california has a child care crisis. the child care licensing agency is making things worse.
The law that established California’s current licensing agency begins by stating that the licensing agency “shall not” review “the content of any educational or training program” in the child care centers the agency will license and oversee. In other words, the law prohibits the agency from concerning itself with the quality of the early childhood education preschools provide. Instead, the agency was established as a law enforcement agency, tasked only with enforcing the licensing regulations.
Meanwhile, the vast majority of preschools are small businesses that are disproportionately owned by women and minorities compared to other industries. These owners typically have no background in law and have neither the time nor the resources to utilize attorneys to challenge the agency’s actions when the agency oversteps.
Because the goals of the licensing agency are centered around enforcement, its employees are incentivized to enforce anything and everything. And because preschools typically do not challenge the licensing agency’s directives or decisions, the licensing agency has rarely been held accountable when it seeks to enforce a “rule” the agency actually has no power to enforce. The agency employees who do the most enforcing are rewarded with advancement within the agency, which only deepens and hardens the agency’s focus on excessive enforcement rather than education.
All these factors have combined to create a toxic culture within California’s child care licensing agency that is centered on having its authority obeyed and that is allergic to accountability. The agency’s inspections of the state’s best preschools have become nothing but citation-hunting expeditions. The agency and its employees refuse to acknowledge or atone when it makes a mistake. And worst, when a child care center attempts to hold the agency accountable to its obligations under the law, the agency retaliates, without regard for the harm done to children, families, and taxpayers. We have the data to prove it.
the reason we reviewed every licensing report issued during covid
On January 11, 2022, a CCLD employee telephoned Aspen Leaf Preschool to say that an individual had contacted CCLD with a "concern" that Aspen Leaf was not enforcing masking in its preschools.
Aspen Leaf explained the scientific and developmental reasons why masks are ineffective in full-day preschool programs (e.g., the 3+ hours when children are eating and sleeping and cannot be masked renders masks at other times moot), and explained all the steps it had taken since the onset of the pandemic to reduce the risks of transmission, and which successfully prevented any transmission of COVID-19 in Aspen Leaf preschools from March 2020 through the entirety of 2021.
The CCLD employee responded that it is a "licensing requirement" that Aspen Leaf comply with the California Department of Public Health's "guidance" for the use of face masks.
She further stated that CCLD had just shut down a preschool in El Cajon for failure to abide.
Aspen Leaf responded by stating that CCLD did not have the jurisdictional authority to enforce CDPH's guidance. (See The Legal Argument below.)
One week later, CCLD responded with force, raiding all of Aspen Leaf's locations simultaneously, issuing Type A citations to each, and pre-emptively delaying the licensing of a new and separate Aspen Leaf location.
When Aspen Leaf's owners, parents of Aspen Leaf children, and elected officials contacted CCLD with concerns and questions about CCLD's treatment of Aspen Leaf, CCLD ignored the concerns or sent generic responses saying CCLD's conduct towards Aspen Leaf was standard.
To find out if CCLD was telling the truth, we reviewed every publicly available inspection report CCLD has issued across the entire state of California throughout the entire COVID-19 pandemic.
In at least 85 reports, CCLD specifically noted that children and/or staff were not wearing masks, but CCLD did not issue any citation at that time. (And in 213 additional reports, it is implied or suggested that CCLD observed children and/or staff unmasked, but it is not stated explicitly enough to confirm.)
CCLD issued 74 "Type B" citations (observed a "potential" risk to health or safety).
CCLD issued 22 "Type A" citations (observed an "immediate" risk to health or safety).
Only 5 facilities in all of California were issued a Type A citation even though CCLD received no complaint about the facility not enforcing masking and without first issuing a Type B citation to the facility. Three of those five facilities are owned by Aspen Leaf Preschool in San Diego, and were issued simultaneously, one week after Aspen Leaf asserted in good faith that CCLD did not have the jurisdictional authority to enforce Department of Public Health mask guidance.
When CCLD observed a lack of masks during a routine inspection, CCLD did not issue a citation in the overwhelming majority of instances (suggesting CCLD did not consider the lack of masks to pose a potential or immediate threat to health and safety).
When CCLD receives a complaint about a lack of masks at a facility that CCLD then corroborates through its own observations, CCLD issued a Type B or Type A citation approximately 70% of the time, but no citation at other times.
There is no discernible or consistent standard for the issuance of a Type A, Type B, or no citation, and some inspectors issued both, with no apparent difference in the facts.
There is no discernible or consistent standard for determining whether a facility is complying after a citation has been issued. In many reports, CCLD inspectors observed numerous (even majority) of children unmasked, but determined that the facility was complying with the mask requirement because the facility was "encouraging" children to wear masks. Yet in other reports, CCLD inspectors ruled that the facility was not complying with the mask requirement (and even issued further citations) because the inspectors observed unmasked children even though the facility was "encouraging" children to wear masks.
Contrary to CCLD's assertions, its actions against Aspen Leaf Preschool after Aspen Leaf set forth a good-faith legal dispute over CCLD's legal authority to enforce CDPH guidance were extraordinary, unprecedented, and blatantly retaliatory.
