Early Childhood Education

State Licensing Standards

The licensing of early care and education programs in the United States is authorized by law in each of the fifty states and the District of Columbia. Licensing rules set each state’s floor, or foundation, of acceptable quality. Programs below that floor will not be permitted to exist. Other types of standards defining other levels of quality also apply.

Each of the licensing rules is a right that children and parents have to a defined level of quality, backed up by the state in its policies for responding to complaints. The rules must be met by all private centers and home-based early childhood programs as defined by the state, regardless of subsidy. They are used to implement a basic consumer protection principle, “First, do no harm.” Licensing policy is intended to reduce the risk of harm from fire, unsafe buildings or equipment, spread of epidemic disease, any form of disaster, and developmental impairment.

The licensing laws often abolish early care and education programs altogether, then restore the right to operate such a program only to those who have state permission. Requiring a license is a powerful intervention by government on behalf of children and their families. Balancing this power, operators of programs have many rights to be treated fairly.

The word “standards” in this article is used generically to include all the varying terms that are used in connection with state law, federal law, and professional guidance. Mandatory standards for licensing are usually called “requirements” or “rules and regulations.” There is no common use of many other regulatory terms, such as guideline, registration, and certification, since some states and the federal government use them differently.

The Licensing Rules

The licensing law in each state specifies what rules may be written by the agency. The rules cover all aspects of a program—building and grounds, equipment, qualifications of teachers, directors, and family child care providers; health and safety procedures, the program of activities, schedule, developmental curriculum, discipline, and the role of parents.

Prior to granting a license, the states usually require a building safety inspection and approval, a public health inspection and approval, and initial criminal records checks of licensees and their employees. These baseline approvals linked to the license are part of the necessary floor. The licensing rules themselves are usually established as “minimums,” which means “at least.” They are not program specifications because programs are encouraged and expected to go beyond what is required. They are not ideals because there are serious penalties for failing to meet them. Licensing requirements differ from other types of standards because they have the force of law. As with any law, enforcement requires strong public support.

Most States rewrite their rules fairly frequently. Since they do not all make their changes in the same month or year, any comparison of the states’ rules must be made as of the same date to be accurate. Comparative data that are in print are probably incorrect. Updated comparisons are posted on the Web site of the National Child Care Information Center (NCCIC) (http://nccic.org,)

Task forces or advisory groups within the state reach consensus on proposed rules, usually based on new research findings, changes in the field of practice, and comparative data on what other states are doing. Their consensus-building process is essential to enforcement of the rules. Rule-writing groups compare their state’s rules with current rules in other states to identify where their own rules need strengthening, and to see how their own state ranks with other states. The rules themselves are posted on the Web site of the National Resource Center for the Health and Safety of Children in Child Care (NRC) (http://nrc). Over time, the level of quality in the field tends to improve as a result of funding, accreditation, training, college scholarships, and consumer demand.

When new rules are being considered, many existing programs may already meet a higher standard. When a proposed new rule is controversial, the states may grandfather the rule (permit existing programs to waive it), or they may grandmother the rule (set a later date by which all programs must meet it.) The rules most likely to create controversy are those that affect cost, particularly staffing ratios, group size, and the qualifications of staff.

Licensing as policy is typically American, with its emphasis on regulating private services. Rather than operating services by government, and rather than relying entirely on forces in the private market to create an acceptable supply of services, these state laws have created a third possibility, a regulated market. Early care and education in the United States is not affordable for all children. However, children at all income levels are protected through licensing.

Levels of quality in early care and education programs

Different types of standards

Coverage

In 1994, states licensed 117,284 centers, and 300,032 homes. If a program is not required to be licensed, but receives state or federal dollars, the state may require it either to apply for a voluntary license, or meet the licensing rules, or meet higher standards to receive funding.

All states cover full-day centers, but a few do not cover part-day programs. School system, public, private, or even faith-based schools are usually not covered by the licensing agency. The states’ Departments of Education have been considered responsible for their quality.

Fourteen states exempt faith-based early childhood centers that apply for and are granted an exemption. Most exempt faith-based programs do have to meet some state standards for health and safety. Only one state exempts programs that are accredited by or are members of an organization that has its own accreditation standards.

