The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 538
INTRODUCER: Military and Veterans Affairs, Space, and Domestic Security Committee; Children,
Families, and Elder Affairs Committee; and Senator Trumbull
SUBJECT: Provisional Child Care Licensing
DATE: April 10, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Tuszynski Cox CF Fav/CS
2. Lloyd Proctor MS Fav/CS
3. Tuszynski Twogood RC Pre-meeting
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 538 adds new child care licensing provisions which require that the Department of
Children and Families (DCF) or the local licensing agency to issue a provisional license or
registration for a family day care home to an operator or owner who is applying for an initial
license or registration for a family day care home and has made adequate provisions for the
health safety of the child and who provides sufficient evidence that he or she has completed
within the previous 6 months:
Training pursuant to the United States Department of Defense Instruction 6060.02 (Child
Development Programs); and
Background screening pursuant to the designated requirements of the Department of Defense
(DoD) for a family child care (FCC) home and has received favorable suitability and fitness
determination.
The provisional license allows an FCC home operator to provide child care services while
simultaneously completing any remaining DCF licensure requirements.
The bill may likely have an indeterminate positive fiscal impact on the private sector. See
Section V. Fiscal Impact Statement.
The bill takes effect upon becoming law.
REVISED: BILL: CS/CS/SB 538 Page 2
II. Present Situation:
Child Care Licensure
The DCF is charged with regulating child care facilities, family day care homes, and large FCC
homes.
1
The DCF licenses and regulates child care facilities and large FCC homes in 62 of the
67 counties in Florida
2
, establishing licensing standards that each licensed child care facility in
the state must meet.
3
The remaining five counties have local licensing authority and must meet or
exceed the DCF standards: Broward, Hillsborough, Palm Beach, Pinellas and Sarasota Counties.
4
Child care facilities are child care centers or child care arrangements that provide child care for
more than five children unrelated to the operator, and receive payment, fee, or grant funds for the
children receiving care, whether or not operated for profit.
5
Family day care homes are occupied residences which regularly provide children from at least
two unrelated families child care, and receive payments, fees, or grants for the children receiving
care, whether or not operated for profit.
6
Large FCC homes are occupied residences that regularly provide children from at least two
unrelated families child care; receive payments, fees, or grants for the children receiving care,
whether or not operated for profit; and have at least two full-time child care personnel on the
premises during the hours of operation.
7
As of February 27, 2023, the DCF licenses 4,687 child care facilities, 725 family day care
homes, and 235 large FCC homes.
8
Current law requires all providers’ personnel meet specific licensure standards, training,
credentials, and good moral character based upon a background screening.
9
Child care facilities
with religious affiliation and certain family day care homes are exempt from licensure but must
register with the DCF. Although exempt from licensure, these specific operators and staff are
still subject to the Level 2 background screening standards required under s. 435.04, F.S.
10
1
See generally ss. 402.301 through 402.319, F.S.
2
Office of Program Policy Analysis and Government Accountability, Department of Children and Families, Child Care
Regulation, What are the program’s responsibilities?, available at
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=5011 (last visited March 15, 2023).
3
Section 402.305, F.S.
4
Section 402.306, F.S.
5
Section 402.302(2), F.S.
6
Section 402.302(8), F.S.
7
Section 402.302(11), F.S.
8
Email from Chad Corcoran, Deputy Director of Legislative Affairs, the Florida Department of Children and Families, RE:
Child care licensure numbers, February 27, 2023 (on file with the Committee on Children, Families, and Elder Affairs).
9
Section 402.305, F.S.
10
Section 402.316, F.S. BILL: CS/CS/SB 538 Page 3
Provisional Licensure
Under current law, the DCF may issue a provisional license or registration for child care
facilities, family day care homes, or large family homes.
11
The provisional license or registration
is issued at the discretion of the DCF or the licensing agency and at a minimum, the child care
facility seeking the provisional license must be in compliance with the requirements for
screening of child care personnel.
