CHILDREN'S REGULATORY LAW REPORTER
Vol. 2, No. 1 (1999)
CONTENTS - Key
EDITORIAL STAFF
Editor
Margaret A. DaltonAssociate Editor
Kim Parks
Lucy C. LinRESEARCH AND WRITING ASSISTANTS
Lisa Y. Amorino
Jane K. Babin
Nikki N. Buracchio
Shanna L. Dougherty
Valerie R. Jones
Charity O. Paniamogan
David A. Rivera
Kristin A. Schuler-Hintz
Sharon L. Smith
Dacy YeeCAI ADMINISTRATIVE STAFF
Executive Director
Robert C. FellmethAdministrative Director
Elisa D'Angelo Weichel©1999, Children's Advocacy Institute
The Children's Advocacy Institute is part of the Center for Public Interest Law at the University of San Diego School of Law. The Information Clearinghouse on Children (ICC) is a project of the Children's Advocacy Institute. The ICC is funded in part by The California Wellness Foundation and by The Maximilian E. & Marion O. Hoffman Foundation, Inc.
Key
This issue of the Children's Regulatory Law Reporter covers new regulatory packages published or filed from July 1, 1998 through April 30, 1999; actions on those packages through June 15, 1999; and updates through June 15, 1999, on regulatory packages from previous issues.
Prior issues of the Children's Regulatory Law Reporter may contain extensive background information on topics discussed in this issue.
The following abbreviations are used in this publication to indicate the following California agencies:
BOC: Board of Control
CCR: California Code of Regulations
CDE: California Department of Education
DDS: Department of Developmental Services
DHS: Department of Health Services
DMH: Department of Mental Health
DSS: Department of Social Services
DYA: Department of Youth Authority
MPP: Manual of Policies and Procedures, Department of Social Services
MRMIB: Managed Risk Medical Insurance Board
OAL: Office of Administrative Law
Parole Board: Youth Offender Parole Board
Board of Education: State Board of EducationEditor's Comments
As we begin the second year of the Children's Regulatory Law Reporter (Children's Reporter), we have a new look for the publication. The revamped design reflects the fact that the Children's Reporter has tripled in size from the first issue. We hope this design will enable readers to quickly find areas of interest within what has become a much more comprehensive publication.
This issue covers new regulatory packages -close to thirty of them - that were published or filed from July 1, 1998 through April 30, 1999. Additionally, this issue updates over thirty proposals that had not completed the regulatory process in the time period of the previous two issues.
For easy access to areas of interest, the Children's Reporter divides regulations into seven categories: Child Poverty, Child Health, Child Care, Special Needs, Education, Child Protection, and Juvenile Justice. The text of this issue is available on our Web site at www.caichildlaw.org. We are pleased to receive comments electronically or by telephone.
Some major regulatory activity affecting children deserves the highest attention. First, California is still without minimum safety standards for public playgrounds. A 1990 law (SB 2733, Chapter 1163, Statutes of 1990) required the state's Department of Health Services (DHS) to adopt such standards by 1992. DHS failed to meet that deadline, as well as others mandated by subsequent court orders. Recently, the Office of Administrative Law disapproved DHS' long-awaited proposed regulations. For a detailed explanation of the problem, see the Health section, Playground Safety.
Another key area of regulatory activity affecting children is the Healthy Families program - California's answer to uninsured children. Although the Managed Risk Medical Insurance Board (MRMIB) deserves the gold star among state agencies for its approach to the regulatory aspects of this program - including extensive public input and an expedited process - the program is off to an incredibly slow start. Of highest concern is the likelihood that California's children will lose billions of dollars in federal monies if the flaws in this program aren't quickly cured. For an extensive background on this program, as well as changes currently proposed by MRMIB, see the Health section, Healthy Families.
In the Child Protection area, major policy changes are reflected in regulatory activity, especially in the areas of adoption reform and foster care reform. These two areas go hand in hand, and have historically been neglected by policymakers. The regulations follow much-needed legislative action caused, in part, by media attention focusing on recurring problems in both areas. Also of note are the new regulations protecting children in out-of-state group homes; these respond to the death of a California child in such a placement.
These are just a few of the regulatory packages discussed inside. Many state agencies -from the largest and most visible to the smallest and relatively unknown - affect children's lives every day with the regulations they propose. The goal of the Children's Regulatory Law Reporter is to monitor these actions, and inform Californians of their impact.
Margaret A. Dalton, Editor
Child Poverty
AFDC-FG/U Linkage Determination
In Capitola Land et al. v. Anderson, 55 Cal. App. 4th 69 (1997) (Land), the court ordered DSS to comply with new federal law under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA) and amend its regulations to retroactively cover a group of children under the previous Aid to Families with Dependent Children-Family Group/Unemployed Parent program (AFDC-FG/U).
On October 2, 1998, DSS amended section 45-202 of the MPP, on an emergency basis, to comply with parts of the court order. Prior to the amendment, DSS required that a child must have lived with the parent or relative during the removal month or within any of the six preceding months to be eligible for AFDC-FG/U payments. The emergency amendment allows indigent children who did not reside with their parent(s) or other legal guardian for more than six months prior to the date they were removed from their parents' custody to establish the linkage needed to qualify for federal foster care payments.
On October 16, 1998, DSS published notice of its intent to permanently adopt the amendment. Because of exemptions allowed under the PRA, the APA procedure for public comment does not apply to these regulations. However, DSS held a public hearing in Sacramento on December 2, 1998, to allow for comment from interested parties. At the hearing, Stephen Goldberg, Northern California Lawyers for Civil Justice, testified about problems with the proposed regulatory changes. Among other comments, Goldberg testified that the regulations do not retroactively extend eligibility to certain groups of children, as required under the Land decision, and that DSS regulations indicate that the expansion of eligibility under Land will not be implemented without other statutory changes and that this is not acceptable.
In its Certificate of Compliance, dated March 19, 1999, DSS argued that a later case, Anderson v. Superior Court, 68 Cal. App. 4th 1240 (1998), allows DSS to limit the eligibility, and only requires it to expand eligibility "until and unless federal financial participation" is authorized.
DSS adopted the regulatory changes as originally noticed and submitted them to OAL, which approved them on March 16, 1999. They became effective on the same date.
Impact on Children: This is an example of California's lead welfare reform agency, DSS, using the legal system to avoid expanding welfare eligibility to needy children. The Land decision extended eligibility to children who did not reside with their parent(s) or other legal guardian for more than six months prior to statutory removal; this includes children who had been abandoned by biological parents to the care of relatives more than six months prior to the date. While the regulations also implement some provisions of federal welfare reform under the PRA, they effectively "exempt" the state from what child advocates and the Land court believe is California's responsibility to better provide for these foster children who fall just outside the safety net.
CalWORKs Drug and Fleeing Felon Provisions
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on April 7, 1999; they became effective on May 1, 1999.
CalWORKs Voucher and Rent/Utility Payments
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 9, 1999; they became effective on the same date.
CalWORKs Child Immunization and School
Attendance Requirements
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 10, 1999; they became effective on the same date.
CalWORKs Restricted Accounts
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on January 15, 1999; they became effective on the same date.
CalWORKs Cal-Learn for 19-Year-Olds
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on January 25, 1999; they became effective on the same date.
CalWORKs Elimination of Late
Monthly Reporting Penalties
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 3, 1999; they became effective on the same date.
CalWORKs Deprivation and Diversion Assistance
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on December 23, 1998; they became effective on December 28, 1998.
CalWORKs Time Limit Requirements
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on December 21, 1998; they became effective on the same date.
CalWORKs Grant Structure and Aid Payments
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on December 23, 1998; they became effective on December 28, 1998.
CalWORKs Overpayment Recoupment
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 2, 1999; they became effectiveon the same date.
CalWORKs Child Care
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: On December 28, 1998, DSS readopted the regulations on an emergency basis. DSS accepted public comment until April 14, 1999, and held public hearings on April 13 and 14, 1999. At this writing, DSS has not submitted the proposed regulatory changes to OAL.
CalWORKs Trustline Registry
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 8, 1999; they became effective on the same date.
CalWORKs Child Support
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: On December 22, 1998, DSS readopted the regulations on an emergency basis; they became effective on December 28, 1998. At this writing, DSS has not submitted the proposed regulatory changes to OAL.
CalWORKs Property Limits
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: On December 22, 1998, DSS readopted the regulations on an emergency basis; they became effective on December 28, 1998. At this writing, DSS has not submitted the proposed regulatory changes to OAL.
CalWORKs Fraud Penalties
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: OAL approved the regulations on February 10, 1999; they became effective on the same date.
CalWORKs Welfare-to-Work Provisions
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, Insert. Update: On December 23, 1998, DSS readopted the regulations on an emergency basis; they became effective on December 28, 1998. At this writing, DSS has not submitted the proposed regulatory changes to OAL.
