In our June 5th update, we shared that we contacted Megan Campbell, Policy Supervisor for the Policy, Data, and Planning Division of the Office of Childcare from the US Department of Health and Human Services regarding document citation 89 FR15366 Document Number 2024-04139 on May 12th with questions regarding the confusion and misinterpretation about what Lead Agencies must post on consumer education websites.  We have received her response below:

"Good morning,

Thank you for your message, and I’m sorry for a delay in providing a response. States have significant flexibility in how they address complaints. We recommend contacting the New York State CCDF Lead Agency for specific information about New York requirements. Your specific questions are addressed below in bold. I also want to note that the text you attached from 45 CFR 98.32 was updated in the 2016 CCDF Final Rule. You can access the current regulatory language in the electronic Code of Federal Regulations (eCFR) at 45 CFR Part 98.

Are complaints and self-reported “complaint” investigations considered inspections and/or monitoring reports?   

States are required to post the results of monitoring and inspections reports for all licensed child care providers and all providers eligible to participate in CCDF. The CCDF rules at 45 CFR 98.33(a)(4) specify that the posted reports must be for annual inspections required at 45 CFR 98.42, inspections that were completed due to major substantiated complaints about failure to comply with CCDF requirements as described at 45 CFR 98.41, and any other reasons set by the state.

Should unsubstantiated complaints be posted publicly to consumer websites after an investigation deems the basis of a complaint unfounded?   

Lead Agencies must have a process for maintaining a record of substantiated parental complaints, and a process for making those substantiated parental complaints available to the public on request (45 CFR 98.32). CCDF regulations do not address how States should handle unsubstantiated complaints. Therefore, States have the flexibility to determine that process.

Should incoming childcare program complaints be vetted and open for the general, unassociated public, or for parents as described?  

As part of their triennial CCDF Plan, States must describe the process for substantiating and responding to complaints, whether or not the State uses monitoring as part of its process for responding to complaints for both CCDF and non-CCDF providers, how the State maintains a record of substantiated parental complaints, and how it makes information regarding those complaints available to the public on request (45 CFR 98.16(s)). CCDF regulations do not specify how complaints should be vetted. Therefore, States have the flexibility to determine that process.

Is there a definition or example of “plain language” or a standard used to determine whether the reports are “easily understood” by parents and consumers?  

CCDF regulations do not define plain language and states have flexibility in how they determine what is plain language and easily understood. OCC provided recommendations and best practices on plain language in the 2018 Information Memorandum on the Child Care Consumer Education Website Requirements and Resources (CCDF-ACF-IM-2018-02). In addition, The Federal Plain Language Guidelines provide recommendations on organizing content, writing principles, and testing techniques. 

Since some regulations describe a variety of potential situations, would “plain language summary” defined as context regarding the specific situation observed that resulted in a violation?  

States must post plain language monitoring and inspection reports. If the monitoring and inspection report is not in plain language, the state must also post a provider-specific plain language summary of the monitoring and inspection report. States have the discretion to decide what information to include in the plain language summary.

Thank you,

Megan"

From this information, we can confidently determine that the decision-maker for the regulatory reform we are seeking regarding compliance report content and reformation of the consumer education website and compliance reporting formats is the Office of Children and Family Services.  They have the ability to make the changes we are requesting according to the ACF, and we hope they will make the reasonable changes we seek without further external intervention.  Megan's responses were forwarded to the OCFS and a meeting will be scheduled to discuss.