SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
67–349
2000
JEREMY AND JULIA'S LAW
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 469
OCTOBER 4, 2000
Serial No. 123
Page 2 PREV PAGE TOP OF DOC
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Page 3 PREV PAGE TOP OF DOC
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Crime
Page 4 PREV PAGE TOP OF DOC
BILL McCOLLUM, Florida, Chairman
STEVE CHABOT, Ohio
BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
CHARLES T. CANADY, Florida
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MARTIN T. MEEHAN, Massachusetts
STEVEN R. ROTHMAN, New Jersey
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
GLENN R. SCHMITT, Chief Counsel
DANIEL J. BRYANT, Chief Counsel
RICK FILKINS, Counsel
CARL THORSEN, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
HEARING DATE
October 4, 2000
Page 5 PREV PAGE TOP OF DOC
TEXT OF BILL
H.R. 469
OPENING STATEMENT
Chabot, Hon. Steve, a Representative in Congress From the State of Ohio, and presiding chairman, Subcommittee on Crime
WITNESSES
Fiedelholtz, Mark, Esq., Plantation, FL
Haas, Tina, Albany, NY
Horowitz, Michael, Esq., Deputy Assistant Attorney General, Criminal Division, Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Fiedelholtz, Mark, Esq., Plantation, FL: Prepared statement
Lazio, Hon. Rick, a Representative in Congress From the State of New York: Prepared statement
Page 6 PREV PAGE TOP OF DOC
APPENDIX
Material submitted for the record
JEREMY AND JULIA'S LAW
WEDNESDAY, OCTOBER 4, 2000
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 1:30 p.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [member of the subcommittee] presiding.
Present: Representatives Steve Chabot and Robert C. Scott.
Staff present: Glenn R. Schmitt, chief counsel; Veronica L. Eligan, staff assistant; James Rybicki, staff assistant; and Bobby Vasser, minority counsel.
OPENING STATEMENT OF PRESIDING CHAIRMAN CHABOT
Mr. CHABOT. We will come to order. This is a meeting of the Subcommittee on Crime of the Judiciary Committee. I am Congressman Steve Chabot. I will be here chairing the hearing on behalf of Chairman McCollum, who is unable to be with us here this afternoon. I will begin by reading a statement by Chairman McCollum on his behalf.
Page 7 PREV PAGE TOP OF DOC
''Today the Subcommittee on Crime is holding a hearing on H.R. 469, Jeremy and Julia's Law, introduced by Congressman Rick Lazio of New York. This bill is named for Jeremy Fiedelholtz and Julia Haas, two young children who died deaths that should not have happened; deaths that could have been prevented.
''I can think of nothing more painful in life than suffering the loss of a child, and I am saddened that once again the Crime Subcommittee is called upon to review legislation named for children who should still be alive today. Today's hearing is made all the more painful in that both of these children died while in day care. Both died through the apparent neglect of the very persons whom the parents believed would diligently care for them.
''My heart goes out to the parents of these children, and I am hopeful that the testimony today of Mr. Mark Fiedelholtz, Jeremy's father, and Joe and Tina Haas, Julia's parents, will bring national attention to this matter and prevent future tragedies.
''H.R. 469 would create a new Federal crime involving false statements made by child care providers for reckless conduct by those providers. The bill would make it a crime for any child day care provider to knowingly make a false representation regarding the provider or the care given by that provider to a parent or guardian or law enforcement officer if the child's safety or health is thereby placed at substantial risk.
''The maximum punishment under the statute would be imprisonment for up to 1 year. The statute would also make it a crime for a child day care provider to recklessly cause serious bodily harm to a child. The maximum punishment for that crime would be 3 years imprisonment.
Page 8 PREV PAGE TOP OF DOC
''The term ''child day care provider'' is defined in the bill to mean any person or entity that provides child day care in a place other than the home of the child or children for whom the care is provided.
''I wish to point out that there is no current Federal criminal statute that specifically punishes misconduct by day care providers. However, research conducted by the Congressional Research Service indicates that 45 States license and regulate day care providers. Of those States, 29 establish a misdemeanor penalty for violations of the regulatory requirements. All 50 States make it a crime to recklessly cause a child's death and 40 States have a reckless endangerment statute that punishes reckless conduct that causes physical injury to another person.
''In my home State, Mr. Fiedelholtz was instrumental in garnering support for and passing what is known in Florida as Jeremy's Law. This legislation was passed by the State House and Senate and signed into law by Governor Bush on May 26, 1999, to criminalize intentional day care misrepresentations. The main thrust of Jeremy's Law is to provide criminal consequences to day care operators who intentionally misrepresent or defraud parents and results in great bodily harm to a child. I commend Mr. Fiedelholtz for his efforts and look forward to his testimony.
''The question before us today, I believe, is why have these State statutes proven inadequate to save children like Jeremy and Julia. Is it due to lax law enforcement or are tougher statutes needed? And does this problem need the Federal Government to act? We simply cannot allow such needless deaths to go unpunished.
''I want to publicly thank Rick Lazio for his leadership in bringing this issue to my attention. Congressman Lazio has known Julia's parents for some time, and introduced H.R. 469 almost 2 years ago. I am glad that we are able to have a hearing on this bill before Congress adjourns, and look forward to future action on this legislation prior to the end of this session.
Page 9 PREV PAGE TOP OF DOC
''I thank all of the witnesses who will be appearing here today, and look forward to receiving their testimony.''
That concludes Chairman McCollum's statement, and I will now yield to the gentleman from Virginia, Mr. Scott, who is the ranking member of the committee.
[The bill, H.R. 469, follows:]
106TH CONGRESS
1ST SESSION
H. R. 469
To amend title 18, United States Code, to provide penalties for certain crimes relating to day care providers in or affecting interstate or foreign commerce.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 2, 1999
Mr. LAZIO (for himself, Mr. SHOWS, Mr. HORN, Mr. GILMAN, and Mr. BARCIA) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 18, United States Code, to provide penalties for certain crimes relating to day care providers in or affecting interstate or foreign commerce.
Page 10 PREV PAGE TOP OF DOC
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Jeremy and Julia's Law''.
SEC. 2. DAY CARE PROVIDER CRIMES.
(a) IN GENERAL.—Chapter 89 of title 18, United States Code, is amended by adding at the end the following:
''§1822. Day care providers
''(a) Whoever, being a child day care provider in or affecting interstate or foreign commerce, or an employee thereof, knowingly makes any false representation regarding that care, that provider, or that employee to—
''(1) a parent or guardian considering the placement of a child in the care of that provider; or
''(2) a law enforcement officer;
and thereby places a child's safety or health at substantial risk shall be fined under this title or imprisoned not more than one year, or both.
''(b) Whoever, being a child day care provider in or affecting interstate or foreign commerce recklessly causes serious bodily injury (as defined in section 1365) shall be fined under this title or imprisoned not more than 3 years, or both.
''(c) As used in this section, the term 'child day care provider' means any person or entity that provides child day care in a place other than the home of the child or children for whom the care is provided.''.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 89 of title 18, United States Code, is amended by adding at the end the following new item:
Page 11 PREV PAGE TOP OF DOC
''1822. Day care providers.''.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate your holding this hearing on H.R. 469. I look forward to the testimony of the witnesses to get an understanding of why the Federal Government needs to intervene in a subject area that is traditionally regulated at the State and local level. My experience in day care regulation during my 15 years in the Virginia General Assembly was that there was a constant debate over the extent to which even the State government should intervene in day care oversight, let alone the Federal Government.
While I appreciate the desire of the families who testify today to prevent another family from suffering a similar loss, we have to find out what exactly the Federal Government can do about it. With a Federal law, the question becomes who will monitor it and who will enforce it? If the only enforcement is after a violation is discovered as a result of some tragedy, I am not sure what we have accomplished with this particular bill.
I am inclined to believe from my experiences with day care regulation and oversight that our best approach is to focus on prevention through rigorous regulation and monitoring by local licensing authorities. That takes resources and attention at the local and State level. Perhaps looking at conditioning Federal day care money on regulatory and monitoring standards in areas covered by the bill would be a better way of focusing the earnest concern of the witnesses here today to protect children in day care.
One other question we must consider is the type of—what type of day care constitutes interstate commerce and whether we can effectively get to the issues of concern through the Federal commerce clause nexus. I expect the Department of Justice witness to discuss this particular issue.
Page 12 PREV PAGE TOP OF DOC
So, Mr. Chairman, I look forward to the testimony of the witnesses and working with you on how we might best assist from a Federal level in preventing the kinds of tragedies that we will hear about today.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you, Mr. Scott.
Mr. Lazio regrets that he cannot be with us today. He is in upstate New York. He thanks Chairman McCollum for calling this important hearing and thanks everyone who is here. He would also like to thank Mrs. Haas and Mr. Fiedelholtz for testifying today and for their courage to tell their tragic stories, and Mr. Lazio also has a statement that he would like to add to the record. So I ask unanimous consent that that statement can become a part of the record.
Without objection, the statement is added as part of the record.
[The prepared statement of Mr. Lazio follows:]
PREPARED STATEMENT OF HON. RICK LAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
I thank the subcommittee chairman, Mr. McCollum for calling this important hearing today and thank the subcommittee members for being here. I also wish to thank the parents, who have shown such courage in their willingness to come forward and to tell their tragic stories.
Page 13 PREV PAGE TOP OF DOC
Mr. Chairman, Charles Dickens opened his classic novel with the words: ''It was the best of times, it was the worst of times.'' The opening line of Dicken's book is emblematic of the conflicting feelings that all parents come to know once they have children. Parenthood is a humbling experience.
It is the best of times—a time when the joys start immediately. But it can also be the worst of times—a time when the fears, uncertainties and overwhelming sense of responsibility aren't far behind. Fortunately, for most of us, our fears are never fully realized. Yet, for more parents than we like to admit, tragedy strikes and their lives become a nightmare from which they cannot awake.
