Chair Giunchigliani declared the public hearing open.
The following is a verbatim transcription of the public hearing concerning Memorandum #28-09.
Dr. Sands:Next is Memorandum #28-09. This is the adoption of the proposed amendments to the Southern Nevada Health District Regulations Governing the Sanitation and Safety of Child Care Facilities and Consideration of Business Impact Statement. This was held from the October 22nd Board of Health meeting. And Mark Bergtholdt, our environmental health supervisor of special programs will be presenting, along with Rose Henderson, environmental health supervisor from our Henderson office as well as Susan Lane.
Mark: Madam Chair, members of the Board – good morning. At my left is Susan Lane, and to her left is Rose Henderson. Rose Henderson will be able to talk to you about the history of the child care program; Susan Lane will be able to provide you with the technical aspects of the child care program.
The Southern Nevada Health District has been conducting inspections of child care facilities since before 1979. The reason that SNHD conducts these inspections is because Nevada Revised Statues 432A.180 requires that the State Health Officer or his designate conduct annual inspections of each licensed child care facility. Before regulations were first promulgated in 2002, staff were using guidelines to inspect licensed child care facilities – so between 1979 and 2002 they were using guidelines. The regulations were later amended in 2003 and are the ones currently being used by staff to ensure that the child care facilities operate in a manner that protects public health and safety of the children in care. The regulations before you today for consideration are intended to serve as an update to improve the clarity, language and reflect the current trends in the industry today.
These regulations were presented to you at the October meeting. At that meeting there was discussion regarding the prohibition of air fresheners and the requirement for notification of pesticide applications. Industry opposed these two sections. Between that hearing and today, staff drafted compromise language for these two sections that are now supported by industry. Mr. Thompson, who is in the audience today, had a chance to review them and found them to be adequate. Rather than prohibit the use of air fresheners and mandate pesticide notification, the proposed changes will require the facility to provide the parent or guardian, on an annual basis, an acknowledgement that air fresheners and/or pesticides are used in the facility. Proof of receipt of this acknowledgement will be kept on file at the facility. Additionally, if pesticides are used, and the facility has a plan in place to notify parents or guardians of an upcoming application of that pesticide, then a description of that notification must be included in the acknowledgement.
At the October meeting there was much discussion about play surfacing underneath play equipment at family care and group care homes. The purpose of the surfacing is not to protect children from fractures or sprains but to protect them from life-changing or life -ending head injuries that result from falls from play equipment. The CPSC reports that about 50,000 children visit the hospital emergency rooms each year with injuries that are from the use of home playground equipment. 80% of those injuries occur during the falls from that home equipment. Both the Consumer Product Safety Commission [CPSC] and the American Society for Testing Materials agree that grass is not a shock-absorbent surface and provides no safety factor should a child fall from the elevated play equipment.
Not to bore you with the science but in order to understand how an injury occurs, it is necessary to understand what we mean first when we talk about shock-absorbent surfacing. To determine how much impact attenuation is provided by a surface, a device is used to measure how fast something stops when it hits that surface. This measurement of deceleration determines if a surface has enough impact attenuation to decrease the risk of a life-changing injury to the head. Currently 200 g, which is basically 200 times the force of gravity, is the industry standard for determining if an impact will have an irreparable or life-ending head injury. Studies have found that the risk of injury from falls onto surfaces that had decelerations that exceeded 200 g were three times greater than those falling to surfaces with decelerations at less than 150 g. As a point of reference 200 g is the equivalent to a person of average stature striking a windshield at 35 mph. Studies have found that grass has an impact attenuation of 246 g at forty-eight inches above the surface – this is well above the industry standard of 200 g.
Established manufacturers of playground equipment indicate that adequate shock absorbent surfacing, not concrete, asphalt, packed earth or grass, is required under their equipment for a proper installation. I have for an example the installation instructions for a piece of playground equipment that we see out in the field (attachment #1 PDF 377KB). Underneath the warnings on the first page of the instructions, which goes on to state “to prevent serious injuries and death,” the fourth item says: “falls onto hard surfaces could result in head injuries or other serious injuries. Do not install over concrete, asphalt, grass, carpet, packed earth or other hard surfaces. Always use protective surfacing on the ground under and surrounding the playground equipment according to the enclosed ‘Consumer Information Sheet for Playground Surfacing Materials’ found on page 5 of this owner’s manual.” And this is a commercially…you can find in your Home Depot, what have you.
