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The State Superintendent received comments asking why the State Superintendent, and not the Facility is making the determinations as to whether an individual is eligible or ineligible to work. In addition, one commenter noted that if there is a concern on a criminal background check, they should be informed of the concern so that they could make a final determination as to whether or not they would like to employ the individual.

In order for the protection of privacy of the results, the CCDBG Act requires the state lead agency (OSSE) to make determinations regarding a child care staff member’s eligibility for employment. The federal law further requires that OSSE provide results of the background check to the child care provider in a statement that indicates only whether the staff member is eligible or ineligible, without revealing specific disqualifying information. If the staff member is ineligible, the Lead Agency must provide information about each specific disqualifying crime to the staff member, as well as information on how to appeal the results of the background check to challenge the accuracy and completeness.

In addition, the State Superintendent has made three non-substantive changes in § 135. First, OSSE amends § 135.6 to strike “OAH” and replace it with the Commission on Human Rights to comply with the Child and Youth, Safety and Health Omnibus Temporary Amendment Act of 2016, signed October 31, 2016 (D.C. Act 21-521; 63 DCR 13597 (November 4, 2016)). Second, the State Superintendent is striking “licensee” and replacing it with “staff member” in § 135.5(b). This amendment is necessary to correct an unintended error as right to appeal described in the Notice of Ineligibility for Employment is intended for the staff member, not the licensee. Finally, the State Superintendent is updating the number of days a staff member has to request a hearing in § 135.5(b) from ten (10) days to thirty (30) days to correct a drafting error and maintain consistency with § 135.6, which provides a staff member may request an appeal not later than thirty (30) days after receiving the notice described in § 135.5.

Required Drug And Alcohol Testing Program Section 136 provides the requirements for drug and alcohol testing. One commenter requested clarification regarding the State Superintendent’s policy regarding the authorization of the use of a Schedule I drug, marijuana, in licensed child development facilities. The District’s Department of Human Resources (“DCHR”) has determined that Initiative 71 has no impact on the District government’s current enforcement and application of employment related drug testing requirements. Furthermore, any recipient of federal funding, including funding under the Child Care Development Block Grant (“CCDBG”) Act of 2014, effective November 19, 2014 (Pub.L. 113-186; 42 U.S.C. §§ 9858 et seq.) is required to comply with the Drug Free Workplace Act of 1988, effective (Pub.L. 114-165; 41 U.S.C. § 8103 et seq.) and its implementing regulations. The Drug Free Workplace Act of 1988 mandates that all federal grantees provide drug-free workplaces as a condition to receiving a federal grant. A drug-free workplace requires a policy that the unlawful use of a controlled substance is prohibited in the covered workplace. Marijuana is a controlled substance. The Federal guidance explicitly states that grants to school districts or other educational organizations are covered by the Drug Free Workplace Act of 1988 and the statute does not provide a basis on which school districts or other education-related grantees may be exempted from the requirements of the regulations. Therefore, if a facility allows an employee who has tested positive for marijuana to continue performing their duties at the facility without a