Today we will hear from Tina Haas who lost her three-month-old baby, Julia, at the hands of a negligent day care provider; and from Mark Fiedelholtz, the father of another 3 month-old baby, Jeremy, who also unnecessarily lost his life. The circumstances surrounding the deaths of these two infants are frighteningly similar. In both cases, the day care provider misled parents on a series of critical issues—
How many children would be accommodated each day by the day care facility,
Who would be responsible for caring for their child,
The qualifications of those who cared for their child.
In our modern economy, childcare is an integral part of the American way of life. Every day, 13 million children under the age of six are cared for by people which parents hope and expect that they can trust. While most day care providers are competent, some irresponsible providers operate their business to the detriment of our children. Today, millions of parents have little choice. They are forced to place their loved ones in child care while they work to support their families.
Page 14 PREV PAGE TOP OF DOC
These two tragic cases demonstrate a crying need for federal legislation that would deter and punish unscrupulous day care providers. Such legislation would constitute a significant step towards the goal of preventing needless deaths and injuries among the most vulnerable in our society. It would substantially reduce the number of cases in which day care regulations are violated, and children are neglected.
Jeremy and Julia's Law would make it a crime if a day care provider intentionally misrepresents:
(1) The credentials, licenses or permits that the provider or the staff possesses
(2) The number of children for whom they care
(3) The quality of the day care facilities.
Specifically, it would be a misdemeanor if a negligent provider puts the child's safety at risk. In the event that a child is physically harmed or dies because of provider negligence, this law would make such acts a felony. This bill would give parents the peace of mind knowing that their children are safe and secure while being cared for by responsible, reliable, licensed day care professionals.
Mr. Chairman, for years, Congress has passed legislation designed to ensure the safety of certain portions of the American population. We passed OSHA legislation to protect American workers. We passed the Violence Against Women Act to protect women against spousal abuse.
Page 15 PREV PAGE TOP OF DOC
It is now time for Congress to take steps to protect the most innocent and vulnerable segment of American society—our children in daycare. We owe it to these children. We owe it to their parents. We owe it to ourselves.
Thank you.
Mr. CHABOT. And I will now introduce our first panel, which consists of one witness, and that is Michael Horowitz, who is the chief of staff to the Assistant Attorney General for the Criminal Division at the Department of Justice.
In that position, Mr. Horowitz helps oversee the work of over 800 employees in the Criminal Division. He also provides advice to the AAG of the Criminal Division on all legal policy and administrative issues affecting the division, and he directly oversees the Office of Administration and the Office of Policy and Legislation.
Mr. Horowitz also has served as Deputy Assistant Attorney General in the Criminal Division. Prior to coming to Main Justice, he was an Assistant United States Attorney in the Southern District of New York, having served as Deputy Chief of the Criminal Division and the Chief of the Public Corruption Unit.
Mr. Horowitz received the Attorney General's Distinguished Service Award for his performance in a significant public corruption case, and we welcome you here this afternoon, Mr. Horowitz. At this time, we would be very pleased to hear your testimony.
Page 16 PREV PAGE TOP OF DOC
Mr. HOROWITZ. Thank you, Congressman.
Mr. CHABOT. Thank you.
STATEMENT OF MICHAEL HOROWITZ, ESQ., DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. HOROWITZ. Mr. Chairman, Ranking Member Scott, I am pleased to be here to testify on behalf of the Department of Justice on H.R. 469, known as Jeremy and Julia's Law, which would provide Federal criminal penalties for certain acts relating to day care—child day care providers.
Whenever our children are placed at risk or are harmed due to misrepresentations and falsehoods by day care providers regarding the nature of the services provided, or their personal backgrounds, there is cause for serious concern.
Incidents such as those involving Jeremy Fiedelholtz and Julia Haas are inexcusable and require a serious response by those in government, and especially by those in law enforcement, to ensure that other parents and their children are not placed in similar situations.
This bill is an understandable effort to help reduce, through deterrence and the incarceration of offenders, future conduct of this kind.
The Federal Government already plays a role in ensuring the quality and safety of care for the Nation's children. Indeed, the Department of Health and Human Services has advised us that the administration has proposed several initiatives to strengthen the quality of child care; for example, the President's proposal to invest in a new Early Learning Fund that will make resources available to States and communities to improve child day care through better monitoring of those programs and enforcement of State and local health and safety standards.
Page 17 PREV PAGE TOP OF DOC
States maintain primary responsibility for child care standards and enforcement and in a typical regulatory scheme sanctions can range from administrative measures, such as license suspensions, to civil penalties and ultimately to criminal sanctions.
Under H.R. 469, if enacted, the Federal Government's role would be confined to the imposition of criminal penalties for the most serious violations, with States having concurrent jurisdiction to impose such penalties.
Thus, the Federal Government, unlike the supervising State, would not be able to consider an entire range of sanctions but could only determine whether or not to pursue a criminal case.
While this role is not unique for the Federal Government, the Department of Justice has generally supported such a role only on the basis of a strong record demonstrating the need for a Federal role.
Before reaching a final position on this particular legislation, we would wish to know far more concerning such matters as the extent of the problem facing parents and local law enforcement, the nature of the States' regulatory and enforcement laws that address it and whether the potential for Federal criminal sanctions would be expected to significantly improve the safety of our Nation's children in the performance of the child day care provider industry.
Although the Department has not yet reached a final position on this legislation, we do believe there are several drafting ambiguities in H.R. 469 that need correction. For one thing, we are concerned that the definition of the term ''child day care provider'' is overbroad and could be construed to cover friends and grandparents who without remuneration provide day care for a parent who traveled to employment in another State.
Page 18 PREV PAGE TOP OF DOC
This scope of coverage raises constitutional concerns under the commerce clause in light of recent Supreme Court decisions. To avoid those constitutional concerns and to otherwise properly limit the legislation to its likely intended purview, we would suggest that the bill be made to apply only to providers who are engaged in child day care as a commercial activity.
In addition, we believe it would be helpful if the legislation defined the term ''law enforcement officer.'' Further, assuming the subcommittee believes that a misrepresentation that merely poses a danger to a child merits Federal criminal penalties, we observe that the bill is limited in subsection (a) to misrepresentations that are made before a child is placed in day care, but a misrepresentation after placement may also endanger a child. Limiting the scope of the legislation in this regard seems problematic. Either the proposed false statement offense in subsection (a) should be eliminated as too inchoate or expanded to encompass false statements that endanger a child both before and after the child has been entrusted to the provider's care.
Additionally, with respect to the offense listed in subsection (b), which requires serious bodily injury to a child, we suggest that a greater penalty may be appropriate where death as opposed to serious bodily injury results.
Lastly, we believe that the term ''serious bodily injury'' should be defined by reference to title 18, United States Code, section 2119 rather than as in the current form of the bill to title 18, United States Code, section 1365, since section 2119 has an appropriately wider reach that embraces certain nonviolent sexual offenses.
Page 19 PREV PAGE TOP OF DOC
Mr. Chairman and Ranking Member Scott, that completes my prepared remarks. I would be glad to try and answer any questions that the committee may have.
Mr. CHABOT. Thank you very much. We appreciate your testimony here this afternoon, and now the committee members have up to 5 minutes to ask questions. I only have a couple.
First of all, could you elaborate a little more on the relationship, the Federal nexus here, and the commerce clause and whether or not—assuming that you did clean up the remuneration portion, that it was not just grandma but somebody that was charging for services, if you did clean that up and change that so there was money exchanged, if you feel that that would be constitutional or would it still be subject to a constitutional attack?
Mr. HOROWITZ. It is our belief that with that change that the law would survive constitutional scrutiny; that as long as there was the requirement of a commercial activity, which is what the change we are proposing would suggest, that that would be sufficient under the recent Supreme Court decisions to avoid attacks on the interstate commerce clause nexus requirement.
Mr. CHABOT. Okay. Thank you. If you did not make that change, do you think there is a likelihood it would be subject to a constitutional challenge?
Mr. HOROWITZ. We think it is a closer call, and it might not survive scrutiny. I don't think we would opine that it would, in fact, be struck down, but we do have the concern that it could be interpreted to cover a situation which I think would cause interstate commerce problems.
Page 20 PREV PAGE TOP OF DOC
Mr. CHABOT. Thank you.
Now also there are a number of States that already regulate and make criminal some of the activities that we are talking about here.
Would you discuss briefly what would, as a practical matter, occur if we had one of these tragic cases as to whether the law enforcement would then likely go to the local county prosecutor or whether they would go to the Federal prosecutor, or what would likely happen under those types of circumstances?
Mr. HOROWITZ. Let me speak based on my prior experience as an Assistant U.S. Attorney. The ideal way that it would happen and hopefully the way it would happen is that there would be some understanding between the local law enforcement officials and the Federal law enforcement officials, presumably the local police department and the local FBI, and that they would have some understanding which would, I think, primarily rely upon the local police to investigate and the local district attorney or State's attorney to prosecute those matters, but that in those circumstances where there was a need for Federal law enforcement, the FBI's resources or for some reason the Federal prosecutors to step in, hopefully the way the process would work is that either the local police department or the local prosecutor would bring the case over to the Federal law enforcement officers and ask for their help, and I could envision that happening, for example, in a case that crossed State lines, for example, where local law enforcement might have difficulty, and if they have subpoena power, for example, being able to exercise that subpoena power in other jurisdictions.
Page 21 PREV PAGE TOP OF DOC
That would be, hopefully, the way the process would work.
Mr. CHABOT. Thank you. And my final question is, if the conduct under existing law—if the conduct was particularly egregious, I would assume that under many State laws the local prosecutor would have an option, say, to go for negligent homicide or some other appropriate penalty that would permit an even more significant penalty than what we are discussing here. So I guess it would depend on what State you are talking about and what their laws are, but if you would discuss that briefly.
