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PA Bulletin, Doc. No. 06-1558



Notice of Comments Issued

[36 Pa.B. 4563]
[Saturday, August 12, 2006]

   Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).

   The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No. Agency/Title Close of
the Public
7-395 Environmental Quality Board 6/29/06 7/31/06
Administration of the Storage Tank and Spill Prevention Act
36 Pa.B. 1851 (April 22, 2006)
14-506 Department of Public Welfare 7/3/06 8/2/06
Child Care Facilities
36 Pa.B. 2686 (June 3, 2006)

Environmental Quality Board Regulation #7-395 (IRRC #2532)

Administration of the Storage Tank and Spill Prevention Act

July 31, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the April 22, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.

1.  Section 245.1. Definitions.--Statutory authority; Reasonableness; Clarity.

   Aboveground storage tank and Underground storage tank--The phrase ''used, will be used'' is being added to the existing definition of aboveground storage tank and the phrase ''were used or will be used'' is being added to the definition of underground storage tank. The statutory definition of aboveground storage tank only references a tank ''which is or was used,'' and the statutory definition of underground storage tank only references tanks ''which are used.'' The EQB should explain its statutory authority to regulate tanks that are not yet in use. In the alternative, the proposed language should be deleted from the final-form regulation.

   Pipeline facilities (including gathering lines)--The amended definition is one sentence that contains over 125 words. It includes a list of equipment that may be regulated and a list of equipment that is not regulated. To improve clarity, we suggest that the definition be broken into subsections.

   Regulated substance--This definition is being amended to include certain nonpetroleum regulated substances. Subsection (i)(C)(I) pertains to specific nonpetroleum oils. Subsection (i)(C)(II) pertains to compounds for use as additives in gasoline and not already found on the list from the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Subsection (i)(C)(III) pertains to nonpetroleum substances listed in Department of Labor and Industry regulations at 34 Pa. Code Chapter 323 (relating to hazardous substance list.) We have three concerns.

   First, we believe it is inappropriate to incorporate by reference the nonpetroleum substances listed in the Department of Labor and Industry's regulation. A number of commentators contend that the incorporation makes it difficult for both the regulated community and the EQB to provide input on what substances are included in the list. They also note that the inclusion of the additional substances will impose a substantial economic burden on the regulated community. In addition, the Pennsylvania Chemical Industry Council has noted that the regulations from the Department of Labor and Industry are not intended to regulate material found in storage tanks. Rather, they are intended to inform employees about hazardous substances found in the workplace.

   We agree that including the new substances in this rulemaking, rather than incorporating them by reference, would provide the EQB with greater control over the substances it regulates. We also note that including the substances in EQB regulations would make compliance easier for the regulated community. This approach could also lessen the fiscal impact on the regulated community by potentially eliminating some of the 400 regulated substances included in Chapter 323. Therefore, we suggest the nonpetroleum substances the EQB intends to regulate be specified in this regulation.

   Second, the EQB should explain the rationale of the ''one-pound reportable quantity'' referenced in Subsection (i)(C)(III).

   Third, Subsections (i)(C)(I), (II) and (III) of the definition include substantive provisions. Specifically, each of the subsections includes provisions that specify when a substance would be regulated or not regulated. Since substantive provisions in a definition are not enforceable, they should be deleted from the definition and moved to more appropriate sections in the body of the regulation.

2.  Section 245.31. Underground storage tank tightness testing requirements.--Reasonableness.

   Subsection (e) adds a requirement that a written test report shall be provided to the tank owner within 20 days of the test. A commentator believes this time frame is too short. The EQB should consider extending the time frame for providing the report.

3.  Section 245.41. Tank registration requirements.--Clarity.

   Subsection (b) requires tank owners to register storage tanks with the Department ''except as specifically excluded by Department policy or this chapter.'' (Emphasis added.) A Department policy does not have the full force and effect of law. Therefore, Departmental policy cannot exclude a tank that regulations require to be registered. The language noted above should be deleted and the specific exclusions should be included in the final-form regulation.