12
The DCF provides, by administrative rule, the conditions and
procedures under which a provisional license or registration may be issued.
13
A provisional license may not be issued for a period that exceeds 6 months and can be renewed
one time for unusual circumstances beyond the control of the applicant.
14
A provisional license is
barred if the background screening for child care personnel is not complete.
15
Additionally, the
provisional license or registration can be suspended or revoked if insufficient progress towards
compliance is found by the DCF during one of its periodic inspections or reviews.
16
Background Screening
Florida law details two levels of background screening for those employees required to be
screened under state law. Both Level 1 and Level 2 checks may include both statewide and
national criminal history record checks through local law enforcement agencies.
17
These levels
convey both the method of the record check and the extent of data searched:
Level 1 - a state-only name-based check through the Florida Department of Law
Enforcement (FDLE) and a check of the Dru Sjodin National Sex Offender Public Website;
18
and
Level 2 - a state and national fingerprint-based check through FDLE and the Federal Bureau
of Investigation’s (FBI) National Crime Information Center (NCIC).
19
“Level 1” and “Level 2” background checks are terms that are unique to Florida. These terms are
not used by the FBI, the NCIC, or other states. The Level 2 screening under s. 435.04(2), F.S.,
provides that a person must be screened to ensure he or she has not been arrested for and is
awaiting final disposition of his or her case, has been found guilty of, regardless of adjudication,
or entered a plea of nolo contendere or guilty to, or has otherwise been adjudicated delinquent
and the record has not been sealed or expunged for any offense prohibited under any of the more
than 50 listed crimes in this same subsection.
20
Levels 1 and 2 are used throughout the state
11
Section 402.309, F.S.
12
Section 402.309, F.S.; see ss. 402.305, 402.3055, 4002.313, and 402.3131, F.S.
13
Section 402.309(5), F.S., and Rule 65C-22.001, F.A.C., which incorporates by reference the most recent Department of
Children and Families, Child Care Facility Handbook, October 2021.
14
Section 402.309(3), F.S.
15
Section 402.309(2), F.S.
16
Section 402.309(4), F.S.
17
See ss. 435.03(1) and 435.04(1)(a), F.S.
18
Section 435.03(1), F.S.
19
Section 435.04(1), F.S.
20
Section 435.04(2), F.S., details 52 distinct criminal offenses including broad categories of offenses related to violence,
deception, and neglect of vulnerable persons. BILL: CS/CS/SB 538 Page 4
statutes without definition and with additional disqualifying offenses
21
as well as a process for a
screened person to obtain an exemption from disqualification.
22
Care Provider Background Screening Clearinghouse
All child care licensees and registrants are required to have a Level 2 background screening
through Florida’s Care Provider Background Screening Clearinghouse (Clearinghouse). The
Clearinghouse is a single data source, administered by the Agency for Health Care
Administration, for persons that are statutorily required to obtain a Level 2 screening for
candidacy as an employee, independent contractor, or volunteer that provides care to children,
elderly, disabled, and other vulnerable individuals.
23
The Clearinghouse allows the sharing of
fingerprints and results of Level 2 criminal history checks among participating agencies to
reduce duplication and costs. The Clearinghouse provides other benefits, one of which is the
retention of fingerprint data and participation in the FBI’s Next Generation Identification (NGI)
continuous evaluation or “Rap Back” Service.
Next Generation Identification — Rap Back Service
An agency may submit fingerprints of applicants, licensees, and other individuals in positions of
public trust on a periodic basis for national NCIC checks to determine if the individual has
engaged in criminal conduct that would prohibit the holding of a position or license.
24
With the
implementation of the FBI’s NGI, an authorized agency may submit fingerprints for retention
and subscription into the Rap Back service, an ongoing review or continuous evaluation of the
criminal history status of each individual as long as the individual remains in a position of trust.
25
The Rap Back Service retains the fingerprint record and continuously evaluates it, rather than an
agency periodically resubmitting fingerprints.
