I appreciate the challenging work of the Department of Education, Early Childhood Advisory Committee (ECAC) and the Child Care Licensing Regulatory Work Group in the comprehensive review and revision of the child care licensing regulations (hereafter, the “Draft Standards”). 

I submit that two subject areas are simply not yet fully developed and require further regulatory guidance before inclusion in the Draft Standards.  These areas are Stock Epinephrine and Lead Testing of Water.  

All licensed Child Day Centers (hereafter “Centers”) in the Commonwealth are currently required to have written policies regarding a weighty list of important subject matters (i.e, safe sleep practices, medication, and food allergies).  For most of these subject matters additional and specific regulatory guidance is also provided in the Standards, outlining what should be included in our policies and procedures. 

As currently written the Proposed Standards would require all Centers to also develop and implement policies and procedures that vaguely and ambiguously “meet the requirements of 22.1.289.059” and “22.1-289-057.” of the Code of Virginia.  These two laws address stocking epinephrine in every Center for children without a previously diagnosed allergy and the lead testing of drinking water, respectively.  

See 8VAC20-781-40.A.16 and A.20. 

We understand that both stock epi and lead water testing are the law in Virginia.  However, no further regulatory guidance or mechanism for compliance is provided by the Draft Standards for these two significant subject areas.  This predicament would leave Centers to interpret legislation and then create from whole-cloth policies and procedures we are ill-equipped to handle alone (i.e., how do we acquire an epi pen without a prescription? how much do they cost?  what is the burden on centers? the requirement actually conflicts with other sections of the Standards requiring a signed authorization from a provider for all prescription medication). 

In its June 22, 2023, ECCE Legislative Lunch and Learn, Department representatives acknowledged that important work remains before implementation is feasible.  Simply put,  this approach would suggest Virginia is not actually ready to implement these policies, but would still create confusion by including a requirement for additional written policies at this time.  See Virginia Department of Education - YouTube. 

Stock epinephrine has been addressed by the Department in the public and certain private school settings.  No doubt the Department can develop regulatory standards and further guidance surrounding these issues.  The inclusion in the Draft Standards of a requirement that all Centers develop written stock epinephrine policies and procedures is premature without much more from the Department – including a standing order with the Virginia Department of Health to allow purchase without a prescription, fulsome regulatory guidance addressing the practical and unique concerns presented in the child care setting (i.e., dosages, training, storage, field trips, appropriate staffing and the cost of medication), and addressing conflicting Standards (i.e., parental authorization and the requirement of a prescriber’s instructions for a specific child for all prescription medications).  See 8VAC20-671-710.E through Q (providing stock epinephrine regulatory guidance to Private Schools for Students with Disabilities).

Likewise, as it pertains to the testing of drinking water, the Departments of Education and Health are working to address the mechanics and funding sources for drinking water testing to allow Centers to fully comply with 22.1-289.057 of the Code of Virginia.  Again, without appropriate regulatory guidance the Draft Standards would leave Centers to create policies and procedures to address a complicated issue in an information vacuum. 

These yet to be developed regulations should ultimately be vetted and proceed through the NOIRA process.  Until this happens, I submit that 8VAC20-781-40.A.16 and A.20 should be removed from the Draft Standards. 

Finally, a suggestion.  The Proposed Standards remove the actual Virginia Code language found in some previous editions of the Standards.  While I appreciate the streamlining of the actual manual, I suggest the Code language either be added back as an Appendix so that Centers can quickly and easily find the laws referenced in the Standards.  Hyperlinks are subject to change and many of us still use paper copies of the Standards.  Including the actual Code sections should make applicable legislation more readily available and hopefully improve compliance.

Sincerely,

Benita W. Petrella