4.  Section 245.43. Failure to pay registration fee.--Statutory authority; Clarity.

   Subsection (a) states that an owner who fails to pay the required fee shall be subject to ''Commonwealth policy and guidelines'' for collection of delinquent debts due the Commonwealth. We have two questions. What is the EQB's statutory authority for enforcing policies and guidelines as regulations? Where can the regulated community find these guidelines and policies? If the EQB does not have the statutory authority, the pertinent provisions of the policies and guidelines should be included in the final-form rulemaking.

   Subsection (b) states that failure to pay the registration fee could result in Departmental action against the storage tank owner and the operator. Sections 245.42(a) and (b), relating to tank registration fees, state that registration fees are to be paid by tank owners. Therefore, the reference to tank operators should be deleted from this subsection.

   Subsection (c) states the Department may withhold an operating permit for a tank if the owner has a delinquent registration debt for any regulated storage tank. Under what circumstances would the Department withhold a permit?


5.  Section 245.114. Renewal and amendment of certification.--Clarity.

   Subsection (c) requires an applicant to meet ''minimum training requirements or number of activities in the appropriate category for renewal of installer certification.'' The number of activities that need to be completed for renewal is specified, but the number of hours of training is not specified. The final-form regulation should include the number of hours of training needed for renewal. Similarly, Subsection (d), relating to renewal of inspector certification, should include the required number of hours of training.

   Subsection (g)(2) requires an applicant for renewal to ''document current safety training which is appropriate for the certification category.'' We have two questions. First, how will an applicant know if the safety training is appropriate? Second, how much training is required? The final-form regulation should provide criteria for what is appropriate.


6.  Section 245.405. Codes and standards.--Need; Clarity.

   Subsection (a) lists 12 associations and their codes and standards that will be used in conjunction with manufacturers' specifications to comply with this subchapter. Subsection (b) states, in part, the following: ''Other Nationally recognized associations and their codes and standards not referenced in this part may also be used to comply with this subchapter, when appropriate.'' Pennsylvania Code and Bulletin Style Manual discourages the use of indefinite terms and phrases (§ 616(b)(6)). ''When appropriate'' is such a phrase. The purpose of a regulation is to establish binding norms that are enforceable. The provision quoted above does not accomplish this and should be deleted and replaced with specific criteria for when other codes and standards are permissible. We note that § 245.432(d)(1) of this rulemaking references the national associations identified in this Section, but not other nationally recognized associations.

   Subsection (c) states that if codes, standards or specifications are updated, facilities or storage tank systems installed prior to the updates ''will not automatically be required to be upgraded to meet the new standards.'' The inclusion of the term ''automatically'' implies that the facilities or storage tank systems may have to be updated in the future. The final-form regulation should include specific details on when the upgrades will be required.

   The language contained in Subsections (b) and (c) can also be found in existing sections of Chapter 245. Those sections are §§ 245.504, relating to technical standards for aboveground storage tanks and 245.604, relating to simplified program for small aboveground storage tanks. If the EQB amends § 245.405(b) and (c), we recommend that §§ 245.504 and 245.604 also be amended.

   Subsection (d) states: ''Regulatory requirements prevail over codes and standards whenever there is a conflict.'' This provision is not needed because regulations have the full force and effect of law and already prevail over codes and standards. If the EQB decides to retain this provision, similar language should also be added to §§ 245.504 and 245.604.

7.  Section 245.411. Inspection frequency.--Reasonableness; Clarity.

   Subsection (d) relates to additional inspections and mandatory training. A provision is being added that would allow the Department to require facility owners and operators to complete a release detection or operator maintenance training course when related violations are documented through an inspection. The Preamble explains that this provision is being added because owners and operators that have noncompliant inspections often express the need for training. The final-form regulation should provide details on when this mandatory training will be imposed, what the training will entail and who must pay for the training.