26
This Rap Back Service results in close to real-
time notification of any criminal activity subsequent to the initial criminal history records search,
removing any gaps in review caused by the periodic submission and screening of fingerprints.
Department of Defense Child Care Certification
The DoD certifies four distinct child care programs:
27
Child Development Centers - are centers located on military installations that provide child
care services for infants, pretoddlers, toddlers, and preschoolers. They operate Monday
21
See generally s. 413.208, F.S., related to employment by the Agency for Persons with Disabilities; s. 397.4073, F.S.,
related to employment as a substance abuse services provider; s. 381.986(9), F.S., related to individuals working with
medical marijuana; and s. 744.3135(1), F.S., relating to employment as a professional guardian.
22
Section 435.07, F.S.
23
The Agency for Health Care Administration, Care Provider Background Screening Clearinghouse, available at
https://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/BGS_results.shtml (last visited March 15,
2023).
24
See Federal Bureau of Investigation, Privacy Impact Assessment, Next Generation Identification Rap Back Service,
December 15, 2016, available at https://www.fbi.gov/file-repository/pia-ngi-rap-back-service.pdf (last visited March 15,
2023).
25
Id.
26
Id.
27
The Department of Defense, Military Childcare, Military-Operated Child Care Programs, available at
https://public.militarychildcare.csd.disa.mil/mcc-central/mcchome/military-operated-child-care-programs (last visited March
15, 2023). (hereinafter referred to as DoD MC) BILL: CS/CS/SB 538 Page 5
through Friday during standard work hours, and depending on the location offer full-day,
part-day, and hourly care.
Family Child Care - provided by qualified child care professionals in their homes. Designed
for infants through school agers, each FCC provider determines what care they offer, which
may include full-day, part-day, school year, summer camp, 24/7, and extended care. Some
FCC providers offer flexible operating hours, and are able to adjust their hours to
accommodate requests from parents.
24/7 Centers - child care for infants through school age children in a home-like setting
during both traditional and nontraditional hours on a regular basis. The program is designed
to support watch standers or shift workers who work rotating or nontraditional schedules
(i.e., evenings, overnights, and weekends). While other families may use a 24/7 Center if
space is available, priority is given to sponsors who require 24/7 care.
School Age Care (SAC) - facility-based care for children from the start of kindergarten
through the end of the summer after seventh grade. This program type operates Monday
through Friday during standard work hours. SAC programs provide both School Year Care
and Summer Camp.
The DoD FCC homes are most analogous to Florida’s Family Day Care homes. These FCC
home operators must be certified FCC providers who are licensed, have obtained favorable
background checks, and maintain a DoD issued certificate to operate.
28
Each installation’s FCC
program ensures all providers complete a comprehensive training program that promotes
developmentally appropriate intellectual, social, emotional, and physical learning.
29
Required screenings, inspections, and checks for an FCC home include:
Criminal history background checks for the applicant and all residents over 18 years old;
Health screening and proof of immunizations for the provider and residents;
Home inspections for fire, safety, sanitation, and preventative medicine;
Monthly visits by an FCC staff member to observe, mentor and provide support;
Pet certificate if the provider has a pet to show that it has the appropriate vaccinations and is
safe to be around children; and
Proof of liability insurance.
30
FCC home providers that are located off military installations are required to meet many of the
same requirements to be licensed, registered, or certified by the state.
31
Florida and Department of Defense Comparison
The requirements of the DoD to certify an FCC home and the DCF to license or register a Family
Day Care home are substantially similar. Both require 40 hours of introductory training focusing
28
DoD MC, About Military Child Care, available at https://public.militarychildcare.csd.disa.mil/mcc-
central/mcchome/about#program-quality-standards-93 (last visited March 15, 2023).
29
Id.
30
Id.
31
Id. BILL: CS/CS/SB 538 Page 6
on health and safety, child development, behavioral health, and abuse and neglect.
32
Both also
require training in first aid, CPR, fire prevention, safe sleep/SIDS, and ongoing annual in-service
training updates.
