TITLE 8. EDUCATION

STATE BOARD OF EDUCATION

Fast-Track Regulation

Title of Regulation: 8VAC20-850. Voluntary Registration of Family Day Homes - Requirements for Providers (amending 8VAC20-850-20, 8VAC20-850-90).

Statutory Authority: §§ 22.1-16 and 22.1-289.015 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: December 17, 2025.

Effective Date: January 1, 2026.

Agency Contact: Alyson Williams, Legislative Consultant, Department of Education, Office of Child Care Health and Safety, 101 North 14th Street, 14th Floor, Richmond, VA 23219, telephone (804) 774-6273, or email alyson.williams@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the State Board of Education to promulgate regulations necessary to carry out its powers and duties and the provisions of Title 22.1 of the Code of Virginia. Section 22.1-289.015 of the Code of Virginia requires the board to adopt regulations for voluntarily registered family day homes.

Purpose: The action is essential to enhancing the health, safety, and welfare of children in care because it protects children with undiagnosed allergies in cases when exposure to the allergen may result in anaphylaxis that could be deadly. The action is required to comply with the provisions of Chapters 122 and 123 of the 2023 Acts of Assembly.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because it is required by Chapters 122 and 123 of the 2023 Acts of Assembly.

Substance: The amendments require (i) each voluntarily registered family day home provider or at least one other caregiver employed by such provider to be trained in epinephrine administration and (ii) each voluntarily registered family day home provider to notify the parents of each child who receives care in such family day home whether the provider stores an appropriate weight-based dosage of epinephrine in the residence or home in which the family day home operates. The amendments include technical updates.

Issues: The advantage of this action is that the requirement that each family day home provider or at least one other caregiver employed by such provider to be trained in epinephrine administration increases protections for children by ensuring that caregivers are trained to respond to anaphylaxis and could potentially save the life of a child who experiences anaphylactic shock as a result of an allergic reaction. There are no disadvantages to this regulatory action.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 122 and Chapter 123 of the 2023 Acts of Assembly (mandate), which amended § 22.1-289.059 of the Code of Virginia, the State Board of Education (board) proposes amendments to the regulation concerning the possession and administration of epinephrine at family day homes voluntarily registered by the Virginia Department of Education.

Background. Consistent with § 22.1-289.02 of the Code of Virginia, the regulation defines family day home as a child day program offered in the residence of the provider or the home of any of the children in care for one through 12 children less than 13 years of age, exclusive of the provider's own children and any children who reside in the home, when at least one child receives care for compensation. Section 22.1-289.015 of the Code of Virginia states in part, "Any person who maintains a family day home serving fewer than five children, exclusive of the provider's own children and any children who reside in the home, may apply for voluntary registration." The mandate, as codified in § 22.1-289.059 of the Code of Virginia, states that the board shall amend its regulations to require each family day home provider or at least one other caregiver employed by such provider in the family day home to be trained in the administration of epinephrine and to notify the parents of each child who receives care in such family day home whether the provider stores an appropriate weight-based dosage of epinephrine in the residence or home in which the family day home operates. The board proposes to amend the regulation in this manner. Possession of epinephrine would be optional for family day homes. The family day homes would be required to notify parents in writing whether it stores an appropriate weight-based dosage of undesignated or stock epinephrine in the residence or home in which the family day home operates. The proposed text specifies that the provider or at least one other caregiver shall receive training in the administration of epinephrine, and: The administration of undesignated or stock epinephrine shall be performed by the provider or a caregiver who (i) [has current Medication Administration Training certification or is licensed in Virginia to administer prescription medications], (ii) has satisfactorily completed a training course developed or approved by the Department of Education in consultation with the Department of Health, or (iii) completed a course taught by a registered nurse, licensed practical nurse, nurse practitioner, physician assistant, doctor of medicine or osteopathic medicine, or pharmacist that includes the following: 1. Recognizing signs and symptoms of anaphylaxis; 2. Emergency procedures for responding to anaphylaxis; and 3. Instructions and procedures for administering epinephrine. This requirement applies to all family day homes, even those that decide not to possess epinephrine.