Mr. HOROWITZ. Yes. That actually is a very good point that I should have mentioned as well, that obviously one of the factors in discussing this between the local and the Federal prosecutor would be where the tougher penalty would lie. This statute has a 3-year maximum penalty for serious bodily injury. It certainly seems to us if there is going to be a Federal penalty as in other Federal statutes where death results, there should be a possibility of a higher penalty than just 3 years, and that, I think, is one of the factors that I think the committee and members should consider in deciding how to proceed with this legislation.
Mr. CHABOT. Thank you. That concludes my questions. I will at this time yield to the gentleman from Virginia, Mr. Scott, for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Horowitz, you mentioned the Early Learning Fund legislation. Do you know the status of that?
Page 22 PREV PAGE TOP OF DOC
Mr. HOROWITZ. I don't as of now, Mr. Scott, but I can find that out.
Mr. SCOTT. Okay. The present law and penalties, you mentioned that other States have penalties for child endangerment. What are the typical penalties in the States for that kind of crime?
Mr. HOROWITZ. Well, my understanding is somewhat limited. As to the various States, as noted in Chairman McCollum's statement, there are a number of different States that have a number of different statutes that can cover this area.
Obviously, a reckless endangerment crime that results in death I would think in most States would carry a penalty significantly more than just the 3 years at issue here, but I don't have that in front of me and we certainly could check on that.
Mr. SCOTT. Is child endangerment that does not result in any injury at all a crime in virtually every State, placing a child in substantial risk although no injury occurs?
Mr. HOROWITZ. I am not certain, although I do know from reviewing this proposed legislation that under the law passed in New York and in Florida, similar legislation passed by the States in New York in Florida, it would criminalize similar types of conduct.
Mr. SCOTT. Can you imagine any State that does not have a statute that criminalizes placing a child in substantial risk of safety or health—would you imagine that every State would have that?
Page 23 PREV PAGE TOP OF DOC
Mr. HOROWITZ. I would think that every State would have some provisions of some sort.
Mr. SCOTT. In these statutes, would making a false statement which places the child at substantial risk of safety and health, would that count as a violation of most child endangerment statutes?
Mr. HOROWITZ. I am not sure that that would be the case, Congressman. I don't know one way or the other.
Mr. SCOTT. Okay. You mentioned commercial activity, and I thought you implied that the commercial activity would have to be for profit. Would nonprofit commercial day care count as what you would want in the bill?
Mr. HOROWITZ. I think it could—for purposes solely of an interstate commerce nexus, I think it could qualify.
Mr. SCOTT. So it wouldn't have to be a—well, a proprietary day care; a nonprofit day care would qualify, too, if they are charging money for the care?
Mr. HOROWITZ. Correct.
Mr. SCOTT. Under the commerce clause, if the day care business is totally within the confines of one State and all of the customers are within the State, how would that fit within the commerce clause for Federal jurisdiction?
Page 24 PREV PAGE TOP OF DOC
Mr. HOROWITZ. I think our argument in that circumstance, Congressman, would be that the parents who are leaving the children at the day care facility—first of all, the day care facility would be engaging in some commercial activity, whether for-profit or not-for-profit, there would be financial activity resulting from that, and that that would satisfy the minimum threshold necessary under the interstate commerce clause. We would also, I think, be able——
Mr. SCOTT. Let's slow up a little bit. If you were involved in any commercial activity within the confines of the State, that would satisfy the interstate commerce requirement?
Mr. HOROWITZ. I think it would depend on all of the facts surrounding the day care entity we were talking about, how large it was, how many people were involved.
Mr. SCOTT. A small—I mean, you are talking about any kind of commercial transaction. A small mom and pop day care center, who just takes customers from the neighborhood, running that kind of business, would that qualify as interstate commerce that would justify a Federal jurisdiction under the commerce clause?
Mr. HOROWITZ. I think we would have to be in a position to argue that the impact of that commercial activity stretched beyond just the exchanging of money between the parent and the day care provider. We would have to look to the parent, for example, being able then to go to work or themselves engage in activity that impacted interstate commerce.
Page 25 PREV PAGE TOP OF DOC
Mr. SCOTT. Could you advise us as to Supreme Court cases that we ought to be looking at to help in that evaluation?
Mr. HOROWITZ. Well, the——
Mr. SCOTT. I mean not this minute. But can you provide us with it?
Mr. HOROWITZ. I shall.
Mr. SCOTT. And one last question. How would you expect the bill to be enforced? Would there be any mechanism to enforce it prior to a tragedy?
Mr. HOROWITZ. I think it would be difficult for the Federal Government to play that role, a prevention role beforehand, unless there were significantly greater resources devoted at the Federal level to some sort of oversight supervision structure that were put in place on the Federal level beyond what the States do.
Mr. SCOTT. The passage of the bill would not result, in your judgment, in any Federal oversight prior to a tragedy taking place?
Mr. HOROWITZ. I think that the general assumption would be given that the bill is limited to a criminal penalty and does not provide for any Federal guidelines or oversight, that that would be the case.
Page 26 PREV PAGE TOP OF DOC
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you, Mr. Scott. We thank you very much for your testimony here this afternoon, Mr. Horowitz.
Mr. HOROWITZ. Thank you very much.
Mr. CHABOT. We will now move to our second and final panel in this afternoon's committee hearing, and our witnesses can come up as we are introducing them. We first have Joe and Tina Haas, who live in Albany, New York, and are the parents of Julia Haas, after whom H.R. 469 is named.
Julia was 3 months old when her parents placed her in day care with a family friend whom they had known for years. That person misrepresented to them as to the number of children they were caring for. Julia suffocated before the day care provider noticed the child's distress. Mr. and Mrs. Haas have also advocated on the need to address this issue and played a role in the enactment of a statute in New York that is similar to H.R. 469. We thank you for coming this afternoon.
We have Mark Fiedelholtz, who lives in Plantation, Florida, and is the father of Jeremy Fiedelholtz, after whom H.R. 469 is also named. Jeremy was 3 months old when he died on his first day of day care after suffocating from lying on his stomach. On that day, one worker, herself 7 months pregnant, was caring for 12 children in violation of State licensing requirements. The worker was not CPR certified, also in violation of State regulations.
Page 27 PREV PAGE TOP OF DOC
Mr. Fiedelholtz has been a tireless advocate on the issue of holding child day care providers accountable and has been featured in a cover story on this issue in U.S. News and World Report. As a result of his advocacy, Florida passed a similar law to H.R. 469 in 1999.
We welcome all the parents here this afternoon, and it is my understanding, Mrs. Haas, that you will be testifying on behalf of you and your husband, is that right?
Mrs. HAAS. Yes.
Mr. CHABOT. If you wouldn't mind pulling the mike kind of close to you here, and you are recognized to testify for 5 minutes or if you need a little additional time, that is fine.
STATEMENT OF TINA HAAS, ALBANY, NY
Mrs. HAAS. Thank you. First, I want to express my heartfelt thanks to the members of the committee for allowing me the opportunity to present my views on H.R. 469, the proposed legislation that Congressman Lazio has introduced to assure that other parents will not have to suffer the tragic loss that my family has experienced.
In March 1997, my husband and I were overjoyed at the birth of our first child Julia. Even before she was born, she became the center of our life. Like many young parents today, both my husband Joe and I were working to provide for our family and our future. I was able to take off some time to be with my daughter for her first 3 months. In July 1997, however, I had to return to my daytime job as a claims examiner for United Health Care. At the same time, I located a job at the post office that would allow me to work at night so that I could be at home with Julia during the day and Joe, who owns his own roofing business, could be with her while I was at work.
Page 28 PREV PAGE TOP OF DOC
Even though we really didn't want to leave her with anyone else, we had to find someone who could care for Julia just for about 2 weeks until I could make the transition to my new position.
Through word of mouth, we learned of a local day care center located at a private residence in our community. We were careful to check to see that it was licensed by the New York State Department of Social Services. When we visited the center, the children seemed clean and well cared for. We considered ourselves fortunate to locate a licensed child care provider who was willing to take Julia in for such a brief stay.
What we didn't know was that the owner of the in-home day care center had lied to us about the number of children in her care. In reality, she was taking care of 13 children when she was licensed to only care for 5, almost three times the number authorized under her license.
On the 5th day that Julia was in that day care center, she was left in an infant swing—sorry.
Mr. CHABOT. Take your time.
Mrs. HAAS. It just kind of comes back. Sorry.
Mr. CHABOT. Perfectly understandable.
Page 29 PREV PAGE TOP OF DOC
Mrs. HAAS. She was left in a swing by herself for an estimated 20 minutes while the woman who operated the day care program physically left the part of the home that was used for day care activities and vacuumed the private residence area of her house, washed her dishes and did what she had to do to keep her home clean for her family. In the meantime, Julia was left alone. She aspirated and choked.
Julia was found unconscious and blue. She had suffocated. An adult at the center called the medics who transported my daughter to an emergency room in a futile effort to revive her. It was too late. Hours later our little girl was pronounced brain dead. Joe and I had to make the agonizing decision to remove Julia from the life support equipment.
Sadly, we are by no means the only family who has suffered this kind of loss. Jeremy Fiedelholtz, whose father Mark is here with us today, died in his crib in the State of Florida in a child day care center after the owner deliberately misled his parents about the conditions in her facility.
It is ironic to think that the laws that we have in this country would protect animals and people's property, however, there is no Federal law, nor at this time was there any law in my State of New York or in Florida, to prosecute the operator of a day care center who lies about the number of children in their care or who fails to disclose or misrepresents the facts relating to licensure or registration or the qualifications of the staff and employees of the day care center.
I could not sit back and watch another baby suffer and let the parents have to make the choice whether or not to keep their 3 1/2-month-old child on a respirator or not.
Page 30 PREV PAGE TOP OF DOC
Shortly after Julia's death, Joe and I met with John McEneny, our State assemblyman. Through his efforts and the efforts of State Senator William Larkin, who is acquainted with the Fiedelholtz family, the Jeremy Fiedelholtz and Julia Haas Safe Day Care Act was passed in 1998, which makes it a crime in New York to operate a day care center when the license has been revoked or terminated.
