Bill 109 - An Act Respecting the Early Childhood Services Act

BILL 109

An Act Respecting the Early Childhood Services Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Early Childhood Services Act

1( 1) Section 1 of the Early Childhood Services Act, chapter E-0.5 of the Acts of New Brunswick, 2010, is amended by adding the following definitions in alphabetical order:

“designated facility” means a licensed facility that is designated by the Minister under section 15.1 or for which the designation is renewed under section 15.2. (établissement désigné)

“early learning and childcare home” means an early learning and childcare home as defined in the regulations. (garderie éducative en milieu familial)

“full-time early learning and childcare centre” means a full-time early learning and childcare centre as defined in the regulations. (garderie éducative à temps plein)

“part-time early learning and childcare centre” means a part-time early learning and childcare centre as defined in the regulations. (garderie éducative à temps partiel)

1( 2) Paragraph 2.02(5)(e) of the Act is amended by striking out “Part 3” and substituting “Part 2.1”.

1( 3) Subsection 6(4) of the Act is amended by adding after paragraph (e) the following:

(e.1) the designation status of the facility, if applicable;

1( 4) Section 14 of the Act is amended

(a) in subsection (1)

( i) in the portion preceding paragraph (a) by striking out “the licence shall be deemed” and substituting “the licence and, if applicable, the designation, shall be deemed”;

( ii) by repealing paragraph (a) and substituting the following:

(a) the Minister renews the licence and, if applicable, the designation, or

( iii) in paragraph (b) by striking out “the licence” and substituting “the licence and, if applicable, the designation”;

(b) in subsection (2) by striking out “the licence shall be deemed” and substituting “the licence and, if applicable, the designation, shall be deemed”.

1( 5) The Act is amended by adding after section 15 the following:

Designation of early learning and childcare facilities

Designation

15.1( 1) On or after November 1, 2022, a person may, when applying for a licence under section 5, apply to the Minister, on a form provided by the Minister, to have a facility designated as a designated facility or, in the case of a person that is an operator of a licensed facility, at any time during the term of the licence.

15.1( 2) An application for designation shall be accompanied by the documents prescribed by regulation.

15.1( 3) The Minister may, in accordance with the policies and procedures established by the Minister, designate a facility as a designated facility

(a) on the issuance of a licence under section 6 for the term of the licence, or

(b) at any time during the term of a licence, for the remainder of the term of the licence.

15.1( 4) The Regulations Act does not apply to the policies and procedures established by the Minister for the purposes of subsection (3).

15.1( 5) The Minister shall, whenever possible, designate facilities in the order of priority established by regulation.

15.1( 6) A designation expires at the end of the term of the licence unless the licence and the designation are renewed.

Renewal of a designation

15.2( 1) An application for the renewal of a designation shall be made on a form provided by the Minister and submitted to the Minister at the same time as the application for renewal of a licence under section 11.

15.2( 2) An application for the renewal of a designation shall be accompanied by the documents prescribed by regulation.

15.2( 3) On receiving a completed application for the renewal of a designation, the Minister shall, on renewing the licence, renew the designation if the Minister is satisfied that the licensee will comply with the requirements of designation in this Act and the regulations.

Schedule of wage rates

15.3( 1) For the purposes of this section, “employee” means

(a) with respect to a full-time early learning and childcare centre or a part-time early learning and childcare centre, a staff member, other than an operator, who works directly with children and an administrator, and

(b) with respect to an early learning and childcare home, an operator.

15.3( 2) The Minister shall establish a schedule of wage rates for employees of designated facilities and shall review the schedule of wage rates at least once a year.

15.3( 3) The Minister shall make the schedule of wage rates available to the public by posting the schedule on the Department of Education and Early Childhood Development website.

15.3( 4) On or after November 1, 2022, an operator of a designated facility shall pay each employee at a wage rate not less than the applicable wage rate set out in the schedule.

Designation agreements

15.4( 1) Any agreement entered into by the Minister with an operator of a licensed facility on or after February 1, 2018, and before the commencement of this section, with respect to the designation of the operator’s licensed facility for the purposes of improving the quality of services at the facility and providing financial assistance under section 46, shall be deemed to have been validly entered into and is confirmed and ratified.