8.  Section 245.421. Performance standards for underground storage tank systems.--Fiscal impact; Clarity.

   Subsection (a) pertains to new underground storage tank systems. Subsection (a)(3) states the following: ''An owner or operator of a tank system changing from unregulated to regulated service shall provide certification or documentation that the tank system meets new tank system requirements.'' We have three concerns. First, Subsection (a) relates to ''new'' tank systems, but Subsection (a)(3) relates to existing tank systems. The requirements of Subsection (a)(3) should be moved to a separate subsection that addresses the requirements for owners or operators changing from unregulated to regulated service. Second, this provision should include a time frame for when the certification or documentation must be provided. Third, the provision should explain what type of certification or documentation would be acceptable to prove the tank system meets the new tank system requirements.

   Subsection (b)(2) requires replacement of the entire piping system whenever more than 30% of the piping system is replaced. Commentators have suggested that an alternative compliance method based on evidence of piping manufacturer or installer financial responsibility be available as an option. Has the EQB considered such an approach?

9.  Section 245.432. Operation and maintenance including corrosion protection.--Clarity.

   Under Subsection (g), excess water in petroleum tanks must be disposed in accordance with ''applicable State and Federal requirements.'' The final-form regulation should reference the applicable requirements. Similar language is found at § 245.451(c).

10.  Section 245.441. General requirements for underground storage tank systems.--Clarity.

   Subsection (e) requires monthly monitoring of certain existing tank system equipment ''when practicable.'' ''When practicable'' should be replaced with a term or phrase that is definitive and enforceable or specify when monthly monitoring would not apply. Similar language is found at § 245.553(c), relating to out-of-service inspections.

11.  Section 245.444. Methods of release detection for tanks.--Statutory authority; Reasonableness.

   Paragraph (5), relating to vapor monitoring, and Paragraph (6), relating to groundwater monitoring, are being amended to require site evaluations to be performed by professional geologists. Commentators have noted that other professionals, such as civil, environmental, geotechnical or geological engineers are actively engaged in this type of work and could also perform the required evaluations. What is the EQB's statutory authority for allowing only professional geologists to perform the site evaluations?


12.  Section 245.523. Aboveground storage tanks in underground vaults.--Clarity.

   Paragraph (11) requires certain underground piping distribution systems to ''be appropriately monitored.'' The term ''appropriately'' is indefinite. The final-form regulation should include specific monitoring requirements.

13.  Section 245.534. Interior linings and coatings.--Clarity.

   Subsection (c) will require inspections when ''major modifications'' are made to interior linings or coatings. Similar to our concern above, the phrase ''major modifications'' is vague and indefinite. The criteria used to determine if a modification is major should be included in the final-form rulemaking. Similar language is also found at § 245.552(e), relating to in-service inspections.

14.  Section 245.541. Overfill prevention requirements.--Fiscal impact.

   Subsection (e) will require tank systems to be upgraded with a high-level alarm with a cut-off device or a high-level alarm with a manned operator shutdown procedure. Commentators have suggested that the use of a visual gauge, instead of a high-level alarm, for aboveground storage tanks with a manned operator, could be just as effective and also reduce costs. We encourage the EQB to consider this alternative which will lessen the economic burden on the regulated community, yet will still protect against overfills.

15.  Section 245.541. Overfill prevention requirements and Section 245.542. Containment requirements for above-ground storage tank systems.--Fiscal impact.

   A commentator believes that the three-year installation requirements for alarm systems and containment structures do not take financial and logistical considerations into account. Has the EQB considered providing a longer time period to allow the regulated community to meet the new requirements?

16.  Section 245.542. Containment requirements for above-ground storage tank systems and Section 245.561. Permanent closure or change-in-service.--Statutory authority.

   Both of these sections require certain activities to be conducted in a manner consistent with technical documents of the Department. Several commentators are concerned that incorporating technical documents of the Department into regulations is not appropriate because any changes to those documents would by-pass the regulatory review process. This would prevent them from having the ability to provide meaningful input on future changes. We agree and question the EQB's statutory authority for enforcing technical documents as regulations. We recommend that the requirements contained in the technical documents be included in the final-form regulation.

17.  Section 245.543. Leak detection requirements.--Reasonableness; Need; Clarity.

   Subsection (d) states the following:

Tank test for tightness shall be based on a scientific or statistical method and procedure. The test method and procedure shall be third-party certified with a specific leak detection rate or a method and procedure that is recognized by a National association, such as API Publication 334 Guide to Leak Detection in Aboveground Storage Tanks. The test shall be performed by a third-party expert qualified in the test procedure and not an employee of the tank owner.