Child Support Collections
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 4. Update: DSS submitted most of the proposed regulatory changes to OAL, which approved them on January 29, 1999. Those became effective on the same date. DSS withdrew the remaining regulations; these included new sections 12-401, 12-405, 12-410, 12-415, 12-420, 12-425, 12-430, 12-435, and amended sections 12-101, 12-108, 12-711, 43-203, 43-205, 82-506, 82-508, 82-518, and 82-520 of the MPP. On January 29, 1999, DSS re-adopted these sections on an emergency basis. At this writing, DSS has not submitted the regulatory changes to OAL.
Domestic Abuse Procedures
One of the provisions of the CalWORKs program is a family violence provision, which was adopted to ensure that applicants and recipients who are past or present victims of abuse are not placed at further risk or unfairly penalized by CalWORKs requirements and procedures. AB 1542 (Chapter 270, Statutes of 1997) requires DSS to convene a Domestic Violence Task Force. In consultation with the Task Force, DSS developed protocols to identify and assist CalWORKs applicants and recipients who, because of past or present domestic abuse, might need additional help to obtain employment and become self-sufficient.
On December 4, 1998, DSS published notice of its intent to permanently adopt section 42-715, and amend sections 19-004, 40-107, 40-115, 40-131, 40-181, 42-302, 42-701, 42-710, 42-713, and 82-512 of the MPP, to clarify CalWORKs procedures as they differ for qualifying victims of domestic abuse. On December 22, 1998, DSS adopted the regulatory changes on an emergency basis; they became effective on January 1, 1999.
The proposed regulations define domestic abuse; establish individual case assessment procedures, confidentiality procedures, notice requirements, and requirements for referrals for counseling and other service referral strategies; identify good cause criteria for waiving program requirements for identified victims of domestic violence; and address training standards for staff serving CalWORKs recipients.
DSS accepted public comment on the proposed regulations until January 20, 1999, and held a public hearing in Sacramento on the same date. At this writing, DSS has not submitted the regulatory changes to OAL.
Impact on Children: The proposed regulations benefit children whose parents (usually mothers) are victims of domestic abuse. By waiving program requirements and developing appropriate service strategies, these regulations assist victim families so they do not lose their CalWORKs eligibility for failure to meet requirements that might impact on their personal safety.
Food Assistance Program
AB 2779 (Aroner) (Chapter 329, Statutes of 1998) eliminates the age restriction for the California Food Assistance Program (CFAP) (food stamps benefits) for legal residents who were in the United States prior to August 22, 1996. On January 27, 1999, DSS adopted sections 63-031 and 63-411, and amended sections 63-102, 63-403, and 63-405 of the MPP, on an emergency basis, to comply with AB 2779. The changes were effective on February 1, 1999.
These proposed regulatory changes revise the definition of those legal residents eligible for CFAP, remove the age restrictions of CFAP, and repeal obsolete provisions. Specifically, the regulations reflect the reinstatement of federal food stamps benefits to children under 18 years old if they were in this country on August 22, 1996; to adults who were 65 years or older on August 22, 1996; and to blind and disabled persons residing in the U.S. as of August 22, 1996. These are persons who had been covered by California's CFAP for the past two years. With federal coverage expanding to include this "bookend" coverage of children and the elderly, AB 2779 allows (but does not require) the state's CFAP to shift to parents, providing full food stamp safety net coverage of pre-1996 legal immigrant families.
Consistent with the statute, the amended regulations eliminate the age restriction for the state-only program, and provide that a legal resident present in the U.S. before August 22, 1996, regardless of age, will be eligible for CFAP if certain eligibility criteria are met. For example, an immigrant who meets most of the eligibility criteria of the federal program in effect on August 21, 1996, but is not eligible for federal benefits solely due to immigration status, will be provided foodstamps benefits under CFAP.
On February 12, 1999, DSS published notice of its intent to permanently adopt the emergency regulations. DSS accepted public comment until March 17, 1999, and held a public hearing in Sacramento on the same date. At this writing, DSS has not submitted the proposed regulatory changes to OAL.
Impact on Children: The proposed regulations benefit children by reinstating food stamps benefits to parents of children who became ineligible for needed assistance under the provisions of the federal law. These regulations reflect the fact that California has chosen to cover immigrant parents not included in the federal expansion. There is some concern among child advocates that the Davis administration may not support CFAP expansion for food stamp coverage of parents (those from 18 to 65) among legal immigrants who otherwise qualify. Such inclusion is important, since the $70 to $80 per month per person in food purchasing power foreclosed from parents necessarily impacts the nutritional intake of children. When two parents and a child are allowed $75 per month in food benefits, rather than $220, the fictional posture of "preserving child benefits" is manifested in nutritional shortfall. Also note that AB 2779 and the proposed regulations continue to exclude all legal immigrants arriving after August 22, 1996. California is the major destination of such immigrants (receiving over 40% of those entering the United States). These persons, adults and children, are categorically barred from TANF, SSI, and food stamps. Except for emergency and prenatal Medi-Cal, they lack any safety net protection. For a discussion of the growing numbers of affected children, see the California Children's Budget 1999-2000, Chapter 2; for recent survey evidence of growing hunger among immigrant families and children, see Id., Chapter 3.
Child Health
Childhood Lead Poisoning Prevention
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 5. Update: DHS submitted the proposed regulatory changes to OAL, which approved them on January 8, 1999. They became effective on the same date.
Dental Sealants
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 7. Update: DHS submitted the proposed regulatory changes to OAL, which approved them on September 4, 1998. They became effective on the same date.
Derivative Victims of Crime
Pursuant to Government Code section 13959 et seq., the BOC administers the Victims of Crime (VOC) assistance program, which reimburses eligible victims and derivative victims for certain specified medical, mental health, or funeral/burial expenses, or income or support losses as directly resulting from the commission of a crime. The VOC program compensates direct victims (persons who sustain an injury or die as a direct result of a crime) and derivative victims (persons who are injured on the basis of their relationship with the direct victim at the time of the crime, as defined in Government Code section 13960(2)).
Section 13961(c) of the Government Code sets the period within which a person qualifyingunder the VOC program must file an application to receive financial assistance. It requires that an application be filed within one year after the date of the crime, or one year after a victim or derivative victim reaches the age of 18, whichever occurs later.
On November 2, 1998, the BOC added section 649.1.1, and amended sections 649(e) and 649.1, Title 2 of the CCR, on an emergency basis. New section 649.1.1 provides that the period of limitations for filing an application is tolled when a derivative victim is listed on an application timely filed by, or on behalf of, a victim of the same crime. It requires that in order to toll the period of limitations, the victim's application must include specific information about the derivative victim. It also provides that the BOC is not required to act upon an application from a derivative victim whose period of limitation was tolled under the regulation, until a request for monetary assistance is submitted for the derivative victim.
The proposed change to section 649(e) amends the definition of "zero award" to state that it is a determination of eligibility for program assistance that does not involve a determination concerning monetary assistance for any pecuniary loss. The proposed amendment to section 649.1 makes minor changes to improve clarity.
On November 6, 1998, the BOC published notice of its intent to permanently adopt and amend the proposed regulations. The BOC accepted public comment until January 4, 1999, and held a public hearing in Sacramento on the same date. The BOC adopted the regulations and submitted them to OAL, which approved them on April 2, 1999. They became effective on the same date.
Impact on Children: Without the proposed change, a derivative victim, unlike a direct victim of crime, would not have an additional three years to apply for program funds after he or she reaches majority. The new section 649.1.1 will toll the statute of limitations for the derivative victim if he or she is listed on the direct victim's application. This will benefit a child who suffered from a crime but did not file for assistance during minority.
EPSDT Lead Contamination Detection
The authority to adopt regulations governing the evaluation and abatement of lead hazards resides in DHS, as does the responsibility to provide Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services for children in the Medi-Cal program. The federal Department of Health and Human Services has determined that locating the source of lead contamination may be considered an integral part of the management and treatment of a Medicaid (Medi-Cal in California) eligible child diagnosed with an elevated blood lead level (Memorandum #FME-42, January 21, 1993). DHS believes it is essential to identify the sources of lead contamination.
On April 13, 1999, DHS adopted section 51532.2, and amended sections 51242, 51340, and 51340.1, Title 22 of the CCR, on an emergency basis, to provide payment for onsite inspections for Medi-Cal eligible children diagnosed with lead poisoning. Section 51532.2 states the rules for submitting bills to Medi-Cal, and the rate for onsite investigation. Section 51242(j) allows local health departments and comprehensive environmental agencies to provide onsite investigations to detect the source of lead contamination in the homes or primary residences of Medi-Cal eligible children. When a child is found to have an elevated blood lead level that meets the requirements of section 51340.1, DHS must provide appropriate case management. Section 51340.1(d) deals with technical requirements for identifying specified blood levels as well as a notice requirement regarding coverage of this supplemental service.
On April 30, 1999, DHS published notice of its intent to permanently adopt the sections. DHS accepted public comment until June 14, 1999; no public hearing was scheduled. At thiswriting, DHS has not submitted the proposed regulatory changes to OAL.
