Many Kentucky child care centers welcome larger class sizes as Beshear appeals ruling

Jul. 9--Many Kentucky child care centers this week welcomed a return to larger class sizes while Gov. Andy Beshear appeals a Boone Circuit Court decision that blocked his cap on their classes and some other rules for businesses reopening during the COVID-19 pandemic.

Last Thursday, Boone Circuit Judge Richard Brueggemann struck down Beshear's policy allowing child care centers to reopen with a maximum capacity of 10 children per class. For now, the limit returns to the usual 28 children. The Beshear administration has appealed that ruling to the Kentucky Court of Appeals.

"It was just ridiculous," said Melanie Barker, owner of Bowling Green'sABC Children's Academy.

"The governor ordered it where we couldn't have more than 10 kids per group," Barker said. "For a larger class, I had to divide the group, hire another teacher just for that group and build a wall across the room. And if you have 10 5-year-old kids but half of them don't show up one day, you have to pay a teacher to watch five kids. You aren't allowed to combine them with another class of 5 year olds."

Child care centers that were ordered closed for three months because of COVID-19 can't afford to hire additional teachers and rebuild their facilities to adapt to smaller staff-to-student ratios, Barker said.

"What got me is, they're telling us this could last for nine months. We don't have nine months," Barker said. "I've been warning the cabinet and their lawyers, anyone who will listen, we're going to have to close for good if we don't get some relief on these ratios. We're not state run, we are private businesses. We've put all of our money into these places, and we're going to lose it."

Kentucky Health and Family Services Secretary Eric Friedlander told a legislative committee on Wednesday that the 10-child limit was meant to make contact tracing easier in the event of a COVID-19 outbreak at a daycare. With contact tracing, public health officials try to find the people exposed to someone who tested positive for the novel coronavirus to learn if they, too, are infected.

"When you think about contact tracing for a large facility, you're much better off with a contained size," Friedlander told lawmakers in Frankfort.

"There was a recent court decision that changed that, so it's all in the court system now," Friedlander said. "It's in a state of flux."

The Beshear administration encourages child care centers to stick with the 10-child limit while the courts are considering the governor's appeal, Beshear spokeswoman Crystal Staley said earlier this week.

"At a time when child care center cases are surging in places like Texas, which recently reported 950 cases -- 307 children and 643 staff -- at 668 child care locations, we advise centers to continue to follow our guidance. In order to keep children safe, it is critically important that child care centers follow the advice of public health experts," Staley said.

Christopher Wiest, an attorney who represents the Boone County businesses challenging Beshear's reopening rules, said he had to intervene by phone Wednesday and threaten to bring contempt of court charges after an inspector for the Cabinet for Health and Family Services prepared to cite a Louisville daycare for having more than 10 children together.

The inspector initially refused to recognize the Boone Circuit Court decision in Jefferson County, but the judge's ruling covers all daycares across the state, Wiest said.

"The court's order is in effect and is being enforced, even if the governor has filed a writ of appeal," Wiest said.

Cabinet spokeswoman Susan Dunlap later disputed Wiest's version of events. Dunlap said the state inspector was at the Louisville daycare for a routine re-certification visit and did not intend to cite it for class sizes. The cabinet explained the Boone Circuit Court order to its employees as soon as it was handed down, Dunlap said.

The number of child care centers in Kentucky already had plunged from about 4,400 in 2013 to about 2,400 in 2019, largely due to a loss of public child-care assistance funding, Bradley Stevenson of the Child Care Council of Kentucky told a legislative committee on June 26.

As of June, only 2,171 licensed child care centers remained in the state, with 165,314 slots available for children, Stevenson said.

Surveys of daycare operators indicate that up to 15 percent of the centers ordered closed in March because of the pandemic might not ever reopen, which could mean the loss of 25,000 slots, he said. So far, he added, about 40 percent of the state's daycares have not reopened.

"The group size is why," Stevenson said.

"I think COVID-19 -- the impact from COVID-19 -- is going to have a very similar impact on the child care structure" as the loss in 2013 of public child-care assistance funds, Stevenson said. "I think if we go to half of where we are today, we are in a real crisis as it relates to the number of slots available to working parents throughout Kentucky."

Stevenson and Benton daycare owner Jennifer Miller Washburn testified June 26 against Beshear's class size limits. and some of the other restrictions placed on child care centers.

For example, Washburn told lawmakers, her daycare -- iKids Childhood Enrichment Center -- owns more than an acre of fenced-in recreation area adjacent to its building where the children can play. But under the Beshear administration's rules, she was limited to permitting only 10 children at a time in that vast space, she said.

Under the usual state regulations, child care centers can have classes with up to 28 children for pre-school students age 4 and 5, although there must be one staff member for every 14 children. The ratio of staff-to-children gets increasingly stricter for younger children.

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