   We have five questions. First, what is required for a third-party to certify the test method and procedure to be used? The final-form regulation should provide details on how certification is accomplished. Second, if the method or procedure must be recognized by a National association, what is the need for the certification? Third, why must a third-party expert perform the test? Fourth, who determines if the third-party is an expert? Finally, can the party that performs the pre-test certification be the same party that performs the test?

Miscellaneous clarity.

   *  The title of the act referenced in the definition of ''Air Pollution Control Act'' under § 245.1 is incorrect. The correct reference is the ''Uniform Interstate Air Pollution Agreements Act.''

   *  Several sections of this proposed rulemaking add a phrase identical or similar to the following, ''. . . unless otherwise agreed upon by the Department.'' This language appears in the following sections:

   *  § 245.41(b)
   *  § 245.41(d)
   *  § 245.41(e)
   *  § 245.41(f)(4)
   *  § 245.111(g)
   *  § 245.411(b)(2)
   *  § 245.421(a)(2)
   *  § 245.451(h)
   *  § 245.561(3)

   This is nonregulatory language that should be deleted from the final-form rulemaking. In the alternative, language could be inserted that explains the process that the Department will follow and the criteria the Department will use to allow an exemption.

   *  The phrase, ''include, but not limited to'' appears as new text in the following sections of the proposed rulemaking:

   *  § 245.41(f)
   *  § 245.43(b)
   *  § 245.432(c)
   *  § 245.435(b)(1)(i)
   *  § 245.612(d)
   *  § 245.616(c)

   The phrase ''but not limited to'' is unnecessary and should be deleted..

   *  Phrases such as ''engineering practices,'' ''engineering specification'' and ''engineering criteria'' are included in the following sections:

   *  § 245.234(a)(3)
   *  § 245.522(a)
   *  § 245.522(d)
   *  § 245.522(f)
   *  § 245.524(d)
   *  § 245.552(a)
   *  § 245.552(e)
   *  § 245.553(a)
   *  § 245.553(f)
   *  § 245.616(a)

   These phrases are vague and would be difficult for the regulated community to know exactly what is expected of them. It would also be difficult for the Department to enforce provisions that include this language. These phrases should be defined or replaced with terms that are more definitive.

   *  We have the same concern with the phrases ''scientific or statistical method and procedure'' and ''scientific or statistical procedure'' used in §§ 245.543(d) and 245.553(c) respectively. These phrases should be defined or deleted.

   *  The first paragraph of § 245.505 notes that existing tanks that ''became'' regulated due to the addition of new regulated substances are subject to the requirements of this ''subsection.'' The word ''became'' should be changed to ''become.'' In addition, should the reference to this ''subsection'' be changed to ''subchapter?''


Department of Public Welfare Regulation #14-506 (IRRC #2539)

Child Care Facilities

August 2, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the June 3, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Public Welfare (Department) to respond to all comments received from us or any other source.

1.  Regulatory authority and nonprofit child care facilities.--Statutory authority.

   We question the statutory authority of the Department to regulate nonprofit child care centers. Section 1001 of the Public Welfare Code (62 P. S. § 1001) defines a ''child day care center'' as:

. . . any premises operated for profit in which child day care is provided simultaneously for seven or more children who are not relatives of the operator . . . . (62 P. S. § 1001) [Emphasis added.]

   In St. Elizabeth's Child Care Center v. Department of Public Welfare, the Commonwealth Court held that Article IX (62 P. S. §§ 901--922) authorizes the Department to regulate both for-profit and nonprofit child care centers for the purpose of examination and inspection. However, Article X (62 P. S. §§ 1001--1087) does not give the Department oversight of nonprofit child care centers. Consequently, the Department has no authority to require nonprofit centers to obtain a certificate of compliance to operate.

   We understand that the Department has filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. However, our concern remains as we are required to consider pertinent opinions of Pennsylvania's courts in determining the statutory authority of an agency to promulgate a regulation (71 P. S. § 745.5b(1)).

