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unattainable. In response, OSSE removed the actual target percentage in the proposed rulemaking. OSSE continues to not include the actual target percentage in the final rulemaking and will issue guidance setting forth a new immunization compliance target shortly.

Section 104.12 provides that a renewal application may be denied if the applicant failed to abate identified deficiencies within the required timeframe provided by OSSE. Section 104.12 does not provide a specific number of days as the required timeframe. One commenter recommended a longer timeframe than ninety (90) days to abate deficiencies and further recommended that OSSE provide thirty (30) days for an applicant to submit a corrective action plan according to a timetable, similar to Headstart. The State Superintendent appreciates the comment. However, because the timeframe to abate will vary based on the nature of the deficiency, the State Superintendent retain the language as proposed and will not add a specific timeframe to abate identified deficiencies to this final rulemaking.

Waiver Section 106 provides licensees and applicants with waiver of compliance for one or more licensure provisions. Prior to the proposed rulemaking, the only flexibility available to licensees and applicants was a variance from the physical or structural requirements. This section allows OSSE to grant waivers for any licensing provision so long as the requirements in §106 are met. The State Superintendent received three comments on the provisions in this section. One comment asked whether all three factors in § 106.1 must be considered. Subsection 106.1 requires that OSSE must determine, based on clear and convincing evidence, that all three factors are met. The waiver application must provide evidence and support for each factor. The commenter further asked what notice would be provided if a waiver was revoked and whether a facility would be provided with time to cure before a waiver is revoked. Because any waiver is issued at the discretion of OSSE to the sole benefit of a facility, notice and opportunities to cure are not provided in the same manner as if OSSE issued a summary suspension.

Restricted License Section 107 outlines the requirements for a restricted license which is issued as an alternative to suspending or revoking an existing license when a licensed facility has one or more deficiencies. Two comments regarding restricted licenses were received. One commenter recommended that OSSE only issue a restricted license for three or more deficiencies, instead of one or more deficiencies. However, because the nature of the deficiency varies and one major deficiency may severely limit a facility’s ability to operate, the State Superintendent does not accept this recommendation. Another commenter sought clarification of § 107.2, which prohibits a facility operating under a restricted license from enrolling additional children. Specifically, the commenter asked whether a facility was prohibited from increasing its current enrollment or that enrollment was “frozen” as of the date of the issuance of the restricted license. The intent of this subsection was to ensure that facilities operating under a restricted license did not attempt to serve more children until the deficiency or limitation leading to the need for a restricted license is corrected. Accordingly, a facility’s enrollment is frozen as of the date the restricted licensed is issued until the deficiency is abated.

Fees