Large family child care homes, usually seven or more unrelated children with more than one caregiver, are covered in most states. Licensing is seldom applied to small family child care homes when only one or two children are included. The caregiver’s own children are usually counted in the number. Care by a child’s parent or relatives is not required to be licensed, although funding standards may apply to it.

Ratios and Group Sizes

Since l986, states have moved toward greater uniformity in their staffing requirements for the youngest age groups. For children at age nine months, the child/staff ratio in 2004 is 4:1 in thirty-five states, with a group size limited to eight in twenty states. No state has a ratio greater than 6:1. In 1986, ratios varied up to 12:1; and thirty-five states either permitted groups larger than eight or did not regulate group size at all. Ratios varied up to 12:1. The shift to smaller ratios for infants has been gradual, and the shift to setting limits on group size has been even slower. There are still eleven states that do not limit the size of groups of nine-month-old infants.

Toddler staffing patterns have also been improved across the states, although not as rapidly as those for infants. However, as children become two, there is cause for concern that staffing may not adequately protect children in all states. When children are twenty-seven months old, there is wide variability of rules. There is no ratio for children at this age that is the same in more than nine states. Other states divide in more or less equal numbers, ratios of 8:1; 7:1, 6:1; 5:1 and 10:1.

There is a little greater consistency in staffing requirements for four-year-olds. The largest number of states, seventeen, require a group size of twenty with two caregivers. Twenty-three states permit groups of thirty or more. In most states, the staffing requirements result in at least two teachers/caregivers in each group. However, in fourteen of the states, one qualified person without an assistant can be solely in charge of fifteen or more four-year-olds.

Alternative Qualifications

Staff qualifications in state licensing rules for early childhood programs usually require one or both of two different types of professional preparation: (1) preservice qualifications for specific roles: degrees, courses, credit hours, or credentials prior to employment in the role; (2) specified number of hours of training for all staff in all roles every year.

The content of both pre-service and annual continuing education is primarily child development or early childhood education. Two-year degrees with that specialization are offered at many public community colleges or technical colleges, but four-year degree programs with early childhood specialization are more rare. At the four-year level, the early childhood degrees are likely to be in private colleges, making articulation with the two-year programs difficult.

A single requirement of a four-year degree in child development would have to be widely waived. There are not enough college degree programs to meet this specification. States sometimes accept degrees in “related fields.” Other states may require graduates in related fields to have course credits in early care and education and/or direct experience with young children as well as the degree.

States usually identify a number of alternative ways of meeting their required qualifications for roles. Some of the alternatives permit some direct service experience to substitute for some of the academic qualifications. States use these alternatives both to avoid granting waivers and also to ensure that individuals have knowledge of children younger than kindergarten age.

Annual ongoing training may be counted by teachers as pre-service training for the director role, or by assistants as pre-service training for teaching or other roles; but it is not, by definition, pre-service preparation for the role a person already fills. Only thirteen states require twenty or more hours of training every year. A handful of states require a larger number of hours every other year, so that one credit-bearing course could be used to meet the rule. Community-based training is beginning to be offered for credit.

The qualifications for directors are strongly focused on child growth and development and early childhood education. Only twenty-six states, roughly half, even mention additional administrative content among their qualifications for training for directors. Seven of them have developed a director credential.

The minimum alternative qualification is the least required amount of academic coursework, or specialized education in early care and education. Direct experience with young children under qualified supervision is not counted as an educational pre-service qualification, because it is not an educational qualification.

For directors, the range of alternative ways of qualifying, across the states, is from two ways to eighteen ways. One state has only one alternative. Qualifications in early care and education are higher for directors than for teachers. Only three states set no educational requirements for directors. Some states set more stringent pre-service qualifications for directors of larger centers. The range of the minimum alternatives for directors is as follows:

Minimum alternative director qualifications, 2004

Pre-service minimums may be college degree or certificate programs, courses or credits, or clock hours of training. The highest academic alternatives for directors are as follows:

Highest alternative director qualifications, 2004

For teachers, too, there were a number of alternatives, ranging to eight options. Twenty-nine states had either no academic qualifications, or required only a high school degree with direct experience or basic orientation for teachers. Some states link an alternative to a size of center, that is, requiring that larger centers must employ some percentage or some required number.