2.  Sections 3270.4, 3280.4 and 3290.4. Definitions.--Reasonableness; Consistency with other regulations; Clarity.


   The terms ''Individualized Education Program (IEP)'' and ''Individualized Family Service Plan (IFSP)'' are used repeatedly in the proposed regulation but are not defined. Existing regulations at 22 Pa. Code §§ 14.101 and 14.131 and 14.132 provide a definition for IEP. The term IFSP is defined in 55 Pa. Code Chapter 4226. The final-form regulation should include definitions for these terms that cross-reference the existing regulations where they are defined.

Service Agreement

   The Education Law Center and Disability Law Project recommend that the proposed regulation include a reference to a ''Service Agreement'' as described in 22 Pa. Code Chapter 15. This would assist in identifying children with disabilities who do not qualify for an IEP. However, it should be used only for identification. Child care facilities should not be required to implement the Service Agreement. The final-form regulation should be amended to include a definition for the term which cross-references the existing regulations which define the term.

Age level--Preschool child--and Young school-age child

   Commentators expressed diverse reactions to the shift of kindergarten students from ''preschool'' to ''young school-age'' child. Although many expressed support for this change, others, including Representative Jerry Birmelin, Majority Chairman of the House Children and Youth Committee, expressed concern with the impact of this change on subsidies and costs. The Department should carefully examine the impact of this change on facilities that provide care primarily to ''preschool'' children. If they include a few kindergarten children, these facilities may not be able to take advantage of the less stringent staff-to-children ratios for ''young school-age'' children. At the same time, these facilities will receive less funding under the subsidized child care program for children in kindergarten.

Child with special needs

   As noted above, a ''Service Agreement'' could be used to identify a child with a disability. This term should be added to Subparagraph (i).

   The use of the word ''formal'' in the Subparagraph (ii) is unclear. It is our understanding that it will be replaced with the word ''written'' in the final-form regulation. In addition, the term ''certified behavioral analyst'' should be added to the list of clinicians in this subparagraph who are responsible for the behavioral plan.

3.  Sections 3270.17, 3280.16 and 3290.15. Service to child with special needs.--Reasonableness; Implementation procedure; Clarity.

   In response to Subsection (b), some commentators raised the concern that parents may not be willing to share IEPs or other plans with child care facilities. If an IEP, IFSP or Service Agreement is developed by other entities, what can a child care facility do to get a copy of the document? How can these facilities get involved in the team that develops the program or plan? If the availability of the documents or participation on the teams is contingent on parents or other entities, then the proposed regulation should acknowledge this fact and instruct child care staff that they will need the appropriate authorization. In Chapter 4226, are ''early intervention services'' providers required to include child care facilities on the teams for IFSPs?

   Commentators, including parents and facility staffs, expressed concerns with the requirements in Subsection (c). Child care staffs are being asked to identify children who may need assessments for special needs and give referral information to parents. For parents, receiving this type of information could be traumatic for a variety of reasons.

   The regulation should indicate whether the Department will provide checklist forms or informational handouts that child care staffs could use when making observations that might lead them to suggest to a parent that their child should be assessed or evaluated by a trained professional in pediatric development or a related field. The Department should identify the level of training necessary to prepare child care staffs for these challenges. The regulation should also require child care staffs to complete the appropriate training before they are required to observe and assess for disabilities, and approach parents or families with referral information.

4.  Sections 3270.27, 3280.26 and 3290.24. Emergency plan.--Protection of public safety; Reasonableness; Consistency with other regulations; Clarity.

   The term ''emergency'' is not defined. Department staff referred Commission staff to an ''Emergency Planning Guide'' for child care facilities produced by the Pennsylvania Emergency Management Agency (PEMA). The term ''emergency'' as described by the PEMA document means any urgent situation which may directly impact the facility and may include severe weather conditions, fire and explosions, utility failures, hazardous materials and radiological emergencies, or acts of terrorism or civil unrest. The proposed regulation should include a similar definition in these sections related to an emergency plan or in Sections 3270.4, 3280.4 and 3290.4 related to definitions.