Under this law, it is a crime as well to lie to parents about the number of children in the center, areas where the children will be cared for, credentials of the caregiver or to lie on an application to become a day care provider or employee.
Violators face prison terms up to 7 years in New York State in the event of an injury or death of a child. Thanks to Assemblyman McEneny and State Senator William Larkin, New York State now has a law that affords protection to parents who seek to place their children in a day care program. However, those who live in neighboring States are not afforded the same protections or guarantees. This is not just a regional or State problem. It is a national problem.
I know that there must be some reason why Julia came to us for such a short period of time. I urge you to pass H.R. 469 that Congressman Lazio has submitted to the House. It can be the legacy that Julia and Jeremy leave behind to benefit other families, to save them from the heartache that their families have had to endure.
Thank you.
Mr. CHABOT. Thank you very much. We appreciate your testimony this afternoon.
Page 31 PREV PAGE TOP OF DOC
Mr. Fiedelholtz.
STATEMENT OF MARK FIEDELHOLTZ, ESQ., PLANTATION, FL
Mr. FIEDELHOLTZ. Congressman, first of all, I would like to thank all of you for holding this hearing because you are very courageous. It is a difficult issue for the families to talk about and it is a difficult issue sometimes legally to look at, but there are, just very quickly, two people I want to mention: Congressman McCollum, who has a deep love for children and for working women in this country, and John Ariale and Rick Lazio, Congressman Lazio, and Dawn Petchel. So again, I appreciate you very, very much, on behalf of my family, for holding this hearing.
Gee, I thought I would come in here as ''Joe Attorney'' and just put the fact that Jeremy died in the back of my mind, and then here we go again. But, Mr. Chairman, on behalf of my family and millions of other hard working parents, we would like to thank you and the subcommittee for the opportunity to discuss the serious problems of intentional day care misrepresentations by day care operators.
Although there are many loving day care operators who follow the law, each year hundreds of thousands of parents nationwide are being deceived by greedy day care operators. Capitalizing on little or no State enforcement of day care laws, the day care operators acquire illegal numbers of children to make extra money. We are talking about fraud. Day care is a multibillion dollar business. This is fraud we are talking about. The misrepresentations come in the form of direct lies or intentional omissions.
Page 32 PREV PAGE TOP OF DOC
Following the suffocation death of my 3-month-old son Jeremy on his first 2 hours of licensed day care, my wife and I discovered that none of the 50 States criminalize intentional day care misrepresentations.
Mr. Scott, I can probably answer your question, in addition to what Mr. Horowitz told you, about the causation. I have studied this for 3 years so I hope that you will ask me questions after this.
Parents rely on the day care operator's representations when selecting the licensed day care for the child. They have a right to know they are receiving the care that was promised to them by the operator and State law. Although accidents occur even when all laws are followed, parents assume a licensed day care gives them extra protection. This was our assumption.
As I tell you my son's story, the misrepresentations in his case are not unique. Jeremy's story, quickly. Following a meeting with the day care operator and an extensive background check of the licensed family home day care, my wife brought Jeremy for his first 2 hours of day care on January 29, 1997. It was a trial run. The day care was small, filled with many beautiful toys, organized, clean and close to our home. We wanted a licensed family home day care as opposed to a bigger day care center because we felt Jeremy would receive closer supervision.
My wife relied on the day care operator's representations that the maximum number of children she would supervise would be four full-time children and two part-time children. Jeremy would fill the fourth slot. The operator stated she never leaves her day care and her assistant was certified.
Page 33 PREV PAGE TOP OF DOC
Additionally, we knew that according to Florida law, there could be only four infants per certified caretaker. My wife only saw two children, two, and felt that two certified caretakers watching four children was a pretty good deal. She left Jeremy for his first 2 hours of licensed day care. My wife decided to pick up Jeremy 10 minutes early as a surprise visit. When she arrived at the day care, the assistant said everything was fine; Jeremy was sleeping nice.
As my wife moved over to Jeremy's crib, she noticed he was on his stomach, motionless and his head face down in a crib mat. The crib sheet was loose and bunched around his entire face. As my wife looked closer, Jeremy was blue, not breathing and his face was in a pool of vomit and blood.
The Broward County medical examiner determined that Jeremy's death was accidental and he suffocated to death for 10 to 15 minutes on a loose crib sheet in a pack and play. We also found out some other information that added to our shock and which changed our lives forever.
The day care operator was cited for serious supervision violations by Broward County child care licensing officials. Although the operator told us she never leaves her day care, shortly after my wife dropped off Jeremy the operator went to the supermarket on an unnecessary errand leaving six infants, six 1-year-olds and one 2-year-old alone with a 7-month pregnant, uncertified aide. As stated earlier, my wife only saw two children when she dropped Jeremy off. An investigation by the Plantation, Florida, Police Department revealed that the day care operator was hiding nine children from my wife in unlicensed back rooms of her house.
Page 34 PREV PAGE TOP OF DOC
In addition to these misrepresentations, the operator lied about the assistant's certification. She was an uncertified illegal alien from Canada being paid $200 a week under the table.
These misrepresentations weren't the legal cause of Jeremy's death, but they created conditions that violated Florida day care laws and were unacceptable to us.
Following Jeremy's death, we searched for justice. Unfortunately, there were significant legal roadblocks. Similar to most States, the Florida—and this, Mr. Scott, may answer your question. Similar to most States, the Florida criminal statutes require that the day care operators be the legal and the proximate cause. If there is no causation, these statutes won't trigger.
Although the day care operator misrepresented her day care and created an overcrowded environment, the medical examiner identified the loose crib sheet as the cause of Jeremy's suffocation death. So now it moves into the civil arena but not the criminal arena.
Broward County prosecutors could only charge the day care operator with third degree felony neglect, which didn't require causation.
On March 7, 2000, the day care operator pled no contest to the charges and received 2 years house arrest, 3 years probation, 150 hours of community service, and was ordered to pay $2500 in restitution and banned from caring for any children that she is not related to for 5 years.
Page 35 PREV PAGE TOP OF DOC
But you should know that what we were really looking for was that she was a felon. Now she is a felon. So you have to understand she can't operate a day care in any other State. So I didn't really care about incarceration time. What I was after was the ID. She is now a convicted felon. She is an adjudicated felon.
Here is the statutory solution we feel that H.R. 469 will provide. The key to eliminating intentional day care misrepresentations nationwide is to criminalize the conduct.
You lie, you don't get the kids. The motive for these misrepresentations is money. This is all about money. It is about greed. More children, more cash. Day care operators know that day care violations only carry administrative fines, and lying to parents is not considered criminal conduct. It is considered civil.
My wife and I developed what is known as Jeremy and Julia's law in New York, passed in 1998, with the Haases' child Julia, and Jeremy's Law in Florida passed in 1999. This law makes it a crime to misrepresent your day care to parents, police, licensing officials and others. Despite thousands of accidental injuries and deaths in day care over the last 25 years and the passage of New York and Florida laws, the other 48 States stood by and did absolutely nothing.
Like I said, the other 48 States refused to use the jurisdictional power to combat the problem. Maybe they didn't know about it. I don't know how that is possible. It was on every news, and there is only so much families can do.
Page 36 PREV PAGE TOP OF DOC
Defenseless infants and toddlers cannot speak out. They need special legal protection. Congressmen, we have a distinct Federal interest in children, and that is an immediate trigger that you will see here for Federal intervention.
In a widely respected 1998 American Bar Association report on the Federalization of criminal law, the trigger for Federal intervention was identified. Where a clear Federal interest is demonstrated, especially to meet a public safety need not being adequately dealt with by the States, the Federal interest should be vindicated if needed by new laws and new resources, and that is page 53.
The passage of the New York and Florida laws ratified our belief that intentional day care misrepresentations directly affect interstate commerce. It is a multibillion dollar business. People move from State to State. I don't see how it couldn't affect interstate commerce.
Day care, like I said, is a multibillion dollar business that significantly impacts the economics of American families and workplaces in all 50 States. Both parents work in today's society, and that is one thing I do want you all to know that we have to come to terms with. This is the year 2000 and both parents work. However you feel about day care and whatever values you impose upon that, there are women out there that are making $50,000 and up. If that salary is gone, the family takes a nose dive economically. So we can't just say, well, we think women should stay home, or one of the parents should stay home. Those days are over.
Parents shouldn't be paralyzed with fear that the day care operator is misrepresenting his or her services. They do have to work.
Page 37 PREV PAGE TOP OF DOC
Additionally, we live in a highly mobile society. Should parents receive less protection against intentional misrepresentations because they don't live in New York or Florida?
Finally, intentional day care misrepresentations negatively impact the Federal Government in four ways, and I really hope that you will give me an ear on this because I think this is really important and it may move you a little bit more on this issue than it would have before.
First, this criminal behavior contravenes the purpose of millions of Federal dollars given to States to promote quality child care.
Second, intentional day care misrepresentations create the potential loss of millions of Federal income tax dollars in unreported income, and I have talked to some IRS officials. They don't see it as a potential. They see it as a definite. The Federal Government is losing millions of dollars in unreported income. If they are not reporting the children to licensing officials, I can tell you they are not putting it on their tax forms. We had a case up in Arlington, Virginia, where that was a very relevant issue.
Third, the misrepresentations permit day care operators to pay their employees under the table. This translates into a loss of Social Security and Medicare tax revenue in unreported income by employees.
Fourth, day care is becoming a safe haven for illegal aliens to work in America. But in the end, our Nation's most precious resource, our children, suffer the worst harm.
Page 38 PREV PAGE TOP OF DOC
I want to thank you again very much. And again I have studied this so hard for 3 years, obviously motivated by my own child's grief, and other children so I would hope that you would ask some legal questions as well.
[The prepared statement of Mr. Fiedelholtz follows:]
PREPARED STATEMENT OF MARK FIEDELHOLTZ, ESQ., PLANTATION, FL
INTRODUCTION
Mr. Chairman, on behalf of my family and millions of other hard working parents, we would like to thank you and the subcommittee for the opportunity to discuss the serious problem of intentional day care misrepresentations by day care operators.