Minimum alternative qualifications, all teachers 2004

Maximum alternative pre-service qualifications, teachers and master teachers 2004

Fourteen states identify two levels of teachers. They may call the more qualified teachers group supervisor, lead teachers, or other name, and require one of them for a specified number of children, such as every forty-five children. These “master teachers” are not included in the table of minimum alternatives because they are not the lowest alternative for a teacher.

A small number of states now issue an official certificate of some kind to teachers and directors in licensed programs so that their qualifications are portable to other licensed programs. At least twenty-two states have established registries that track a person’s changing qualifications. Five states mention some state-level credential or approved training program among the maximum alternatives for teachers. Teacher licenses are seldom mentioned.

Tiered Strategies

A recent approach both to personnel qualifications and to program standards is to define different levels of quality, and to offer supports and incentives to help programs and their employees move to higher levels of quality. Thirty-five states have adopted tiered quality improvement strategies for centers, and thirty-two have adopted them for family child care homes. Some examples of innovation, implemented differently in different states, are

state financial support for accreditation;

bonus incentives for teachers to add to their qualifications;

scholarship help to individuals employed in early care and education programs;

funding incentives for programs to reach defined higher levels of quality;

new credentials, for infants/toddlers, directors, and teachers;

registries of personnel and their updated qualifications;

rated licenses; and

tiered funding levels in subsidy policy.

These new policies represent an enormous stride forward for states in implementing both their licensing rules and their funding standards through interagency collaboration. The first few states to develop differentiated rates identified two levels of program quality: the required licensing level and accreditation. Finding that the gap between the two was difficult for programs to bridge, some of the states invented middle levels of quality that take into account the record of compliance and set progressively lower ratios and higher staff qualifications.

The higher levels of quality are not enforced through the use of licensing power, but rely on contract agreements. A program that cannot maintain its level will keep its license, but may not keep its quality rating or its funding level. To implement this kind of policy, someone must go to the program, determine their level, and connect them to sources of help. The early childhood licensing staff may be the visitors to recommend approval as meeting a higher level, in addition to their licensing responsibilities, or states may design other models for implementing these policies.

Case Loads for Licensors

Compliance with licensing rules is significantly higher if someone from the licensing office routinely inspects the licensed center or home. In some states the case loads are so high that it is unlikely that the licensee will be visited during the period covered by the license. In other states, an adequate number of staff are able to visit regularly, issue correction orders, follow up to see that corrections were made, and investigate complaints.

Most licensees want to meet the licensing rules. When visits are rare, they may slip out of compliance when distracted by other urgent issues. There is a very small number of programs that have no intention of complying with the rules. They may enroll more children than their license permits, and conceal broken equipment and fire hazards. They will be out of compliance, come into compliance temporarily after a licensing visit, and then fail to comply again and again. Unless there is adequate staff and legal power to follow up, this small group of noncomplying programs will be permitted to continue to create risks for children.

Examples of states with large case loads of centers are Massachusetts, Maine, and Minnesota. States with much smaller case loads are Florida, South Carolina, and Oklahoma. These states have employed enough staff to carry out their licensing responsibilities, and also to inspect for tiered levels of quality. By creating a single system for visiting programs, the state can have adequate staff to enforce the licensing rules and also to implement funding levels and quality incentives.

History

The first of the states to write a licensing law for children’s services was Pennsylvania in 1883. Prior to that time, many states had voluntary standards that were advisory, not mandatory. Pennsylvania pioneered the first real licensing law for children. Other states began to adopt this enforceable type of law. Early care and education programs were not subsidized other than by private charity.

In most states infants and toddlers were prohibited altogether from programs until the mid-1960s. As these states began to permit programs to include these vulnerable age groups, they set ratios and group size low to avoid plentiful but harmful services.

However, other states already had a large number of existing programs with high numbers of infants per staff, and large groups. As these states tried to write more stringent rules, existing programs feared that rules would add higher costs to parents and reduce the supply of services. It took many years for states to resolve issues between costs, supply, and potential harm.

In 1962, most of the states without such laws enacted one in anticipation that the federal government would require it as a condition for funding. There has been a clear emphasis on child development in the licensing rules for all children, stressing the inseparability of strands of cognitive, emotional, social, and physical development since the 1930s.