   A second concern is that the list of requirements for the emergency plan is unclear and incomplete. Subsection (a) states the facility ''shall have an emergency plan that provides for'' four items which are described in a list format. There are two examples of this concern.

   First, Subsection (a)(1) requires a facility emergency plan to provide for ''shelter of children during an emergency.'' This is an overly broad statement. According to the PEMA document, a child care facility needs to compile a listing of shelter areas or relocation areas for different types of emergencies. These areas could be inside the facility if dangerous conditions exist outside or could be outside if there is a need to evacuate. According to the descriptions in the PEMA document, these shelters are intended to be temporary and to consist of existing structures to provide protection. If the intent of the Department is that facilities will adopt the detailed plans and policies developed by PEMA, then the proposed regulation should reference the specific PEMA publications.

   A second example is Subsection (a)(2) which requires that the facility plan provide for ''evacuation of children during an emergency.'' However, it is unclear when an evacuation would be necessary. According to PEMA, not all emergencies require an evacuation. Some dangers could require that the children be moved to a different area within a facility (such as away from windows) and not outside. PEMA indicates that it is the facility director who determines the appropriate response. This is another example of why the regulation should reference the PEMA documents rather than use broad statements that omit important details.

   Finally, the proposed regulation should require that plans for evacuations during a fire cross-reference the existing regulations on ''evacuation routes'' and ''evacuation plans'' in Subsections (f) and (g) of Sections 3270.94, 3280.94 and 3290.94 relating to fire drills. This will help facilities to avoid ''re-inventing the wheel'' in planning for these emergencies, and will prevent possible conflict or confusion with the routes and plans developed in response to the existing regulations.

5.  Sections 3270.70, 3280.70 and 3290.68. Indoor temperature.--Protection of public health; Reasonableness; Clarity.

   Even though the proposed regulation reduces the allowable temperature level, the Visiting Nurse Association of Central Pennsylvania (VNA) expressed concern that the rule does not factor in the ''heat index.'' This organization indicated that Temperatures in the 80 degree range with a relative humidity of 50 percent can be dangerous. The National Resource Center for Health and Safety in Child Care recommends the following standards for indoor temperature:

   A draft-free temperature of 65 degrees F to 75 degrees F shall be maintained at 30% to 50% relative humidity during the winter months. A draft-free temperature of 68 degrees F to 82 degrees F shall be maintained at 30% to 50% humidity during the summer months. All rooms that children use shall be heated, cooled, and ventilated to maintain the required temperatures, humidity, and air exchange and to avoid accumulation of odors and fumes. Air exchange shall be a minimum of 15 cubic feet per minute (or 7.5 liters/second) per person of outdoor air. (Source: ter_5.html, Standard 5.028) (Caring for Our Children, 2nd ed.--(Copyright 2002))

   Since the VNA's concerns with temperature and humidity mirror the limits prescribed by the recommended national standard, the Department should review its policy concerning the allowable high temperature.

6.  Sections 3270.119, 3280.119 and 3290.118. Program plan.--Fiscal impact; Reasonableness; Implementation procedure.

   Several commentators, including Representative Birmelin, raised a variety of concerns with the requirement for a program plan for each child. For example, one commentator expressed concern that subsections appeared to blend procedures and requirements for plans for children who have IEPs or IFSPs with the plans for children who don't have IEPs or IFSPs. In these sections, it is difficult to identify which requirements apply to each situation. This blending also generated concern that child care staffs would be required to develop plans similar to IEPs and IFSPs for all children regardless of whether the child was receiving services from other institutions, educators or early intervention specialists.

   Some also expressed concern with the prospect of child care staffs taking the lead in developing comprehensive plans for children. When the child has an IEP or IFSP, the educators or specialists providing the special education or early intervention services are responsible for developing the plan. In addition, child care staff members need permission from a parent or guardian to get a copy of the plan or other information from special education or early intervention staffs. Some commentators also noted that schools are not required to develop plans for students without ''special needs.'' Administrators and educators at public schools have years of experience and expertise in developing IEPs. We question whether child care staff will have sufficient experience, training and education to develop program plans for children and families who have never been exposed to this process.

