SC Administrative Law Court Decisions

See 27 S.C. Code Ann. Regs. § 114-503 (A)(12) (Supp. 2003) and proposed Regulation 114-504 (C). Though the Proponents provided no evidentiary support for this requirement, I find that a distinction between the staff needed when the children are active and when the children are inactive is reasonable. However, there will obviously be transition periods when only a percentage of the children are napping/inactive. Nevertheless, not every potentiality can be addressed by these proposed regulations. Therefore, the child care facilities will be required to exercise reasonable discretion in providing the appropriate ratio of staff-to-children in the instances in which all the children are not napping/inactive.

Application to Other Child Care Facilities

9.The SCCCA also contends that the proposed regulations target licenced providers who constitute only 20% of child care facilities. However, the regulations are being phased in over a four year period. Moreover, the issue here is whether the proposed regulations are needed and reasonable. Consequently, it is irrelevant for this Court to determine whether the provisions of the proposed regulations should apply to other facilities. Furthermore, the Department maintains that new regulations are currently being drafted to revise the rules governing the other child care facilities.

Proposed Regulation 114-500 (B)(3)(e)

10.Proposed Regulation 114-500(B)(3)(e) sets forth that “[t]hese regulations do not apply to the following:

(e)School vacation or school holiday day camps for children operating in distinct sessions running less than three weeks per session, unless the day camp permits children to enroll in successive sessions so that their total attendance may exceed three consecutive weeks.

(Emphasis added). The SCCCA contends that proposed Regulation 114-500 (B)(3)(e) requires any facility with thirteen or more children that allows children to be enrolled for more than three weeks to be licensed by the Department, unless that facility falls under another exception within the regulations. More specifically, SCCCA asserts that the proposed regulations require the licensing of summer recreational programs or day camps, such as those offered by the Irmo Chapin Recreation Commission (Summer Safari Day Camp) and the Richland County Recreation Commission. The SCCCA believes that this requirement is reasonable because summer recreational programs and day camps compete directly with licensed day care facilities.

Consequently, though presented as an objection to the proposed regulation, the SCCCA merely brought this particular regulation to the attention of the Court given the potential impact. Accordingly, the Opponents did not establish that the above requirement is not needed or is unreasonable.

Proposed Regulations 114-502 (A)(6) and 114-503 (A)(1)

11.The SCCCA asserts that the granting of a provisional license implicitly indicates that there are concerns about the granting of a license to a facility. Therefore, the SCCCA contends that proposed Regulations 114-502 (A)(6) and 114-503 (A)(1) should be rewritten to specifically state that the Department has yet to “complete their study of the facility” on the back of a provisional licence when it is issued for those reasons. Proposed Regulation 114-502 (A)(6) provides that:

Failure of the Department staff, except as provided by statute, to approve or deny any complete application within ninety days shall result in the granting of a provisional license/provisional approval.

Furthermore, subpart (2) of proposed Regulation 114-502(B) (entitled “Provisions of License/Approval”) sets forth:

(2)A provisional license/provisional approval issued by the Department to a child care center shall be issued for a period within which the deficiencies shall be corrected, and within the conditions permitted by statute.

Therefore, the conditions under which the provisional license/provisional approval is granted must be corrected within a certain time frame. However, where the proposed regulation differs from the existing regulation is in proposed Regulation 114-503 (A)(1) which provides:

The center shall display the current license/approval, as well as any violations in a prominent public place in the center. The back of the license/approval shall be displayed if deficiencies are listed.

(Emphasis added). Although the current regulation requires deficiencies to be listed on the back of the facility’s provisional license, the proposed regulation requires that these deficiencies be displayed. Therefore, I fail to grasp the Association’s concerns about these provisions. The provisions set forth that if the Department notes any deficiencies, those deficiencies will be noted on the provisional license. If no deficiencies are listed, then obviously the provisional license is granted for another reason, e.g., because the Department was unable to make its determination within ninety days. To that end, a time frame shall be included on the provisional license within which the deficiencies shall be corrected so as to not make the provisional approval open-ended. I find this requirement to be reasonable and needed as written.