Impact on Children: This regulation goes hand-in-hand with other regulatory activity in this important health area (see supra, Childhood Lead Poisoning Prevention). In particular, it assures that children covered or eligible for Medi-Cal receive these services. This new Medi-Cal service parallels current services provided by the Childhood Lead Poisoning Prevention Program, which provides onsite investigations to detect the source of lead contamination in the homes of children who are not eligible for Medi-Cal. Lead poisoning has devastating effects, and is preventable. This program will enhance the prevention efforts for poor children, who often are at greater risk for lead poisoning. However, child advocates contend that this rule change stands in marked contrast to the empirical record of DHS in carrying out lead prevention. See the recent DHS survey of drinking water in elementary schools, indicating lead levels substantially above federal maximums, and the tepid response of DHS in terms of comprehensive surveying and mitigation warranted by these findings.
Firearms Safety
California law provides that no handgun shall be delivered in California unless the purchaser, transferee, or person being loaned the firearm presents to the firearms dealer a Basic Firearms Safety Certificate (BFSC) (California Penal Code sections 12071,12072). DOJ develops, implements and administers the BFSC Program. On October 9, 1998, DOJ published notice of its intent to adopt sections 967 through 967.85, Title 11 of the CCR. In the proposed regulations, DOJ sets standards for issuing BFSCs to individuals, and guidelines for DOJ Certified Instructors and DOJ Course Providers.
Individuals may obtain BFSCs by three separate methods: 1) completing the DOJ Video Course, 2) successfully passing a DOJ Objective Test, or 3) enrolling in and successfully passing a DOJ Certified Course. A BFSC applicant must be at least 21 years old; a firearm dealer must verify the identity and age of the applicant. To become a DOJ Certified Instructor, a person must be certified by a nationally recognized organization or entity that fosters safety in firearms. To become a DOJ Course Provider, a licensed firearms dealer must submit to DOJ the dealer and/or dealership name; the physical address and mailing address, if different; telephone numbers; and the Centralized List firearms dealer number.
DOJ accepted public comment until November 25, 1998, and held a public hearing in Sacramento on the same date. DOJ adopted the regulations and submitted them to OAL, which approved them on March 30, 1999. They became effective on April 29, 1999.
Impact on Children: The objective of the BFSC program is to increase protections and foster safer use of firearms. It attempts to educate purchasers and force a measure of responsibility on firearms dealers. The current short and simple "objective test" taken for the BFSC certificate is the most common means of acquisition. That test does not include examination on major points relevant to child safety, including recent statutory changes sponsored by the Children's Advocacy Institute to make adults criminally liable for gross negligence in allowing children access to firearms when injury results. Nor does it include the range of civil liability exposure for child access to firearms, nor recent data on the ability of children to find guns and ammunition, notwithstanding adult belief that the location is unknown and the status secure.
Healthy Families
As part of the Balanced Budget Act of 1997, the federal government established the Children's Health Insurance Plan (CHIP), the most significant funding increase for children's health coverage since the enactment of Medicaid in 1965 (42 U.S.C. § 1396 et seq.). CHIP provides $48 billion over ten years for states to cover uninsured children and for certain specified expansions of the Medicaid program. The monies are intended to cover uninsured children with family incomes too high for Medicaid but too low to afford private family coverage. Money will flow to the states through block grants, on a 65% federal - 35% state matching basis. California is entitled to one of the largest shares - $859 million in the first year alone, due to the state's large number of uninsured children and high poverty rates. In developing individual state plans, each state had the option of further expanding Medicaid (Medi-Cal in California), creating a new and separate state program, or a combination of the two.
During the last three weeks of the 1997 California legislative session, state lawmakers and then-Governor Pete Wilson chose to create a new and separate program, Healthy Families (AB 1126, Villaraigosa, Chapter 623, Statutes of 1997), to finance health insurance for up to 580,000 of California's 1.6 million uninsured children. The Legislature also passed, and Wilson signed, a federally-mandated expansion of Medi-Cal to teenagers between the ages of 14 and 19 whose family income is up to the federal poverty level (SB 903, Lee, Chapter 624, Statutes of 1997). (Regulations relating to the expansion of Medi-Cal are the responsibility of DHS and are covered in the Child Health section of this Children's Reporter.)
As required by CHIP, California submitted its Healthy Families plan to the federal Health Care Financing Administration (HCFA). On March 24, 1998, HCFA approved both the mandated plan for expansion of Medi-Cal and the Healthy Families plan, designed to expand coverage to children through age 18 whose family income is up to 200% of the federal poverty level. (But note the federal statute's allowance for coverage up to 250% to 300% of the poverty line for some of California's children; see also later discussion of Wilson's retraction of coverage for many children living below 200% of the poverty line through a revised definition of income.)
Healthy Families provides subsidized health insurance coverage (not health services, per se) for children in families with incomes between 100% and 200% of the federal poverty level (between $13,650 and $27,300 per year for a family of three). Parents have a choice of plans, including coverage for dental, vision and mental health in addition to physical health services. Monthly premiums range from $4-7 per child (up to $14 per family for families between 100% and 150% of the federal poverty line) to $6-9 per child (up to $27 per family for families between 150% and 200% of the federal poverty line). In addition, co-payments are set at $5 per visit and per prescription; no co-payments may be charged for designated preventive services.
In California, the Managed Risk Medical Insurance Board (MRMIB) is the state agency responsible for drafting regulations for the implementation of Healthy Families. On February 20, 1998, MRMIB published notice of its intent to adopt sections 2699.6500 through 2699.6813, Title 10 of the CCR, on an emergency basis, to implement the Healthy Families program. The regulations became effective on the same date. On March 13, 1998, MRMIB published notice of its intent to permanently adopt the regulations. MRMIB accepted public comment on the proposal until April 29, 1998, and held a series of eight public hearings throughout the state. MRMIB revised the proposed regulations and submitted them to OAL on June 5, 1998. OAL approved them on July 15, 1998, and they became effective on the same date (15 days after Healthy Families became operational).
On December 25, 1998, MRMIB amended sections 2699.6500, 2699.6600, 2699.6607,2699.6629, 2699.6805, and 2699.6809, Title 10 of the CCR, on an emergency basis, to implement changes in the Healthy Families program. On January 1, 1999, MRMIB published notice of its intent to permanently adopt the emergency regulations. MRMIB accepted public comment until February 17, 1999, and held a public hearing in Sacramento on the same date. On May 24, 1999, MRMIB again adopted the sections on an emergency basis. At this writing, MRMIB has not submitted the regulatory changes to OAL for permanent adoption.
The Healthy Families regulations are divided into four articles; Article 1, Definitions; Article 2, Eligibility, Application, and Enrollment; Article 3, Health, Dental and Vision Benefits; and Article 4, Risk Categories and Family Contributions. For the purpose of easy reference, each Article is considered in order below.
Article 1, Definitions, includes one of the most controversial portions of the regulations, "Income deduction" allowances (§ 2699.6500(k)(1)). As originally proposed, families qualified for certain income deductions in determining the gross family income for eligibility purposes. These deductions included work expenses of up to $90 per month for each working family member; child care expenses (up to $200 for each child under age two and up to $175 per month for each child over age two and for any disabled dependents); the amount paid by a family member per month for any court-ordered alimony or child support; child support payments received up to $50 for each applicable family member; and alimony payments received up to $50 for each applicable family member. HCFA had approved these income deductions as part of the federal government's approval of the Healthy Families plan. However, in early April 1998, Wilson proposed eliminating the income deductions from the regulations and requested HCFA to approve a corresponding amendment to the state's plan - a plan submitted by the administration's DHS. At its April 20 meeting and at Wilson's request, MRMIB approved the regulatory change (on a 3-2 vote) and removed the income deductions. The elimination of the deductions - vigorously opposed by child and health advocates - raises the total family income for consideration of eligibility, and thus denies health insurance coverage to thousands of previously-qualifying children. It also complicates the ability of families to shift from Medi-Cal to Healthy Families as family income rises, because the new Healthy Families rules no longer are consistent with Medi-Cal rules, which allow the deductions in computing family income. Advocates argue that failing to disregard such expenses discriminates against children in many families with the same disposable income but who must pay for child care or other expenses. Finally, critics of Wilson's plan pointed out that more than enough federal funds have been provided to cover all of the children excluded after this change - and many more - and that exclusion would lead to a California give-back of substantial federal funds for distribution to other states. Nevertheless, HCFA subsequently approved the State Plan Amendment, eliminating the use of income disregards for eligibility determination and temporarily ending the discussion.
The recent emergency regulations, while still restricting the use of income deduction allowances in determining income for eligibility purposes, allow the use of such deductions in determining the income levels that drive the amount of the family contribution (§2699.6500).
Article 1 includes an expanded definition of the "Family Value Package" (§ 2699.6500 (i)) - one of two options families may choose (the other is the Community Provider Plan, see Article 4 discussion below). The Family Value Package is the combination of participating health, dental, and vision plans available to participating subscribers in each county, offering the lowest price or meeting other qualifying criteria. The rules prescribe a formula to determine network capacity; this is important because only those plans meeting stated price thresholds qualify.
