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In the matter of the adoption of New Rules I and II and the amendment of ARM 37.95.102, 37.95.103, 37.95.106, 37.95.108, 37.95.115, 37.95.117, 37.95.140, 37.95.160, 37.95.163, 37.95.622, 37.95.702, 37.95.703, 37.95.704, 37.95.718, and 37.95.1005 pertaining to child care licensing
NOTICE OF ADOPTION AND AMENDMENT
1. On October 8, 2021, the Department of Public Health and Human Services published MAR Notice No. 37-959 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 1277 of the 2021 Montana Administrative Register, Issue Number 19.
2. The department has adopted the following rules as proposed: New Rule I (37.95.110) and New Rule II (37.95.169).
4. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.95.102 DEFINITIONS (1) through (60) remain as proposed.
AUTH: 52-2-704, 53-4-212, MCA
IMP: 52-2-702, 52-2-703, 52-2-704, 52-2-713, 52-2-723, 52-2-725, 52-2-731, 52-2-735, 52-2-736, 53-2-201, 53-4-211, 53-4-212, 53-4-601, 53-4-611, 53-4-612, MCA
37.95.106 CHILD CARE FACILITIES, REGISTRATION, OR LICENSING
(1) through (8) remain as proposed.
IMP: 52-2-704, 52-2-722, 52-2-723, 52-2-731, 53-4-504, 53-4-507, MCA
37.95.117 CHILD CARE FACILITIES, JOINT PROGRAMS (1) through (4) remain as proposed.
AUTH: 52-2-704, 53-4-503, MCA
IMP: 52-2-731, 53-4-504, MCA
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: Several commenters were concerned that the minimum capacity changes for a child care center will negatively impact providers participating in the STARS to Quality Program, the Best Beginnings Child Care Scholarship Program, and/or the Child and Adult Care Food Program.
RESPONSE #1: Senate Bill 142 changed the law in Montana Code Annotated (MCA), increasing the minimum capacity for a child care center. The department must revise the administrative rules to align with MCA as the increased statutory minimum capacity for a child care center became effective on October 1, 2021. The department is working with affected child care facilities to assist them in understanding the new law and, if desired, to change their licensing status to minimize negative financial impacts.
COMMENT #2: Several commenters were concerned about child-to-staff ratios during overlap care if a family and group home child care provider increases the facility's licensed capacity.
RESPONSE #2: Overlap care for a family or group home child care facility must be approved by the department based on a review of the provider's facility, square footage, and proof of fire and liability insurance.  The department believes unchanged requirements will help ensure the safety of children during approved overlap care.
COMMENT #3: One commenter stated citations to 53-4-601 and 53-4-612, MCA were made in ARM 37.95.102. The commenter stated that 53-4-601 and 53-4-612, MCA have been repealed.
RESPONSE #3: The department will remove references to 53-4-601 and 53-4-612, MCA in ARM 37.95.102.
COMMENT #4: One commenter stated references to 53-4-503, 53-4-504, and 53-4-507, MCA were made in ARM 37.95.106 and 37.95.117. The commenter stated that 53-4-503, 53-4-504, and 53-4-507, MCA have been renumbered.
RESPONSE #4: The department will remove references to 53-4-503, 53-4-504, and 53-4-507, MCA in ARM 37.95.106 and 37.95.117.
COMMENT #5: A commenter supported the proposed rule changes aimed at identifying and preventing shaken baby syndrome and abusive head trauma, adding a grace period for immunizations for children experiencing homelessness and children in foster care, and changing training requirements from first aid to pediatric first aid because these changes benefit all child care programs regardless of the type of care.
RESPONSE #5: The department appreciates the comment in support and agrees that these changes will benefit all child care programs in Montana.
COMMENT #6: One commenter expressed a desire for the department to amend or repeal administrative immunization requirements related to children and caregivers in daycare facilities based on the passage of House Bill 702.
RESPONSE #6: The department has not provided notice of any adoption, amendment, or repeal of rules regarding the immunization requirements for children and caregivers in child care facilities. Any such changes are beyond the proposed action of which the department has provided notice.
6. The department intends to apply these rules retroactively to October 1, 2021. A retroactive application of the rules does not result in a negative impact to any affected party.
/s/ Heidi Sanders                                         /s/ Adam Meier
Heidi Sanders                                              Adam Meier, Director
Rule Reviewer                                             Public Health and Human Services
Certified to the Secretary of State November 30, 2021.
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