Such requirements in the installation instructions are an indication that the manufacturers are not accepting the liability of outcomes should a individual ignore this safety warning, and a child falls onto a surface that lacks proper shock-absorbent surfacing. Staff has confirmed with the Nevada Bureau of Services for Child Care that in family care or group care homes, elevated play surfaces are not mandated by the licensing agency. So if a family care or group care home chooses to install elevated play equipment, then they are required to have impact attenuation surfacing under the equipment. Licensed and permitted child care facilities, whether commercial or residential, have the obligation to provide a safe environment for the children in care. This is not a new mandate – current regulations require surfacing under elevated play equipment. To remove this provision and allow elevated play equipment in the absence of shock-absorbent surfacing is allowing those facilities to be negligent in protecting the children in their care.
Thank you. And we’re here to answer any questions.
Chair Giunchigliani: And just for the Board’s…remember we had the CD that was there, but if there’s anyone from the public do we automatically have at least a paper copy for them if anybody wanted to review it?
Dr. Sands: Yeah.
Member Christensen: Yes.
Chair Giunchigliani: Yes, Mr. Barlow.
Member Barlow: I wanted to know, what happened to the day…
Chair Giunchigliani: I know, when we just…
Member Barlow: …when you just swing on a monkey bar…
Chair Giunchigliani: …and just fall on your own head.
Member Barlow: …get up, brush yourself off…
Chair Giunchigliani: Exactly.
Member Wood: Well, times have changed.
Mr. Bergtholdt: We’ve improved our science; we’ve improved our technology. It’s the same kind of thing that you knew would pass when you had childhood diseases.
Member Barlow: But we all survived!
Chair Giunchigliani: Exactly.
Member Barlow: But then again, maybe I bumped my head too many times.
Chair Giunchigliani: We bumped up against each other, how’s that?
Dr. Sands: But falling in the sand, I mean, that’s a…a sandy surface is considered to be safe. And if you’ve ever seen a child or adult, or treated someone with a close head injury, I mean it’s life-altering. It’s permanent damage and again they have lifetime costs, impossible to estimate. But it’s something that can be easily prevented by taking extra precautions.
Member Barlow: I say the same thing about the cushion, and we had this same conversation with Mark in my office. The rubber, what is it, the rubber foundation…you mentioned that it’s soft. I stepped in it and twisted my ankle…
Chair Giunchigliani: Mm-hmm.
Member Barlow: …you know. And at the same time, Mark you responded, that the fact that it wasn’t life-changing, but it hurt.
Mr. Bergtholdt: It hurt.
Chair Giunchigliani: We get a little over-regulated in many, many ways.
Mr. Bergtholdt: We’re still allowing children to get hurt, suffer some injury…
Laughter
Member Christensen: Is that part of regulation?
Mr. Bergtholdt: …we’re not allowing children to have life-changing, life-ending injuries on the playground.
Member Barlow: And I’ll never forget it.
Rose Henderson: May I comment on this from…
Chair Giunchigliani: Yes.
Ms. Henderson: …a historical perspective. My name is Rose Henderson and I’m the current environmental health supervisor for the Henderson area. Children are going to get hurt; but when they’re in a licensed child care facility, it is the assumption of the parent that if they drop them off whole, when they pick them up they’re going to be whole. I started in the child care program back in about 1990. We did develop the child care guidelines. About the same time is when the CPSC published the Public Playground Safety Manual. We, through a lot of education and conversation, because there were guidelines, the vast majority of child care centers, by the time I left the program in 2001 and Mark took it over, had resilient surfacing on their playground. I don’t know if it was our program that did that or if it was their insurance agencies when they were having some life-altering injuries insisting that they install shock-absorbent surfacing on their playground. One needs to recognize whether the playground that is in a backyard at a licensed family care home that is choosing to conduct a business in their home, or if it’s a child care center. If you have a piece of playground equipment four or five feet high, if that child falls, they’re going to incur the same injury be it a family care home or be it a child care center. The only thing that’s going to prevent that injury is something which you install beforehand, and that’s that resilient surface. If you fail to do that, it is nothing short of negligence knowing the science right now; even the CPSC, after I left the program in 2005, published a document specific to home care. In many instances the complexity and the expense of playground equipment is less because it’s things such as Little Tikes®, which people can purchase at Home Depot. But the one thing that really mirrors what you see in the Public Playground Safety Manual is the importance of the shock-absorbent surfacing, because when that child starts to fall there’s nothing that child care provider can do to prevent that injury – they have to do it ahead of time.