The recent emergency regulations further define Family Value Package to include thestandard that a plan must cover 85% of a county's population through its provider network to qualify; slightly adjust the dollar difference for a designated Community Provider plan; make technical changes in the designation of Community Provider Plan; and add requirements to a "participating health plan" to assure that there is an outside, independent review authority for all types of Healthy Families plans (§§ 2699.6500, 2699.6805, 2699.6809).
Article 2, Eligibility, Application, and Enrollment, constitutes most of the rules relating to a family's use of the Healthy Families program. The Determination of Eligibility (§2699.6607(a)) sets forth the rules for the administrative completion of the application review process, requiring an eligibility determination within ten calendar days of receipt of the complete application unless documentation is not complete. Originally, if the program was unable to verify citizenship or qualifying immigration status within the ten-day period, the applicant was deemed to meet the criteria until such status was verified. The recent emergency regulations change that because the federal immigration status verification system is not yet available. Thus, immigrants now are required to document the lawful status of their children as part of the application process (§2699.6607(a)). The requirement to document status, already an issue with child and health advocates, will become more problematic. An initially low number of enrollees in San Diego and Kern Counties - both of which have high numbers of foreign-born parents with citizen children -comes as no surprise. The rules also contain a procedure for extending the ten-day determination period when the application is incomplete. If telephone notification is unsuccessful, the application will be returned with a notice that the applicant must submit clarifying information or documentation.
The complicated application process was another bar to participation in the program. Sections 2699.6600-6605 contain over fifty rules applying to families attempting to qualify for Healthy Families coverage. The original application required a painstaking determination - using a three-step, four-page form - of which family members qualify for Medi-Cal, Healthy Families, or neither; a five page Healthy Families application form including ten declarations which must be individually initialed (and copies made if applying for more than three children); proof of each child applicant's alien or citizenship status; proof of current income; and an initial family contribution payment of at least one month. Applicants who pay in advance the amount of three months of family contributions would receive the fourth consecutive month of coverage with no family contribution required (§ 2699.6809(b)).
In the initial regulations, the rules allowed for payment only by cashiers check or money order. This barrier to participation was adjusted in the permanent rules, which allow applicants -after payment of the first premium - to submit the family contribution payment by personal check, cashiers check, money order, credit card, or electronic fund transfer.
The recent emergency regulations propose a number of changes to simplify the application. For example, families may now use federal income tax returns from the previous calendar year to document income. To further ease the application process, the recent regulations also allow for the first premium payment to be made by personal check or money order.
In an attempt to encourage enrollment, the state has offered training for individuals who work with community-based organizations to participate and assist families in the application process. A person who receives training is certified, and the organization receives an Application Assistance Payment for each successfully completed application when pregnant women or children are enrolled in the program (§ 2699.6629). The recent emergency regulations revise the procedures to determine if the fee should be paid, and raise the fee from the original $25 to $50 per successful application (§2699.6629).
Enrollment includes an annual requalification requirement for subscribers (§ 2699.6625), which compels applicants to requalify on an annual basis by providing to the program all information required to initially enroll. Other related sections cover disenrollment criteria, open enrollment (for changing from one health plan to another), and additional or transfer enrollments.
Article 3, Health, Dental and Vision, covers the scope of health benefits, including excluded benefits, and share of cost rules (§§ 2699.6700-6721). Share of cost under Healthy Families includes a $5 copayment requirement for any of these services: outpatient professional (medical) and mental health, home health care, outpatient alcohol and drug services, and rehabilitative therapy. There is also a similar copayment for most prescription drugs. Preventive services as defined do not require a copayment. The share of cost requirement for outpatient services has a $250 ceiling in a benefit year. Child and health advocates have expressed serious concern with this high copayment cap, since otherwise qualifying families - some of whom may be just over the poverty line - may pay up to $250 per year to access medical care for illness or injury, in addition to the price of premiums. This barrier to treatment, particularly for families whose incomes are already at the lowest levels, is one which advocates believe will make the program most prohibitive for many of the very families it was theoretically designed to help.
Article 4, Risk Categories and Family Contributions, covers rate restrictions for participating health plans as well as premium costs for families. Allowable rates are based on the geographic regions of the subscriber's residence, similar to other private health insurance coverage. Section 2699.6805 gives MRMIB the authority to designate a Community Provider Plan in each county, with some exceptions. The Families choosing the Community Provider Plan over the Family Value Package (see Article 1 discussion of the Family Value Package above) pay $3 less for each premium, per month, per subscriber. Community Provider Plans primarily consist of traditional safety net providers such as community clinics; in many cases the current provider of care for those families previously receiving any health care services.
The Healthy Families program became operational on July 1, 1998. As of May 8, 1999, the number of enrollees stands at 107, 398. This is a huge increase over the earliest figures, and likely reflects the recent changes to the application process and other adjustments. However, California is still far short of its long-term goal of 580,000. Outreach and education alone will not solve these issues. Further refinements of the program, especially a reconsideration and lowering of the family contribution for premiums and copayments, are needed to cure Healthy Families.
In a related action on August 28, 1998, MRMIB adopted sections 2699.6900, 2699.6903, and 2699.6905, Title 10 of the CCR, on an emergency basis. These proposed regulatory changes arrange for payments for providers in the state's Child Health and Disability Prevention (CHDP) program, for children who receive such services 30 days prior to enrollment as members of Healthy Families. Section 2699.6905 requires DHS to use the same rates for Healthy Families reimbursements that it uses in the Medi-Cal program. On October 2, 1998, MRMIB published notice of its intent to permanently adopt the emergency regulations. MRMIB accepted public comment until November 16, 1998, and held a public hearing on the same date. MRMIB adopted the regulations and submitted them to OAL, which approved them on February 2, 1999. They became effective the same date.
Impact on Children: Uninsured children are less likely to have regular health examinations, resulting in little early detection of problems. They lack a regular medical professional to monitor their development, and are three times more likely than an insured child to lack a regular source ofcare. Fewer immunizations, well baby checks, and genetic/chronic disease screening are related consequences. Most uninsured children come from families where one or more parents work. These are families who are "playing by the rules," but often cannot afford basic health care services even when children are ill. The Healthy Families program does not provide those services; rather it offers "working poor" families an opportunity to purchase health insurance. The emergency regulations, adopted in December 1998, speak to many of the concerns child advocates have had with the implementation of Healthy Families. However, the changes do not speak to one important element - the lowering or elimination of premiums and copayments. Without reasonable adjustments to this part of the program, Healthy Families will have even more difficulty reaching its potential. There is no reason for any child in a state as wealthy as California to lack needed health care services.
Immunizations
Health and Safety Code sections 120325 through 120475 require children to receive certain immunizations in order to attend public and private elementary and secondary schools, child care centers, family day care homes, nursery schools, day nurseries, and development centers. On February 19, 1999, DHS amended sections 6020, 6035, and 6075, Title 17 of the CCR, on an emergency basis, to conform with statutory requirements and to bring California in line with current national recommendations.
The emergency amendments added a series of three hepatitis B immunizations and a second dose of measles-containing vaccine to the immunization requirements for children entering or advancing to the seventh grade on or after July 1, 1999. The amendments also added an annual reporting requirement on the immunization status of seventh graders for these vaccines.
In addition, current regulations require that children receive their final, or booster, dose of both polio and diphtheria-tetanus-pertussis (DTP) vaccines on or after the age of two years. The proposed regulatory changes will raise the age from two years to four years. Accordingly, some children will need an additional DTP shot or polio dose.
On March 12, 1999, DHS published notice of its intent to permanently adopt the emergency regulations. DHS accepted written comments until April 26, 1999, but did not hold a public hearing. At this writing, DHS has not submitted the proposed regulatory changes to OAL.
Impact on Children: These changes further ensure that children in California are properly vaccinated, updating the immunization schedule with recent public health recommendations of the Centers for Disease Control and Prevention.
Infant Botulism Treatment and Prevention
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 5. Update: DHS submitted the proposed regulatory changes to OAL, which approved them on November 4, 1998. They became effective on the same date.
Medi-Cal Children's Programs
(formerly Expansion of Medi-Cal Children's Programs)
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 8. Update: DHS submitted the proposed regulatory changes to OAL, which approved them on November 18, 1998. They became effective on the same date.
Medi-Cal Rate Increase
AB 1656 (Ducheny) (Chapter 324, Statutes of 1998) authorizes additional Medi-Cal funding to increase reimbursement rates for providers. On March 12, 1999, DHS amended sections 51503, 51505.1, 51509, 51509.1, and 51527, Title 22 of the CCR, on an emergency basis, to comply with the legislation.
The proposed regulatory changes establish the Medi-Cal reimbursement rates for physician, hospital outpatient department, and ambulance transportation services. Prior to the amendments, Medi-Cal reimbursement for children was less than that for adults, because rates were based on twenty-year-old Relative Value Studies (RVS). The amended sections will provide funding to increase children's rates for a specific set of physician office visit procedures to at least equal the rates paid for adults. The Legislature appropriated funding for a rate increase of 10% for adults and 20% for children under 18 years of age, for selected primary care and preventive medicine procedures. As a result of these rate increases, reimbursement for most primary care and preventive medical services will now be greater for children than for adults.