In several instances, CCLD observed children and/or staff were not masked, but the inspectors reported that they observed no licensing "deficiencies" during that inspection. When CCLD later received a complaint that the facility was not requiring masks, CCLD relied on its prior observations of unmasked individuals, which CCLD stated at the time presented no "deficiencies," as the basis for issuing a citation for the licensing "deficiency" of failing to enforce masking.
One facility was apparently featured on local news, where the facility stated they were not requiring the children to be masked. A CCLD inspector apparent saw the news report, then issued his or her own "complaint" against the facility, which initiated an inspection and issuance of a Type A citation. CCLD had inspected that facility less than two months prior, and issued no citation at that time.
Some CCLD inspectors accepted face shields as "face coverings" while other CCLD inspectors did not.
Most CCLD inspectors stated that the state mask guidance applied to children 2 and older, but some stated the guidance applied to ages 3 and older.
In many reports, the CCLD inspectors recorded that the facility owner or administrator was confused about whether the Department of Public Health's mask guidance was a licensing "requirement" or just a "recommendation."
When facilities acknowledged that they were not enforcing masking, some CCLD inspectors completed their inspection in 30 minutes or less, while others spent 4+ hours continuing to "investigate."
Some facilities were cited for continuing to use water fountains as a drinking source, which is not even mentioned in the Department of Public Health's COVID guidance for child care centers.
One facility fed peanut butter to a child with a known and "sever [sic] peanut allergy." The child then had a reaction, but the facility did not inform the child's parents or authorized representative. CCLD issued the facility a Type B citation, and only for failing to inform CCLD of the incident (with no citation for failing to inform the family).
inappropriately interviewing children
CCLD has the legal authority to interview children, and legally may do so privately (with no parent, teacher, or staff member present) and without first informing the child's parents or authorized representative.
However, its own department policies state that child interviews should only be conducted when "necessary."
In many instances, CCLD inspectors interviewed children (sometimes privately, and without another adult allowed to be present), even though the facility had already admitted in person and in writing that it was not enforcing masking.
Facilities, parents, guardians, and elected representatives have repeatedly contacted CCLD to ask for an explanation for why the CCLD inspectors exercised their authority to interview children privately when the inspectors already had the facilities' own confirmation.
To date, CCLD has ignored all questions or complaints, or responded only with citations to the department's legal authority to interview children.
We downloaded CCLD's list of every infant and child care center in California, which is publicly available on CCLD's website.
We identified 6,062 infant and child care centers in all of California that received at least one CCLD inspection on or after April 1, 2020 (Los Angeles issued state's first mask mandate on April 8, 2020).
Using the facility search function on CCLD's website, we reviewed every available report dated April 1, 2020 or after for all 6,062 centers identified in CCLD's list.
Some reports the list stated should be available are missing, and no reports are available for centers that are now closed or which have an "inactive" license.
We used keywords (mask, face covering, facial covering, CDPH, public health, technical assistance, technical advisory, COVID-19 safety, COVID safety) to identify all potentially relevant CCLD reports.
We personally read and analyzed every report containing at least one of the search terms.
After multiple rounds of sorting and review, we organized our findings in the spreadsheet available below.
review the data for yourself
Sheet 1 - "Citation re lack of masks" lists every facility in California that received a "Type A" or "Type B" citation for a lack of masks on children and/or staff. (Note: Because reports are not available for closed facilities, this list does not capture facilities that were cited for lack of masks but closed before we downloaded the list from CCLD.)
PDFs of the reports referenced in Sheet 1 are available at the Google Drive link at the top of Sheet 1.
Sheet 2 " - "Lack of masks but NO citation" lists every facility for which we located a report in which the CCLD analyst specifically noted that students and/or staff were not wearing masks, but where no citation was issued. (Note: A "technical violation" or "technical advisory" is not a formal citation.)
PDFs of the reports referenced in Sheet 2 are available at the Google Drive link at the top of Sheet 2.
Sheet 3 - "POSSIBLE lack of masks & no citation" lists facilities where a lack of masks was implied or suggested in a report, but where the language was not definitive enough to include on Sheet 2.
Sheet 4 - "Report missing/unavailable" lists all facilities for which reports were missing or unavailable. Facilities listed in Sheet 1 or Sheet 2 may be listed here if at least one report was unavailable.
Sheet 5 - "Reviewed-NA" lists all facilities for which we reviewed reports, but which had no reports to warrant inclusion on Sheets 1, 2 or 3.
the legal argument
"No state agency shall . . . enforce, or attempt to enforce any guideline, order, . . . or other rule, . . . unless the guideline, . . . order, . . . or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter."
California Government Code § 11340.5(a)
California's child care licensing agency (CCLD) is enforcing the California Department of Public Health's "guidance for the use of face masks." CCLD has never adopted or even proposed a regulation or emergency rule to do so, even though California is now almost two full years into the COVID-19 pandemic.
Use this data and analysis however you want.