Although there are many loving day care operators who follow the law, each year hundreds of thousands of parents nationwide are being deceived by greedy day care operators. Capitalizing on little or no state enforcement of day care laws, the day care operators acquire illegal numbers of children to make extra money. The misrepresentations come in the form of direct lies or intentional omissions.
Following the suffocation death of my three month old son Jeremy on his first two hours of licensed day care, my wife and I discovered that none of the fifty states criminalize intentional day care misrepresentations.
Page 39 PREV PAGE TOP OF DOC
Parents rely on the day care operator's representations when selecting a licensed day care for their child. They have the right to know they are receiving the care that was promised to them by the operator and state law. Although accidents occur even when all laws are followed, parents assume a licensed day gives them extra protection. This was our assumption. As I tell you my son's story, the misrepresentations in his case are not unique.
JEREMY'S STORY
Following a meeting with the day care operator and an extensive background check of the licensed family home day care, my wife brought Jeremy for his first two hours of day care on January 29, 1997, it was a trial run. The day care was small, filled with many beautiful toys, organized, clean and close to our home. We wanted a licensed family home day care as opposed to a bigger day care center, because we felt Jeremy would receive closer supervision.
My wife relied on the day care operator's representations that the maximum number of children she would supervise would be four full time children and two part time children; Jeremy would fill the fourth slot. The operator stated she never leaves her day care and her assistant was certified. Additionally, we knew that according to Florida law, there could only be four infants per certified caretaker. My wife only saw two children and felt that two certified caretakers watching four children was a good situation. She left Jeremy for his first two hours of licensed day care.
My wife decided to pick up Jeremy ten minutes early as a surprise visit. When she arrived at the day care the assistant said everything was fine, Jeremy was sleeping nice. As my wife moved over to Jeremy's crib, she noticed he was on his stomach motionless with his head face down in the crib mat. The crib sheet was loose and bunched around his entire face. As my wife looked closer, Jeremy was blue, not breathing and his face was in a pool of vomit and blood. The Broward County Medical Examiner determined that Jeremy's death was accidental and he suffocated to death for ten to fifteen minutes on a loose crib sheet in a pack and play. We also found out some other information that added to our shock.
Page 40 PREV PAGE TOP OF DOC
The day care operator was cited for serious supervision violations by Broward County child care licensing officials. Although the operator told us she never leaves her day care, shortly after my wife dropped off Jeremy, the operator went to the supermarket on an unnecessary errand leaving six infants, six one year olds and one two year old alone with the seven month pregnant uncertified assistant. As stated earlier, my wife only saw two children when she dropped Jeremy off; an investigation by the Plantation police department revealed that the day care operator was hiding nine children from my wife in unlicensed back rooms of her house. In addition to these misrepresentations, the operator lied about the assistant's certification, she was an uncertified illegal alien from Canada being paid $200 a week under the table.
These misrepresentations weren't the legal cause of Jeremy's death, but they created conditions that violated Florida day care laws and were unacceptable to us. Following Jeremy's death, we searched for justice. Unfortunately, there were significant legal roadblocks. Similar to most states, the Florida criminal statutes require that the day care operator be the legal and proximate cause of the death or injury. Although the day care operator misrepresented her day care and created an overcrowded environment, the medical examiner identified the loose crib sheet as the cause of Jeremy's suffocation death.
Broward County prosecutors could only charge the day care operator with third degree felony neglect, which didn't require causation. On March 7, 2000, the day care operator plead no contest to the charges and received two years house arrest, three years probation, 150 hours of community service, ordered to pay $2,500 in restitution and banned from caring for any children she is not related to for five years.
Page 41 PREV PAGE TOP OF DOC
STATUTORY SOLUTION
The key to eliminating intentional day care misrepresentations nationwide, is to criminalize the conduct. The motive for these misrepresentations is money, more children, more cash. Day care operators know that day care violations only carry administrative fines and lying to parents is not considered criminal conduct.
My wife and I developed what is known as Jeremy's and Julia's law in New York (Passed in 1998) and Jeremy's law in Florida (Passed in 1999). This law makes it a crime to misrepresent your day care to parents, police, licensing officials and others. Despite thousands of accidental injuries and deaths in day care over the last twenty five years and the passage of the New York and Florida laws, the other forty eight states refuse to use their jurisdictional powers to combat the problem of intentional day care misrepresentations. Defenseless infants and toddlers can't speak out and need special legal protection.
In a widely respected 1998 American Bar Association report on the ''Federalization Of Criminal Law'', the trigger for federal intervention was identified:
''Where a clear federal interest is demonstrated, especially to meet a public safety need not being adequately dealt with by the states, the federal interest should be vindicated—if needed, by new laws and new resources.'' (Page 53)
The passage of the New York and Florida laws ratified our belief, that intentional day care misrepresentations directly affect interstate commerce. Day care is a multi-billion dollar business that significantly impacts the economics of American families and the workplace in all fifty states. Both parents work in today's society, day care expenses comprise a large part of a family's budget. Parents shouldn't be paralyzed with fear that the day care operator is misrepresenting his or her services. Additionally, we live in a highly mobile society. Should parents receive less protection against intentional misrepresentations because they don't live in New York or Florida?
Page 42 PREV PAGE TOP OF DOC
Finally, intentional day care misrepresentations negatively impacts the federal government in four ways. First, this criminal behavior contravenes the purpose of millions of federal dollars given to states to promote quality child care. Second, intentional day care misrepresentations create the potential loss of millions of federal income tax dollars in unreported income. Third, the misrepresentations permit day care operators to pay their employees under the table, this translates into a loss of Social Security and Medicare tax revenue and unreported income by employees. Fourth, day care is becoming a safe haven for illegal aliens to work in America. But, in the end, our nation's most precious resource, our children, suffer the worst harm.
We have federal laws that criminalize intentional misrepresentations regarding commodity exchanges, census information, and tobacco statistics; how about criminalizing intentional misrepresentations that negatively impact our defenseless children at day care.
Thank you and I welcome your questions.
Mr. CHABOT. Thank you very much, Mr. Fiedelholtz.
I would just like to start off by extending our sincere sympathy and appreciation for all of you being here today and bringing this important issue to our attention. It takes a lot of courage to go through what you have gone through, and then be willing to come out publicly in forums like this to not only make sure that your children are remembered and some good comes out of the tragedy that befell them but to save other kids hopefully from going through the same tragedy and parents going through the same tragedy that you have gone through. So I want to commend you for your courage on being here this afternoon.
Page 43 PREV PAGE TOP OF DOC
A lot of the questions that I originally had have been answered by your own testimony, which was really excellent on both parts. Just one question I would like to ask you, Mrs. Haas. After New York passed its legislation there as a result of your tragic loss—the death of your daughter, do you know what efforts were made to inform child care providers that they were literally in violation of the law and could go to jail if they lied to other parents as they had lied to you? Do you know—in other words, did it become well-known among the folks out there that if they lied and were found out, you know, they were criminals and could go to jail?
Mrs. HAAS. What happened with us, it was after the law was passed, it was very publicized, newspapers, media, and it went—it did go on for a good amount of time and it has been brought up on the news with children that do die in day care in New York State. So I think the day care providers and the parents are both aware of—I think the parents more so—care about it more so than the day care providers because they continue doing whatever it is that they are doing and kind of keep your fingers crossed that nothing bad happens. But the parents are more informed than the day care providers.
Mr. CHABOT. And you think because it is a criminal penalty that they are now facing as opposed to a civil action, which can be traumatic as well, but people tend to be much more fearful of breaking the law and being convicted of a criminal offense than a civil trial, being sued about something, do you think that elevates people's attention to the seriousness of them violating this particular ordinance?
Mrs. HAAS. I think it puts some fear into a lot of people, into a lot of day care providers. There is a lot of them to be afraid of. A lot of people don't lose their children—not a lot of people don't lose their children in day care, but the people who do lose their children in day care, we suffer and then the people who had to see what they saw, the day care provider who had to see that, they have to live the rest of their life seeing a dead child in their home at that time, and I think the fear of seeing something like that alone and knowing that there is consequences, I think that is very important.
Page 44 PREV PAGE TOP OF DOC
Mr. CHABOT. Thank you. And Mr. Fiedelholtz, I am sure you are aware, because you addressed it so well in your statement, that one of the issues that you are obviously going to deal with when it comes to not just this committee but the entire Judiciary Committee and the House and the Congress in general is, you know, is it more appropriate for the States to be dealing with this issue and passing legislation so it is done on a State-by-State basis, or is Federal action appropriate? And you have dealt with that but I would also like to give you additional time if you would like to address that because that is probably the key issue.
Mr. FIEDELHOLTZ. It is the key issue, Congressman, and thank you so much for giving me the time to address that issue.
I would love it to be State-by-State. I am not a big advocate of the Federal Government getting involved in anything, to be honest with you, especially in terms of State criminal jurisdiction.
We have a big problem here, Congressman. The licensing—the development of licensing policy was back in the seventies. We know now that 25,000 children have died. That is government reports. If you look at the Department of Children and Families, now it is starting to come to fruition. In the U.S. News and World Report they just did a very, you know—not a cursory study, but they found 20 States had not reported.
The problem, I think, is rooted in the fact that we cannot—we can no longer wait anymore. That is the problem because you have to understand how Jeremy and Julia's Law was devised. I had devised it after my son died. Luckily, I had the Haases to come on with me—or unluckily obviously in Julia's case, but these laws were only passed because of families pushing.
Page 45 PREV PAGE TOP OF DOC
Congressman, I can't do it anymore. I am tired. My family is very, very tired, and, you know, using over $100,000 of my own time and money, enough is enough. Fine, I love this country, I love our children, fine. But what I did was focus on two States that I was associated with, one I grew up in New York, and Florida is where I now live. But I also knew that in my mind two States, thousands of miles away, with not really a lot of similar characteristics in terms of topography or population per se, that this is a national problem. If we were going to wait State-by-State—we had even tried in Pennsylvania, where my wife is from, and they just dropped the ball because there wasn't enough media firepower behind it. And it is just—I know that I can't do it anymore, for sure.