These regulatory changes also increase the reimbursement rates paid to hospital outpatient departments by 15.3%. Additionally, the rate for emergency responses-to-call would increase by 47.8%, and the rate for non-emergency responses-to-call would increase by 55.5%.
On March 19, 1999, DHS published notice of its intent to permanently amend the sections. DHS accepted written public comment until May 3, 1999. There was no public hearing scheduled. At this writing, DHS has not submitted the proposed regulatory changes to OAL.
Impact on Children: The overall objective is to motivate providers of these medical services to treat more Medi-Cal patients. The Legislature authorized rate increases for services to ensure continuing access to care for Medi-Cal beneficiaries. In an era of reduced medical reimbursement, this increase to providers treating children is important. Note that such reimbursement rates do not keep pace with medical inflation rates from historical RVS levels. Reimbursement is allowed to fall behind rates of inflation by denying cost-of-living or other inflation adjustment application. Note also that these rate increases will not assist children in managed care settings, when services are paid by Medi-Cal on a capitated (per child covered) basis. The goal for such managed care coverage of the Medi-Cal population is 50% by the end of 1999. Children are particularly attractive enrollees for managed care plans because they cost approximately one-fifth the amount of adults.
Medi-Cal Specialty Mental Health Services
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 6. Update: On November 6, 1998, DMH published notice of its intent to adopt the revised regulations. DMH accepted public comment until December 21, 1998; no hearing was scheduled. At this writing, DMH has not submitted the proposed regulations to OAL for approval.
Orthodontic Services
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 8. Update: DHS submitted the proposed regulatory changes to OAL, which approved them on October 27, 1998. They became effective on the same date.
Playground Safety
SB 2733 (Rosenthal) (Chapter 1163, Statutes of 1990) requires the adoption of minimum safety standards for all public playgrounds in California. Among other factors, SB 2733 specifiesthat the regulations must be at least as protective as the public playground safety guidelines published by the U.S. Consumer Product Safety Commission (CPSC), a recognized authority in the field of playground safety. SB 2733, which has been codified in Health and Safety Code sections 115735 et seq. (formerly sections 24450 et seq.), specifically requires DHS to consult with specified agencies and private entities, and to adopt playground safety regulations by January 1, 1992.
DHS failed to promptly initiate the regulatory process; in fact, two years after the deadline, DHS still had not complied with its mandated duty. Therefore, in 1994, the Children's Advocacy Institute (CAI), on behalf of petitioners Maia Barrow, her guardian ad litem Steve Barrow, and the California Public Interest Research Group (Cal-PIRG), petitioned for a writ of mandate in Sacramento County Superior Court (Case No. 379538). The writ sought a ruling forcing DHS to adopt playground safety regulations as required by SB 2733.
On March 7, 1995, Judge Tom Cecil issued a peremptory writ of mandate ordering DHS to "immediately on receipt of this writ to comply with your duty under Health and Safety Code sections 24450 et seq. to adopt playground safety regulations. You are expected to proceed in good faith to adopt regulations in a timely manner." In the summer and fall of 1995, DHS convened a "SB 2733 Playground Regulations Advisory Work Group." On October 13, 1995, DHS notified the court that it would draft and submit the required public playground safety regulations to DHS' Internal Office of Regulations by January 31, 1996, and would thereafter submit an emergency regulations package to OAL by March 31, 1996. DHS failed to meet either deadline.
Almost three years later and six years after the statutory deadline for rule adoption - with no real action on the regulations by DHS - CAI filed a motion to enforce the judgment, threatening possible contempt of court proceedings against DHS officials. In June 1998, the court ordered DHS to adopt the regulations on or before March 1, 1999.
On September 18, 1998, DHS finally published notice of its intent to permanently adopt sections 65700 through 65755 (inclusive), Title 22 of the CCR. DHS accepted public comment on the proposal until November 4, 1998, and held a public hearing in Sacramento on the same date. CAI submitted written and oral comments at the hearing. In particular, CAI objected to DHS's failure to include provisions needed to meet the statute's minimum standards. (The law requires California's standards to be at least as strict as those adopted by the CPSC. The proposed rules failed to match the standards in important respects.)
Consequently, DHS revised the proposed regulations, and held a second public comment period, which ended on March 12, 1999. Once again, CAI presented comments on the proposed regulations, noting DHS's failure to include critical sections on protective surfacing requirements, and objecting to other deficiencies. DHS made further revisions, adopted the regulations, and submitted the proposed regulatory changes to OAL on April 14, 1999. OAL disapproved the regulations on May 24, 1999, on the grounds that DHS failed to meet the authority and clarity standards of the APA. In its Notice and Decision to DHS, OAL summarizes six areas of concern. The most significant issue is the exemption established in proposed section 65755 for certain operators of playgrounds. OAL found that DHS exceeded its statutory authority by creating an expansive exemption, not authorized by the statute. Other issues center on language and the requirement that DHS incorporate the CPSC Handbook in the rules.
The proposed regulations will have to be amended and renoticed because of the substantive nature of OAL's required changes. Hence, additional comments relevant to altered provisions will be particularly appropriate. The substantive rules as renoticed will include the basic provisions as initially submitted to OAL. These are divided into four articles: Article 1, Definitions; Article 2,General Standards; Article 3, Certified Playground Safety Inspector Requirements; and Article 4, Provisions for Child Care Facilities and Facilities Operated for the Developmentally Disabled. Each article is discussed in order below, in some detail because of the importance of these rules as a precedent; they represent the first state regulatory attempt to set up a detailed set of minimum standards for playground safety, and they include enforcement implementation mechanisms.
Article 1, Definitions, provides terms used in the regulations. Under the regulations, a "playground" is an improved outdoor area that is designed, equipped and set aside for children's play. A playground includes all equipment, fencing, surfacing, signs, pathways, structures, vegetation and land forms (section 65700.6). The regulations define "playground equipment" as a fabricated structure used for children's play, which includes at least one surface that is anchored or built into the ground and not intended to be moved (section 65700.8).
Additionally, Article 1 defines those who use, operate, and maintain public playgrounds. Under the regulations, children are defined as individuals between 2 and 12 years of age (section 65700.2). A playground "operator" is any entity that operates a playground that is open to the public (section 65700.4). This includes public playgrounds operated by churches, subdivisions, hotels and motels, resorts, camps, offices, hospitals, shopping centers, child care settings, restaurants, state and public agencies, cities and counties, and school districts. The playground operator must hire or appoint a "supervisor" to look after the playground on a regular basis (section 65700.10). A supervisor is trained to oversee playground use, administer first aid if needed, and report hazards or injuries. A "certified playground safety inspector" is one who possesses a current Certified Playground Safety Inspector certificate issued by the National Playground Safety Institute (sections 65700, 65750).
Article 2, General Standards, covers the scope of requirements for ensuring that all public playgrounds within California comply with minimum safety guidelines. Significantly, it requires all entities that operate public playgrounds to abide by the safety standards set forth by the CPSC in its Handbook for Public Playground Safety (CPSC Handbook), and the guidelines in the Standard Consumer Safety Performance Specification for Playground Equipment for Public Use, developed by the American Society for Testing and Materials (ASTM Standard) (section 65710). Article 2 also sets forth the time frame in which operators of public playgrounds must begin to comply with safety standards. A certified playground safety inspector must conduct an initial inspection of public playgrounds by October 1, 1999 (section 65715). After the initial inspection, playground operators will be required to make any needed changes in the design, installation, inspection, maintenance, and supervision of their playground facilities to conform to the regulation's safety guidelines.
Additionally, Article 2 specifies design requirements (section 65720). It provides that playground operators shall design, redesign, locate or relocate playground equipment to comply with the guidelines of the CPSC Handbook. In particular, playgrounds must meet "critical height" standards (section 5720(a)). The term critical height is useful in describing the performance of shock absorbing surface material under and around a piece of playground equipment. Protective-surfacing materials absorb shock more readily than hard surfaces like concrete, thus preventing potentially serious injuries from falls. The critical height is the maximum height expected to prevent against a life-threatening head injury in case of falls. Under this formulation, surfacing material used under and around playground equipment should have a "critical height value" of at least the height of the highest play surface on the equipment. Additionally, playgrounds must conform to recommended fall heights for equipment (section 65720(b)). For example, from a horizontal ladder or climber, the fall height equals the maximum height of the equipment. For slides and elevated platforms, the fallheight is the height of the platform. On a merry-go-round, the fall height is the height at which any child on the equipment may sit or stand.
The regulations also specify certain playground areas where protective surfacing is not required (section 65720(c)). With some types of playground activities, children are sitting or standing at ground level during play. Because the risk of a fall from a height is absent in these areas, protective surfacing is not considered necessary. Such equipment includes sand boxes, activity walls, play houses, and any other equipment that does not contain an elevated playing surface.
