At least 13 times in the last 18 months, Department of Health Services investigators have found one or another of Steve Broe's American Child Care Centers to have more children per adult caregiver than the law allows.
And last fall, Craig Barton's Camelback Desert School in north Scottsdale, which offers preschool, kindergarten and first- and second-grade programs, was fined $1,500 for consistent noncompliance to DHS regulations.
Yet Broe was appointed by House Speaker Mark Killian and Barton by Senate President John Greene to sit on the Child Care Standards Review Committee, which was mandated by law to evaluate the state's child-care laws.
Until now, before- and after-school child-care programs run by public schools were exempt from DHS regulations--if not from their governing school boards' oversight. With last year's Senate Bill 1005, our legislators changed that, and they established the Child Care Standards Review Committee to make sure that the DHS rules could be tailored to fit school programs, as well--and in the spirit of deregulation, to snip away as many pesky overregulating rules as possible along the way.
Why even occasional violators of the rules should be charged with evaluating them--Broe co-chaired the committee--is anyone's guess. By wild coincidence, both contributed to the 1994 campaign funds of Governor Fife Symington and Superintendent of Public Instruction Lisa Graham. So did a Tucson child-care provider and lobbyists for both the Arizona Child Care Association and the Arizona Chamber of Commerce, who also sit on the committee.
Graham, in her past life as a state legislator, was one of the sponsors of the bill that created the committee. Another member of the 12-person committee works directly for Graham at the state Department of Education and votes as she commands. Still another was appointed by the governor. The remaining five people at the review table were appointed by outgoing superintendent of public instruction C. Diane Bishop, who is now a gubernatorial aide. Those five could have been replaced by Graham, but were apparently left in the name of fairness. But they constitute a minority.
"The committee was stacked," says Barbara Robey of the Arizona School Boards Association. "It was stacked from the very beginning and there was a definite objective in mind: to make it more difficult for the public schools to provide the kinds of programs they've been providing."
The stacked deck made for a Republican card trick disguised as public hearings to illustrate how serious we are about free enterprise and deregulation here in Arizona, the Business State.
The Child Care Standards Review Committee held its last meeting on June 27 and will present its scant recommendations over the next few months. In the end, the DHS regulations read pretty much the same as they did when the committee started. It cost $39,400 in facilitators' fees to decide not to change the rules.
And in the name of deregulation, Lisa Graham's bill added a raft of regulations to the schools she is now charged with overseeing, regulations that some committee members say will cost hundreds of thousands of dollars for school boards to administer, just so that the entrepreneurs who run the Arizona day-care industry won't feel that the public sector is encroaching on their profits.
Whether public school child-care programs really compete with private day-care facilities is questionable. Some high schools offer child care for the children of teenage students who otherwise wouldn't be able to attend school. They'd have to drop out to care for those children or to pay for private day care.
Before- and after-school programs cater to school-age children whose parents have inflexible work hours, first- to sixth-graders who really wouldn't want to take the shuttle bus to Itty Bitty Daycare to sit among preschoolers. Those children are more likely to become latchkey kids. Yet the child-care people see them as potential clients, and they see elective after-school programs--computer club, perhaps--as a disguised form of child care.
Such programs are usually regulated by school boards, and if they are run by private operators on school grounds, they are already licensed by DHS.
"The thing that's so ironic and hypocritical," says Robey of the school boards association, "is there are so many people who say schools should be open longer and should offer more programs to their students. There's this dual standard that the schools should do more, but we make it more difficult to reach out to children."
Just how many schools offer such programs no one knows. The committee's December report included this laughable statistic: ". . . the potential number of schools in the state which may have one or more child-care programs is between 1 and 1,108 public schools as of September 1."
Lisa Graham claims that the initiative to set equal standards for public and private entities had been bouncing around the Legislature for years.
"I believe very strongly that you ought to have uniform regulations in public and private institutions if they're meant to protect kids," she says.
And if the child-care lobbyists supported her campaign, it's "because I supported a bill that says you ought to have equal policy between private institutions and public institutions. My campaign was all about access to really good education and good child care without concern for who provides it or who profits from it."
Though Graham had not yet read the committee's conclusions, she adds, "If the bottom-line effect of this committee is that it really didn't change anything, maybe we didn't want it changed."