The States will not do this. It would take another 25 years for it to go State-by-State. But the—what I see also is that, you know—you have to understand the root of the problem, too. Day care, we are going through an explosion. We have got the welfare reform plan that put millions of children into the streamline of day care. Additionally, you have got parents moving from State to State because of job transfers, things like that.
You could ask most parents, and I would tell you that 8 out of 10 parents would tell you this is what they fear the most, that they are being lied to. But, you know, I really looked at this and I couldn't believe that the other States didn't follow suit because this had received national publicity. Two State laws had passed. They won't. They won't do it. They will give out fines. They will give out warnings.
The only thing that will stop this kind of conduct, so you know—because these people aren't hardened criminals. They are just greedy. Sometimes they are people with high school degrees. There is nothing the matter with just high school degrees or less, they are making $100,000 or $200,000 a year and they don't really think they are going to kill or hurt anybody. You have to understand that. They don't. They just want to make extra money, but our infants and toddlers aren't cattle.
Page 46 PREV PAGE TOP OF DOC
I will tell you this, they can't recover, they can't speak. So when you look at it really, everything in that day care can be a dangerous instrumentality. So if there is no intervention—see, this is the problem. The actual causation, Congressman, is a civil event, usually choking, suffocating. In Jeremy's case it was probably a defective crib that the sheet was bunching up. All right.
The problem is the intervention. The criminal conduct is causing—they are eclipsing the chance, the opportunity to intervene. Now when it comes to an infant or toddler, you are going to have big problems with that because that is the line of defense for them. You know, we are not talking about even older toddlers here.
If you look at most cases, it is the same pattern again and again. The day care operator lied to parents. It was overcrowded. Kid died. They called it an accident, end of story. The day care operator opens again.
But for the Federal Government's intervention, at least from what I have studied, there is no way, we are running out of time. 25,000 children have died. We have hundreds of thousands of injuries that have occurred because of lack of supervision.
We are in trouble, Congressman. We are in big, big trouble.
Mr. CHABOT. Thank you very much.
Mr. FIEDELHOLTZ. Sure.
Page 47 PREV PAGE TOP OF DOC
Mr. CHABOT. My time has expired. The gentleman from Virginia is recognized for 5 minutes.
Mr. SCOTT. Thank you. I want to thank all of our witnesses for testifying, and particularly Mr. Fiedelholtz.
Are you an attorney?
Mr. FIEDELHOLTZ. Yes, sir.
Mr. SCOTT. Okay. I appreciate you inviting questions of a technical basis. In situations like this, you can imagine it is somewhat difficult for all concerned.
On the Federal jurisdiction question, can you help us with whether or not there are cases that point to small businesses, neighborhood operations constituting interstate commerce for the purposes of Federal jurisdiction?
Mr. FIEDELHOLTZ. Okay. Mr. Scott, I am glad you brought that up. It is a very, very good question. I think what I probably would want to tell you is that these are not small businesses. The fact is—it depends. There are two type of day cares. We have family licensed day care, and we have also the bigger day cares, which you probably know about, which are next generation, La Petite, things like that. But I want to give you the statistics according to the Children'S Foundation. You have 126,246 regulated child care centers, which are the bigger centers. This doesn't include, I believe, Federal day care centers. You have 290,667 regulated family care child homes. See, one of the problems has been—is the perception that this is a mom and pop issue, and it is not. These are all licensed day cares, whether they are run out of the home—they can have 20 kids. You know, you are talking about close to $70,000, $80,000, to $100,000. With the bigger ones, you are talking about even more money. So I would like to try to get away from viewing this as just, you know, smaller enterprises, because—especially when you look at the aggregate, which I know some people do not like to look at.
Page 48 PREV PAGE TOP OF DOC
Mr. SCOTT. In terms of Federal jurisdiction, if you are regulating all of them, many of them being large, and that is easy to get jurisdiction over if they are interstate franchises, that if you happen to be in that same industry, a small mom and pop industry, you get regulated like everyone else?
Mr. FIEDELHOLTZ. That is the way it is now anyway.
Mr. SCOTT. Therefore, if you happen to be just a neighborhood operator, the fact that you are in a business that is traditionally—or widely interstate, would be enough to give Federal jurisdiction? Is that the——
Mr. FIEDELHOLTZ. I see what you are saying.
Are you saying that if somebody was a family home licensed day care in Plantation, how would that trigger interstate commerce? Is that——
Mr. SCOTT. Right.
Mr. FIEDELHOLTZ. Yes. Well, you know, that would be a tough question to answer because—and you know, what you may want to look at, too, are these people getting Federal grants? Because even small licensed day care operators receive lunch programs and Federal grants and that type of thing.
Mr. SCOTT. You are familiar with the Lopez decision?
Page 49 PREV PAGE TOP OF DOC
Mr. FIEDELHOLTZ. Yes, I have it right here.
Mr. SCOTT. And that is what we frankly have to deal with. We don't want to pass a law and get smacked again.
Mr. FIEDELHOLTZ. Uh-huh.
Mr. SCOTT. That is why we asked that question. In your case, the defendant got 2 years to serve?
Mr. FIEDELHOLTZ. House arrest.
Mr. SCOTT. House arrest?
Mr. FIEDELHOLTZ. Right.
Mr. SCOTT. Was that the maximum under the applicable statute?
Mr. FIEDELHOLTZ. Yes. She was only charged with a third degree felony because in order to be charged—this is true in every State, and CRS backed this up. The only way you can be charged with manslaughter in each State or you could be charged with a first or second degree felony neglect, it requires causation. As you know, Mr. Scott, you have to be the direct and proximate cause.
Page 50 PREV PAGE TOP OF DOC
These people are not, at least legally, considered the—this is the problem. This is the reason Jeremy and Julia's Law is really like a lightning rod because what it does, it is very narrow. It is very purposeful. What it does is it focuses right in on the level of conduct that it should be, which is appropriate, which is the lying.
Mr. SCOTT. Which is the reckless endangerment, regardless of the outcome?
Mr. FIEDELHOLTZ. Well, that is a by-product of the lying, because, see, you have to understand, the lying—when you lie to parents and they relinquish control of their child, they are unknowingly putting them in a very dangerous—yes, go ahead.
Mr. SCOTT. But, the lie, on line 9, thereby places a child's safety or health at substantial risk?
Mr. FIEDELHOLTZ. Right.
Mr. SCOTT. And the fact that they are at substantial risk, whether anything happens or not——
Mr. FIEDELHOLTZ. Right.
Mr. SCOTT [continuing]. Is enough?
Mr. FIEDELHOLTZ. Well, sure, it should be.
Page 51 PREV PAGE TOP OF DOC
Mr. SCOTT. Okay.
Mr. FIEDELHOLTZ. We have to ask ourselves, Congressman——
Mr. SCOTT. Okay. We agree on that. We don't have to argue that.
Mr. FIEDELHOLTZ. I am just saying, Congressman, we have to ask ourselves that, you know, the potentiality, can we cut that off? I know you had mentioned prevention.
Mr. SCOTT. And that is similar to felony neglect, is it not?
Mr. FIEDELHOLTZ. No.
Mr. SCOTT. What is the difference between that language and felony neglect?
Mr. FIEDELHOLTZ. Okay. The felony neglect, it could be similar, but the problem is the first—there are degrees of felony neglect in each State, pretty much. I mean, I don't know every State but from what I have studied they seem to be pretty much similar.
First and second degree felony neglect require causation. No day care operator will ever be charged with first and second degree felony neglect in a case like Julia's or in a case like Jeremy's.
Page 52 PREV PAGE TOP OF DOC
The third degree felony neglect, and we were lucky to have it, many States don't even have it, that does not require causation. All that requires is that this person willfully put this child in, what you talk about, a substantial risk. But what Jeremy and Julia's Law—and this is why it is so powerful because what it does is it targets the behavior that is really the direct causation of this problem, which is the lying. Because, again, if you can't lie to parents, you most likely won't get the kid there because if the parents know what is going on obviously they are not going to drop their child off.
But I did want to also talk about the Lopez case, Congressman, if I could, if you don't mind.
Mr. SCOTT. Okay.
Mr. FIEDELHOLTZ. In both the United States v. Lopez and United States v. Morrison, they talked about—both cases had a similar parallel and the similar parallel was one you are talking about possession of a handgun in a school zone, and the other one you are talking about a rape victim, which I believe they used a rape statute.
What the Supreme Court said was this is noneconomic activity, which it is. They were right. Day care is one of the most active—economically, I mean, there is just no doubt about it, that, you know, this is all about economics.
Look, what I would like to see in the future, if this committee could look at it, is look at day care as a business, because from the time that day care started in the seventies, unfortunately they came up with the impression that any mom and pop—and this is where the problem is, Congressman—any mom and pop can do day care, any mom and pop. And you know what? No mom and pop is ever going to commit neglect and abuse on their child.
Page 53 PREV PAGE TOP OF DOC
But I tell you what, if you look at the National Clearinghouse on Abuse and Neglect, and I couldn't believe it when I saw it, in a 1998 report—you don't have it. I can get a copy of this to you—but 87.1 percent of the perpetrators of child abuse and neglect were parents.
Guess who runs day cares? Parents. So we have to get away from this myth that parents—believe me, if they are committing neglect and abuse on their own children, they are surely going to do it on a stranger's child for money.
The other issue is we had 5,688 of their studies, the perpetrators of child neglect and abuse were day care operators. They were child care providers. And Congress had already recognized this in 1996 anyway, that there were a million children neglected and abused.
Mr. SCOTT. Mr. Chairman, a couple of other questions?
Mr. CHABOT. We will grant the gentleman additional time as needed.
Mr. SCOTT. Okay.