In written comments to DHS, CAI objected to the omission of several sections of the CPSC Handbook addressing protective surfacing. The adopted regulations excluded Sections 4.5 and 4.6 of the handbook, covering the acceptability of various surfacing materials and describing selection of suitable surfacing materials, which include rubber mats or a combination of rubber-like materials that are held in place by a binding material, or loose-fill materials at sufficient depth. Suitable loose-fill includes sand, gravel, shredded wood products, and shredded tires. Section 4.5 also includes a table of critical heights of various surfacing materials. Because the statute requires that the regulations be at least as protective as the CPSC Handbook, by excluding Section 4.5 of the handbook, the regulations failed to meet this statutory mandate.
In addition to Section 4.5, CAI also objected to the exclusion of Section 4.6 of the CPSC Handbook, covering additional characteristics of surfacing materials. Section 4.6 provided advantages and disadvantages of different types of materials, based on environmental conditions and location. CAI argued that this section should be included because the selection of adequate surfacing is crucial to obtaining optimal playground safety. Further, providing guidelines on appropriate surfacing materials could result in significant savings in maintenance and replacement costs for operators and California taxpayers.
Playground operators must also meet the requirements for stairways, ladders, and handrails, set forth in Section 10 of the CPSC Handbook, excluding Section 10.2 (section 65720(e)). The dimension of rungs and other hand-gripping components of equipment is important to prevent children from losing their grip while playing. Thus, the regulations require that rungs and hand-gripping components have specific diameters or cross sectional dimensions. The regulations specify that continuous handrails should extend the entire length of access on stairways and stepladders and be provided on both sides of the equipment.
Article 2 also covers safety features for platforms, guardrails, and protective barriers, included in Section 11 of the CPSC Handbook (section 65750(f)). One risk of elevated platforms is inadvertent falls. To minimize the risk of falls, the regulations require protective barriers designed to prevent children from climbing over or through the barrier. For instance, openings between the platform and the barrier should not be wide enough so children may climb through the barrier. The regulations further specify that openings in the barrier should be sufficiently narrow to prevent the passage of a small torso. Additionally, a protective barrier should meet minimum height requirements, to prevent children from inadvertently falling over the equipment's barrier.
Specifications for major types of playground equipment are incorporated into Article 2 of the regulations through Section 12 of the CPSC Handbook (section 5720(g)). For example, the Handbook uses the term "climbers" to describe various playground equipment such as sliding poles, chain or net climbers, upper body equipment (overhead horizontal ladders, overhead rings), dome climbers, parallel bars, balance beams, cable walks, suspension bridges, and linked platforms. In terms of design, climbers should not contain structural components in the interior of the equipment upon which a child may fall from a height of more than 18 inches. Additionally, climbers shouldoffer an easy way for children to climb up or get out of a structure. Another type of playground equipment addressed within Section 12 of the CPSC handbook is the seesaw, or teeter totter. If a child climbs off the seesaw with another child still on the equipment, there is a risk of injury. For this reason, seesaws are not suggested for preschool-age children unless they contain a spring centering device to prevent a child's seesaw seat from suddenly hitting the ground. To prevent injury from sudden impact with the ground, partial car tires or other shock-absorbing material should be located in the ground under the seats of seesaws.
The regulations also address slides. Slide designs must reflect the fact that children descend slides in many different positions, from head first to facing backward. The design portion of Article 2 provides design requirements for various types of swings, balance beams, sliding poles and merry-go-rounds.
Article 2 also requires that California public playgrounds meet the accessibility guidelines set forth in Section 10 of the ASTM Standard (section 65720(h)). This section provides that if the use area of a playground does not contain surfacing material throughout the playground, a minimum of one accessibility route shall be provided from the perimeter to all play structures or equipment within the playground. The width of the accessibility route must conform with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities. Included within this section are requirements for ramps for wheelchair use, and specifications for ramp landings, adequate barriers, and handrails.
Article 3, Qualified Playground Inspector Requirements, establishes requirements for inspector-training in specific areas of competence. This section requires the basic training program to be consistent with that of the National Playground Safety Institute.
Article 4, Provisions for Daycare Facilities and Facilities Operated for the Developmentally Disabled, establishes special provisions applicable to child daycare facilities and facilities operated for children with developmental disabilities. Licensed family daycare home providers are exempt from the regulations as originally proposed, although changes pursuant to the OAL disapproval could change this.
Impact on Children: The beneficial impact that these regulations will have on children's safety is dwarfed by the detrimental impact on children while DHS ignored its legislative mandate and allowed these regulations to languish in the department for ten years. With OAL's recent disapproval of the regulations, as long as four months may pass before final adoption and actual implementation. Further, given the now seven and one-half years of delay beyond the legislative deadline, CAI is seeking a court date in July or August to assure judicial review of DHS's movement to comply with other recommendations and the underlying statutory mandate. Although the regulations seem detailed, they are based on years of experience in ascertaining the contributing causes to playground injury - a major source of childhood accidents. Most of the requirements follow common sense or well-recognized design practices for child safety.
Prenatal Care for Immigrants and Unqualified Aliens
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 8. Update: At this time, DHS is awaiting the results of a court hearing scheduled for July 1999.
Child Care
Infant Care Centers
AB 243 (Alpert) (Chapter 246, Statutes of 1994) and AB 1858 (Speier) (Chapter 336, Statutes of 1993) emphasize preventive health practices training and prohibit baby walkers on infant care premises. On August 23, 1996, DSS published notice of its intent to amend sections 101351 through 101439.1 (non-inclusive), and to repeal section 101352, Title 22 of the CCR. These sections update the educational requirements for infant care teachers, define the criteria for the supervision of sleeping infants, replace confusing language, and align the regulations to reflect the prohibition against "baby walkers" in infant care centers.
California's current law requires infant care teachers to complete 15 hours of health and safety training, if the teacher is on or off site with children when no other director or teacher who has completed the training is present. Section 101416.1 deleted the previous one-year exception to this rule extended to infant care teachers who were employed prior to the effective date of these regulations. Section 101416.5(d)(1) establishes criteria under which an infant care aide may supervise sleeping infants without being under the direct supervision of a teacher. This regulation seeks a balance between staff flexibility and child health and safety. An aide may supervise 12 sleeping infants when a teacher is immediately available at the center. However, the aide must be 18 years or older and have obtained a fingerprint and child abuse/criminal record index clearance.
Another amendment changed the term "parent" to "the child's authorized representative" (sections 101416.8(c)(1) and 101417(a)(3)). Now, the regulations include any person or entity authorized by law to act on behalf of any child. This includes a parent, legal guardian, conservator, or a public placement agency. Sections 101439(d) and 101439(d)(2) reflect the current prohibition of "baby walkers" in infant care centers. These amendments delete the terms and current regulations of "walkers" and "walking harnesses," and implement Health and Safety Code section 1596.856(b) and (c), which prohibit such equipment from being kept or used on the premises of infant care centers.
DSS accepted public comment on its proposed regulations until November 30, 1996, and held public hearings on October 8, 10, 15, and 17, 1996. DSS adopted these regulations and submitted them to OAL, which disapproved them on October 7, 1997, for failure to comply with the clarity standard of the APA. After incorporating modifications, DSS re-opened public comment until June 5, 1998. DSS adopted the regulations on September 14, 1998, and resubmitted them to OAL, which approved the revised package; they became effective on November 1, 1998.
Impact on Children: This is another troubling example of simple regulations that took a state agency two years to complete. The use of emergency regulations in lieu of a more expedited process defeats the meaning and intent of emergency regulations. By clarifying the educational requirements of infant care teachers, specifying the criteria for infant supervision, and reconciling these regulations with current safety concerns about the use of baby walkers, these simplified amendments allow for practitioners' compliance. However, the ratio of aides to infants - regardless of the amount of training - permits an aide to be responsible for far too many infants at one time; that is a continuing cause for concern.
School Age Child Care Centers
SB 1678 (Hart) (Chapter 848, Statutes of 1994) provides alternatives to the existing regulatory requirements for school-age child care centers. More specifically, it establishes alternative requirements concerning the education and experience of site directors and teachers. DSS has the responsibility to propose regulations to implement, clarify, and make specific SB 1678. Further, on September 20, 1995, then-Governor Pete Wilson issued an Executive Order requiring state agencies to simplify regulations. DSS' attempt to do so, in this case, took almost three years.
Many of the amendments and additions were minor editorial changes for clarity and consistency. The substantive changes and adoptions set the educational requirements for the director of a combination program that includes a school-age child care component; establish alternative educational requirements for the director of a school-age child care center that is not a part of a combination program; establish qualifications for directors; require teachers who use alternative education to meet certain requirements; and establish alternative approved sources of education for a school-age child care center teacher.
On August 23, 1996, DSS published notice of its intent to permanently adopt sections 101471, 101472, amend sections 101451, 101471, 101482, 101515, 101516.2, 101516.5, 101520, 101520.1, 101521, 101526.1, 101527, 101529.1, 101538, 101538.3, 101539, and repeal section 101452, Title 22 of the CCR, to comply with SB 1678 and the Executive Order. DSS accepted public comment until October 17, 1996, and held eight public hearings across the state from October 8 through October 17, 1996.