Arizona has some of the weakest child-care laws in the country. Only six states, most of them in the Deep South, have more lax staff-to-child ratios. Although the ratios vary with age groups, Arizona's overall ratio for children older than toddlers is one staffer per 20 children, more children than are allowed in 32 states and far more than recommended by the American Public Health Association and the National Association for the Education of Young Children, the organizations that give the industry's version of the Good Housekeeping seal of approval.
The effect that ratios have on your child is the amount of individual attention he gets while he's at day care and the ease with which the adults can keep track of what he's getting into.
Only three states demand less space per child, which in Arizona is 25 square feet--an area five feet wide and five feet long. And yet in December, the Child Care Standards Review Committee published an inch-thick report saying that it was not going to change those criteria.
"Where we have fallen down is in what typically most experts will say are indicators of whether or not a program is good, and that has to do with the number of children per staff person, group size, and their qualifications," says Carol Kamin, executive director of the Children's Action Alliance, who also sat on the committee.
According to a publication of Kamin's organization, a survey of five major cities showed that the hourly pay for child-care workers in Phoenix was at least $1 lower than in the other cities. The turnover rates among child-care workers were nearly 20 percent higher, and turnover in caregivers is unsettling for children.
"As you know," Kamin continues, "child-care people are paid the worst of any people. They get paid less than the guy who flips hamburgers."
Thirty states set limits on how many children can be in each age group within a child-care facility. Arizona does not, and as of this committee's tenure, will not, because of the staffing costs it would place on child-care operators. The child-care lobby claims that such limitations would put some of them out of business, which would consequently put care out of reach of some parents and force their children out of day care.
But if parents want small groups, the business argument goes, the market frees them to find day-care facilities that set voluntary limits.
Dr. Michael Kelley, a professor of early child development at ASU West, disagrees. The negative effects of day care on the psychological development of children are only beginning to be seen, he explains. But even from the caregiver's perspective, group size is crucial.
"I could be a very well-trained person," Kelley says, "but if you stick me with six babies and two or three of them have diarrhea, I'm up the creek. And I would challenge anyone to work eight hours a day, five days a week, with ten to 12 toddlers."
And Kelley referred to "a well-trained person." Arizona's laws require only that child-care workers be 18 years old and submit to fingerprinting to make sure they don't have felony records.
To impose stricter requirements would be to overregulate, however. "I do not accept the relationship between regulation and quality, but the premise is that there is one," declares Kevin DeMenna, lobbyist for the Arizona Child Care Association and another member of the committee.
Then again, if the public school programs were forced to retrofit their facilities to be in compliance with their new regulations, well, then the free market just might make them close down instead of the private operators.
"The mantra at the Legislature was that child care is an overregulated industry with so many burdensome regulations they can barely stay in business," says Irene Jacobs of the Children's Action Alliance, who has followed the proceedings of the standards committee.
The initial report of the Child Care Standards Review Committee report stated that it had been mandated to ". . . conduct an evaluation of laws that govern child care to determine ways to lessen the regulatory burden on providers and to protect the health, safety and well-being of children in child-care settings and to create a regulatory system which has rules that are comparable both in public and private child-care programs."
The phrase that the child-care folks use over and over is "leveling the playing field." And they don't mean leveling their child-care-center playgrounds under six inches of sand--that rule fell by the wayside.
"My concern on this committee," says Steve Broe, "has been to make sure that all children face the same standards." And by that he means that all child-care programs face the same regulations. If private day-care operations have to put up a fence of a certain height and have a certain number of toilets, then, by god, so do schools. And if day-care children needed signed permission slips to go on field trips from the center, then shouldn't school-based programs need to gather permission slips if they take the children out of the designated day-care section of the school to visit the school's computer lab?
Since its formation last fall, the committee has gone through the child-care laws line by line and word by word. In a recent meeting, an argument erupted between the school people and the child-care people over the omission of a single word.
Brenda Even, a school board member from Tucson, suggested that the word "regular" be omitted from the definition of child care as taking place during "regular school hours," because regular hours vary from school to school and district to district.
Committee member Charles Shipley, the Chamber of Commerce representative, with fingers pointing and his voice taking on an accusatory tone, reasoned that such an omission would allow schools to claim exemption if they expanded their hours of operation.