33
However, Florida requires that all Family Day Care Home providers receive a Florida Level 2
background screening pursuant to s. 435.04, F.S., using the Clearinghouse. The general
comparison of the state Level 2 requirements and a federal Tier One Child Care are as follows:
Florida’s Level 2 for Child Care Federal Tier One Child Care
34
Federal fingerprint-based NCIC criminal
history check.
Same.
Federal fingerprint-based NCIC Sex
Offender Registry check.
Same.
A search of each state’s criminal records for
all states in which the person has resided in
the previous five years.
Same.*
State sex-offender registry or repository for
all states in which the person has resided in
the previous five years.
Same.*
State child abuse and neglect registry and
database for all states in which the person
has resided in the previous five years.
Same.*
Background screens processed through the
Florida Care Provider Background
Screening Clearinghouse.
Processing through the Clearinghouse is
not required.
No DoD installation record checks.
DoD installation records check of all prior
affiliations.
* The Department of Air Force reports they check the repository of all states in which the person has ever resided,
not just the previous 5 years.
As detailed above, the background screening requirements are almost identical between the DoD
and state law. However, the most relevant difference is Florida’s requirement to use the
Clearinghouse. The use of the Clearinghouse provides the Rap Back Service that gives close to
real time notification of any criminal activity of an employee or licensee with retained fingerprint
records.
III. Effect of Proposed Changes:
CS/CS/SB 538 provides that the DCF or the local licensing agency must issue a provisional
license or registration for a family day care home upon receipt of sufficient evidence that the
applicant is applying for an initial license or registration for a family day care home, has made
adequate provisions for the health and safety of the child, and has completed within the previous
6 months:
32
See generally Rule 65C-22.001, F.A.C. and the Department of Defense Instruction 6060.02, available at
https://www.militaryonesource.mil/leaders-service-providers/children-youth-and-teens/department-of-defense-policies-
children-youth-teens/ (last visited March 15, 2023).
33
Id.
34
See 34 U.S.C. s. 20351 and 32 C.F.R. part 86. BILL: CS/CS/SB 538 Page 7
The required training pursuant to the United States Department of Defense Instruction
6060.02 (Child Development Programs); and
A background check pursuant to the designated requirements of the DoD for a FCC home
license with a favorable suitability and fitness determination by the DoD.
The provisional license allows a FCC home operator to provide child care services while
simultaneously completing the DCF licensure requirements for a Family Day Care home,
including a Level 2 background screening through the Clearinghouse.
As with other Family Day Care Home providers who are licensed or registered, the bill ensures
that these DoD FCC home operators will be included in the Clearinghouse upon completion of
the state application process and therefore subject to the Rap Back Service.
The bill does not require that a FCC home serve only military families, or any military families,
to be allowed a provisional license or registration.
The bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None. BILL: CS/CS/SB 538 Page 8
B. Private Sector Impact:
The bill may likely have an indeterminate positive fiscal impact on the private sector by
allowing select applicants to receive a provisional family home day care license or
registration and begin providing child care services for their community.
C. Government Sector Impact:
By shortening the length of time it will take select applicants to receive a provisional
license or registration for a family day care home, the bill may have an indeterminate
positive fiscal impact on servicemembers and their spouses as more child care options
become available on or near military installations.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 402.309 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Military and Veterans Affairs, Space, and Domestic Security on March
21, 2023:
The committee substitute provides additional criteria for the issuance of a provisional
license or registration for a family day care home as follows, when the applicant:
Is applying for an initial license or registration for a family day care home;
Has made adequate provisions for the health and safety of the child; and
Provides evidence of a favorable suitability and fitness determination by the DoD.
CS by Children, Families, and Elder Affairs on March 6, 2023:
The committee substitute:
Clarifies a provisional license can be issued with evidence of compliance with the
DoD requirements rather than only after the Florida background screening
requirement is met; and
Requires evidence that the DoD background screen and training submitted with an
application have occurred within the previous 6 months for the provisional license to
be issued. BILL: CS/CS/SB 538 Page 9
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.