Chair Giunchigliani: And did you say it’s not mandatory for the home care…
Ms. Henderson: It…
Chair Giunchigliani: …but if they choose to have that kind of equipment…
Ms. Henderson: Yes…
Chair Giunchigliani: …that’s when that kicks in?
Mr. Bergtholdt: Correct.
Ms. Henderson: Exactly. They don’t have to have…
Chair Giunchigliani: Ms. Henderson from Henderson? I wanted to make sure I got that…
Ms. Henderson: Yes, it is.
Member Jones: I bet you wondered where that came from.
Chair Giunchigliani: Yeah, I was wondering where that name came from.
Ms. Henderson: Coincidence only. So, you know, I can’t emphasize this enough. After eleven years in child care, being a registered nurse for over thirty years and why I went into environmental health and left the nursing field is that I saw injuries, and I want to prevent those injuries. I saw illnesses, I want to prevent those illnesses – that’s what public health is all about. This basic prevention…if the child care provider can’t afford the surfacing they should not install the equipment. They need to maintain those children safe and whole when their parents pick them up – they have that obligation.
Chair Giunchigliani: And how do we make sure we don’t get a loophole there, because..I guess because you license all child care facilities, regardless of what it is…but who does the onsite inspections to see…
Mr. Bergtholdt: Madam Chair, I can probably answer that question. We permit family care, who serves one to six; group care, who serve seven to twelve; and child care centers that serve thirteen or more. The state or the county, at this time, is the one who provides the license. That license requires the permit be in place from the health department. So we are part of the insurance to ensure that the child…playground is safe.
Chair Giunchigliani: So your permit kicks our licensing? And then we used to do the outside inspections but I found out our two people that we had doing all inspections in the entire county no longer work for our department. Before the Board has made a decision…it’s a whole other issue. And so I don’t know who’s inspecting anymore.
Mr. Bergtholdt: There are two…I believe there are two. Susan will answer that question.
Susan Lane: For county?
Mr. Bergtholdt: For county, yeah.
Ms. Lane: For county we have new inspectors that we’ve just actually met this week via email – I connected with them a couple of days ago. And…
Chair Giunchigliani: So we got rid of two inspectors to create two new inspectors. Oh, that’s very interesting. I’ll have to check into that.
Ms. Lane: …and if it’s not a county jurisdiction and it’s a state inspection I know that we have Theresa Cuppi here today and some other staff members from the Bureau of Services for Child Care Licensing. If you have any questions they may be able to answer them.
Chair Giunchigliani: And what are the names of the two new inspectors?
Ms. Lane: I will get them to you.
Chair Giunchigliani: Can you email them?
Ms. Lane: Yeah.
Chair Giunchigliani: Thank you.
Member Barlow: And I know at the City, Madam Chair…
Chair Giunchigliani: Yes.
Member Barlow: …that we turned ours over to the state.
Chair Giunchigliani: You did quite awhile ago.
Member Barlow: Just last year.
Chair Giunchigliani: Just last year? But you do it by Board motion?
Member Barlow: Yes, we did.
Chair Giunchigliani: Ah, what a concept. Sorry. I have my own beefs from time to time with my own government. But that’s how it should be. The Board has not made a decision and I’m bothered that we had the only two inspectors told that they had to leave because it was gone. They’re gone now and now we’ve hired two new people – that’s just something I’ll have to deal with bureaucratically, I guess, to some extent. Mr. Anthony?
Member Anthony: So is there a re-inspection process where after you’re inspected them, how do that they’ve…
Mr. Bergtholdt: We inspect every child care center and child care/family care home/group care home at least once annually, preferably twice. So we’re following up to ensure that it’s in compliance.