Mr. SCOTT. These are licensed day care providers. Is there a crime for lying in getting your license or operating a day care center in such a way that it violates the licensing requirements like the number of children that you are supposed to have, the staff/children ratio? That is a matter of—I don't know about others, but in Virginia there is a staff/children ratio and if you violate it you are breaking some law. Is that——
Page 54 PREV PAGE TOP OF DOC
Mr. FIEDELHOLTZ. If you intentionally violate it in Virginia is it a crime? In other words, if you——
Mr. SCOTT. I am sure you can get your license yanked. I would have to—it is not a crime?
Mr. FIEDELHOLTZ. No. It isn't in any 50 States until Jeremy and Julia's Law.
Mr. SCOTT. So it would be just civil, and the fact that you are operating outside of your license would be a regulatory matter for which you could lose your license for not a crime?
Mr. FIEDELHOLTZ. That is correct. Congressman Scott, you hit it. That is the problem. The problem is there is a big statutory gap.
Look, I also know, too, that I have a lot of trust in this committee. We have some of the brightest legal minds in the country. You will work with it, but there is no doubt we have a statutory gap. That was one of the things I noticed.
Mr. CHABOT. We actually have some of the brightest legal minds in this room.
Mr. FIEDELHOLTZ. I hope so.
Page 55 PREV PAGE TOP OF DOC
Mr. SCOTT. I am reminded of the man looking around a ballroom with a lot of important people here and asking his wife, how many important people do you think are in this room? His wife said, probably one less than you think.
I have been handed a comment that says of the States that require day care providers to be licensed, 29 establish a misdemeanor penalty for violations of their regulatory requirements.
So many, almost half, do not have any criminal violation.
Mr. FIEDELHOLTZ. But that is—let me clarify that, because that is also for regulatory. See, this is the problem. What about intentional violations? There is nothing. This is the gap. This is the vacuum that has been left, and that is why it is so dangerous. There is nothing on the books for intentional misrepresentations.
Mr. SCOTT. Okay. I guess that gets us to how we can best get at that problem. Another strategy would be to condition day care money that every State gets and wants on them creating such penalties and closing that gap and monitoring and enforcing rather than passing a Federal law that I think we can assume will not be enforced until it is too late.
Mr. FIEDELHOLTZ. I am wondering if Jeremy and Julia's Law could be attached to something like that, that, you know, where you could rework it where these people can only—if they get this money—but I had heard somewhere, and I may be wrong, that you can't do that when you give out a block to a State. I don't know.
Page 56 PREV PAGE TOP OF DOC
Mr. SCOTT. You can condition—the trick on conditioning money is that the condition has to have some relationship to the money.
If you have highway money, you can't condition some health care stuff. I mean, it has to be related.
Mr. CHABOT. But you can condition it upon that State having a .08 DUI level, which is what has just happened as recently as this week.
Mr. SCOTT. And you can condition highway money on that.
Mr. CHABOT. Right.
Mr. SCOTT. And that is frankly considered a stretch. But I mean on day care money, to have day care regulations I think would be clearly within bounds. And if we have—every State gets day care money.
Mr. FIEDELHOLTZ. Yes, they do.
Mr. SCOTT. Then you would have everything going together. You would have the regulation. You would have the enforcement. You would have the monitoring, and you wouldn't have to wait for another tragedy before something would happen.
I guess that is my last comment, Mr. Chairman. I just want to again thank all of you for coming and bringing this to our attention.
Page 57 PREV PAGE TOP OF DOC
I think we have exposed a great gap in many State statutes, the fact that you can be operating outside of your license clearly endangering children and only be subject to license regulation and not—by virtue of endangering children, not be exposed to any criminal liability.
Mr. FIEDELHOLTZ. Mr. Scott, also, this is a bill ofttimes—I mean, the fact is that maybe 10 years ago, I don't know if this bill—how relevant it would have been but we now know that both parents work. They cannot be at work paralyzed with fear. But I will say, and I will add emphasis again, that this fraud, that is all it is, is day care fraud. The effects are numerous on, you know, not only the children but I am telling you, these people—it is unreported income. All right? So there are other things going on here. I don't know if you can solve every problem.
Mr. SCOTT. Well, I am not as worried about the unreported income as the children.
Mr. FIEDELHOLTZ. As the children, right.
Mr. CHABOT. The gentleman's time has expired. Thank you.
We appreciate very much both Mr. Fiedelholtz and both of the Haases for being here this afternoon. I think your testimony has been very helpful to the committee. We have the opportunity to share that testimony as well, and even though not every member is here they will, many of them, read over your testimony. So we appreciate you being here, and thank you again.
Page 58 PREV PAGE TOP OF DOC
The committee is adjourned.
[Whereupon, at 2:40 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
U.S. News 8/4/97
SPECIAL REPORT
BY VICTORIA POPE
DAY-CARE DANGERS
TOO MANY PARENTS HAVE LEARNED THAT DAY-CARE LICENSING AND REGULATION, EVEN WHEN THEY EXIST, DO NOT GUARANTEE QUALITY. NOT TO MENTION SAFETY
Julie Fiedelholtz arrived unannounced to pick up her son, Jeremy, at day care. Jeremy was 3 months old, and it was his first day at Chrissy's Kids day-care center in Plantation, Fla. Julie had left him there two hours earlier; now she was returning to get a candid look at his new surroundings. The day-care helper greeted her reassuringly: ''Oh, Jeremy is sleeping so fine. He did good.'' Julie relaxed and looked with pride at her baby boy. ''Buddha belly,'' she said to herself. That was his nickname, because Jeremy was so nicely plump.
Page 59 PREV PAGE TOP OF DOC
The word caught in her mind: Belly. He's lying on his belly. Fear drew her closer to his crib. Jeremy's tiny hands were pulled alongside his head. His head was face down against a rumpled sheet, a smear of vomit across his cheek. His skin was tinged blue. Julie gathered her baby up, but he flopped like a rag doll. She dropped to her knees and screamed his name. She tried CPR. Paramedics arrived a short time later, summoned by the helper.
At 4:17 p.m the next day, Jan. 30, 1997, Jeremy was pronounced brain dead at the hospital. When the final autopsy results were ready two months later, his parents learned that he had died of ''positional asphyxia''—in layman's terms, Jeremy had suffocated while lying face down. During the minutes when he was struggling for breath, one day-care employee had been responsible for Jeremy—and 12 other children, according to official reports. This lone day-care worker was a 25-year-old woman, herself in the seventh month of pregnancy. The center's owner, Christina Schwartzberg, was not there because she had left the facility for 45 minutes to go food shopping.
While Jeremy was still lying comatose in the hospital, Roy Chandler, an investigator for the Florida Department of Children and Families, told the Fiedelholtzes that police had found serious violations when searching the Chrissy's Kids site that afternoon, Mark Fiedelholtz recalls. Later, after Jeremy's death, Broward County officials cited Schwartzberg for violation of child-adult-ratio regulations and for leaving the children with an unapproved aide who was not certified in CPR. Schwartzberg voluntarily surrendered her license. She acknowledged no wrongdoing. No charges were filed against her.
As the Fiedelholtzes sought to investigate why and how their son had died, they realized that they had been far too trusting. Before deciding on Chrissy's Kids as a suitable site for Jeremy, they had determined that it was licensed by the county. They had assumed that this ensured at least an adequate level of physical safety. Yet in Broward County, they learned, accreditation required only three hours of training for providers. They saw the county's official child-care manual; only one page was devoted to infants. It made no mention of the American Academy of Pediatrics' recommendations that babies be laid to sleep not on their bellies but on their backs. After Jeremy's death, police interviewed other parents whose children had stayed at Chrissy's Kids at the same time. The Fiedelholtzes were stunned to hear that most of the parents said they would gladly put their children back in Schwartzberg's care.
Page 60 PREV PAGE TOP OF DOC
What happened at Chrissy's Kids is an extreme illustration of what can occur when parents place their trust—and their children—in the fast-expanding but only lightly supervised American day-care system. Already, 4.6 million infants, toddlers, and preschool children from every income group, spend part of their day in licensed day care. The pressures on the system are about to increase dramatically: As new welfare reform laws take hold in coming months, some 2 million parents (mainly mothers) now on welfare will join the work force, and their children will need care outside the home. Under pressure of welfare reform, many state legislatures are now scrambling to create new facilities as quickly—and inexpensively—as possible. Within three years, 3 out of 4 American women with children under 5 will be working and need child care.
As more and more mothers have moved into the work force, the varied effects of day care have provoked bitter debate. Some cognitive scientists argue that hired attendants cannot provide the stimulation or attention children need for emotional development; others contend that the independence and socialization forced on children by day care actually help children thrive. Economists point to day care's problems as a classic case of ''market failure'': Large numbers of parents need the service so they can work, but they are not willing to pay the fees that would be necessary for the well-trained, highly motivated workers they would like their children to have.
Avoiding harm. But whatever their positions in these debates, most parents take it for granted that day care will not be physically dangerous. To a larger degree than many realize, this assumption is incorrect. In a query of all 50 states and the District of Columbia concerning deaths in child-care facilities, U.S. News tallied 76 deaths in 1996. The causes included drownings, falls, being struck by autos, and sudden infant death syndrome—but the data are sketchy, since many states do not report the causes of these deaths. This is doubtless not the full total, since seven states as well as the District did not respond to repeated requests for information—and 16 others, including California and Ohio, said they do not track deaths in day care. Even fewer states record injuries. Figures also are difficult to obtain because so many of the nation's facilities are unregistered. In Texas, a state that has recently revamped its reporting system and does collect detailed data, 22 day-care deaths and 134 serious injuries were recorded in fiscal 1996. If the deaths recorded in Texas and Massachusetts (which also collects detailed data) were projected per capita on the national population, day-care deaths would number between 240 and 320 a year. As a comparison, in 1995, 2,260 American kids between ages 1 and 4 died in all accidents, including 825 in motor vehicle collisions.