On August 22, 1997, DSS submitted the proposed regulatory changes to OAL, which disapproved them on October 6, 1997, for failure to meet the clarity standard. DSS made adjustments and resubmitted the revisions to OAL on July 31, 1998. OAL approved them on September 14, 1998, and they became effective on November 1, 1998.
Impact on Children: A number of YMCAs from around the state made general comments in support of these regulatory changes. YMCA School-Age Child Care Program representatives believe the added flexibility will enhance their ability to attract additional qualified staff to their program. Based on these comments, it appears that the amended regulations should benefit children in school-age day care programs.
Training Standards for Child Day Care Providers
SB 1524 (Alpert) (Chapter 666, Statutes of 1998) amends section 1797.191 of the Health and Safety Code, requiring the Emergency Medical Services Authority (EMS) to establish standards for the preventive health portion of child care training that is currently mandated for state licensed child care providers. Section 1797.191, as amended, establishes EMS as the sole agency responsible for the approval of the preventive health portion of mandated child care provider training.
On April 19, 1999, EMS published notice of its intent to amend sections 100000.1 through 100000.28, Title 22 of the CCR, to clarify and make specific the EMS monitoring role. Relating to its monitoring function, EMS increased the number of review days from ten to twenty, finding that the current requirement is insufficient for careful review. Further, the proposed specifications set minimum instruction times (no less than seven hours) in child preventive health and safety, and establish requirements for instructor training, along with required course content. Each approved program shall submit class rosters to EMS for each of its training sessions within 14 days of course completion. The EMS-approved programs in pediatric first aid, CPR, and preventive health practices training must provide course completion cards.
EMS accepted written comments on the proposed regulations until June 7,1999. A public hearing was held on the same date. At this writing, EMS has not submitted the proposed regulations to OAL.
Impact on Children: The intent of these regulations is to improve training programs thatteach pediatric first aid, CPR, and preventive health to child care providers. The amended and new guidelines establish stricter requirements to be followed by such programs. As part of its monitoring function, EMS seeks to provide greater assurances that child care providers possess the necessary skills for potential emergencies in the day care setting.
Special Needs
Personnel Standards for Nonpublic Schools and Agencies
SB 989 (Polanco) (Chapter 944, Statutes of 1996) directs the Board of Education (Board) to adopt regulations setting personnel standards for individuals employed by nonpublic schools and agencies. On July 18, 1997, the Board adopted sections 3060-3064, and amended sections 3001 and 3051, Title 5 of the CCR, on an emergency basis. These emergency regulations specify the personnel standards for individuals employed by nonpublic, nonsectarian schools and agencies for each type of service that local educational agencies are required by federal and state law to provide to pupils with disabilities. The regulations are divided into two principal sections - one setting the standards for specialized instruction, and the other setting the standards for related services.
The personnel standards, when applicable, are based on state-issued credentials and licenses, certificates of registration issued by professional, nongovernmental organizations, and degrees issued by accredited postsecondary educational institutions. To be eligible for certification, a nonpublic school or agency is required to employ personnel authorized by the Commission on Teacher Credentialing or the Business and Professions Code, or meet other personnel standards established by CDE, to comply with federal and state law on the provision of services to individuals with exceptional needs.
On November 14, 1997, the Board readopted these sections on an emergency basis, to review the regulations along with others relating to special education and public schools. On April 16, 1998, August 19, 1998, and December 21, 1998, the Board again readopted the regulations on emergency basis.
On January 19, 1999, the Board published its intent to permanently adopt the regulations. The proposed permanent regulations, although similar in scope to the emergency provisions, significantly reduce the means for approval of related services personnel, in many cases failing to distinguish between qualifications required for assessment, planning, and supervision of related services from those required for staff who only implement those services. For example, emergency sections 3061(h) and (i), respectively, distinguish between "adapted vision services" (which could be provided by any staff member recognized by the Commission on Teacher Credentialing) and "consultative vision services" (which could only be performed by an optometrist, ophthalmologist, or physician). In contrast, proposed permanent section 3065(x) specifies only that "vision services" must be performed by an optometrist, ophthalmologist, or physician. Similarly, emergency section 3061(n) describes conditions for certified or credentialed personnel to supervise implementation of behavior intervention services.
The proposed permanent regulations also eliminate the requirements for provision of supervised services, detailing only the qualifications necessary for designing and planning behavior intervention plans (section 3065(e)). For services not specifically enumerated, the proposed amendments only permit individuals licensed by the Department of Consumer Affairs (DCA) toprovide services (section 3065(y)), although the emergency rules also recognize credentials issued by the Commission on Teacher Credentialing as well as other state and national organizations (section 3061).
On March 11, 1999, the Board held a public hearing to consider the proposed regulatory changes. Several hundred individuals, parents as well as providers, attended the hearing to provide public comment. The Board attempted to severely limit the number of persons allowed to provide testimony at the hearing. Following a public outcry, however, the Board allowed groups of individuals to select a representative to provide testimony.
CAI submitted written testimony in opposition to portions of the proposed regulations. In particular, CAI expressed concern that the addition of proposed section 3065, establishing staff qualifications for Designated Instruction and Services in nonpublic schools and agencies, is inconsistent with state and federal law by effectively requiring a higher level of qualifications for educating students in nonpublic schools than in public schools. Due to the magnitude of the comments expressed at the public hearing, the Board withdrew the permanent regulations for reconsideration.
The Board further modified the proposed regulations, and readopted them on March 25, 1999, on an emergency basis. Only behavior intervention service provisions changed; emergency section 3065(f) now permits delivery of behavior intervention services by staff members under the supervision of licensed or credentialed personnel. On March 30, 1999, the Board announced another public comment period until April 16, 1999, to consider the revised regulations. In response to public comment, the Board again modified the regulations. On May 21, 1999, the Board announced another public comment period until June 8, 1999. At this writing, the Board has not submitted permanent changes to OAL.
Impact on Children: These regulations attempt to ensure that children with special needs attending nonpublic schools will receive services from state-certified or licensed instructors. While certification is important, some parent and child advocates believe that the regulations do not provide sufficient flexibility for utilizing highly-trained instructors who may not be state-certified or licensed. Because the regulations, in many cases, specify higher standards for personnel qualifications in nonpublic schools and agencies than in public schools, parents and child advocates are also concerned that they may reduce the availability of both public and nonpublic educational placements by unnecessarily draining limited pools of highly qualified personnel, reducing the number of nonpublic schools that are approved to provide special education, and/or lead to exorbitant costs to the state for nonpublic placements.
Some child advocates have suggested that these regulations are an attempt to eliminate nonpublic schools and agencies by imposing requirements for state certification that are impossible to meet. In such cases, however, the State of California may be required by the United States Supreme Court decision in Florence County School District v. Carter, 510 U.S. 7 (1993), to place children in private schools that have not been accredited by the state. In Carter, the Supreme Court held that, when the state public school system fails to meet the child's needs, it would be inconsistent with federal law to prohibit appropriate educational placements in private schools simply because the private school lacks the state's stamp of approval. Thus, without further modifications, these regulations may have a negative impact on the education of children with special needs, and only serve to increase litigation by parents wishing to secure nonpublic school placements in schools that fail to meet the new criteria.
Resource Specialist Caseload Waivers
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 13. Update: The Board of Education submitted the proposed regulatory changes to OAL, which approved them on March 2, 1999. They became effective on April 1, 1999.
Special Education Pupils Program
For a discussion of this regulatory package, see Children's Regulatory Law Reporter, Vol. 1, No. 2, at 11. Update: DSS submitted the proposed regulatory changes to OAL, which approved them on February 25, 1999. They became effective on February 26, 1999.
Education
Charter School Certification
AB 544 (Lempert) and 2417 (Mazzoni) (Chapters 34 and 673, respectively, Statutes of 1998) amend state law on charter schools by providing that no charter shall be granted to any private school attempting to convert to a charter school, by denying public funds for charter school pupils who also attend private school, and by requiring the Board of Education to adopt appellate procedures for charter school applications that have been denied.
On February 8, 1999, the Board of Education adopted sections 11965 through 11968 (inclusive), Title 5 of CCR, on an emergency basis, to provide guidelines for charter school certification and authorization. Specifically, the proposed regulations provide a definition of "private school," clarify the charter school certification requirement, and clarify the procedures to be used for appealing denials.
Importantly, proposed section 11965 defines "private school" as a school that meets the requirements set forth in Education Code sections 48222 and 48223. Specifically, such schools are private, full-time day schools taught in English by persons capable of teaching. In addition, the Education Code states that these schools shall offer instruction in several branches of study required in public schools, and that attendance be kept in a register.
