SALT LAKE CITY — As the Utah Legislature faced concerns from some parents and child advocates about its push to allow more children in unlicensed daycares, state legislators proposed a compromise of sorts.
In an effort to increase access to child care, they voted in recent years to double the number of children permitted in these centers, which are largely unregulated and do not receive annual safety inspections.
Unlicensed daycares can now care for eight kids. The number can grow to 10, so long as some of the children are related to the provider. Only South Dakota allows more.
To ease the safety concerns that posed, lawmakers decided last year that they would also require background checks for any unlicensed provider caring for more than four kids.
"This is appropriate,” said the bill’s sponsor, former state Rep. Susan Pulsipher, at the time. “Because we also require that of others who work with children. For instance, parents who volunteer in schools have to have a background check.”
But in the year since the requirement went into effect, data from the state Office of Licensing shows that few unlicensed providers have actually obtained those screenings. That’s complicated by the fact that the state has no idea how many unlicensed providers there are and no way to enforce the new mandate.
Anna Thomas, policy director with Voices for Utah Children, called the law a “totally empty sort of promise to parents.”
As of early April, just 74 people at 34 centers had requested and received a background check, according to data obtained by FOX 13 News.
"It’s heartbreaking, and I want to make sure the public knows,” said state Sen. Luz Escamilla, D-Salt Lake City, who estimates that there could be 1,500 or more unlicensed providers in the state. “I feel terrible they don’t know that right now they may be leaving a child with someone that is not even registered and has not done a single criminal background check.”
Her effort to create new rules for unlicensed providers caring for more than four children — including a registration system, more enforcement of criminal background checks and requirements for CPR and first aid training — failed in the House this year.
Under the state’s current rules, Shannon Thoman-Black, the director of the Utah Division of Licensing and Background Checks, said the “onus of complying” with a background check “is really on the provider.”
Still, the department has been working to get the word out to unlicensed centers, she said. And as more people have become aware of the requirement, “we have had increasing numbers of providers reaching out to see what they need to do to get background checked.”
But even if an unlicensed provider were to fail their screening, Thoman-Black said the state doesn’t have the authority to bar them from working with kids, unlike in a licensed setting.
"What the statute allows, we do not have any enforcement authority for the result of that background check,” she said. “So we give those results of the background check to the provider and then as a private business owner, it’s really up to them to decide what their next steps are.”
WATCH BELOW: State Sen. Luz Escamilla discusses the importance of background checks for people working with kids:
'A solution they don't want'
When Salt Lake City residents Annie and Jahn Davis were searching for a daycare for their oldest daughter a few years ago, they said the question of licensure was among many important considerations.
“We spent a lot of time,” Annie Davis said in an interview. “We talked to other parents. We talked to people in the community. We did our research. We went inside and looked at places. So the holistic picture is important.”
The couple ultimately chose a state-licensed facility, which their 5-year-old son now attends. The morning they spoke with FOX 13 News also happened to be the day state regulators were inside his daycare conducting an inspection.
"They were saying, you know, ‘This person who comes and does this, does the inspection, they are opening every door; they're checking every nook and cranny,’” she said. “It's very thorough. So again, that's just a peace of mind for me.”
Former child care regulator Kim Rice used to conduct these inspections, which usually occur at least twice a year at each facility on an announced and unannounced basis. During those reviews, she looked for a host of potential safety risks to children – including accessible firearms, unsafe playground equipment and hazardous chemicals in easy reach.
“It's pretty extensive,” said Rice, who noted that the results of these inspections are then made available for parents to review online. “They're thinking consciously about how to keep children safe.”
While licensed providers are required to comply with a host of rules meant to protect kids, she said unlicensed providers operate with much less oversight.
“I would never say anything bad about an unlicensed facility,” Rice said in an interview with FOX 13 News. “I don't know what they're doing, but that's the key. I don't know what they're doing. There's no one checking.”
Proponents of unlicensed daycare, on the other hand, see it as a way to increase access for parents and address what many have deemed a child care "crisis” in the state.
Witt Cook, with the Utah Eagle Forum, noted in a legislative committee hearing last year that there’s “sparse child care” available in Utah, and that allowing more children in unlicensed care is “a good opportunity to help lessen the strain.”