Proposed Regulation 114-503 (D)(1)(b)

12.The SCCCA argues that the proposed regulation is unreasonable because it would

unduly burden licensed child care providers. Proposed Regulation 114-503 (D)(1)(b) requires that:

(1)The center shall report the following incidents to the parents/ guardians immediately and provide written notification to the Department with 48 hours after the occurrence:

***

(b)Child or staff occurrences of communicable diseases listed in DHEC exclusion policy.

The SCCCA contends that the requirement of the current regulation that a parent or guardian “be notified immediately when a child has a fever or other symptoms requiring exclusion from the program” is sufficient. 27 S.C. Code Ann. Regs.§ 114-504 (L)(6) (Supp. 2003). The Proponents provided no evidentiary support for the newly proposed requirement. On the other hand, other than being burdensome to report, the Opponents offered no evidence that these reports would not serve a viable purpose in preventing disease in South Carolina. I find that the reporting of every instance of a communicable disease listed in DHEC’s exclusion policy in not needed. Rather, there is a need for the child care facilities to report every communicable disease that the Department of Health and Environmental Control (DHEC) requires to be reported in its “School Exclusion List” to the Department within forty-eight hours.

Proposed Regulation 114-504(A)(1) and (2)

13.The SCCCA also contends that proposed Regulation 114-504 (A)(1) and (2) as written allows preschool and school aged children to be in classrooms without supervision. Specifically, the SCCCA argues that though the staff must be present in the room with infants and toddlers, a person could simply have a door open from one room to the next and argue that they are meeting the required staff-to-child ratios for both rooms. Proposed Regulation 114-(A)(1) and (2) provides that:

(A)Children shall be directly supervised at all times by qualified staff persons.

(1)Directly supervised for infants and toddlers means staff persons shall be in the same room or area as the children and that the children shall be within their sight at all times.

(2)Directly supervised for preschool and school-age children means staff persons are physically near, readily accessible, aware and responsible for the ongoing activity of each child and able to intervene when needed.

However, the staff-to-child ratios set forth in the following section of the regulation at 114-504 (B) clearly establishes a staffing ratio based upon the number of children “present on the premises,” rather than for individual rooms. Consequently, proposed Regulation 114-504 (A)(2) does not engender the potential abuse suggested by the SCCCA. Moreover, proposed Regulation 114-504 (A)(2) sets forth a reasonable criteria for the supervision of preschool and school-age children.

Proposed Regulation 114-504 (D)(1)

14.The SCCCA contends that the water safety staff-to-child ratios of proposed Regulation 114-504 are “too broad for any realistic interpretation.” The SCCCA contends that activities such as those listed below would require the proposed water safety staff-to-child ratios to be maintained:

•Sprinkler play on the playground;

•Use of a 3-foot deep plastic wading pool on the playground;

•Outings to commercial water parks;

•Use of “water tables” as part of their curriculum; and

•Outings to a park with a pond or lake regardless of whether the children will use the water body.

Proposed Regulation 114-504 (D)(1) provides that “staffing ratios and group sizes apply at all times while children are swimming, wading or near a water source.” Again, the Proponents provided no evidentiary support for this requirement.

This proposed regulation laudably attempts to protect the safety of children left in the care of child care facilities. Nevertheless, the regulation as written is indeed vague. The staff-to-child ratios should be maintained while children are swimming or wading since these activities present potential danger to children. On the other hand, a “water source” could be a myriad of things involving water that pose no danger whatsoever to the children.

Proposed Regulation 114-504 (D)(2)

15.The SCCCA further contends that proposed Regulation 114-504 (D)(2) is unreasonable and not needed unless the child care facility has a deep pool. The SCCCA asserted that most facilities built “wading pools” rather than traditional swimming pools so that staff members did not need to be able to swim but could simply walk into the pool and pick up a child. Proposed Regulation 114-504 (D)(2) requires that: “All swimming activities shall be supervised by a person with current lifeguard training certification.” The SCCCA asserts that the current regulation requires only that a child care center have a person who is certified in life saving. They contend that because “lifeguard” classes are “nearly non-existent” and costly to facilities, that requiring a staff person who is a “certified lifeguard” is unduly burdensome.