Section 11966 requires that an official of the charter school shall specifically certify that all reported attendance is for pupils whose attendance is eligible for public funding. State funds shall not be apportioned to any charter school that fails to make such certification. Section 11967 details the appellate procedure for potential charter schools whose petition has been denied. In order to be acted upon, a petition for establishment must be received by the appropriate board (either the county board of education or the Board of Education) no later than 180 days after the denial. Upon filing, petitioner(s) shall include a complete copy of the charter petition, an explanation of why the charter petition was denied, and a signed certification of compliance with applicable law. Section 11967 further requires the denying board to make written factual findings, specific to the particular petition, which support one or more grounds for denial. The county board of education and/or the Board of Education shall grant or deny the petition within 60 days of receiving the complete petition package.
Section 11968 provides for a maximum number of charters. If a charter school voluntarily ceases to operate, its charter school number will lapse and will not be reassigned. Every July 1, the statutory limit increases the total number of allowable charter petitions by 100. Whenever the statutory limit on petitions is reached, requests for new numbers will be placed on a waiting list inthe order received.
On February 19, 1999, the Board of Education published notice of its intent to permanently adopt the regulations. The Board accepted public comment until April 8, 1999, and held a public hearing in Sacramento on the same date. At this writing, the Board has not submitted the proposed regulatory changes to OAL.
Impact on Children: The proposed regulations support the state's goal of adding charter schools as one method for improving public school performance in California. In particular, the regulations attempt to ensure that new charter schools are, in fact, new, and not merely private schools wishing to re-characterize themselves in order to receive public funding. The regulations reflect the Board of Education's desire to limit charter schools to those which truly provide new educational alternatives and opportunities.
Class Size Reduction in Grade 9
SB 12 (O'Connell) (Chapter 334, Statutes of 1998) created the Program to Reduce Class Size in Two Courses in Grade 9 (Class Size Program), which provides school districts with $135 per full-year enrollment per student for each class reduced to an average enrollment of 20 pupils. School districts may choose up to two courses in grade 9 to be included in the program. However, the courses must count toward the completion of graduation requirements in English, mathematics, science, or social studies, and one of the courses must be English.
On October 15, 1998, the Board of Education adopted sections 15140 and 15141, Title 5 of the CCR, on an emergency basis. Specifically, the new sections provide guidance for school districts implementing the Class Size Program by defining and clarifying the terminology used in Education Code sections 52084 and 52086, and by specifying the information required for enrollment.
For example, proposed section 15140 defines "certification" to mean specifically the declarations made by the school districts attesting to the compliance of each participating school site with every provision of the Class Size Program. Section 15140 also defines "full-year equivalent enrollment" in order to determine the proportional part of the school year that a class size reduction program is in place. Since school districts are allowed to implement the Class Size Program at any time during the school year, section 15140 clarifies that partial funding will be allowed for a school district based on the proportion of the number of school days it participated in the Class Size Program to the total number of days in the school year.
Proposed section 15141 addresses available funding, and outlines the information which each participating school district needs to report to CDE when certifying for enrollment. School districts will only be able to receive funding not to exceed the total enrollment of ninth graders times two, which includes class size reduction in two courses.
On October 23, 1998, the Board of Education published notice of its intent to permanently adopt the regulations. The Board accepted public comment on the proposed action until December 10, 1998, and held a public hearing on the same date. The Board submitted the proposed regulations to OAL, which disapproved them on March 18, 1999, for failing to meet the clarity standard. OAL stated that the regulations failed to clearly indicate whether a school district would receive funding under the program for 10th, 11th, and 12th grade students who attended a 9th grade course, and that the rulemaking record did not show that the Department of Finance concurred in the Board's analysis of costs that may be attributable to the regulations.
Impact on Children: The proposed regulations define terms and clarify information to be reported for school districts to receive funding. The opportunity of partial funding for the Grade 9program is a more refined incentive for school districts to implement class size reduction than the all-or-nothing approach for the K-3 class size reduction effort. Note that the $129 million earmarked for Grade 9 class size reduction may have an added $129 million from federal contribution, which Governor Davis has urged districts to apply to a similar program for Grade 10. However, both new programs combined will provide insufficient funding to reduce class size appreciably, leaving California 49th in the nation in class size, due to its longstanding and severe disinvestment in public education.
Driver Education and Training Program
Vehicle Code section 12814.6 authorizes the Department of Motor Vehicles (DMV) to issue a provisional license to an applicant less than 18 years of age, and establishes specific requirements which must be met by such an applicant. Section 12814.6, as amended on January 1, 1998, describes the new provisional licensing process and requires DMV to make regulatory changes to implement the new law.
DMV's proposed regulatory changes include the requirement that driver license applicants under the age of 18 satisfactorily complete an approved course in driver education and training in a secondary school, or complete six or more hours of behind-the-wheel instruction by a licensed driving school or licensed independent driving instructor and an accredited course in driver education in a secondary school, or equivalent professional instruction. Every student receiving driver training in a public or private secondary school must have a Student License or a valid Instruction Permit; this license or permit must be present in the vehicle when the student receives driver training. The use of a valid Driver Instruction Permit for driver training instruction does not nullify the provisional license requirement, which mandates supervised practice with the parent, guardian, or a licensed driver 25 years old or older.
On February 26, 1999, DMV published notice of its intent to repeal sections 50.40 and 50.45, and adopt new sections 50.40, 50.45, 50.50, 50.55, 50.60, 50.70, 50.75, 50.80, 50.85, and 50.95, Title 13 of the CCR, to comply with the new law. DMV initially announced a public comment period to close on April 12, 1999. However, on April 15, 1999, DMV withdrew the proposed regulations because of pending legislation (SB 946, Vasconcellos) that deals with the subject area.
Impact on Children: The DMV proposed these changes in order to provide a means of consistent, secure, and uniform documentation certifying the satisfactory completion of the approved driver education and training courses. Since teenage drivers are more likely to be involved in accidents than most other drivers, additional required education and hands-on training can only benefit young people as well as the community at large. DMV is expected to propose the adoption of these regulations again, after the legislative decision on SB 946.
English Language Education for Immigrant Children
California voters passed Proposition 227 on June 2, 1998, establishing the English Language Education for Immigrant Children Program (Education Code sections 300 et seq.). On July 23, 1998, the Board of Education adopted sections 11300 through 11305 (inclusive), Title 5 of the CCR, on an emergency basis, to implement Proposition 227. Specifically, these proposed regulations clarify definitions used in the Education Code such as "school term" and "reasonable fluency in English"; describe the requirements and procedures for parental or guardian notice of waivers and placement of pupils in the program; and outline procedures for receiving and disbursing funds for tutors in this program.
For example, proposed section 11301 identifies when the pupil should be transferred from an English immersion classroom to a mainstream classroom. This section indicates that when a pupil achieves a "reasonable level of English proficiency" as defined by approved state or local assessment standards, or upon a request from the pupil's parent or guardian, that pupil can be transferred from an English immersion classroom to a mainstream classroom. This section also stipulates that, absent a parent or guardian objection, a pupil's enrollment in an English immersion program can extend beyond the intended one-year period if the pupil falls below the reasonable level of proficiency in the English language.
Section 11302 states that services for kindergarten through twelfth grade pupils in an English immersion classroom should cease once the pupil achieves a level of English proficiency comparable to his or her school district's average English-speakers and overcomes any other academic deficiencies caused by the language barrier.
Section 11303 requires that parents or guardians of a pupil receive notice of their child's placement in an English immersion program and that they are informed of their ability to apply for a parental waiver exception. The parental notice must include a written description of the English immersion program and a description of any alternative programs available to the pupil. Upon request of the parent or guardian, the description may be given verbally. Generally, the school must act on a parental exception waiver within thirty calendar days, unless other exceptions apply. Parental exception waivers are granted unless the school principal or educational staff determines that the alternative programs offered by the school would be inadequate.
Section 11305 states that educational agencies offering Community Based English Tutoring will receive funding based upon the number of limited English proficient pupils. Those agencies that receive such funding must submit that the adult participants of the tutoring program have agreed to provide English tutoring to California school pupils.
On July 24, 1998, the Board of Education published notice of its intent to permanently adopt the regulations. The Board accepted public comment on the proposed changes until September 10, 1998, and held a public hearing in Sacramento on the same date. The Board adopted the regulations, and submitted them to OAL, which approved them on December 30, 1998. They became effective the same date.
Impact on Children: The overall aim of these proposed regulations focuses on increasing the English proficiency of California's student population. While the goal has wide support, the best methods to achieve it are in dispute. One approach - and that mandated by Proposition 227 - is quick immersion in an English-only environment. A more flexible approach allows students to develop English skills while learning core curriculum in their first language. The proposed regulations follow the intent of the law, and reflect a budgetary and policy decision to limit public funding for special second language programs for the state's immigrant children. While both sides have ardent supporters, the ideal educational environment must reflect the individual needs of each student. To the extent these regulations cut a bright line methodology over a varied population with different needs, children will suffer. For example, the reasonable ability of a 14-year-old immigrant with no prior English language experience to quickly learn a much different language within one year may be much less than that of a non-English speaking 6-year-old child who has lived in this country all her life. The rules set forth procedures for the "waiver" process, which will be critical to the educational success of those requiring more than one year to achieve English proficiency. They include timelines all