   Finally, many questioned the cost of this requirement. Facilities may need to hire additional staff to maintain the required staff-to-child ratios while staff members spend time developing and writing plans, and meeting with parents and others to seek input on plans.

   It is our understanding that the Department intends to significantly reduce these sections by removing the requirements for a program plan. It will replace the provisions in the proposed regulation with a mandate for a semi-annual statement for each child concerning the use of child care services and the child's developmental progress. We suggest that the Department carefully consider the contents of this statement and give serious consideration to developing a form with prescribed contents that can be used by the facilities. If the Department retains the requirement for a program plan for each child, then it will need to address the costs to facilities and operators in the Department's written response to comments received and in the Regulatory Analysis Form. In addition, the Department will need to amend the final-form regulation to identify the appropriate training requirements for facility staff, family cooperation in accessing IEPs and IFSPs, and adequate coordination with special education and early intervention staffs.

7.  Sections 3270.120, 3280.120 and 3290.119. Infant sleep position.--Protection of public health and safety; Reasonableness; Implementation procedure; Clarity.

   Many commentators expressed support for this new provision. In addition, the Allegheny County Health Department and others suggested that the regulation should include other recommendations from the American Academy for Pediatrics (AAP) for preventing sudden infant death syndrome. We agree and recommend that this provision reference the APP recommendations and provide information on how facilities can obtain copies.

8.  Sections 3270.131, 3280.131 and 3290.131. Health information.--Protection of public health; Reasonableness; Consistency with other state programs.

   Although it is maintaining requirements for periodic health reports for each child and proof of immunizations, the Department is deleting the requirement for the health assessments recommended by the AAP. The AAP Pennsylvania Chapter, VNA, Allegheny County Health Department, child care providers, and health care practitioners expressed serious concerns with the changes in this provision.

   Several commentators indicated that the AAP recommended policy for health assessments provides critical information necessary to monitor the development of infants and children. This information is necessary to help pediatricians and others react quickly to potential health problems that could interfere with healthy growth and development. In addition, the AAP Pennsylvania Chapter contended that the deletion of the AAP recommendations for health assessments would be inconsistent with the policies for Head Start, the treatment schedule for Early and Periodic Screening, Diagnosis and Treatment program in Medicaid, and the goals of the Department of Health.

   There are improvements in the proposed regulation since the Department is requiring new and useful information in the health reports. However, by deleting the AAP recommendations, the Department is eliminating requirements for health screenings at one month, two months, four months, nine months, and 15 months. We understand the concerns with enforcement for child care facilities, and the difficulties for parents related to health care access and affordability, limited insurance coverage, and privacy issues. However, the Department could readily address these situations by allowing for exceptions when families are unable to meet the requirement or have privacy concerns. By acknowledging and documenting exceptions, the Department can gather useful information, provide facilities with relief from enforcement complications, and still encourage families to obtain the recommended screenings for their children. We request that the Department further explain the benefits of the approach taken in the proposed regulation.

9.  Sections 3270.133, 3280.133 and 3290.133. Child medication and special diets.--Public health and safety; Consistency with other regulations; Clarity.

   Comments from the Early Childhood Education Linkage System recommended training in medication administration for facility staff members that provide medications to children. This type of training is required for staff in personal care homes (see 55 Pa. Code § 2600.190). The Department should amend the final-form regulation to require training for medication administration or explain why such training should not be required for child care staff. This concern is especially important for staff working with children with special needs who may need regular access to medications.

   These sections should include a specific citation to the pertinent section of the ADA requiring ''reasonable accommodation.'' In addition, the generic reference to a ''medication or special diet'' could be interpreted to require that facility persons administer any and all medications or special diets prescribed for children with special needs. It is our understanding that the intent of the Department is for this requirement to apply only to medications or special diets prescribed for special needs. The final-form regulation should be amended to clearly state this intent.


[Pa.B. Doc. No. 06-1558. Filed for public inspection August 11, 2006, 9:00 a.m.]

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