Broe, the day-care-chain operator, then suggested that summer academic programs--an elective course in rocketry that the school district charged for was the example that was bandied about--were really in lieu of more traditional child care.
Brenda Even exploded, saying that she didn't think that education programs "should revolve around the definition of day care, which is a small portion of the school, at best. And we often have your people come in and operate them," she said, referring to private child-care operators who contract to offer a school's before- and after-school program as a convenience for children. And so it went.
But as for the committee's mandate to ferret out unnecessary regulations, of 541 rules reviewed, only 30 were deleted. Reading through the edited laws, it's hard to tell just what was actually changed.
"If anything was taken out, it was a subsection of a subsection," complained Craig Barton.
Barton, whose family operates Camelback Desert Schools, with campuses in Scottsdale and Paradise Valley, was perhaps the strongest advocate of deregulation on the committee--and was the voice most consistently ignored.
And so after conferring with state Representative Bob Burns, who used to lobby on behalf of the Arizona Child Care Association and has operated his own child-care centers, a frustrated Barton wrote a dissenting "minority opinion." It is 20 pages of rambling complaints, which he sent to the governor, the speaker of the House and the president of the Senate. In his complaint, Barton ranted about guidelines governing naptime and changes of clothing and rules that required day-care centers or preschools, rather than parents, to keep track of immunizations, and about a DHS policy that allowed complaints against a center to be lodged anonymously.
"These are all regulations that in our view are common sense," he wrote, meaning that providers shouldn't have to be told to do them, "procedures that should be determined by the provider, not by a large bureaucracy that couldn't possibly keep up with all of their imposing regulations. . . . Regulations such as these are not reflective of the free diverse America we grew up in, knowing the truth is in the market place, not in the government."
Barton has tangled with the bureaucracy, to be sure. In March 1994, the Scottsdale facility he directed received a letter from DHS demanding a meeting to discuss consistent noncompliance noted during DHS inspections. Among child-care operators, such letters are considered to be serious messages from the regulating agency. Then in September, the school was fined $1,500 for failing to satisfy the terms of the provisional license it had been operating under because of "documented deficiencies" that included exceeding child-to-staff ratios, incorrectly storing medications, failing to keep track of tuberculin tests, and failing to have "age-appropriate foods."
This spring, DHS received two complaints about discipline at the Scottsdale preschool. One was unsubstantiated. The other, revolving around a "traditional"-minded teacher with years of experience, was verified by DHS surveyors. The teacher was fired--though parents of other students sent letters in her support to DHS. Barton stepped down as school director. And though Barton and DHS officials deny cause and effect, the school's operating license was coincidentally lifted above its "provisional" status.
But lest anyone think Barton was running a Lord of the Flies operation, consider that he invited New Times to drop in at the school at any time.
Camelback Desert School has a swimming pool and an immaculate petting zoo (with deer and sheep and rabbits and goats), a room full of computer equipment for the children to use, and a staff comprised of state-certified teachers. In short, despite its former director's politics, it's a beautiful place that commands more than $4,000 per year in tuition.
Barton, in his bitterness over being regulated, wrote in his minority opinion--Barton being the minority in its entirety--that ". . . the CCSRC membership, the model for which these proposed regulations were designed, is limited to the little dirty day care in an economically depressed neighborhood."
Many of the child-care centers operated by Steve Broe's family, American Child Care Centers, are storefront operations on the west and south sides. When New Times attempted to visit an American Child Care facility, a staffer announced that the employees had been instructed to keep reporters from entering.
Broe, the co-chair of the Child Care Standards Review Committee, is a young man with curly black hair and wire-rimmed glasses.
"I personally don't believe the regulations are too hard on us," he says. "There are a lot of regulations, but if you look at any one regulation, they're extremely reasonable. And if you ask yourself, would I want this protection for my child, most reasonable people would say yes." Broe speaks in an almost professorial tone about good child care. "The law represents, to my mind, minimum standards," he says. "There are other standards which are voluntary which express achievements of quality."
When asked what they are, he continues, "Well, there's accreditation by the National Association of Early Education for Young Children and the National Child Care Association."
Are his centers so accredited?
He pauses. "No, I wish they were."
