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HHS/ACF RIN: 0970-AC82 Publication ID: Fall 2020 
Title: ●Provisional Employment Requirement for Prospective Child Care Staff Members 

This rule will propose to remove the Provisional Employment requirement at 45 CFR 98.43(d)(4) in the 2016 CCDF Rule. Currently, the Rule permits a prospective staff member to work for a child care provider on a provisional basis after the background check request is submitted and 1) The State or FBI criminal fingerprint results are obtained, and 2) the staff member is continually supervised. The removal of the provisional employment requirement would provide states and territories with the flexibility to determine their own provisional employment policies and procedures.

Agency: Department of Health and Human Services(HHS)  Priority: Other Significant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Undetermined  Unfunded Mandates: No 
EO 13771 Designation: Deregulatory 
CFR Citation: 45 CFR 98.43(d)(4)   
Legal Authority: 42 U.S.C. 9857   
Legal Deadline:  None

Statement of Need:

The current Child Care and Development Fund rule allows new child care staff members that have received satisfactory results on either an FBI or an in-state criminal registry fingerprint check to start employment on a provisional basis, if supervised at all times, while awaiting results for the remaining background checks.  This requirement is not explicitly stated in the law, but rather was an interpretation set forth in the regulations.  The majority of States are currently not in compliance and are under either a waiver or a corrective action plan (CAP).

By engaging in this rulemaking process, the public and stakeholders will be afforded an opportunity to provide input on provisional hiring practices that prioritize children’s health and safety without causing great disruption to the delivery of care for children.

Summary of the Legal Basis:

The Child Care and Development Block Grant Act of 2014 and section 418 of the Social Security Act (42 U.S.C. 618) provides the statutory authority for the implementation of the Child Care and Development Fund (CCDF) program.  This rule revises a provision that was not part of the governing statute.  

With one year remaining before a potential penalty would go into effect, there is sufficient time to complete the regulatory notice and comment process and to issue a final rule prior to any enforcement actions.



None. The CCDBG background check requirements are statutorily required and the provisional employment requirement is not. Revising the provisional employment requires a regulatory change.

Anticipated Costs and Benefits:

An estimate of costs to states to implement this revised requirement is not available at this time.



Action Date FR Cite
NPRM  05/00/2021 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: State 
Small Entities Affected: Governmental Jurisdictions  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Andrew Williams
Policy Division Director
Department of Health and Human Services
Administration for Children and Families
Office of Child Care, 330 C Street SW,
Washington, DC 20201
Phone:202 401-4795
Fax:202 690-5600