Estimated Benefits and Costs. Anaphylaxis is a severe, life-threatening allergic reaction. It can happen seconds or minutes after a person has been exposed to an allergen.² Immediate use of an epinephrine autoinjector can keep anaphylaxis from worsening and can be lifesaving.³ Thus, the proposed requirements that child day centers possess and store appropriate weight-based dosages of undesignated or stock epinephrine, and that at least one person qualified to administer epinephrine has access to the epinephrine at all times during regular facility hours, has the potential to save the lives of children with undiagnosed allergies in cases when exposure to the allergen may result in anaphylaxis. An EpiPen package comes with two auto-injectors of 0.3 mg and is approved for adults and children who weigh 66 lbs. or more. The EpiPen JR package comes with two auto-injectors of 0.15 mg and is approved for children who weigh 33 lbs to 66 lbs.⁴ There are now also Food and Drug Administration (FDA) approved epinephrine auto-injectors of 0.1 mg for infants and toddlers.⁵ Retail prices for a package of two brand name epinephrine auto-injectors range from $650 to $750 without insurance.⁶ FDA-authorized generic epinephrine is available from CVS at $109.99 per two-pack.⁷ Epinephrine autoinjectors have a shelf life of 12 to 18 months from the date of manufacture.⁸ DOE reports that it is already under contract with an outside entity that provides training in medication administration, including epinephrine administration. DOE is proposing a training program for staff at family day homes on the administration of epinephrine by this entity. If the training proposal is approved by VDH, the undesignated or stock epinephrine training would be developed. DOE's plan is for the training to be offered at no cost to the family day homes.

Businesses and Other Entities Affected. The proposed amendments would affect the 209 voluntarily registered family day homes. DOE believes all would qualify as small businesses. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁹ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹⁰ As acquiring and storing epinephrine would be optional, and since it appears that the training may be offered for free to the family day homes, no adverse impact is indicated.

Small Businesses¹¹ Affected.¹² As noted above, all voluntarily registered family day homes appear to be small businesses. The proposed regulation does not appear to introduce costs beyond those already required by the legislation.

Localities¹³ Affected.¹⁴ The proposed amendments neither appear to disproportionally affect particular localities nor affect costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and use value of private property or real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² Source: Mayo Clinic https://www.mayoclinic.org/diseases-conditions/anaphylaxis/symptoms-causes/syc-20351468.

³ Source: Mayo Clinic https://www.mayoclinic.org/diseases-conditions/anaphylaxis/diagnosis-treatment/drc-20351474.

⁴ See https://www.goodrx.com/epinephrine-epipen/how-to-save-cost.

⁵ See https://www.fda.gov/media/127806/download.

⁶ Supra, note 4.

⁷ See https://www.cvs.com/content/epipen-alternative.

⁸ See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5720482/.

⁹ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹⁰ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹¹ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹² If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹³ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁴ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to the Economic Impact Analysis: The State Board of Education thanks the Department of Planning and Budget for its thorough economic impact analysis.

Summary:

Pursuant to Chapters 122 and 123 of the 2023 Acts of Assembly, the amendments require (i) each voluntarily registered family day home provider or at least one other caregiver employed by such provider to be trained in epinephrine administration and (ii) each voluntarily registered family day home provider to notify the parents of each child who receives care in such family day home whether the provider stores an appropriate weight-based dosage of epinephrine in the residence or home in which the family day home operates.

8VAC20-850-20. Provider eligibility.

A. A family day provider and substitute provider shall be 18 years of age or older.

B. A family day assistant shall be 14 years of age or older.

C. A family day provider, assistant or assistants, and substitute provider shall be able to read, write, understand, and carry out the responsibilities in the Requirements for Providers this chapter.