Page 61 PREV PAGE TOP OF DOC
Cursory oversight. No degree of care could prevent all deaths or accidents; but the system into which millions of Americans entrust their children is notably underregulated and poorly supervised. The great waves of safety regulation in America, from the meat-packing reforms of the muckraking era to the pesticide controls prompted by Rachel Carson's Silent Spring, have stemmed from concern that without regulation, public safety will be at risk.
Worries about children's safety have led to no such day-care reforms. Typically, the required training for day-care workers is minimal, oversight is cursory, and standards are low. Complaints roll in, but punitive action is rarely taken—until it is too late. Agencies fail to share data that might have prevented injury and greater tragedy. Says Donna Overcash, director of Save the Children Child Care Support Center, an Atlanta-based advocacy group: ''Zookeepers make more, and fast-food restaurants are better regulated.''
Starting a day-care center is easy. U.S. News sent a 20-year-old male summer intern to apply for a day-care license in Washington, D.C. One of his letters of reference flatly stated he had ''no professional training in child care.'' He filled out some forms, paid a $50 fee, and had his apartment checked out. He was told that with some first-aid training, some spot-cleaning, and a new fire extinguisher he could be licensed in a week.
In most states, the course of study for a driver's license is longer than for certification as a day-care worker. It takes about 1,500 hours of training at an accredited school to qualify as a licensed haircutter, masseur, or manicurist. Day-care providers, by contrast, are usually required to attend a single session devoted to a mishmash of topics from CPR techniques to food menus. In Las Vegas, Suzanne Magleby, a supervisor for Clark County social services, says her county requires six hours of training instead of the state-mandated three, which she wants to bump up to 12. ''But I'm trying to go slow,'' she says, hinting at local resistance.
Page 62 PREV PAGE TOP OF DOC
Training usually requires only passive exposure to instructional material; no tests are given. For instance, in a recent six-hour training class in Atlanta, participants sat through presentations on infectious diseases, injury prevention, and child-abuse detection. Of the 15 women there, three did not speak English. One slept through the entire video on infection control. Three women arrived an hour and a half late but were assured by the instructor that they would still be credited the full six hours to receive their certification.
Many states now urge former welfare recipients to be trained as day-care workers. This may be good for the recipients, since it prepares them for jobs; it could well be bad for children, since some states seem ready to lower existing standards to accept these ''provisionally certified'' providers.
In a just completed review of day-care standards nationwide, the New York-based Commonwealth Fund, a national foundation working with Yale University experts, assessed the quality of day care state by state, based on indicators such as child-adult ratios, programming, and caregiver qualifications. This study gave overall passing grades to only 17 states; and only Minnesota met their criteria in all categories. The study did not rate a single state as ''good'' or ''optimal'' on the size-of-group standard, which is key to preventing injuries.
While restaurants are shut down every day for even minor hygiene violations, records show that day-care centers in America are rarely closed. Frequently, licensing authorities try to keep troubled facilities open so working parents won't be left in the lurch. In a recent case in Guthrie, Okla., outside Oklahoma City, a family day-care center had accumulated a staggering 415 complaints against it but was still operating when a young boy died at the facility last November. The victim was 2-year-old Michael Robinson III—known as Trey—who attended A Child's Place day-care center. Trey, inconsolable after his mother dropped him off, had walked out of the building undetected onto a highway. He was struck by a passing automobile. According to the records of Oklahoma's Department of Human Services, A Child's Place had violations against it that included children routinely left unattended, unsafe playground equipment, and in at least one instance an employee with a criminal record of child abuse. Yet the state allowed it to keep operating on six-month permits.
Page 63 PREV PAGE TOP OF DOC
Run over, again. When police tried to reconstruct what happened prior to Trey's death, they turned to a 12-year-old named Anthony. By Anthony's account, written longhand on the police report, a staffer named Dale had asked him to help look for the missing boy. Anthony saw him first, lying on the busy road. ''Dale told me to stay there and make sure he didn't get run over again,'' Anthony wrote. When a speeding car approached, Anthony jumped up and down to try to get it to stop, but the little boy was again run over. The center's owners deny any neglect; no criminal charges were filed. Judy Collins, the statewide licensing coordinator for Oklahoma's Department of Human Resources, says her agency had moved to deny the facility its license before Trey's death.
In Seminole, Fla., near St. Petersburg, Beth Bennion pulled her son out of a day-care center two years ago, she says, after it let a pest-control company spray the premises while children were there. She says the center had also told the licensing board that it had fixed some dilapidated playground equipment when it hadn't. So when Bennion later heard that a gun had been found one Monday morning at the center, she expected it to be summarily shut. Instead, one of the center's owners told the licensing board that the gun might have been a toy or left by carpet cleaners over the weekend. (Later, the owner's lawyer said it was a BB or pellet gun, even though three witnesses—including the center's director—described it as a firearm, ''gray, heavy, and could fit in the palm of the hand.'') The center was fined $200 for keeping a weapon on the premises, but it was not closed.
Extra kids. In the Fiedelholtz case, the 13 children present at the time of Jeremy's death were nine more than the center's owner, Schwartzberg, had told Jeremy's parents would be there at one time. (While police say only one adult was present when Jeremy is thought to have suffocated, Schwartzberg's attorney, Harry Solomon, says that the children were in an area that was small enough to be supervised.)
Page 64 PREV PAGE TOP OF DOC
Regulations that call for adult supervision, of course, can't guarantee it. Two-year-old Jordan Ambrozewicz drowned in an ornamental pond at his Maryland day-care center two years ago. According to Jordan's mother, three adults were on the premises, and the other children had gone home. In a case that led to a tightening of state care regulations in Pennsylvania, a 4-year-old, Alexandra LeVasseur, died in August 1995 after being left in a sweltering van for nearly three hours. The day-care operator had unloaded the van during a field trip and left the girl sleeping in the front seat. No charges were filed in either case.
Similarly, parents may assume that a state license means inspectors will regularly check the facility. In most states, it does not. Typically, inspectors visit a center when it opens, for initial accreditation—and thereafter in response to complaints or after a few years pass. In Virginia, a legislative audit showed that the state had failed to make mandatory twice-a-year inspections of 722 of its 4,200 licensed facilities in 1996; 159 centers were not visited even once.
When inspectors do show up, they often concentrate on compliance with the safety rules—whether a first-aid kit is complete, for instance—but may be oblivious to larger concerns about the children's welfare. When imposing regulations, licensing boards may insist on niggling requirements—that more toilets must be available in case children have diarrhea, or that a fence be built in a completely rural area—but ignore indicators of inappropriate behavior.
Regulatory enforcement is further hampered by poor coordination between different agencies. When state agencies fail to share information, dossiers of troubling testimony may go unread. That's apparently what happened last February, when 2-year-old Raegan McBride, from the Hartford suburb of Windsor, Conn., died. According to the state medical examiner, the cause of her death was a single blow to the back of the head. The blow was allegedly delivered by the child's day-care provider, Kathy Greene, who has been charged with manslaughter in the case. She has pleaded not guilty.
Page 65 PREV PAGE TOP OF DOC
After Raegan's death, investigators probed Greene's record and found multiple complaints of child abuse logged over a 14-year period. Police interviews with Greene's former charges turned up accounts of bruises, cigarette burns, dislocated arms, and vicious threats, all allegedly perpetrated by Greene. One boy told investigators that Greene had thrown him against a washing machine because he had wet his pants. After reviewing a series of complaints, a social worker wrote: ''I would not place a child at Ms. Greene's again,'' stating that the woman was unable to control her ''rage for authority and power over children.'' That was in 1992. Greene remained in business five more years, until Raegan's death.
Kristine Ragaglia, the child advocate for the state of Connecticut, acknowledges that faulty reporting was part of the problem. Beyond that, Ragaglia says, Greene stayed in business because the previous cases boiled down to a child's word against that of an adult—and the regulators consistently sided with the adult.
Many states refuse to share their files with other states; a bad day-care provider drummed out of business in one state can reopen in another. Most states keep day-care records at the county level. Parents can review the records, but obtaining access to the files isn't always easy. When a reporter recently requested information on 19 day-care homes in Anne Arundel County, Md., she was asked to limit herself to four requests and was told that the county could take 30 days to respond. That would discourage many busy parents.
Reviewing a file is a good precaution, but not an ironclad one. When 14-month-old Kierra Harrison died in her Las Vegas day-care center last March, the cause of death was found to be a fractured skull from severe head trauma: Shards of bone were wedged in her brain. Doctors described her injury as equivalent to falling headfirst from a two-story building onto concrete. The day-care operator was charged with murder. She has pleaded not guilty. Yet when Kierra's mother, Amanda Harrison, checked with the licensing board, the day-care provider's record was clear. After the fatality, Kierra's family learned that the provider allegedly had been reported for abusing her own 3-year-old daughter, but it hadn't shown up in the files because her surname was misspelled. (A lawyer for the provider calls those child-abuse complaints against her ''way out of proportion.'')
Page 66 PREV PAGE TOP OF DOC
The case has given Kierra's grandmother, Pam Rowse, a registered nurse, a political cause. After Kierra's death, Rowse dropped her 9-to-5 administrative position to work an emergency-room shift, so that she would have maximum free time during business hours to lobby for stronger regulation. Jeremy Fiedelholtz's parents have made the same choice. Mark Fiedelholtz, a lawyer who runs legal studies seminars, and Julie, a social worker with Catholic Charities, have lobbied Congress as well as Florida officials for national day-care reform. In the six months since his son's death, Mark has testily confronted more than one politician for failure to support greater regulation, saying: ''What do you need, a body count?''
But while the families of victims lobby for higher standards and stricter rules, proprietary day care, especially the larger franchises, employs a powerful lobby in Washington to keep up opposition to increased regulation. Industry representatives contend that day care can maintain high standards without bolstering requirements, and that new regulations would drive costs up to unacceptable levels. What seems hardest for the mourning families is their abiding sense that they themselves had been naive—naive in assuming that the laws and standards governing day care had produced a system in which their children would be safe.
With Margaret Loftus, Jill Jordan Sieder in Atlanta, and Zachary Knight