15.4( 2) Any act or thing done on or after February 1, 2018, and before the commencement of this section by the Minister with respect to financial assistance referred to in subsection (1) shall be deemed to have been validly done and is confirmed and ratified.

15.4( 3) No action, application or any other proceeding to question or in which is questioned the validity of the agreements referred to in subsection (1) or the authority of the Minister to enter into such agreements or to provide financial assistance referred to in subsection (1) shall lie or be instituted against the Crown in right of the Province, the Minister or any person appointed, assigned, designated or requested to assist the Minister with respect to such agreements and financial assistance, if the Minister or person acted in good faith in entering into the agreement or providing the financial assistance referred to in subsection (1).

Deemed designation

15.5( 1) On the date the Act that enacted this section received first reading in the Legislative Assembly, any licensed facility that is designated under an agreement referred to in section 15.4 is, for the remainder of the term of the licence, deemed to be a designated facility.

15.5( 2) If a licence referred to in subsection (1) expires on or before October 31, 2022, the Minister may, on renewal of the licence, renew the designation.

Designation on or before October 31, 2022

15.6 On or before October 31, 2022, the Minister may designate a facility as a designated facility in the following circumstances:

(a) the Minister receives a completed application for a licence and for designation on or before the date the Act that enacted this section received first reading in the Legislative Assembly;

(b) the Minister receives an application for designation on or before October 31, 2022, from an applicant who, on the date the Act that enacted this section received first reading in the Legislative Assembly, was operating a licensed facility that was not deemed to be a designated facility under subsection 15.5(1);

(c) the Minister receives on or before October 31, 2022, from a person who, on the date the Act that enacted this section received first reading in the Legislative Assembly, was operating a licensed facility that was deemed to be a designated facility under subsection 15.5(1), and who, after that date, ceases to operate the facility, a completed application for a licence and for designation to operate at another premises a similar designated facility; or

(d) the Minister receives on or before October 31, 2022, a completed application for a licence and for designation in respect of a facility that was deemed to be a designated facility under subsection 15.5(1) from a person who was not the operator of the facility on the date of the deemed designation.

1( 6) Section 21 of the Act is amended by adding after paragraph (a) the following:

(a.1) a notice of a decision to suspend a grant under subsection 28.3(1);

1( 7) The Act is amended by adding after section 28.2 the following:

Suspension of grant – designated facility

28.3( 1) If in the opinion of the Minister, an operator of a designated facility fails to comply with a requirement of designation in this Act or the regulations, the Minister may suspend a grant under section 40.011 and the decision to suspend the grant shall include the following information:

(a) the non-compliance that resulted in the suspension of the grant;

(b) the corrective measures the operator must take to remedy the non-compliance; and

(c) the period within which the operator must remedy the noncompliance, which shall be no more than three months and shall not exceed the term of the licence.

28.3( 2) If the Minister is satisfied that the operator has taken the required corrective measures, the Minister may reinstate the grant.

28.3( 3) If an operator fails to take the required corrective measures during the period referred to in paragraph (1)(c), the Minister may revoke the designation and, for the remainder of the term of the licence, the facility will not be a designated facility.

1( 8) Subsection 32(1) of the Act is amended by striking out “section 28 or 29” and substituting “section 28, 28.3 or 29”.

1( 9) Subsection 33(2) of the Act is amended

(a) in the portion preceding paragraph a) of the French version by striking out “ou l’autre”;

(b) in paragraph (a) of the English version by striking out “and” at the end of the paragraph;

(d) by adding after paragraph (b) the following:

(d) a decision to revoke a designation under subsection 28.3(3).

1( 10) The Act is amended by adding after section 40 the following:

PART 2.1

CHILDCARE GRANTS

Non-application of Part

40.01 This Part does not apply to programs.

Provision of grants

40.011( 1) The Minister may, on application or on the Minister’s own initiative, provide grants to an operator of a licensed facility for the purpose of aiding and encouraging

(a) the establishment, operation and maintenance of the facility,

(b) improvement of the quality of services at the facility,

(d) the development and implementation of initiatives and services that promote the purposes of this Act.

40.011( 2) The Minister may impose any terms and conditions that the Minister considers appropriate on the grant.

