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* WAND’s Mike Miletich…
The Illinois Department of Children and Family Services allowed assistants at day care centers to watch children under two for up to three hours per day throughout the COVID-19 pandemic to help address the worker shortage. Now, DCFS is facing scrutiny for trying to reduce the time assistants spend monitoring rooms.
Assistants were allowed to watch children under two for longer periods of time due to an emergency rule filed in 2020. However, DCFS never worked with state lawmakers to make it a permanent rule. The agency wants to cut that time frame down to 90 minutes per day.
“That most vulnerable age group must remain under the supervision of qualified staff at all times,” said Shontée Blankenship, the DCFS Deputy Director of Licensing. “That is nothing new. It’s part of our permanent rule. We have been enforcing it before COVID and we’re still enforcing it today.”
Many day care providers told lawmakers that cutting this option for assistants would create unreasonable and unnecessary costs for their business. The powerful Joint Committee on Administrative Rules suspended the DCFS rule on July 18, stating that the potential change would pose a threat to the public interest and welfare.
“I don’t think you folks belong in this business,” said Rep. Steve Reick (R-Woodstock). “This is not part of your portfolio. Your portfolio is to protect the safety of children, not to license day care centers.”
Um.
* The Flynn Report explains what actually happened…
JCAR objected to and suspended portions of the Department of Children and Family Services’ emergency rule titled Licensing Standards for Day Care Centers because they fail to meet the criteria for emergency rulemaking in 1 Ill. Adm. Code 230.400(a)(1)(C) and (a)(3)(B) and meet the criteria for suspension in 1 Ill. Adm. Code 230.550(a)(3)(A). Suspended portions of the emergency rule include: (1) Section 407.90(e)(3)(A) and (e)(3)(B)(i), (ii), and (iii); (2) provisions in Section 407.90(e)(3) and 407.190(f) that limit early childhood assistants’ supervision of day care center classrooms in the absence of early childhood teachers to classrooms of children age 2 and older, for only the first and last 90 minutes of the center’s licensed program hours; and (3) provisions in Section 407.90(e)(3)(B) that allow no more than 50 percent of licensed classrooms in operation to be supervised by early childhood assistants.
This emergency rule implements previous Department policy, with additional unjustified restrictions, that allowed day care center classrooms to be supervised for up to 3 hours a day by early childhood assistants when an early childhood teacher is not available and this substitution is included in the center’s staffing plan. The Department initially implemented this 3-hour policy in 2020 via emergency rules that were allowed to expire and never adopted companion proposed amendments that would have made this policy permanent. The Department then revived this policy as guidance that was in effect from September 23, 2022, through May 31, 2023. This emergency is agency created because the Department previously implemented the 3-hour policy outside of rule and passed up previous opportunities to adopt this rule despite multiple requests from day care providers. Additionally, this emergency rule imposes new restrictions, without adequate justification, on the use of early childhood assistants that the previous emergency rules and Department guidance did not include. By limiting the times of day when assistants can substitute for teachers and the number and age range of classrooms that can be supervised by assistants, this rule imposes unreasonable and unnecessary economic costs on day care providers, many of whom have relied on this policy for the last 3 years and may be forced to curtail their hours or reduce their number of classrooms as a direct result of this emergency rule. JCAR finds that these specified provisions of this emergency rule pose a threat to the public interest and welfare.
1) The Pritzker administration really needs to up its game with JCAR, and has needed to do so for a very long time. 2) JCAR declaring that a rule limiting assistants’ roles in supervising very young children without a trained teacher around is a “threat to the public interest and welfare” is a bit much.
…Adding… I’m told by a JCAR member that the administration has since circulated a draft that does include the commitment they made in June, which would allow for the same sort of flexibility that existed during the pandemic. The administration and the day care industry are now in talks. “If that goes well, we can lift the suspension in August and allow them to amend the rule with the flexibility language embedded in it,” the member said.
posted by Rich Miller
Tuesday, Jul 25, 23 @ 1:15 pm
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JCAR is a cancer. Gives powerful industries a way to donate to politicians and then see the outcomes they desire. Sad
Comment by Zoo Tuesday, Jul 25, 23 @ 1:23 pm
I’ve never understood how JCAR can be constitutional. The constitution gives the governor the authority over the executive branch. Administrative rules are a function of the executive branch. It’s right there in the name “administrative rules.” Giving legislators the ability to determine administrative rules sure looks like we’re giving the legislative branch authority over executive functions.
Comment by duck duck goose Tuesday, Jul 25, 23 @ 1:55 pm
===I’ve never understood how JCAR can be constitutional.===
Congress used to have “one house legislative veto” of some administrative rules / actions. SCOTUS overturned that, calling it a violation of the separation of powers.
Comment by Anyone Remember Tuesday, Jul 25, 23 @ 2:12 pm
===I’ve never understood how JCAR can be constitutional===
It’s never really been thoroughly challenged. But there are ways around the constitutionality issue. MJM came up with a legislative solution during the Blagojevich days.
Comment by Rich Miller Tuesday, Jul 25, 23 @ 2:14 pm
I’m not a law dawg, but it seems the crafting of the language of a bill provides all they need ?
Comment by NorthSideNoMore Tuesday, Jul 25, 23 @ 3:35 pm
===Administrative rules are a function of the executive branch.===
Administrative rules are the legislative branch ceding a portion of lawmaking authority to the executive branch so that the executive branch can implement and enforce laws passed by the legislative branch.
