California Department of Social Services Provides Guidance Regarding Waivers for Child Care Facilities and Providers

09.03.2020

On August 25, 2020, CDSS released Provider Information Notice (“PIN”) 20-22-CCP (“Guidance”), which contains guidance and frequently asked questions regarding COVID-19 waivers available for licensed and license-exempt child care providers. The Guidance creates a pathway for child care providers to operate on K-12 school campuses through a waiver process. The Guidance also requires all licensed and license-exempt child care providers to follow the August 25, 2020 Guidance Related to Cohorts issued by the California Department of Public Health (“CDPH”), and establishes group size and staff to child ratios. See our Alert for more information on the Cohorts Guidance.

COVID-19 Waivers

Under California law, child care providers must operate with a valid license issued by CDSS, or be exempt from licensing under the Health and Safety Code. Under the new Guidance, waivers are available for licensed providers to provide child care beyond licensing standards and for license-exempt child care providers to exceed the limits of their licensure exemption. Providers must request a waiver in writing from their local Child Care Regional Office, meet all of the conditions for waivers, adhere to local public health guidelines, and incorporate CDSS policies and procedures related to COVID-19. The Guidance lists the following updated conditions that must be met in addition to conditions noted in PIN 20-04-CCP to obtain a waiver (“General Waiver Conditions”):

Ability to follow Industry Guidance for child care providers
Comply with local health department directives
Completed CDSS background check, including a criminal record clearance or exemption[1]
First Aid/CPR training
Physical distancing & face coverings
Consumer protection and emergency disaster plan
Comply with reporting requirements
Comply with oversight by government authorities, including CDSS
Allow oversight by video/telephonic conferencing means
Group size and capacity set by state or local health department, or CDSS Child Care Regional Office
Age appropriate, environment, equipment, materials, and supplies
Ability to provide special needs care and supports for children in care, if applicable
Notify parent/guardian of policies impacted by the waiver
Post waiver in public location within the home or facility
90-day waiver limitation – CDSS may renew after evaluation of need and compliance history

All applications are reviewed by CDSS on a case-by-case basis. Providers must obtain a waiver for each site where child care will be provided.

Specific Waiver Conditions

In addition to the General Waiver Conditions, the Guidance establishes additional conditions for specific license-exempt programs, including the following programs that are often provided on K-12 school campuses: extended day before and after school programs (public and private schools and ASES programs); temporary child care arrangements (such as employer-sponsored child care programs); and instructional care providers (such as “distance learning hubs”). The Guidance creates conditions specific to each of these license-exempt categories, as described in more detail below.

For all license-exempt providers, if child care is provided on a school campus, the provider must have prior approval from the school district and coordinate services with local public health officials and the school. Additionally, providers must provide access to digital resources, which are defined as materials included in the context of a course, which includes: high-speed internet, adaptive supportive equipment, head phones, microphone, and most updated software to various applications that allow for collaboration.

Extended Day Before & After School Programs (Including ASES Programs)

Before and after school programs are license-exempt if operated by a public or private school. ASES programs operated by a city, county, or nonprofit organization are license-exempt when their operations are limited to 60 hours per week and no pupil may attend an ASES program for more than 30 hours a week. (Ed. Code, § 8484.3.) These license-exempt programs are eligible to waive existing requirements needed to qualify for license-exemption to operate during normal school hours as long as all conditions for a COVID-19 waiver are met. In addition to the conditions described above, providers must have no more than 14 children in a cohort, be in good standing with CDSS licensing if currently a licensee, and have fire clearance, if applicable.

Temporary Child Care Arrangements (Employer-Sponsored Child Care)

The Guidance clarifies that certain temporary child care arrangements, including employer-sponsored child care, are eligible for COVID-19 waivers. These providers must meet all of the conditions described above, have no more than 14 children in a cohort, and have fire clearance, if applicable. CDSS also refers to these types of providers as “pop-up child care” arrangements, which were created to provide short term solutions for provision of care during the pandemic. If employer-sponsored care does not otherwise fall within a preexisting exemption to licensure, a waiver is required.

Instructional Care Provider (Distance Learning Hubs)

The Guidance refers to a license-exempt child care arrangement for instructional care. Under this license exemption, providers may provide care and activities of an instructional nature in a classroom-like setting when school is not normally in session, for up to a total of 30 days for school-aged children or 15 days for younger children. These license-exempt providers are eligible for COVID-19 waivers as long as all of the conditions described above are met and fire clearance approval is obtained, if applicable.

Cohorts, Group Sizes, and Ratios

Consistent with the CDPH’s Guidance Related to Cohorts, child care providers must maintain:

(a) Cohorts of no more than 14 children; and

(b) No more than two supervising adults per cohort.

Cohorts are defined as stable groups of children, in which the children and adults stay together for all activities and avoid contact with people outside of their cohort. Cohorts should be maintained each day, and children from the same family or carpool should be placed in the same cohort. A cohort may be divided into subgroups of children as long as the 14:2 child to adult ratio is not exceeded. The requirement to prevent interaction between cohorts may be met by having cohorts in separate rooms or creating separate spaces with partitions.

When child care is provided on school grounds, the providers are exempt from the minimum space requirements and, minimum toilet requirements. For school-aged child care centers, there must be one teacher to every 14 children. There may be one teacher and one aide to every 15-28 children; however, the cohort size must remain 14 children or less. Therefore, when a child care center serving more than 14 children, the teacher and aide should separately cohort with individual groups and should not physically interact between the two cohorts. One-to-one specialized services may be provided to a child by a service provider who is not part of the cohort as long as the services are provided consistent with industry guidance.

County Public Health Requirements

Note that some county public health officials may impose additional requirements. For example, Los Angeles County currently allows only 12 children in a day care cohort. (the LA County Order is here).

Conclusion

The Guidance provides a pathway for school districts to provide or continue child care on its campuses through use of COVID-19 waivers. Because the CDSS has reported that the waiver process will be prioritized by the quality of applications submitted, our attorneys are available to assist with waiver requests and to answer any questions you may have regarding child care programs on your campuses.

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[1] CDSS requires that child care employees also be cleared through CDSS as Trustline providers. We have been informed by CDSS that this background check clearance is in addition to the regular background checks through the Department of Justice that all public school district employees are required to have as a condition to employment. This particular requirement has come under some scrutiny and is being reviewed for possible change or removal.