40.011( 3) The type and amount of a grant may vary depending on the class of a facility and whether it is or is not a designated facility.

40.011( 4) The Minister may, in the circumstances that the Minister considers appropriate, provide a grant on a temporary or one-time basis.

40.011( 5) The Minister may only provide a grant to an operator who operates or maintains its licensed facility in compliance with this Act, the regulations and its licence.

Application for grant

40.02( 1) An operator may apply to the Minister on a form provided by the Minister for a grant.

40.02( 2) An application shall be accompanied by the documents that the Minister requires.

40.02( 3) The Minister shall provide written notice to the operator of the Minister’s decision with respect to a grant and, if the Minister decides to provide the grant, the amount of the grant, the period during which it will be paid and any term or condition imposed on the grant.

40.02( 4) The Minister is not required to give reasons for refusing to provide a grant.

Financial and other records

40.021( 1) An operator who receives a grant shall maintain the financial and other records that are prescribed by regulation.

40.021( 2) The Minister may require the operator to produce for examination any record that is required to be maintained under this section.

40.021( 3) After examining the financial records under subsection (2), the Minister may require the operator to submit audited financial statements to the Minister within the time specified by the Minister.

Discontinue, suspend, vary, cancel or terminate grant

40.03( 1) The Minister may, on written notice to the operator, discontinue, suspend, vary, cancel or terminate a grant if the Minister is satisfied that the operator

(a) ceases to be eligible for the grant,

(b) has knowingly made a false statement in the application for the grant or the accompanying documents or in any other record or document required to be filed or maintained under this Act or the regulations, or

(c) has violated or failed to comply with a term or condition of the grant or a requirement or provision of this Act or the regulations.

40.03( 2) This section and sections 40.06 to 40.08 do not apply to a decision to suspend a grant under subsection 28.3(1).

Collection, use and disclosure of personal information - grants

40.04( 1) The Minister may collect and use the personal information of staff members of a licensed facility for the purpose of determining whether to provide a grant.

40.04( 2) The Minister may collect the personal information referred to in subsection (1) indirectly from an operator in a form referred to in subsection 40.02(1) or in a record produced for examination under subsection 40.21(2).

40.04( 3) The Minister may disclose the personal information referred to in subsection (1) to an operator for the purpose of providing a grant.

Repayment of grant

40.05( 1) If an operator has received a grant or a portion of a grant for which the operator ceases to be eligible, the Minister may require the operator to repay all or a portion of the grant.

40.05( 2) Sections 52 and 53 apply with the necessary modifications to the repayment of all or a portion of a grant.

Operator entitled to review

40.06 An operator may request that the Minister review a decision made under subsection 40.02(3) or 40.03(1).

Request for review

40.07 A request for a review under section 40.06 shall be submitted to the Minister in writing and shall be made within 10 days after the operator is provided with notice of the Minister’s decision.

Review of decision

40.08( 1) On request, the Minister shall review a decision made under subsection 40.02(3) or 40.03(1) and, on completion of the review, may do any of the following:

(a) confirm the decision;

(b) vary the decision; or

40.08( 2) The Minister shall, within 30 days after the Minister receives the request for review, provide written notice to the operator of the Minister’s decision to confirm, vary or rescind the decision.

Notice

40.09 A notice under subsections 40.02(3), 40.03(1) and 40.08(2) shall be provided to the operator by any of the following methods:

(a) by ordinary mail to the operator’s last address known to the Minister;

(b) by fax to the operator’s last fax number known to the Minister; or

1( 11) Section 45 of the Act is amended by repealing the definition “parent” and substituting the following:

“parent” means a person who has parenting time or decision-making responsibility, as those terms are defined in the Family Law Act, in respect to a child. (parent)

1( 12) Subsection 46(1) of Act is amended by striking out “or a facility that is subject to an interim permit” and substituting “, a facility that is subject to an interim permit or a designated facility”.

1( 13) The Act is amended by adding after section 50 the following:

General duty to notify

50.1( 1) If the Minister refuses to grant an application for assistance by a parent or discontinues, suspends or varies any or all assistance to a parent under section 50, the Minister shall provide written notice of the Minister’s decision to the parent.

50.1( 2) A notice under subsection (1) shall indicate the following information:

(a) the Minister’s decision; and

(b) the right of the parent to have the decision reviewed by the Minister.