D. A family day provider and substitute provider shall live in a county, city, or town that does not have a local ordinance for the regulation or licensure of family day homes.

E. A family day provider that is voluntarily registered pursuant to § 22.1-289.015 of the Code of Virginia shall not be required by law to be licensed. Family day homes serving five through 12 children younger than the age of 13 years of age or younger, exclusive of the provider's own children and any children who reside in the home, shall be licensed.

F. The administration of undesignated or stock epinephrine may be performed by a caregiver who:

1. Meets the requirements in 8VAC20-850-110 C;

2. Has satisfactorily completed a training course developed or approved by the Department of Education in consultation with the Virginia Department of Health; or

3. Has satisfactorily completed a course taught by a registered nurse, licensed practical nurse, nurse practitioner, physician assistant, doctor of medicine or osteopathic medicine, or pharmacist that includes the following:

a. Recognizing signs and symptoms of anaphylaxis;

b. Emergency procedures for responding to anaphylaxis; and

c. Instructions and procedures for the administration of epinephrine.

G. When medication is administered pursuant to § 22.1-289.059 of the Code of Virginia, the requirements in 8VAC20-850-90 C 9 and 8VAC20-850-110 C shall not apply.

H. The provider or at least one other caregiver shall receive training in the administration of epinephrine pursuant to subsection F of this section at three-year intervals.

8VAC20-850-90. Provider record requirements.

A. The provider's records shall be open for inspection by authorized representatives of the contracting organizations and the department.

B. The provider shall maintain on file a signed statement from each parent, affirming receipt of the information to parents statement.

C. The provider shall maintain an individual record for each child enrolled in care. This record shall include:

1. The child's full name (including nicknames, if any), address, and birth date;

2. Name, address, and telephone number of each parent or other responsible person or persons;

3. Name, address, and telephone number of each parent's place of employment and his or her each parent's work hours;

4. Name, address, and telephone number of one or more persons designated by the parent or parents to be called in case of emergency when a parent cannot be reached during the hours the child is in care;

5. Name, address, and telephone number of the child's physician;

6. Any known or suspected allergies and any chronic or recurrent diseases or disabilities;

7. The child's allergies to medication or drugs, if applicable, and directions for providing medicines to the child;

8. The name of the parent's hospitalization plan and number or medical assistance plan, if applicable;

9. The parent's signed authorization for the child's emergency medical treatment and written consent for giving of medications to the child;

10. Whether the provider stores an appropriate weight-based dosage of undesignated or stock epinephrine in the residence or home in which the family day home operates as required by § 22.1-289.059 of the Code of Virginia;

11. The child's date of enrollment in and date of withdrawal from the family day home, when applicable;

11. 12. Results of the health examination and up-to-date immunization records of each child, unless there is record of a medical or religious exemption;

12. 13. Names of persons authorized to visit or call for the child, as well as those who are not to visit or call for the child;

13. 14. A record of any accidents and injuries sustained by a child;

14. 15. The parent's signed authorization to use a substitute provider and his or her the substitute provider's name, address, and phone telephone number;

15. 16. The parent's signed authorization to transport children and to take trips out of the immediate community; and

16. 17. Any written agreement made between the family day provider and the natural parent, guardian, or other responsible person for each child in care. The agreement may cover hours of care per day, week, or month; cost of care per day, week, or month; frequency and amount of payment per day, week, or month; and any special services to be provided by either party to the agreement.

D. The emergency contact information listed in subdivisions C 2 through C 5 of this section shall be made available to a physician, hospital or emergency care unit in the event of a child's illness or injury.

E. Whenever the provider leaves the home with the child or children, the provider shall have the emergency contact information and medical information required by subdivisions C 1 through C 9 of this section in the caregiver's possession.

F. The family day provider shall not disclose or permit the use of information pertaining to an individual child or family unless the parent or parents or guardian or guardians of the child has granted written permission to do so, except in the course of performance of official duties and to employees or representatives of the contracting organization or the department.