The Proponents provided no evidentiary support for this requirement. In fact, the current regulation regarding water safety sets forth that: “A staff person included in staff to child ratios shall have current life saving certification and shall constantly supervise the swimming activity.” 27 S.C. Code Ann. Regs. 114-503 (A)(11) (Supp. 2003). I find no reference to the phrase “lifeguard training certification” in any South Carolina statutes or regulations other than in the above proposed regulation. Additionally, there is no definition of what constitutes a “lifeguard” in either the current or proposed child care center regulations. The South Carolina Department of Health and Environmental Control’s regulations pertaining to public swimming pools provides that: “‘Lifeguard’ means a person having the qualifications of and possessing a current American Red Cross, YMCA, or equivalent Lifeguard Certificate, current First Aid Certificate and current CPR (which includes adult, child, and infant) Certificate.” 24A S.C. Code Ann. Regs. 61-51 (A)(26) (Supp. 2003). However, there is no provision which makes that definition binding concerning this regulation.

CONCLUSIONS OF LAW

1.A regulation is an “agency statement of general public applicability that implements or prescribes law or policy or practice requirements of an agency.” S.C. Code Ann. § 1-23-10 (4) (Supp. 2003). An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations to “fill in the details” for the complete and consistent operation and enforcement of the law within its expressed general purpose. These regulations are valid so long as it is reasonably related to the purpose of the enabling legislation. Young v. S.C. Dep’t of Highways and Public Transportation, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985); Hunter & Walden Co. v. S.C. State Licensing Bd. For Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978).

Regulations in South Carolina must be promulgated pursuant to the mandates of the Administrative Procedures Act. When twenty-five (25) persons, a governmental subdivision or agency, or an association having not less than twenty-five (25) members contest a regulation proposed by a single director agency, a hearing must be held before the Administrative Law Court. S.C. Code Ann. § 1-23-111 (Supp. 2003). After conducting a hearing into the matter, the Administrative Law Judge must issue “a written report with findings as to the need and reasonableness of the proposed regulation. . . .” ALC Rule 48. In making the determination of “need” and “reasonableness,” the Court shall base its findings “on an analysis of the factors listed in Section 1-23-115(C)(1) through (11), except items (4) through (8), and other factors as the presiding official identifies and may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness.” S.C. Code Ann. § 1-23-111 (B) (Supp. 2003). In essence, the public hearing serves to edify the agency as to potential problems with the regulation, in the hope that the agency will seek to modify the regulation accordingly. To that end, Section § 1-23-111(C) (Supp. 2003) provides that if the presiding Administrative Law Judge determines that the need for or reasonableness of the proposed regulation(s) has not been established, the agency must elect to:

(a)follow the suggestions of the Administrative Law Judge and submit the modified proposal for legislative approval;

(b)not modify the proposed regulations but submit the proposed regulations as originally drafted for legislative approval; or

(c)withdraw the proposed regulations.

2.S.C. Code Ann. § 43-1-80 (Supp. 2003) provides that the Department “may adopt all necessary rules and regulations . . . to carry out effectively the activities and responsibilities delegated to it.” In fulfilling that regulatory function concerning child care facilities, the Department must also follow the provisions of Subarticle 11 in Title 20, Chapter 7. The stated purpose of Subarticle 11 is “to establish statewide minimum regulations for the care and protection of children in childcare facilities” so as to safeguard children in care in places other than their own homes. S.C. Code Ann. § 20-7-2710 (Supp. 2003). Moreover, the regulation of child care facilities “must be designed to promote the health, safety, and welfare of the children . . . by assuring safe and adequate physical surroundings and healthful food; by assuring supervision and care of the children by capable, qualified personnel of sufficient number.” S.C. Code Ann. § 20-7-2980 (b) (Supp. 2003).

To accomplish the above purpose, the Department is required to conduct a review of the regulations relating to child care facilities at least once each three years. Furthermore, in promulgating these regulations, the Department is required to seek the advice and consent of the “State Advisory Committee on the Regulation of Childcare Facilities.” S.C. Code Ann. § 20-7-2980(a) (Supp. 2003). The State Advisory Committee, in part, advises the Department regarding potential improvements of the regulations of child care facilities and reviews changes in proposed regulations. In fact, “[n]o regulation may be promulgated if the standard has been disapproved by a simple majority of the committee.” S.C. Code Ann. § 20-7-3050 (Supp. 2003).

