By Stephanie Grinnell
Staff Writer
This summer marks the first year daycares will have to comply with new pool regulations authored by the Maine Department of Health and Human Services Division of Licensing and Regulatory Services. The rules were drafted last year after 3-year-old Andrew Thurston drowned in a swimming pool at Koala Kare in Westbrook after removing his personal flotation device and jumping into the deep end of the pool. According to news reports, Thurston and four other children the same age were under the supervision of one daycare worker, whose lifeguard certification had expired more than 18 years prior.
Most impacted by the rules are large daycare centers, who now must have a licensed lifeguard or water safety attendant on duty when there are more than three children in the water, whether they swim in a pool, lake or at a beach.
The original rules did not include guidelines for off-site water-based activities, such as trips to water parks or beaches, and will be amended to include existing emergency rules this fall. Director of Licensing and Regulatory Services Catherine Cobb said the comment period, which solicits input from daycare providers and the public, for the emergency rules will be open until July 21.
“We had put emergency rules into place last year after a child drowned. We need to move from emergency rules to permanent ones,” she said.
Cobb said the only daycare drowning death she was aware of in the state was Thurston’s.
“But we still need a set of rules,” she said.
She said there are 3,600 licensed childcare providers in the state. Family daycares are licensed to care for fewer children, generally up to 12, than large centers which may care for up to 100 children, said Cobb.   
Family daycare center rules regarding swimming pools are more relaxed, DHHS Licensing Manager Wes Uhlman said. Family daycares are not required to have a lifeguard or to register their pools with the Center for Disease Control as large centers are required to do, he said.
Family daycares must have a trained water safety attendant but are not required to have a lifeguard, he said. The difference between a water safety attendant and a lifeguard lies in training, Uhlman said. Lifeguard trainees must demonstrate the ability to perform an in-water rescue, but Uhlman said a water safety attendant focuses more on safety education.
Prior to the proposed rules, there was a requirement for basic water safety at all facilities, Cobb said. The new rules dictate that non-swimmers be clearly identified with a different color swim cap or wrist band to make staff aware of their status. Non-swimmers must also wear a Coast Guard approved flotation device when in water deeper than their waist, Cobb said.
Large centers must provide proof of swimming instruction before allowing children to swim without a flotation device, Uhlman said, adding that rule does not apply to family daycares.
Local daycare providers have been proceeding cautiously in the wake of the new rules, including Making Friends Daycare owner Debra Boucher, whose facility is located in Biddeford. Boucher has been in the childcare field for more than 15 years and had a pool in the past that children used without incident. Last year and this year, Boucher is making due with a sprinkler because she said the new rules are “overwhelming.”
“I’m not trying to insult the state, but when you’re getting stacks of paper like this, front and back…” she said, holding up an inch-thick stack of pages. “It’s overwhelming. We all sympathize with that family and that baby, but if [the daycare] had been doing their job, it wouldn’t have happened. They are making it too impossible for us because of one mistake.”
Boucher said other daycare providers are as stumped as she is when it comes to rules for family daycares. She said she has repeatedly called her licensing specialist to explain the rules and has come away with few questions answered. Calls to Cobb were also not returned, she said.
“When [the rules] first came out, there was one piece of paper,” she said. “Then a month later, we got another and another.”
Boucher has signed up to take a Red Cross class which will certify her as a water safety attendant, but she said it took her two years to get into a class in the area. She is also paying for a friend to take the class to assure there will be more than one person certified. Once they are certified, Boucher said without the friend, she would not be able to allow the children to swim because as a water safety attendant, Boucher will not be counted as a member of the daycare staff.
Uhlman said if there are three children or less in the pool and the water safety attendant is not in the water, the water safety attendant may be counted as staff but if there are more than three children in the water, the water safety attendant is not factored into the staff to child ratio. Boucher’s license allows her to care for up to 12 children and she said she can’t afford to hire help.
“I can’t afford more staff or to pay a lifeguard,” Boucher said. “We are grateful for all that DHHS does, but some of these rules are overboard. We are all doing our job.”
Boucher has to pay for water and sewer at her location, and said the hose is on for an average of four to five hours per day in the summer without a pool. She estimated it cost an additional $250 to $385 per month to use the sprinkler, compared to a one-time fee to fill the pool.
“All I can hear is ‘ca-ching, ca-ching, ca-ching.’ It’s easier for the large centers than us small facilities or in-home centers,” Boucher said. “I would never put my children in jeopardy.”
Boucher said she is concerned there will be daycare providers who will ignore the rules and said she hopes that does not happen for the safety of the children.
“I’m overdoing what I have to make sure my kids are safe,” she said.
Boucher has parents sign permission slips for swimming and knows each of their swimming capabilities.
“The ones that don’t swim, of course we’ve got life jackets on them,” she said of trips to the beach in the past. “It’s our job to make sure kids are safe.”  
Kim Field, owner of Building Blocks Daycare in Buxton, said many providers, including herself, are not using anything larger than wading pools because of the new rules.
“It makes it very difficult because we can’t do the things we did before,” Field said. “And as long as the kids can get wet, they’re happy.”
The permanent rules for daycare pools were put into effect in August 2007 and though the lake and beach emergency rules have not been made permanent, they must still be adhered to.
Daycare providers with questions about the rules should contact their licensing specialist or contact DHHS Division of Licensing and Regulatory Services at 287-9300.