonable as defined above: Special needs kids sometimes need restraints to protect themselves or other kids (head banging, throwing things are examples). Staff could be required to have training in proper holds but they must be allowed to step in to hold a child who is harming himself or others. There are safe, non punitive holds to use and they should be an option in the RARE case where it is necessary.

The following rules are in conflict with laws creating a legal liability.

Americans with Disabilities Act:

  • Multiple rules are duplicative of the Department of Justice's regulatory authority under the Americans with Disabilities Act. These rules may include, for example, rules related to accommodations in every classroom for changing soiled clothing and including statements regarding recruitment of children with special needs.  
  • All child care centers are required to comply with the ADA and are subject to oversight and enforcement by the Department of Justice.

Rule 702.2: “Volunteer”:

  • Under the Fair Labor Standards Act, if the “volunteer” provides services that employees provide, then they are considered employees and must be paid. [cite]

Rule 702.41: “Statement of Policies and Procedures”:

  • The rules require that “written policies and procedures shall be developed and implemented and followed…” What if the employee’s actions do not violate the law, but are not in accordance with written policies and procedures?  A provider will be found to be in violation of not following their own policies. 

Rule 7.702.43 (M): Efforts shall be made to provide caregivers time away from job responsibilities. 

  • This rule is duplicative of regulatory authority under another agency: The Colorado Department of Labor regulates meal and break periods for employees pursuant to annual Wage Orders (currently Wage Order 27). 
  • The ECEA is unaware of any authority that requires child care centers to comply with Wage Order 27.  However, even if Wage Order 27 is determined to apply to child care centers, this rule infringes on CDOL's authority and exceeds the CDOL's standards related to breaks. 
  • This rule is vague: Who decides what constitutes an effort?


Rule 7.702.43(N): Within thirty (30) days of termination, staff members shall be provided a letter verifying their experience at the center…. 

  • Employers' decisions about providing references, and the proper content for references, are sensitive. 
  • Providing this letter could be viewed as an affirmative recommendation of the employee for employment, which could create liability for the former employer. 
  • The rule should be revised to provide that no such letter constitutes an endorsement or affirmative recommendation of the employee for employment.

Rule 7.702.43(R): Renewal letters for a director will not be renewed….

  • The “nonrenewal” of director letters for directors who have been “deemed culpable in an adverse licensing case or who exhibit unethical behavior” is problematic as it would seem to be both vague and devoid of due process.

Rule 7.702.54(F):

  • Similar FLSA/volunteer concerns referenced above.

Rule 7.702.62(C)(13): ...the policy shall include a written contract with the child...

  • This regulation requires a “contract with the child” concerning medication. Children cannot be bound by contracts. There is extensive information out there about the ADA and child care centers. See e.g.

Rule 7.702.92: Fire Safety

  • This section of rules is duplicative of regulatory authority under another agency: These rules should be under the purview of the local fire department not licensing. 

Rule 7.702.100 A: Electronic and paper files shall be available upon request.

  • Child care providers are required by State and Federal law to ensure that certain records, such as I-9s, HIPAA-protected health information, and Colorado affidavits, are kept confidential. 
  • The rule should be revised to provide that licensing shall be permitted to access only those electronic folder(s) that are specially marked for licensing's view, and that licensing is not permitted to access any electronic records not contained in such files. 

Rule 7.702.103E: Control of communicable illness

  • Communicable disease list is inconsistent with other lists within the regulations, and is also inconsistent with the Colorado Department of Health Communicable Disease Manual. al.html

Rule 7.702.55A3a: If the director is not on site at the center for a portion of any day the center is in operation, the director shall be available by phone.

  • This rule would require directors be available by phone even when they are off duty, on vacation, etc. 

Rules which are not equitable

Rule 7.702.3B & G: The governing body of a public school system...shall appoint a qualified director or qualified public school principal.

  • This rule is not equitable: It seems that directors of public school programs do not have to meet the same qualification as directors of child care centers.

Rule 7.702.52B.2: ….directors of public school preschools shall attend a department-approved course of training in nutrition and implementation of rules regulating child care.

  • This rule is not equitable: It seems that directors of public school programs do not have to meet the same educational requirements as directors of child care centers.

Rule 7.702.55D.7:  Substitutes

  • This rule is not equitable: Substitutes for directors in public school programs do not have to meet the same criteria as those in child care centers.

Rule 7.702.71.C:  …seats shall...include back supports, foot rest, and children’s feet should touch the floor. 

  • This rule is not equitable: Because school-based programs cannot meet this rule, the department is asking for suggestions. No such consideration is given to child care centers.

Rule 7.702.72G 6B: All music that children are exposed to shall be from a variety of types, shall be age appropriate and shall not contain explicit language or topics and can be from the following types of music:  classical, popular, children’s songs, jazz, rock, reggae, rhythm and blues, cultural, diverse languages, lullabies, rap, folk songs, county(sic).

  • This rule is not measurable: How will licensing measure age appropriate music?
  • This rule is not equitable: Gospel or spiritual music is not listed which is a staple for faith-based programs.

Rules which are vague and open to interpretation or have inconsistencies:

Rule 7.702.41MM:  Where a parent may obtain the official rules regulating child care centers, including the Secretary of State’s website.

  • Are the rules on the Secretary of State’s website?

Rule 7.702.41G: The policy concerning recruitment, admission and registration of children, including children with exceptional (SIC) social, emotional behavioral physical, disability specific or developmental needs. 

  • This rule is not reasonable as defined above: What is the rationale behind having a policy concerning recruitment (marketing) of children in our parent handbook?

Rule 7.702.51B:  Directors, early childhood teachers and all other persons directly responsible for the care and welfare of children served must be suitable, of good character and interested in the best interest of children.

  • This rule is not measurable: It is not within the authority of licensing to decide if an individual is of good character. There are standards for the background checks to determine the suitability of a provider. 

Rule 7.702.56 A 3 b and c: At least six months of experience in the care of infants or toddlers and meet the qualifications for an early childhood teacher...

  • This rule is inconsistent: This rule is included as a part of orientation. It should be under staff requirements.
  • If left as a part of orientation, no aid could every work in an infant/toddler nursery.

Rule 7.702.64B1:  Children should be greeted individually and pleasantly upon arrival and departure.

  • This rule is not measurable: Who will determine if the greeting is “pleasant”?

Rule 7.702.55A5 A director may be assigned to a classroom if the following requirements are met...

  • This rule is vague: This rule seems incomplete. Not sure what they mean by parental/staff support.

Rule 7.702.62 F6:  Staff shall protect children from known environmental allergens and sensitivities like air fresheners, fragrances, smoke, creams, etc.

  • This is rule is not measurable: What is meant by protect?
  • Does this rule prohibit air fresheners? 
  • What are the provider’s responsibilities when parents enter a room wearing cologne, or smelling of smoke?

 

In addition to these rules, there are many instances which are too numerous to list, of duplicative numbering and spelling errors.

Although we have attempted to crosswalk the proposed rules with ITERS/ECERS, this list if not complete. 

To summarize:

  • It is ECEA’s recommendation that rules which dictate programming, which are duplicative of other regulatory agencies, which are in conflict with existing law, and which impose a financial hardship be eliminated.

  • In addition, ECEA believes that the proposed rules as written will constitute a burden for the existing licensing staff and resources.

  • ECEA would like to see rules that are streamlined which would allow more programs to be visited each year, and resources could be allocated to reducing unlicensed care.