50.1( 3) A notice under subsection (1) shall be provided to the parent

(a) by ordinary mail to the parent’s last address known to the Minister, or

(b) by e-mail to the parent’s last e-mail address known to the Minister.

50.1( 4) A notice sent by ordinary mail shall be deemed to have been received by the parent five days after it has been mailed.

1( 14) The Act is amended by adding after section 53 the following:

Parent entitled to review

53.1 A parent who has applied for assistance or who receives or received assistance may request that the Minister review a decision made under section 50.

Request for review

53.2 A request for a review under section 53.1 shall be submitted to the Minister in writing and shall be made within 10 days after the parent is provided with notice of the Minister’s decision.

Review of decision

53.3( 1) On request, the Minister shall review a decision made under section 50 and, on completion of the review, may do any of the following:

(a) confirm the decision;

(b) vary the decision; or

53.3( 2) The Minister shall, within 15 days after the Minister receives the request for review, provide written notice to the parent of the Minister’s decision to confirm, vary or rescind the decision.

53.3( 3) A notice under subsection (2) shall be provided to the parent by ordinary mail to the parent’s last address known to the Minister.

1( 15) Subsection 60(2) of the Act is amended by striking out “55(4), (5) or (6)” and substituting “55(5) or (6)”.

1( 16) Section 63 of the Act is amended

(a) by renumbering the section as subsection 63(1);

(b) in subsection (1)

( i) by adding after paragraph (f) the following:

(f.1) respecting the order of priority for designation for the purposes of subsection 15.1(5);

(f.2) prescribing requirements of designation, including requirements with respect to the following matters:

( i) the curriculum to be used at designated facilities and training requirements of staff members;

( ii) quality improvement plans;

( iii) the market fee threshold of the maximum daily cost of services; and

( iv) the parent fee grid of fees that operators of designated facilities shall charge for services;

(f.3) authorizing the Minister to establish a curriculum for designated facilities and approve the use of a curriculum based on Indigenous culture;

(f.4) authorizing the Minister to establish a market fee threshold of the maximum daily cost of services at designated facilities;

(f.5) authorizing the Minister to establish a parent fee grid of fees that operators of designated facilities shall charge for services;

( ii) by repealing paragraph (n);

( iii) by repealing paragraph (o);

( iv) by repealing paragraph (p);

( v) by repealing paragraph (q);

( vi) in paragraph (z)

( A) in the portion preceding subparagraph (i) by striking out “section 41” and substituting “section 40.011;

( B) by adding after subparagraph (iii.1) the following:

( iii.2) establishing different types and amounts of grants for designated facilities, licensed facilities that are not designated facilities and different classes of facilities, and

( C) by repealing subparagraph (iv);

( D) by repealing subparagraph (v);

( E) by repealing subparagraph (v.1);

( vii) in paragraph (aa)

( A) in subparagraph (iv) of the English version by striking out the comma at the end of the paragraph and substituting “, and”;

( B) by repealing subparagraph (v);

( C) by repealing subparagraph (vi);

( viii) by repealing paragraph (bb);

63( 2) Regulations may vary for or be made in respect of different persons, operators, facilities, licences, grants or financial assistance or different classes or categories of persons, operators, facilities, licences, grants or financial assistance.

63( 3) A regulation may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation.

Regulations under the Early Childhood Services Act

2( 1) New Brunswick Regulation 2018-11 under the Early Childhood Services Act is amended

(a) in section 2 by adding the following definition in alphabetical order:

“inclusion support worker” means a staff member who is approved by the Minister to provide services directly to children with additional needs. (travailleur d’appui à l’inclusion)

(b) by adding after section 6 the following:

Order of priority for designation

6.1 For the purposes of subsection 15.1(5) of the Act, the Minister shall designate, before any other facility, an early learning and childcare home or, if the operator is a non-profit organization, a full-time early learning and childcare centre or a part-time early learning and childcare centre.

Application for a designation

6.2( 1) For the purposes of subsection 15.1(2) of the Act, an application for a designation shall be accompanied, on a form provided by the Minister, by an analysis of the market of the services the facility provides or intends to provide.