Research on the effectiveness of programs for poor children received widespread public attention in the l960s. Head Start was created in 1965 as a federally managed comprehensive program for poor children and their families, with its own performance standards. In 1967, open-ended federal funding under the Social Security Act became available for child care. Standards for funding became an issue.

In the l967 Social Security Act, the Congress mandated “a common set of program standards” for all programs receiving federal dollars. Federal Interagency Day Care Requirements (FIDCR) were written. FIDCR history was characterized by controversy, revised versions, increasing distrust among advocates, and decreasing numbers of participating federal agencies.

Part of the controversy stemmed from confusion over the difference between state licensing and federal funding standards. Some of the licensed programs feared that FIDCR would apply to all programs for all children, without funding. To add to their confusion, child advocates wanted the federal government to set standards for all children, rather than funding standards for some children. However, federal interagency standards were very clearly standards for funding.

Debates became polarized, pitting “quality” federal standards versus “minimum state standards.” Federal standards were finally abolished by the Congress. Later, in 1991, Congress mandated that federal Child Care and Development funds must be spent in programs that meet “health and safety” standards. More important, they also mandated that a percentage of the funds be set aside for “quality improvement.”

Trends

The federal funds for quality improvements under CCDBG led to a decade of innovative new policies and interagency collaborative efforts. Thirty-five states have implemented innovative policies that recognize a progression of levels of quality. In at least some of the states, debate has moved from polarized arguments over “quality” versus “minimum” to defining levels of quality, and collaborating across agencies to help programs move to higher levels. Licensing offices have moved from exclusive focus on baseline permits to a broader state vision for levels of quality implemented collaboratively.

In some states, the laws for licensing now express the states’ broader vision. Moving from licensing to state goals for quality goes beyond the power delegated for licensing, but not beyond the power of the state. Agencies that administer child care funds can offer incentives in contract agreements.

Issues for the Future

The peculiarities of U.S. policy, with licensing for all children but subsidy only for poor families, will continue to affect their implementation. It is clear that a collaboration between licensing and funding policy can result in better licensing and also higher levels of quality. It is an open question, and probably a question to the Congress, whether quality initiatives in the future will be for all children, or whether a narrower focus on poor children will dominate.

Federal funding for future quality initiatives is uncertain after 2004. If funds continue, most states will create or continue their innovations, and new models will emerge for implementing them. Without continued available funding, these initiatives could lose momentum at least temporarily. States that are paying more for higher quality will badly need to create or improve accountable ways of determining the quality level of programs.

Professional development planning groups in the states have made substantial progress in creating career pathways and a lattice across all the different roles that are filled by early childhood professionals. There is work to be done in some states to integrate these policies with the teacher license granted by the Department of Education for one of the roles.

Progress has been made in articulating levels of education from entry level up to the two-year degree. Articulation between that degree and a four-year degree in the same field is much more difficult. Higher education will need to offer more degree programs, better articulation and much better advisement for those who work with children at these younger ages.

Further Readings: American Academy of Pediatrics, American Public Health Association, and the National Resource Center for the Health and Safety of Children in Child Care. (2002) Caring for our children: National Health and Safety Performance Standards: Guidelines for Out-of-Home Child Care Programs, 2nd ed. Elk Grove Village, IL: AAP; Collins, Judy, Sarah LeMoine, and Gwen Morgan. (2004). Child Care Licensing Trends. Vienna, VA: NCCIC. Class, Norris. Levels of Standards. Presentation at NAEYC Conference. Seattle, Washington, November 1973; Class, Norris E., and Richard Orton (1980). Day care regulation: The limits of licensing. Young Children (September), 12-16; Gormley, W. T. (1991). Day care in a federal system. Social Service Review (December), 582-596; Lazar, Irving R., H. M. Darlington, J. Royce Murray, and A. Snipper (1982). “Lasting effects of early education: A report from the Consortium for Longitudinal Studies.” Monographs of the Society for Research in Child Development, 471: Serial No. 201; Morgan, G. (1996). Licensing and accreditation: How much quality is quality? In Susan Bredekamp and Barbara A. Willer, eds., NAEYC accreditation: A decade of learning and the years ahead. pp. 129138; USHEW, Office of the Assistant Secretary for Planning and Evaluation (1977). Policy Issues in Day care: Summaries of 21 papers.

Gwen Morgan