The executive branch gets to interpret and enforce laws through administrative rulemaking. But the legislative branch gets to oversee that process to make sure the laws it passes are interpreted and enforced in a way that does not violate those laws.
Administrative rules don’t exist in a vacuum. Their authority comes from the statutory laws they implement. Hope this helps.
Comment by Nick Name Tuesday, Jul 25, 23 @ 3:39 pm
== I’ve never understood how JCAR can be constitutional…we’re giving the legislative branch authority over executive functions. ==
The U.S. Supreme Court just ruled that’s the way it should be in a case involving federal EPA rules, effectively giving the legislative branch supremacy on such matters (see link below.)
It’s important to note that there’s no federal equivalent to JCAR — no clearing house where the legislative branch formally agrees that executive branch agency rules comport with federal law. That ultimately gave the Supreme Court plenty of room to rule that the EPA was operating outside the scope of what Congress authorized.
As Rich mentioned, JCAR’s constitutionality has never really been tested in front of the Illinois SC. But JCAR’s very existence gives state administrative rules a legislative stamp-of-approval. If the Illinois courts take that legal shield away by declaring JCAR unconstitutional they would effectively invite a lot of legislative intent litigation to come before them on all sorts of regulatory matters. I don’t think they want all that work.
https://www.reuters.com/legal/government/us-supreme-court-just-gave-federal-agencies-big-reason-worry-2022-06-30/
Comment by CC Tuesday, Jul 25, 23 @ 3:48 pm
Nick Name explains it well.
I would go a step further to say that if DCFS thinks that the General Assembly has too much power, they should stop introducing bills that say “The Department shall promulgate rules…” and tell lawmakers upfront they plan to limit child care assistants to 90 minutes and put it in the statute to be voted on during session.
If you asked Capitolfax readers to rank what the administration excels at, A) Communicating B) Legislating C) Administering, I think most folks would put “actually running stuff” at the bottom.
Electric Vehicle Industry jobs seems to be the one great exception, kudos to DCEO.
Comment by Chester Fields Tuesday, Jul 25, 23 @ 3:57 pm
==Administrative rules are the legislative branch ceding a portion of lawmaking authority to the executive branch so that the executive branch can implement and enforce laws passed by the legislative branch.==
That doesn’t sound right for a number of reasons. First, article 2, sec. 1 of the constitution prohibits any branch from performing functions that belong to the other–the legislative branch cannot cede its lawmaking authority to the executive branch. Second, administrative rules go well beyond legislative interpretation and to the process by which the executive conducts its business. For an example, see the rules that are the subject of this story. Third, courts have held that the legislature’s control over the interpretation of its bills ends when the bill becomes law. Fourth, even if there were some tailing interpretation authority, with JCAR its very often a different general assembly making the interpretation than the one that made the law. Fifth, the idea that the general assembly can take formal final action by committee certainly stretches anything in article 3 of the constitution.
Comment by duck duck goose Tuesday, Jul 25, 23 @ 5:06 pm
== I would go a step further to say that if DCFS thinks that the General Assembly has too much power, they should stop introducing bills that say “The Department shall promulgate rules…” and tell lawmakers upfront they plan to limit child care assistants to 90 minutes and put it in the statute to be voted on during session.==
The problem here is the it is the Department who insists on all things been done through rule making. The legislation on this topic (HB 3566) was set to go and the Department insisted the legislation be held to do this through rule instead. This is not the first time DCFS has insisted on things happening via the rule making process as opposed to legislation.
The stakeholders have shared with JCAR that the 3 hour rule is necessary for programs to remain open. DCFS limiting this with additional restrictions on the rule will mean that programs will close classrooms and change their operating hours. The agreement between legislators and DCFS was that the language of the bill would be put into emergency ruling. DCFS went back on this agreement and added in additional requirements that have not been in place the last 3 years under the policy guidance that allowed for this flexibility.
In the June JCAR meeting, DCFS made a commitment to redraft the emergency ruling taking into consideration the needs of stakeholders. They agreed to have this in place within days of the meeting. At 5:00 PM the night before the July meeting, DCFS finally submitted a new draft, and after a full month, they still had not met with stakeholders to discuss any potential changes.
Comment by SC Tuesday, Jul 25, 23 @ 6:08 pm
~~~MJM came up with a legislative solution during the Blagojevich days.~~~
Yes he did.
It’s called JCAR
Comment by Big Tent Tuesday, Jul 25, 23 @ 10:16 pm
=== The problem here is the it is the Department who insists on all things been done through rule making. ===
It’s a feature, not a bug.
If they wanted to be clear and transparent, it would be in the statute.
The thing is, most day care operators are first time small business owners operating on a shoestring budget.
They cannot afford to have their own lawyer to dissambiguate the rules, or to hire an army of lobbyists.
If they had extra cash laying around, they would use it to give raises. Because women with masters degrees should not be making $20,500 a year, which is the average US salary of a day care worker.
Maybe DCFS should stop telling day cares how to make sure they are fully staffed until DCFS is fully staffed.
And maybe others are right we should turn licensing over to IDPH, which does nursing homes.
Comment by Chester Fields Wednesday, Jul 26, 23 @ 7:56 am
===That doesn’t sound right for a number of reasons.===
What I wrote is how Sen. Don Harmon explained it in a JCAR meeting back when he was co-chair of JCAR.
Comment by Nick Name Wednesday, Jul 26, 23 @ 10:40 am