Chair Giunchigliani: Do you only look at health district issues or, because that’s what we find sometimes is on inspections people go in with blinders and say I’m in this department and I don’t look for anything else.
Mr. Bergtholdt: No, I train my staff to be a little cognizant of the issues that are out there with the licensing authority…
Chair Giunchigliani: And then you can let them know…
Mr. Bergtholdt: …and we can refer a complaint, basically, as an anonymous complaint or referral to that licensing agency.
Chair Giunchigliani: And you document that for your own purposes, though, that you also then informed the other party that they have a responsibility to follow up.
Mr. Bergtholdt: Yeah.
Chair Giunchigliani: Linda?
Member Strickland: Yeah, I just wanted to say I see this as a development of safety standards in our country. I mean, we never used to have seatbelts…
Chair Giunchigliani: Or helmets.
Member Strickland: …yeah, or there’s requirements to wear motorcycle helmets, and that’s kind of controversial. But you know there’s head injuries involved in accidents there, and this is just a development of safety standards over time and I think a lot of it has to do with litigation to be honest with you. If you drop your child off at a healthcare facility and that facility is not complying with standards of care, the parent is going sue them if their children is injured. So I think it behooves the healthcare facilities, the child care facilities to comply with these things for their own protection. I do have a question, though. In the event that you inspect and they have not installed these resilient surfaces and you give them an opportunity to do so, and you come back and they haven’t, then what is the ramification? Do they lose their license?
Mr. Bergtholdt: We would basically do progressive actions on that; they probably come in…they would come and talk to me about it; I would then refer it to my manager and eventually if they were totally non-compliant in correcting that issue we would probably go for a suspension of the permit.
Member Strickland: Yeah, well you might probably…
Mr. Bergtholdt: I mean…
Member Strickland: What are the guidelines here, I mean are you giving them a certain amount of days and the reason I ask is because there could be a child that falls during that period of time and have we then allowed this dangerous condition to exist with knowledge?
Member Wood: We would.
Ms. Henderson: One thing we could go, which expedites the process, if we see a gross negligence and an unsafe environment, we can close that playground. Now one thing that is in child care licensing regulation is that they have to have an outdoor play area, so then licensing then could coordinate with us as far as they don’t have a component that is required under the license; but if it’s that unsafe we can close it and we can do that…
Member Strickland: OK.
Ms. Henderson: …if we maintain this regulation. Otherwise, the liability can continue…
Member Strickland: OK.
Ms. Henderson: …and the danger.
Member Strickland: But as we sit here right now we don’t have, I don’t want to say guidelines, but standards as far as give them a certain amount of days, if they don’t respond or do or comply, then you’re going to give them a certain more amount of days. What are the steps?
Mr. Bergtholdt: That would be a…it’s basically a policy question. The regulations do go to the hearing officer, so that would be the process that we would use. Steps would be 1) staff documents it down, gives them time to correct it, closes down – say the children should not be on this playground equipment period. So if there is anything that happens in the intervening time that we’re addresses this problem we’ve already told the facility that they cannot have children on that equipment so they’re violating our regulation right there.
Chair Giunchigliani: OK, let’s clarify it. Go ahead.
Member Strickland: Well, I was going to say from due process standpoint, don’t you need to let the child care facility know what the steps are going to be in case they do get shut down?
Mr. Bergtholdt: It is in the regulations on the due process steps on how we go about with the hearing officer towards the suspension of the permit.
Member Strickland: OK.
Mr. Bergtholdt: But the first step is to say basically to the operator, “do not allow children on this playground equipment, period.”
Chair Giunchigliani: Until you get to the next…
Mr. Bergtholdt: Until you get it fixed…
Chair Giunchigliani: OK, you’re able to…
Mr. Bergtholdt: We’re able to lock it in that way, so that’s why we can kind of take our time in correcting it, because we already gave them fair notice that they cannot have children on that playground equipment.
Chair Giunchigliani: Do you then automatically notify whoever, whether it’s the state or the county then of that…
Mr. Bergtholdt: They are notified through our inspection report, all licensing authorities get copies of our routine inspection reports.