6.2( 2) The analysis shall be conducted in accordance with the policies and procedures established by the Minister for the purposes of subsection 15.1(3) of the Act.

Application for renewal of a designation

6.3 For the purposes of subsection 15.2(2) of the Act, an application for renewal of a designation shall be accompanied, on a form provided by the Minister, by the quality improvement plan referred to in section 6.4.

Quality improvement plan

6.4( 1) An operator of a designated facility shall establish a quality improvement plan with respect to the services provided to infants and preschool children at the designated facility.

6.4( 2) The operator shall implement and monitor the quality improvement plan and revise it each year.

Curriculum – designated facility

11.1( 1) An operator of a designated facility shall, when providing services to infants or preschool children, use a curriculum established by the Minister for the language in which services are provided.

11.1( 2) The Minister may, in consultation with stakeholders, modify the versions of the curriculum referred to in subsection (1).

11.1( 3) A staff member who works directly with infants or preschool children shall complete in each year 10 hours of training approved by the Minister related to the curriculum used at the designated facility.

11.1( 4) A staff member may use only the version of the curriculum for which the staff member has been trained.

11.1( 5) Despite subsection (1), an operator of a licensed facility that is deemed to be a designated facility under section 15.5 of the Act and that, immediately before the commencement of this section, was using a curriculum approved by the Minister may continue to use that curriculum.

11.1( 6) Despite subsection (1), on application by an operator of a designated facility, the Minister may permit the operator to use a curriculum based on Indigenous culture if the Minister is satisfied that the curriculum meets the requirements established by the Minister.

11.1( 7) Subsection (3) does not apply to the following persons:

(a) staff members of a designated facility if the operator is exempt under subsection (5) or (6) from the requirements of subsection (1);

(b) volunteers; and

(d) in subsection 26(1) by adding after paragraph (o) the following:

(o.1) if the licensed facility is a designated facility, the curriculum used at the designated facility;

2( 2) New Brunswick Regulation 2018-12 under the Early Childhood Services Act is amended

(a) by repealing section 1 and substituting the following:

1 This Regulation may be cited as the Childcare Grants and Subsidies Regulation – Early Childhood Services Act.

(b) in section 2

( i) in the definition “full-time early learning and childcare centre” by striking out “the Licensing Regulation under the Early Childhood Services Act” and substituting “New Brunswick Regulation 2018-11 under the Act”;

( ii) in the definition “part-time early learning and childcare centre” by striking out “the Licensing Regulation under the Early Childhood Services Act” and substituting “New Brunswick Regulation 2018-11 under the Act”;

( iii) by adding the following definitions in alphabetical order:

“early learning and childcare home” means an early learning and childcare home as defined in New Brunswick Regulation 2018-11 under the Act. (garderie éducative en milieu familial)

“parent” means a person who has parenting time and decision making responsibility, as those terms are defined in the Family Law Act, in respect to a child. (parent)

“relief employee” means a short term or on-call employee of a licensed facility who temporarily replaces an educator as that term is defined in New Brunswick Regulation 2018-11 under the Act. (employé de relève)

Market fee threshold

2.1( 1) The Minister shall establish a market fee threshold of the maximum daily cost of services provided to an infant or a preschool child at a designated facility and shall review the market fee threshold at least once a year.

2.1( 2) The Minister shall make the market fee threshold available to the public by posting the market fee threshold on the Department of Education and Early Childhood Development website.

2.1( 3) An operator of a designated facility shall not set its daily cost of services provided to an infant or a preschool child above the market fee threshold.

2.1( 4) Despite subsection (3), if, immediately before the commencement of this section, the daily cost of services provided to an infant or a preschool child at a licensed facility that is deemed to be a designated facility under section 15.5 of the Act was above the market fee threshold, the daily cost of services may remain in effect.

2.1( 5) If the daily cost of services provided to an infant or a preschool child at a designated facility is less than the market fee threshold, the operator may increase once in any 12 month period the daily cost of services by a maximum of 3% and shall, at least 60 days before increasing the daily cost of services, notify the Minister in writing of the increase and the effective date of the increase.

2.1( 6) Despite subsection (5), the Minister may, in the circumstances that the Minister considers appropriate, authorize the operators of designated facilities to increase by more than 3 % the daily cost of services in any 12-month period or increase the daily cost of services more than once in any 12-month period.