DETERMINATION AND RECOMMENDATIONS

1.“Need” is a nebulous term. Its determination includes subjective reasoning considering both quantitative and qualitative factors. Here, there is an obvious “need” for laws generally governing child care facilities. These laws protect vulnerable children, allow parents to work without fear of the safety of their children, and promote public health. Specifically, laws regulating the staff-to-child ratios, maximum group sizes, requiring facilities to have “lifeguards” and requiring facilities to report illnesses and symptoms are needed. Moreover, the regulations being amended were promulgated in 1993 and have not been amended since that time. In the interim, a significant quantity of information has been generated concerning the care of children in child care facilities. That information has revealed some deficiencies in the existing regulations. Curing those deficiencies is reasonably needed to insure the proper operation of child care facilities. Accordingly, a need exists to amend the current regulations.

2.“Reasonableness” is defined as “[f]air, proper, just, moderate, suitable under the circumstances. . . . [n]ot immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.” Black’s Law Dictionary 1265 (6th ed. 1990). The word has been further defined to mean “agreeable to reason under the facts and circumstances of the case before the Court.” Ellis v. Taylor, 311 S.C. 66, 70, 427 S.E.2d 678, 681 (Ct. App. 1992). The determination of “reasonableness” also involves a subjective analysis in which the facts are considered based on one’s reasoning of the weight of those facts.

3.The benefit of these proposed regulations is generally the enhancement of the standard of care for children in child care facilities. The public cost is the potential increase in the price charged by child care facilities to private citizens and the government in the instances in which child care is funded by the government. Nevertheless, based upon the evidence presented, it does not appear that the increased cost of child care as a result of these regulations will be significant.

Additionally, I generally find the staff-to-child ratios and maximum group sizes throughout the proposed regulations to be reasonable. Though I find that the disparity between the proposed regulations and our neighboring states concerning the three-year old staff-to-child ratio engenders uncertainty as to why it is more stringent, I also, under the facts as presented in the Record, find the ratio to be reasonable. Though on its face this determination may seem dubious, I find that in light of the efforts that have been made to prescribe that ratio, a mere uncertainty without any specific evidence establishing the fallacy of the ratio does not warrant a finding that the ratio is unreasonable. Finally, I find that proposed Regulation 114-500 (B)(3), proposed Regulations 114-502 (6) and 114-503 (A)(1), and proposed Regulation 114-504 (A)(1) and (2) are reasonable as set forth in the Findings of Fact.

On the other hand, I find that reporting every instance of a communicable disease as required in proposed Regulation 114-503 (D)(1)(b) is not needed. Rather, there is a need for the child care facilities to report every communicable disease that DHEC requires to be reported in its “School Exclusion List” to the Department within forty-eight hours.

Although proposed Regulation 114-504 (D)(1) laudably addresses water safety issues concerning children left in the care of child care facilities. Nevertheless, the regulation as written is vague. The staff-to-child ratios should be maintained while children are swimming or wading since these activities present potential danger to children. On the other hand, a “water source” could be a myriad of entities involving water that pose no danger whatsoever to the children. Additionally, I find that the requisite of proposed Regulation 114-504 (D)(2) that a staff member with lifeguard training certification when children are swimming is required is reasonable. However, based upon the evidence submitted in cases in which all staff members can quickly reach a child without the ability to swim, requiring a staff member with lifeguard training certification appears to be unnecessary.

Based upon the above Findings of Fact and Conclusions of Law, I recommend that the proposed regulations should be modified by the Department prior to submission to the General Assembly as follows:

1.Proposed Regulation 114-503 (D)(1)(b) should be rewritten to direct that child care facilities must report every communicable disease that is required to be reported in DHEC’s “School Exclusion List” to the Department within forty-eight hours.

2.Proposed Regulation 114-504 (D)(1) should be rewritten to add the following sentence: “The following staffing ratios and group sizes apply at all times while children are swimming or wading. The staffing ratios and group sizes shall also apply at all times while children are near a water body that poses a potential risk based upon the age of the child.”

3.Proposed Regulation 114-504 (D)(2) should be rewritten to clarify that in instances in which all staff members can, without the ability to swim, quickly reach any child, a certified lifeguard is unnecessary.

___________________________

Ralph King Anderson, III

Administrative Law Judge

May 20, 2004

Columbia, South Carolina

See 27 S.C. Code Ann. Regs. § 114-503 (A)(12) (Supp. 2003) and proposed Regulation 114-504 (C). Though the Proponents provided no evidentiary support for this requirement, I find that a distinction between the staff needed when the children are active and when the children are inactive is reasonable. However, there will obviously be transition periods when only a percentage of the children are napping/inactive. Nevertheless, not every potentiality can be addressed by these proposed regulations. Therefore, the child care facilities will be required to exercise reasonable discretion in providing the appropriate ratio of staff-to-children in the instances in which all the children are not napping/inactive.

Application to Other Child Care Facilities

            9.         The SCCCA also contends that the proposed regulations target licenced providers who constitute only 20% of child care facilities. However, the regulations are being phased in over a four year period. Moreover, the issue here is whether the proposed regulations are needed and reasonable. Consequently, it is irrelevant for this Court to determine whether the provisions of the proposed regulations should apply to other facilities. Furthermore, the Department maintains that new regulations are currently being drafted to revise the rules governing the other child care facilities.

Proposed Regulation 114-500 (B)(3)(e)

            10.       Proposed Regulation 114-500(B)(3)(e) sets forth that “[t]hese regulations do not apply to the following:

            (e)       School vacation or school holiday day camps for children operating in distinct sessions running less than three weeks per session, unless the day camp permits children to enroll in successive sessions so that their total attendance may exceed three consecutive weeks.

(Emphasis added). The SCCCA contends that proposed Regulation 114-500 (B)(3)(e) requires any facility with thirteen or more children that allows children to be enrolled for more than three weeks to be licensed by the Department, unless that facility falls under another exception within the regulations. More specifically, SCCCA asserts that the proposed regulations require the licensing of summer recreational programs or day camps, such as those offered by the Irmo Chapin Recreation Commission (Summer Safari Day Camp) and the Richland County Recreation Commission. The SCCCA believes that this requirement is reasonable because summer recreational programs and day camps compete directly with licensed day care facilities.

Consequently, though presented as an objection to the proposed regulation, the SCCCA merely brought this particular regulation to the attention of the Court given the potential impact. Accordingly, the Opponents did not establish that the above requirement is not needed or is unreasonable.

Proposed Regulations 114-502 (A)(6) and 114-503 (A)(1)

            11.       The SCCCA asserts that the granting of a provisional license implicitly indicates that there are concerns about the granting of a license to a facility. Therefore, the SCCCA contends that proposed Regulations 114-502 (A)(6) and 114-503 (A)(1) should be rewritten to specifically state that the Department has yet to “complete their study of the facility” on the back of a provisional licence when it is issued for those reasons. Proposed Regulation 114-502 (A)(6) provides that:

Failure of the Department staff, except as provided by statute, to approve or deny any complete application within ninety days shall result in the granting of a provisional license/provisional approval.

Furthermore, subpart (2) of proposed Regulation 114-502(B) (entitled “Provisions of License/Approval”) sets forth:

            (2)       A provisional license/provisional approval issued by the Department to a child care center shall be issued for a period within which the deficiencies shall be corrected, and within the conditions permitted by statute.

Therefore, the conditions under which the provisional license/provisional approval is granted must be corrected within a certain time frame. However, where the proposed regulation differs from the existing regulation is in proposed Regulation 114-503 (A)(1) which provides:

                        The center shall display the current license/approval, as well as any violations in a prominent public place in the center. The back of the license/approval shall be displayed if deficiencies are listed.

(Emphasis added). Although the current regulation requires deficiencies to be listed on the back of the facility’s provisional license, the proposed regulation requires that these deficiencies be displayed. Therefore, I fail to grasp the Association’s concerns about these provisions. The provisions set forth that if the Department notes any deficiencies, those deficiencies will be noted on the provisional license. If no deficiencies are listed, then obviously the provisional license is granted for another reason, e.g., because the Department was unable to make its determination within ninety days. To that end, a time frame shall be included on the provisional license within which the deficiencies shall be corrected so as to not make the provisional approval open-ended. I find this requirement to be reasonable and needed as written.

Proposed Regulation 114-503 (D)(1)(b)

            12.       The SCCCA argues that the proposed regulation is unreasonable because it would

unduly burden licensed child care providers. Proposed Regulation 114-503 (D)(1)(b) requires that:

            (1)       The center shall report the following incidents to the parents/ guardians immediately and provide written notification to the Department with 48 hours after the occurrence:

                                    *                                  *                                  *

                        (b)Child or staff occurrences of communicable diseases listed in DHEC exclusion policy.