Chair Giunchigliani: My question would have to be what’s that follow-up on that.
Ms. Lane: Well, as a field inspector I can tell you that if I went out and I found a piece of equipment that was in disrepair or had inadequate surfacing around it, I would take either, if it was just the equipment that had the problem, I would take that piece of equipment out of use, in writing I would tell them that they needed to get it repaired within thirty days. Sometimes there are hardships, you know, we have in this economic time, there are a lot of centers who may need wood chips, additional surfacing and they’re running into problems where they look at me and they say, “I can’t afford $10,000 right now for surfacing.”
Ms. Henderson: That’s for a center.
Ms. Lane: For a center, yes, for a child care center. And so we try to do a compliance schedule; I try to keep part of their playground open. If it’s…they use stone around the equipment, that’s the problem, we can leave the rest of the playground open where there less layer of wood chips or whatever the surfacing may be, because there is no equipment there that requires impact attenuation – the kids can still go out, run around, play, play ball, whatever they’re going to do. But, I know that, I think I can speak for all of the other inspectors in our group, that the very first thing we do the next day when we get back in the office is notify the appropriate licensing authority that that playground is out of use…
Chair Giunchigliani: Do you notify the parents? Is there a requirement for parental notification that this particular…
Ms. Lane: No, not currently.
Mr. Bergtholdt: Not currently.
Chair Giunchigliani: Then will there be in this new regulation, other than the air freshener, or the pesticide.
Mr. Bergtholdt: That wasn’t something that we put into the regulation.
Chair Giunchigliani: Then that’s something that we could request to be added. Is there any objection to the Board to have parents notified that the playground equipment has been taken out of commission?
Member Strickland: I think it’d be a good idea; it would allow the parent to follow up with their child and let the child know that they’re not supposed to be playing on that…
Member Jones: Can we do that today without an agenda item?
Chair Giunchigliani: Yeah, you can make amendments to the piece without substantiation…you can add to the notification, though, I think, is what we could do, which is what we’re still going to talk about on how you notify about the pesticide and that type of…
Ms. Henderson: I believe there’s something in that notification for the air fresheners and for the pest control…
Chair Giunchigliani: You can just maybe add…
Ms. Henderson: … you can probably mention this more, but I believe the wording that’s been discussed with industry was a notification that these items are in use when they enroll the child and annually thereafter. There would be a more immediacy if the Board would want to have some sort of notification process at any given time when a health inspector goes out and finds some inadequate surfacing below play equipment could take it out of service, but I think they’d had to look at what type of notification, whether it would be the sign-in sheet or at the parent bulletin board or something like that – it might have to be a different type of notification…
Chair Giunchigliani: OK.
Ms. Henderson: …but if that’s what the Board wishes, of course…
Chair Giunchigliani: I’m not, personally, envisioning a cumbersome process – it could…
Ms. Henderson: Yeah…
Chair Giunchigliani: …even pre-made signs, that if an inspector goes out and says swing-sets off-duty, that has to be posted in the building so at least as the parents come in. And then that way, you’re not, you can take it down when that thirty days is over, they’ve complied with it and then you’ve met a standard. I’m just throwing that out as an idea.
Member Crowley: Madam Chair?
Chair Giunchigliani: Absolutely, Susan.
Member Crowley: Rather than regulate on the fly, I’d rather see them come back with a suggestion, you know, if we want to vote on the rules as they are right now…
Member Strickland: That sounds fine.
Member Crowley: I’d hate to pull something together, like within ten minutes, to try and…
Chair Giunchigliani: I’d think they would still have to come back with us, but I think…
Dr. Sands: Right.
Chair Giunchigliani: …including within any motion could be “and explore the notification process for when equipment items are taken off because of safety concerns…”
Mr. Bergtholdt: We can draft them…
Chair Giunchigliani: …and they can come back to us with that component on how to do it, but it should be part of our motion today.
Dr. Sands: And, Madam Chair, I think that, if it’s OK with the Board, we could come back just with that alone as a revision or an update to the regs, and if you decide to pass them today, but with that condition on it, I think we could work with that.
