Ways Microschools Navigate Childcare Requirements

Today’s microschooling movement is growing fast in communities around the country, which is exciting for families and educators but also is prompting new questions from state and local regulators. We frequently find that regulators of daycare or childcare programs are often the sources of greatest uncertainty for microschool operators, especially those serving elementary school-aged children.

Because education is generally governed at the state level in the United States, microschools are organized differently in different states based on each state’s regulatory framework (and microschools may differ within a particular state depending on the services the schools offer). States with heavily regulated private schools sectors (such as Maryland, New York, Nevada and North Dakota) often drive microschoolers to open as learning or tutoring centers providing supplemental, curricular, or enrichment services to children whose families follow their state’s homeschool rules. 

By contrast, in states with a lighter regulatory touch on private schools, many microschools open as private (nonpublic) schools. Even in these states, some microschools may still choose to operate as learning or tutoring centers, especially in those states where the lighter regulatory touch is reserved for faith-based schools.

In every state, opening and operating a microschool means recognizing and respecting the rules, including regulations on childcare. Unfortunately, microschool founders operating in good faith still can face regulatory conflict and confusion because the rules were written before microschools became popular, such that these legal structures aren’t built for the services they offer.

For microschools operating as tutoring or learning centers, there is a danger that regulators see them as technically fitting within the definition of a daycare or childcare center. That can carry a significant regulatory burden -- the volume and complexity of rules and requirements for childcare centers are so vast that they can require 100 pages (or in one state over 300 pages) to lay out fully. And even trying to comply with those regulations may be impossible or at least inconvenient for a microschool because they are designed for daycare, not education.

How should microschools serving elementary-aged (or older) children approach these extensive requirements?

First, it’s important to recognize the difference between K-12 education and early childhood education / daycare. We admire and appreciate those who serve the needs of preschool and preK children, but they are not our core mission at the National Microschooling Center, and their needs and networks are different from those we serve.

We also frequently find that the greatest confusions, and subsequently the largest regulatory headaches, can come when microschools serving older children also try to operate early childhood programs at the same facility space. That’s not to say it cannot be done (indeed, there are often business synergies from serving families with multiple kids spanning preschool and school ages), or to denigrate preschool educators. It’s simply to say that in our experience, having clear boundaries (including clearly differentiated staffing and spaces) can be essential to avoiding regulatory confusion. Similarly, being up front with a childcare inspector ahead of time about a collocated tutoring/learning center is often better than an inspector “discovering an unlicensed operation on the same property.”

For those microschools who do receive unplanned attention or visits from childcare regulators, we suggest always asking for a copy of the inspector’s business card so you can record exactly who you are meeting. If they cite particular rules or codes, write them down. If they ask questions or propose action, record that too. Your goal should be to be pleasant and polite while still not conceding their regulatory jurisdiction over your microchool.

To the larger question, “Does my microschool fall within the definition of a childcare center and if so, do I need a license,” it’s essential to read the definitions specific to your state. A childcare law may only apply to children under a certain age, or may only cover older children outside of standard school hours (like after 3pm). It may be tied to paying for care, such that if your microschool operates more like a supercharged homeschool coop, the law does not apply to you. Other states may tie it to a certain number of hours per week or month (the babysitter exception) such that your hybrid home/school model is not covered.

Most importantly, the law may explicitly incorporate concepts like “childcare” or “daycare” to mean what we all understand is childcare or daycare, which is fundamentally different in kind from elementary education. Other states’ laws may not be so detailed—if the law says, “Childcare is anyone who is paid to care for children from more than one family for at least 10 hours per week.” In that case, it seems reasonable to assert that a microschool is not paid to “care” for a child, but rather to “educate” a child. It is not difficult to see where a designated childcare regulator, or the appointed boards they often work for, can get confused on this significant point.

Tutoring centers like Mathnasium or Kaplan and after-school programs like the Y or Boys & Girls Clubs are not regulated as childcare providers, even if they are paid to have stewardship of children after school -- microschool learning centers should not be treated any differently.

This tells us that many state childcare statutes and codes are in need of updating, to make clear that microschools serving school-aged children's educational needs are a different kind of program, providing different services to families entirely, than the childcare programs these requirements were put in place to govern.

Ultimately, regulatory jurisdiction is usually exclusive. In other words, if a state department of education has jurisdiction over a private school, then by definition the state childcare agency does not have jurisdiction over that school. Similarly, if children are registered as homeschoolers with a local school district, then that school district is responsible for ensuring their education, not a state childcare agency. Regulatory conflict arises when microschools fall into gaps where no agency has obvious authority.

As always, the National Microschooling Center is ready to provide support and advice to our members and allies as they navigate these complicated regulatory landscapes.