The SCCCA contends that the requirement of the current regulation that a parent or guardian “be notified immediately when a child has a fever or other symptoms requiring exclusion from the program” is sufficient. 27 S.C. Code Ann. Regs.§ 114-504 (L)(6) (Supp. 2003). The Proponents provided no evidentiary support for the newly proposed requirement. On the other hand, other than being burdensome to report, the Opponents offered no evidence that these reports would not serve a viable purpose in preventing disease in South Carolina. I find that the reporting of every instance of a communicable disease listed in DHEC’s exclusion policy in not needed. Rather, there is a need for the child care facilities to report every communicable disease that the Department of Health and Environmental Control (DHEC) requires to be reported in its “School Exclusion List” to the Department within forty-eight hours. 

Proposed Regulation 114-504(A)(1) and (2)

            13.       The SCCCA also contends that proposed Regulation 114-504 (A)(1) and (2) as written allows preschool and school aged children to be in classrooms without supervision. Specifically, the SCCCA argues that though the staff must be present in the room with infants and toddlers, a person could simply have a door open from one room to the next and argue that they are meeting the required staff-to-child ratios for both rooms. Proposed Regulation 114-(A)(1) and (2) provides that:

(A)Children shall be directly supervised at all times by qualified staff persons.

            (1)Directly supervised for infants and toddlers means staff persons shall be in the same room or area as the children and that the children shall be within their sight at all times.

            (2)Directly supervised for preschool and school-age children means staff persons are physically near, readily accessible, aware and responsible for the ongoing activity of each child and able to intervene when needed.

However, the staff-to-child ratios set forth in the following section of the regulation at 114-504 (B) clearly establishes a staffing ratio based upon the number of children “present on the premises,” rather than for individual rooms. Consequently, proposed Regulation 114-504 (A)(2) does not engender the potential abuse suggested by the SCCCA. Moreover, proposed Regulation 114-504 (A)(2) sets forth a reasonable criteria for the supervision of preschool and school-age children.

Proposed Regulation 114-504 (D)(1)

            14.       The SCCCA contends that the water safety staff-to-child ratios of proposed Regulation 114-504 are “too broad for any realistic interpretation.” The SCCCA contends that activities such as those listed below would require the proposed water safety staff-to-child ratios to be maintained:

                        •          Sprinkler play on the playground;

                        •          Use of a 3-foot deep plastic wading pool on the playground;

                        •          Outings to commercial water parks;

                        •          Use of “water tables” as part of their curriculum; and

                        •          Outings to a park with a pond or lake regardless of whether the children will use the water body.

Proposed Regulation 114-504 (D)(1) provides that “staffing ratios and group sizes apply at all times while children are swimming, wading or near a water source.” Again, the Proponents provided no evidentiary support for this requirement.

            This proposed regulation laudably attempts to protect the safety of children left in the care of child care facilities. Nevertheless, the regulation as written is indeed vague. The staff-to-child ratios should be maintained while children are swimming or wading since these activities present potential danger to children. On the other hand, a “water source” could be a myriad of things involving water that pose no danger whatsoever to the children.

Proposed Regulation 114-504 (D)(2)

            15.       The SCCCA further contends that proposed Regulation 114-504 (D)(2) is unreasonable and not needed unless the child care facility has a deep pool. The SCCCA asserted that most facilities built “wading pools” rather than traditional swimming pools so that staff members did not need to be able to swim but could simply walk into the pool and pick up a child. Proposed Regulation 114-504 (D)(2) requires that: “All swimming activities shall be supervised by a person with current lifeguard training certification.” The SCCCA asserts that the current regulation requires only that a child care center have a person who is certified in life saving. They contend that because “lifeguard” classes are “nearly non-existent” and costly to facilities, that requiring a staff person who is a “certified lifeguard” is unduly burdensome.