Chair Giunchigliani: I think just so it’s clear that we’re looking at additional notifications, which may include “x,” and then you’d still have to come back and say here’s how we are thinking of implementing it.
Dr. Sands: Yeah. Right. And I think we would need to sit down with industry and…
Chair Giunchigliani: Right.
Dr. Sands: …have that discussion about what the best way to do that.
Chair Giunchigliani: Yeah, keep it simple. I mean K-I-S-S is still the best way to go for both parents as well as anybody else. I mean, sometimes we over-do…it gets lost because we inundate people with information, too, to some extent.
Ms. Lane: And Madam Chair, I’d like to tell you what we do currently in the field. If an entire playground is closed, if there is no way to keep part of it open, and we’re going to close the entire thing, or a lot of centers have yards…
Chair Giunchigliani: Right.
Ms. Lane: …and maybe one specific yard is out of use, but the others are OK…we have a hot pink closed sign, which is the same one that I would put on a food establishment if I closed it, and that I will fill out…and it says SNHD, closed, and that gets posted on…either on the yard, or on the entrance to it from an interior door out…parents see that. And I can tell you that industry does not like it. I mean, obviously they really don’t like it. I’ve gone back sometimes and found that centers have taken down my sign because they don’t want parents to see it. So just a heads up that…
Mr. Bergtholdt: And…
Chair Giunchigliani: And that might be a simplest way to go, but that’s bothersome…What would happen if somebody took your sign down, because that’s the proper notification. Is there then a suspension of their license?
Mr. Bergtholdt: Well, we don’t suspend their permit. What we do is note in on the report that they took the sign – they were non-compliant with the signage. Because there can be any number of causes that caused that sign to come down, such as weathering. So before we suspend a permit on that type of violation, we need to look into what caused the sign to come down, whether it was the intent of the operator to tear the sign down or…
Chair Giunchigliani: And does that take another thirty days then?
Mr. Bergtholdt: No, it doesn’t take another thirty days. But also staff, when we come across facilities that have inadequate playground equipment, that is unsafe, we also screen-off or tape-off entrances to that playground, so that even if there was some weathering and the sign gets dislodged there’s still the tape up that has to be torn down in order to get by it by...
Chair Giunchigliani: Kind of like a caution tape.
Mr. Bergtholdt: …somebody. It’s exactly like a caution tape – it’s actually, unfortunately we probably need to get some new tape to do it, but it’s our hold tape that we use to hold food at our facilities.
Chair Giunchigliani: And do you take photographs of the equipment or the surfaces…
Mr. Bergtholdt: Yes, we…
Chair Giunchigliani: …so you’ve got your own documentation.
Mr. Bergtholdt: …we document every condition. In fact all my staff are trained as certified playground safety inspectors, so we know what causes injuries out on the playground equipment.
Member Jones: I would say overall on any other inspection deficits that you find from hot water to fencing, or et cetera, that’s not particularly noticed to the parents? And maybe in this whole ball of wax we take a look at making that a notice to the parents? That would be my recommendation.
Chair Giunchigliani: OK, so are we to the point where I should, do we need an open hearing to see if there are…open up the public hearing to see if there’s anyone on the audience that wishes to make any comments regarding regulations that have been brought back to us?
Stephen Smith: Yes.
Chair Giunchigliani: Seeing none, we close the public hearing. I think we could entertain a motion to have…depending on what you want to do, recommend the approval of the child care regulations and request that staff bring back implementation of various notifications with regard to safety issues and, what was your?
Member Christensen: Deficiencies.
Chair Giunchigliani: Deficiencies. Would that be acceptable to the Board? OK, so then, do I have a maker?
Member Jones: Move.
Chair Giunchigliani: So moved. Is there a second?
Member Wood: Second.
Chair Giunchigliani: Moved and seconded. Any discussion from the Board? Seeing none, all those in favor say “aye.”
Board members in unison: Aye.
Chair Giunchigliani: Opposed? Motion carries. Thank you very much. Appreciate your work.
A motion was made by Member Jones to approve the approve the child care regulations as presented and request that staff come back to the Board with recommendations for implementation of various notifications with regard to safety and inspection deficiency issues; seconded by Member Wood and was unanimously approved.