Since the beginning of 1994, records show, DHS surveyors have issued noncompliance status to various American Child Care Centers five times for endangering the health and safety of children, seven times for failure to adequately supervise children, five times for inappropriate discipline among other infractions. Two centers have received letters demanding meetings for consistent violations; one teacher was ordered to training for discipline methods.
When asked to answer for those noncompliances, Broe says, "I'm not going to argue with your facts. You've checked the public record."
At least 13 times since the beginning of 1994, American Child Care Centers were found to be in noncompliance for child-to-staff ratios, which is considered a serious violation.
Nevertheless, Broe tells New Times, "I don't have a problem with the ratios on the books."
An attorney for American Child Care Centers sent a letter to New Times saying, "As demonstrated by the public record, American Child Care Centers has cooperated fully with the Office of Child Care Licensure in responding to and resolving any perceived noncompliance issues."
Marlene Morgan, who runs the office of child-care licensure at DHS, acknowledges that "there are some difficulties with the [American Child Care] centers," but she goes on to say that "what we see is a willingness [on the company's part] to turn those programs around."
Even if the same infractions then turn up at other centers owned by the same company.
"We have a mandate to train," Morgan continues, citing the usual Symington-speak in which regulators serve business clients rather than regulate them.
One former DHS employee, who asked not to be identified, says there is an enforcement problem that begins with "people at the top of that department who are more worried about protecting their jobs than protecting the health and safety of children."
Furthermore, "the licensing surveyors have no training as licensing people, they have no understanding of ethics," the former employee continues. "And I don't think you ask the fox to guard the chicken coop. You're asking the people that are going to have to enforce the licensing regulations to make them harder. That makes their job harder--and they're already terrified of the Legislature."
Just as the discussion of child-to-staff ratios and square footage had been jammed into the first sessions of the committee's existence--the meetings started in November and a report had to be filed by the end of December--the question of group size was left until the very last hour of the very last session, on June 27.
Carol Kamin of Children's Action Alliance spoke up in a tired voice, as if she already knew the response to her plea. "After all we've been through," she said, "playgrounds, immunizations, the size of doors: The most important questions are who the staff are, ratios and group size."
Marlene Morgan of DHS had charts at the ready to demonstrate how much money the day-care centers would lose if group size limits were imposed, two pages of columns that factored out weekly losses to facilities of every size. Mike Kelley, the ASU West education professor who had been invited to address the committee on behalf of group limits, politely pointed out that the chart only showed gross revenues lost, that it had failed to factor in the decreased costs to the providers if they had fewer children, and that there were other math errors in the department's calculations that favored the antilimit side of the discussion. The chart disappeared quickly.
Then Kamin did the unthinkable: She moved that the committee limit group size. It was a modest motion, a suggestion that infants be grouped in numbers no larger than ten and 1-year-olds in groups of 12--higher numbers than in most states that limit group size. Then, Kamin continued, DHS could study the possibilities of group limits for older children. She explained that group size only meant the numbers of children clustered in one space that could be artificially delineated by furniture; it did not mean that the center could not take in more children.
Faces turned red around the table. Kevin DeMenna, the child-care association's lobbyist, declared it "a blemish on this document," which so far had been created by consensus. In the high tones of a fire-and-brimstone preacher, he warbled about the market, about how regulations would put operators out of business and children on the street.
"A child in care has got to be better off than a child with no care," he finished.
Charles Shipley, the Chamber of Commerce man, wagged his finger and threateningly lectured about common sense and government incursion on business.
Chairman Broe held his breath as he called the roll on the vote. There were 11 committee members present, and he counted five in favor and five against; he didn't even have to cast his own vote to know the motion had failed.
Michael Bell, an early-childhood specialist from the Department of Education, had voted with the business bloc.
"My role on the committee was to represent the agency and Ms. Graham," he told New Times.
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Moments later, Lynda Rahi, the deputy director of DHS, was happily lecturing about fingerprinting regulations for child-care employees, when one of the committee members asked her what effects the new child-care guidelines would have on her department's budget.
It took a few seconds for Rahi to realize that they were no longer talking about fingerprinting, and she seemed at a loss for words.
The two lobbyists were up to speed, though. Without looking up from his papers, Shipley informed her that the proposed regulations still had to undergo complete fiscal analysis. DeMenna piped up that the Joint Legislative Budget Committee was already looking at the budget.
It was clear who was in charge.