            The Proponents provided no evidentiary support for this requirement. In fact, the current regulation regarding water safety sets forth that: “A staff person included in staff to child ratios shall have current life saving certification and shall constantly supervise the swimming activity.” 27 S.C. Code Ann. Regs. 114-503 (A)(11) (Supp. 2003). I find no reference to the phrase “lifeguard training certification” in any South Carolina statutes or regulations other than in the above proposed regulation. Additionally, there is no definition of what constitutes a “lifeguard” in either the current or proposed child care center regulations. The South Carolina Department of Health and Environmental Control’s regulations pertaining to public swimming pools provides that: “‘Lifeguard’ means a person having the qualifications of and possessing a current American Red Cross, YMCA, or equivalent Lifeguard Certificate, current First Aid Certificate and current CPR (which includes adult, child, and infant) Certificate.” 24A S.C. Code Ann. Regs. 61-51 (A)(26) (Supp. 2003). However, there is no provision which makes that definition binding concerning this regulation.

CONCLUSIONS OF LAW

            1.         A regulation is an “agency statement of general public applicability that implements or prescribes law or policy or practice requirements of an agency.” S.C. Code Ann. § 1-23-10 (4) (Supp. 2003). An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations to “fill in the details” for the complete and consistent operation and enforcement of the law within its expressed general purpose. These regulations are valid so long as it is reasonably related to the purpose of the enabling legislation. Young v. S.C. Dep’t of Highways and Public Transportation, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985); Hunter & Walden Co. v. S.C. State Licensing Bd. For Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978).

            Regulations in South Carolina must be promulgated pursuant to the mandates of the Administrative Procedures Act. When twenty-five (25) persons, a governmental subdivision or agency, or an association having not less than twenty-five (25) members contest a regulation proposed by a single director agency, a hearing must be held before the Administrative Law Court. S.C. Code Ann. § 1-23-111 (Supp. 2003). After conducting a hearing into the matter, the Administrative Law Judge must issue “a written report with findings as to the need and reasonableness of the proposed regulation. . . .” ALC Rule 48. In making the determination of “need” and “reasonableness,” the Court shall base its findings “on an analysis of the factors listed in Section 1-23-115(C)(1) through (11), except items (4) through (8), and other factors as the presiding official identifies and may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness.” S.C. Code Ann. § 1-23-111 (B) (Supp. 2003). In essence, the public hearing serves to edify the agency as to potential problems with the regulation, in the hope that the agency will seek to modify the regulation accordingly. To that end, Section § 1-23-111(C) (Supp. 2003) provides that if the presiding Administrative Law Judge determines that the need for or reasonableness of the proposed regulation(s) has not been established, the agency must elect to:

            (a)       follow the suggestions of the Administrative Law Judge and submit the modified proposal for legislative approval;

            (b)       not modify the proposed regulations but submit the proposed regulations as originally drafted for legislative approval; or

            (c)       withdraw the proposed regulations.

            2.         S.C. Code Ann. § 43-1-80 (Supp. 2003) provides that the Department “may adopt all necessary rules and regulations . . . to carry out effectively the activities and responsibilities delegated to it.” In fulfilling that regulatory function concerning child care facilities, the Department must also follow the provisions of Subarticle 11 in Title 20, Chapter 7. The stated purpose of Subarticle 11 is “to establish statewide minimum regulations for the care and protection of children in childcare facilities” so as to safeguard children in care in places other than their own homes. S.C. Code Ann. § 20-7-2710 (Supp. 2003). Moreover, the regulation of child care facilities “must be designed to promote the health, safety, and welfare of the children . . . by assuring safe and adequate physical surroundings and healthful food; by assuring supervision and care of the children by capable, qualified personnel of sufficient number.” S.C. Code Ann. § 20-7-2980 (b) (Supp. 2003).

            To accomplish the above purpose, the Department is required to conduct a review of the regulations relating to child care facilities at least once each three years. Furthermore, in promulgating these regulations, the Department is required to seek the advice and consent of the “State Advisory Committee on the Regulation of Childcare Facilities.” S.C. Code Ann. § 20-7-2980(a) (Supp. 2003). The State Advisory Committee, in part, advises the Department regarding potential improvements of the regulations of child care facilities and reviews changes in proposed regulations. In fact, “[n]o regulation may be promulgated if the standard has been disapproved by a simple majority of the committee.” S.C. Code Ann. § 20-7-3050 (Supp. 2003).

DETERMINATION AND RECOMMENDATIONS

            1.         “Need” is a nebulous term. Its determination includes subjective reasoning considering both quantitative and qualitative factors. Here, there is an obvious “need” for laws generally governing child care facilities. These laws protect vulnerable children, allow parents to work without fear of the safety of their children, and promote public health. Specifically, laws regulating the staff-to-child ratios, maximum group sizes, requiring facilities to have “lifeguards” and requiring facilities to report illnesses and symptoms are needed. Moreover, the regulations being amended were promulgated in 1993 and have not been amended since that time. In the interim, a significant quantity of information has been generated concerning the care of children in child care facilities. That information has revealed some deficiencies in the existing regulations. Curing those deficiencies is reasonably needed to insure the proper operation of child care facilities. Accordingly, a need exists to amend the current regulations.

            2.         “Reasonableness” is defined as “[f]air, proper, just, moderate, suitable under the circumstances. . . . [n]ot immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.” Black’s Law Dictionary 1265 (6th ed. 1990). The word has been further defined to mean “agreeable to reason under the facts and circumstances of the case before the Court.” Ellis v. Taylor, 311 S.C. 66, 70, 427 S.E.2d 678, 681 (Ct. App. 1992). The determination of “reasonableness” also involves a subjective analysis in which the facts are considered based on one’s reasoning of the weight of those facts.

            3.         The benefit of these proposed regulations is generally the enhancement of the standard of care for children in child care facilities. The public cost is the potential increase in the price charged by child care facilities to private citizens and the government in the instances in which child care is funded by the government. Nevertheless, based upon the evidence presented, it does not appear that the increased cost of child care as a result of these regulations will be significant.

            Additionally, I generally find the staff-to-child ratios and maximum group sizes throughout the proposed regulations to be reasonable. Though I find that the disparity between the proposed regulations and our neighboring states concerning the three-year old staff-to-child ratio engenders uncertainty as to why it is more stringent, I also, under the facts as presented in the Record, find the ratio to be reasonable. Though on its face this determination may seem dubious, I find that in light of the efforts that have been made to prescribe that ratio, a mere uncertainty without any specific evidence establishing the fallacy of the ratio does not warrant a finding that the ratio is unreasonable. Finally, I find that proposed Regulation 114-500 (B)(3), proposed Regulations 114-502 (6) and 114-503 (A)(1), and proposed Regulation 114-504 (A)(1) and (2) are reasonable as set forth in the Findings of Fact.

            On the other hand, I find that reporting every instance of a communicable disease as required in proposed Regulation 114-503 (D)(1)(b) is not needed. Rather, there is a need for the child care facilities to report every communicable disease that DHEC requires to be reported in its “School Exclusion List” to the Department within forty-eight hours.

            Although proposed Regulation 114-504 (D)(1) laudably addresses water safety issues concerning children left in the care of child care facilities. Nevertheless, the regulation as written is vague. The staff-to-child ratios should be maintained while children are swimming or wading since these activities present potential danger to children. On the other hand, a “water source” could be a myriad of entities involving water that pose no danger whatsoever to the children. Additionally, I find that the requisite of proposed Regulation 114-504 (D)(2) that a staff member with lifeguard training certification when children are swimming is required is reasonable. However, based upon the evidence submitted in cases in which all staff members can quickly reach a child without the ability to swim, requiring a staff member with lifeguard training certification appears to be unnecessary.

            Based upon the above Findings of Fact and Conclusions of Law, I recommend that the proposed regulations should be modified by the Department prior to submission to the General Assembly as follows:

            1.         Proposed Regulation 114-503 (D)(1)(b) should be rewritten to direct that child care facilities must report every communicable disease that is required to be reported in DHEC’s “School Exclusion List” to the Department within forty-eight hours.

            2.         Proposed Regulation 114-504 (D)(1) should be rewritten to add the following sentence: “The following staffing ratios and group sizes apply at all times while children are swimming or wading. The staffing ratios and group sizes shall also apply at all times while children are near a water body that poses a potential risk based upon the age of the child.”

            3.         Proposed Regulation 114-504 (D)(2) should be rewritten to clarify that in instances in which all staff members can, without the ability to swim, quickly reach any child, a certified lifeguard is unnecessary.

                                                                                    ___________________________

                                                                                    Ralph King Anderson, III

                                                                                     Administrative Law Judge

May 20, 2004

Columbia, South Carolina