Parent fee grid

2.2( 1) The Minister shall establish a parent fee grid of the fees that an operator of a designated facility shall charge a parent for services provided to an infant or a preschool child and shall review the parent fee grid at least once a year.

2.2( 2) The Minister shall make the parent fee grid available to the public by posting the grid on the Department of Education and Early Childhood Development website.

Operational grants

2.3( 1) For the purposes of section 40.011 of the Act, the Minister may provide a parent fee reduction grant or a quality improvement grant or both to an operator of a designated facility.

2.3( 2) An operator of a designated facility shall submit to the Minister, within the time specified by the Minister and for the period determined by the Minister, the following information:

(a) the number of infants or preschool children enrolled at the facility; and

(b) the daily cost of services provided to an infant or a preschool child at the designated facility.

2.3( 3) The amount of a parent fee reduction grant shall be calculated by multiplying the number of infants and preschool children enrolled at the designated facility by the amount equal to the difference between the daily cost of services referred to in paragraph (2)(b) and the fee set out in the parent fee grid that an operator of a designated facility shall charge a parent for providing services.

2.3( 4) The amount of a quality improvement grant shall be calculated by multiplying the number of infants and preschool children enrolled at the designated facility by the amount that the Minister determines, taking into account the class of the facility and the age of children.

2.3( 5) The operator of a designated facility shall notify the Minister of any changes affecting the parent fee reduction grant within 30 days after the change.

2.3( 6) For the purposes of subsection 40.021(1) of the Act, the financial and other records are as follows:

(a) enrolment records for infants and preschool children; and

(b) records indicating the daily cost of services provided to an infant or a preschool child at the designated facility.

Wage enhancement grants

2.4( 1) For the purposes of this section, “employee” means

(b) with respect to an early learning and childcare home, an operator.

2.4( 2) For the purposes of section 40.011 of the Act, the Minister may provide a wage enhancement grant to an operator of a licensed facility who shall remit to each employee, in addition to their base salary, the amount of the wage enhancement grant that is attributable to that employee at the end of each pay period.

2.4( 3) Within the period determined by the Minister each month, an operator of a licensed facility shall submit to the Minister the number of hours worked by each employee with infants, preschool children or school-age children during the previous month to a maximum of

(a) 44 hours per week at a full-time early learning and childcare centre or an early learning and childcare home, and

(b) 30 hours per week at a part-time early learning and childcare centre.

2.4( 4) Despite paragraph (3)(b), the maximum number of hours for an employee who provides services in a part-time early learning and childcare centre at which temporary full-time services are provided in accordance with section 18 of New Brunswick Regulation 2018-11 under the Act is 44 hours per week.

2.4( 5) Despite subsection (3), the maximum number of hours for a relief employee is 88 hours per month.

2.4( 6) The amount of the wage enhancement grant shall be calculated by multiplying the number of hours worked by an employee by the applicable hourly rate established by the Minister for employees, performing the calculation for each employee and adding the amounts.

2.4( 7) When establishing an hourly rate under subsection (6), the Minister shall consider whether the employee

(a) holds a one-year Early Childhood Education Certificate or training that is equivalent in the opinion of the Minister, has successfully completed the Introduction to Early Childhood Education course or, if not yet completed, has been enrolled in the course for not more than six months,

(b) provides services to infants, preschool children or school-age children,

(c) is employed at a full-time early learning and childcare centre, a part-time early learning and childcare centre or an early learning and childcare home, and

(d) is employed at a designated facility or a licensed facility that is not a designated facility.

2.4( 8) An operator of a licensed facility shall notify the Minister of any changes affecting the wage enhancement grant within 30 days after the change.

2.4( 9) For the purposes of subsection 40.021(1) of the Act, the financial and other records are as follows:

(a) a payroll record for each employee; and

(b) a time sheet for each employee on a form provided by the Minister.

(d) in section 3

( i) in subsection (6) by adding after paragraph (b) the following:

(b.1) if the licensed facility is or is not a designated facility;

(b.2) the age of the child;

( ii) in subsection (7) by adding after paragraph (b) the following:

(b.1) if the licensed facility is or is not a designated facility;

(b.2) the age of the child;