Asked in that same hearing about the possible safety risks of deregulation, Pulsipher noted that “parents get to choose where they leave their children.”
“And actually the more we increase the capacity, the more choices they will have,” she added.
Following the changes made on Capitol Hill over the last few years, Utah now allows more children in unlicensed child care than any state other than South Dakota, which sets the limit at 12. That’s according to research conducted by the Committee for Economic Development, a nonpartisan public policy think tank.
But the state’s own research has found that most parents prefer licensed child care and share “broad-based concern about the safety of kids in unlicensed care,” according to a recent Utah Childcare Solutions and Workplace Productivity Plan.
While parents recognized that the state "was allowing more unlicensed child care in an attempt to increase supply,” the report noted that “across the parent groups that was not viewed as helpful.”
Thomas, with Voices for Utah Children, agrees with proponents of unlicensed child care that there needs to be better access for parents in Utah.
But she points to research showing that child care access is more a problem of underinvestment than overregulation. And she argues that the increased number of children allowed in unlicensed care in Utah has created more “high risk” situations than when such providers could only care for four kids.
“The answer is not to give them more bad options," she said of parents struggling to find daycare. “It's to make more good options available.”
'Take my kid’
No matter how bad the state’s child care crisis is, “we should never jeopardize a child’s safety and health,” Escamilla argues. “Ever.”
Amid concerns that’s exactly what Utah’s new child care policies do, she proposed a bill during this year’s legislative session to establish new requirements for unlicensed daycare centers.
Under her bill, unlicensed providers with more than four kids would have been required to register with the state, receive basic CPR and first aid training and notify a child's parent that the facility is not licensed or certified by the state. The proposal also looked to increase the enforceability of the background check requirement.
But the measure ultimately died in the House without a debate – leaving Escamilla concerned that parents may be taking their kids to someone who they don’t realize is unlicensed and hasn’t received a criminal screening.
“I can guarantee you those parents that are desperate because they have to go to work so they are not experiencing homelessness and they can pay their rent and food, they probably do not know that they’re leaving their child in a place that is not even registered,” she said in an interview.
Without legislative action, it will continue to remain up to individual child care providers to get those background checks – and to parents to know the right questions to ask before they leave their child in someone else’s care.
Rashel Holguin-Leon, who is among the handful of unlicensed providers who received a criminal screening from the state over the last year, said some parents seeking daycare know to ask her about licensure and whether she’d had a criminal screening.
But others are so desperate to find care, she added, that they “are just like, ‘Oh, here, take my kid.’”
Holguin-Leon was previously operating an in-home daycare with eight kids and said she recently became licensed to run a center-based daycare in West Jordan.
Because she’d worked in the child care industry before, she knew how to go through the background check process. But she wasn’t surprised to hear that few other unlicensed providers had gotten their screenings.
“It’s not told to us that we have to do those,” she said. “It’s not told to us that we have to get fingerprints done for them. Nothing is told to us.”
Holguin-Leon said she’d like to see the state do more to educate unlicensed daycares about the background check requirement, which she believes protects providers, children and parents.
“I think that if the state of Utah is going to move it up to eight kids,” she said, “they should advise those in-home daycares: ‘We’re going to move it to eight kids, but you need to get your background check done.’”
For parents like Annie and Jahn Davis, the idea that the state would pass a mandate it’s unable to enforce is frustrating. And they hope lawmakers will take another look at how they regulate child care moving forward.
"At the end of the day, are we making decisions and regulations and mandates that ultimately benefit the next generation and the youth and the kids that are going to be the ones spending all day, every day at these places?” Annie Davis asked. “So I see what the Legislature is trying to do. But unless there's some action behind the words, you know… it's questionable.”
Pulsipher, who ran the bill requiring background checks, declined an interview with FOX 13 News about the implementation of the rule, noting that she’s no longer a state lawmaker.
But in an email, she wrote: “I believe that all laws should be obeyed, including this one.”
WATCH BELOW: Kim Rice, a former child care licensor with the state, describes the things parents should look for when choosing a daycare: