Does your church have cribs in your nursery? Do you operate a child care center that has cribs? If you answered “yes” to either question, there are new federal regulations that apply to you—and unfamiliarity with them could lead to substantial penalties and civil lawsuits that may implicate not only your church, but your church board as well. This article will explain the new regulations and their impact on church practices.
Background
Baby cribs have contributed to numerous deaths and injuries due to faulty design and construction. This prompted the U.S. Consumer Product Safety Commission (CPSC) to issue regulations addressing crib safety in 1973. But the regulations did not eliminate the problem. Consider the following:
CPSC has recalled more than 11 million dangerous cribs since 2007.
Between November 1, 2007, and April 11, 2010, 3,520 incident reports involving full-sized cribs were reported to the CPSC.
82 percent of the 3,520 incidents reported some sort of failure or defect in the product itself. In order of frequency, the hazard patterns reported included:
Falls from cribs (23 percent);
Crib drop-side-related problems (22 percent of the incidents and 12 percent of all reported fatalities);
Infants getting their limbs caught between the crib slats (12 percent);
Wood-related issues, such as slat breakages and detachments (12 percent);
Mattress support-related problems (5 percent);
Mattress fit problems (3 percent);
Paint-related issues (2 percent); and
Miscellaneous problems with the crib structure (3 percent) including non-drop-side or drop gate failures, sharp catch-points, stability, or other structural issues.
About half of all injuries requiring hospitalization involved limb or skull fractures and other head injuries resulting from falls from cribs. Most of the remaining injuries resulted from children getting their limbs caught between crib slats, falling inside the crib and hitting the crib structure, or getting stuck in gaps created by structural failures.
Between November 1, 2007, and April 11, 2010, 147 fatalities associated with full-size cribs were reported to the CPSC. A majority of the deaths were not related to any structural failure or design flaw of the crib. There were 35 fatalities attributable to structural problems of the crib. Nearly all were due to head, neck, or body entrapments. More than half of these were related to drop-side failures. Almost all of the crib failures—whether they occurred due to detachments, disengagements, or breakages—created openings in which the infant became entrapped.
Drop-side cribs were associated with 32 infant strangulation deaths since 2000. Additional deaths have occurred due to faulty construction.
Because of the continuing risk associated with baby cribs and other infant and toddler products, Congress enacted the Consumer Product Safety Improvement Act (CPSIA) in 2008, which required the CPSC to establish enhanced safety standards for infant and toddler products. The CPSC responded by voting unanimously to approve the first revisions to the crib safety regulations in nearly 40 years.
The new regulations not only mandate new safety standards in the manufacture and sale of cribs, but they also impose requirements on most child care centers. The regulations become effective in two stages:
June 28, 2011—safer cribs
Beginning on June 28, 2011, all cribs sold in the United States must meet the following requirements in the new regulations:
Traditional drop-side cribs cannot be made or sold; immobilizers and repair kits cannot be used to rehabilitate a noncompliant crib. The regulations prohibit any person to whom the CPSIA applies to ”manufacture, sell, contract to sell or resell, lease, sublet, offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA states that it applies to any person that: (A) “manufactures, distributes in commerce, or contracts to sell cribs”; (B) holds itself out as having knowledge or skill peculiar to cribs, including child care facilities and family child care homes; and (C) owns or operates a place of public accommodation.
Wood slats must be made of stronger wood to prevent breakage.
Crib hardware must have anti-loosening devices to keep it from coming loose or falling off.
Mattress supports must be more durable.
Safety testing must be more rigorous
Does this regulation apply to churches? Yes, if they sell or otherwise dispose of noncompliant cribs on or after June 28, 2011. This is so even if the church does not meet the definitions of a “child care facility” or “place of public accommodation,” since the regulations apply to any entity that sells, offers, provides for use, or otherwise places a crib in the stream of commerce regardless of its status as a child care facility or place of public accommodation.
Example. A church has a child care center with 10 cribs that provides child care services to parents for a fee. Church staff learns that the church will not be able to use its existing, non-compliant cribs after December 28, 2012 (explained below). As a result, it attempts to sell its cribs on an Internet shopping service and replace them with cribs that comply with the new regulations. Such a sale would violate the regulations. The regulations prohibit any person to whom the CPSIA applies to ”manufacture, sell, contract to sell or resell, lease, sublet, offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA applies to any person that: (A) “manufactures, distributes in commerce, or contracts to sell cribs”; (B) holds itself out as having knowledge or skill peculiar to cribs, including child care facilities and family child care homes; and (C) owns or operates a place of public accommodation. The church is subject to the new crib regulations for two reasons: (1) It is a seller of noncompliant cribs; and (2) since it operates a child care center that charges fees for services it is a “child care facility” subject to the CPSIA and therefore subject to the regulations. One of those regulations prohibits the sale of any crib that is not in compliance with the new safety requirements contained in the regulations.
Example. A church does not operate a child care center that offers child care services for a fee, but does have six drop-side cribs in its nursery that are used during worship services. The nursery is staffed by uncompensated, volunteer workers. Church staff members are aware of the new CPSC regulations and would like to voluntarily replace their noncompliant cribs with cribs that comply with the regulations. The church attempts to sell its existing cribs on an Internet shopping service. It is the position of the CPSC that a “child care facility” subject to the new regulations “is one that provides services for a fee,” and that “if volunteers take care of children during a church service without pay, we do not consider that arrangement to be a child care facility, and cribs used under such an arrangement would not be subject to CPSC’s crib standards.” While this church is not subject to the new regulations as a result of its status as a child care facility, it is subject to the regulations as a result of the sale of its noncompliant cribs since the regulations apply to any entity that sells, offers, provides for use, or otherwise places a crib in the stream of commerce regardless of its status as a child care facility or place of public accommodation. Note that selling the noncompliant cribs not only will violate the regulations, but also will expose the church to a risk of liability should a child be injured or killed in another church or facility to whom the cribs are sold since the sale of noncompliant cribs could be viewed as negligence. In addition, if a jury determines that the church’s sale of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.
Example. Same facts as the previous example except that the church sells the cribs at a nominal price to persons who patronize its thrift shop. The analysis is the same.
Example. A church does not operate a child care center that offers child care to parents for a fee, but does have four drop-side cribs in its nursery that are used during worship services. Church staff are aware of the new CPSC crib regulations and would like to voluntarily replace their noncompliant cribs with cribs that comply with the regulations. The church donates its four cribs to a small church that needs them. While the donor church is not a “child care facility” because it does not offer child care services for a fee, it is subject to the new regulations as a result of its donation of the noncompliant cribs to the other church. The regulations prohibit any person to whom the CPSIA applies to “offer, provide for use, or otherwise place in the stream of commerce a crib that is not in compliance” with the new standards. The CPSIA states that it applies to any person that “distributes [cribs] in commerce,” and this is what the church did by donating its cribs to the other church. Note that donating the noncompliant cribs not only will violate the regulations, but also will expose the church to a risk of liability should a child be injured or killed in the donee church since the donation of noncompliant cribs could be viewed as negligence. In addition, if a jury determines that the church’s donation of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations do not apply to directors’ gross negligence.
If the sale or donation of noncompliant cribs violates the new regulations and exposes a church to civil liability, how should a church dispose of noncompliant cribs? The CPSC answers this question as follows:
All child care facilities, family child care homes, and places of public accommodation … must prepare to replace their current cribs with new, compliant cribs before December 28, 2012 [and] should not resell, donate or give away a crib that does not meet the new crib standards …. [They should] dispose of older, noncompliant cribs in a manner that the cribs cannot be reassembled and used. Noncompliant cribs should not be resold through online auction sites or donated to local thrift stores. CPSC recommends disassembling the crib before discarding it.
If your church purchased a crib prior to the June 28, 2011, effective date and you are unsure if it meets the new federal standards, CPSC recommends that you verify that the crib meets the standards by asking for proof. Ask the manufacturer, retailer, or distributor to show a Certificate of Compliance. The document must:
Describe the product.
Give name, full mailing address, and telephone number for importer or domestic manufacturer.
Give name, full mailing address, e-mail address, and telephone number for the records keeper and location of testing lab.
Give date and location of manufacture and testing.
Also, note that the crib must have a label attached with the date of manufacture, and this will help in determining if it was manufactured on or after June 28, 2011 (the date the new crib safety regulations took effect).
December 28, 2012
Another key requirement of the new regulations takes effect on December 28, 2012. On and after that date, any crib that is used by a child care facility must meet the new and improved federal safety standards. The law does not define the term “child care facility,” but the CPSC (which will enforce the new standards) has clarified that “we consider a child care facility to mean a nonresidential setting that provides child care services (which could include early learning opportunities) for a fee.” The CPSC website (cpsc.gov) addresses the application of this definition to churches in two places:
first definition
The CPSIA does not provide any exclusion for churches. If a church operates a child care facility, the cribs that it provides must comply with CPSC’s crib standards. Given the language in the CPSIA, we consider a child care facility to be one that provides services for a fee. If volunteers take care of children during a church service without pay, we do not consider that arrangement to be a child care facility, and cribs used under such an arrangement would not be subject to CPSC’s crib standards. The New Crib Standard: Questions and Answers
second definition
A child care facility or center provides child care services … for a fee … and is usually, although not always, licensed by the state …. If a church owns or operates a child care facility and pays a person or people to care for children, that child care center is covered by the CPSC’s crib rule. However, if the child care arrangement at a church involves parents (or others) volunteering to care for children during church service (and no one is paid to care for the children), this arrangement is not covered by the crib rule. Crib Information Center
Both of these definitions stress that a church child care facility subject to the new crib regulations is one that provides child care services for a fee. In addition, both definitions clarify that a church nursery that operates during worship services, that does not charge a fee for its services, and that does not compensate workers, is not a child care facility subject to the new regulations. What neither definition addresses is the common scenario in which a church operates a nursery during worship services without charging a fee, but that compensates its nursery workers (i.e., by paying them the minimum wage for hours worked). Does a church’s decision to compensate its nursery workers transform the nursery into a child care facility fully subject to the new crib regulations? Consider the following examples:
Example. A church has a child care center with 10 cribs that it operates each weekday. Parents pay a fee to enroll their children in the center, and the center is staffed by compensated employees. This facility meets both of the CPSC’s definitions of a “child care facility,” and so it must begin using compliant cribs no later than December 28, 2012.
Example. A church does not offer child care services to parents for a fee but does have four drop-side cribs in its nursery that are used during worship services and are staffed by uncompensated, volunteer workers. Since no fee is charged for nursery services, and workers are not compensated, the nursery would not be a “child care facility” under either of the CPSC definitions (quoted above) and cribs used under such an arrangement would not be subject to CPSC’s crib standards. However, the church is not off the hook. Its continued use of noncompliant cribs exposes it to a risk of liability should a child be injured or killed since the continued use of noncompliant cribs despite the CPSC’s widely publicized warnings could be viewed as negligence. In addition, if a jury determines that the church’s use of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.
Example. Same facts as the previous example, except that the church compensates the nursery workers. Whether a church nursery that operates during worship services without charging a fee, but that compensates its workers, is a child care facility subject to the new crib regulations is a question that is not unequivocally answered by the definitions quoted above. Church leaders should understand that this ambiguity may be resolved in favor of church coverage, and so a church described in this example may be subject to penalties for noncompliance. Regardless of the answer, the church remains subject to a risk of civil liability for continuing to use noncompliant cribs if a child is killed or injured as a result of a crib defect. In addition, if a jury determines that the church’s use of noncompliant cribs constitutes gross negligence, this could result in punitive damages (not covered by the church’s general liability insurance policy) and may expose members of the church’s governing board to personal liability since state and federal laws immunizing uncompensated board members of nonprofit corporations from personal liability do not apply to directors’ gross negligence.
Key point. Before and after the regulations prohibiting child care facilities from using noncompliant cribs take effect on December 28, 2012, church staff likely will be asked questions by parents regarding the church’s compliance with the new regulations. Obviously, informing parents that the church has decided to continue its use of noncompliant cribs (because it does not offer child care for a fee and therefore does not meet the definition of a “child care facility” subject to the new regulations) is not going to be a satisfactory response for most members. The same is true for parents visiting the church. Will they be attracted to the church, or repelled, by the church’s conscious and intentional decision to expose infants to risk as a means of saving the cost of voluntarily replacing noncompliant cribs?
The new regulations were met with opposition from the child care industry for several reasons, including the following:
caregivers are present at all times when babies are in cribs at child care centers;
cribs in child care centers are specialty cribs that do not have the same safety issues as home cribs;
state licensing and safety requirements safeguard babies in cribs in child care centers;
the cost of compliance will force many child care centers to close.
The CPSC dismissed each of these concerns. It referred to numerous examples of injuries to children in licensed child care centers despite the presence of caregivers, and rejected the claim that cribs in child care centers are inherently safer than those used in homes. However, the CPSC was clearly sensitive to the argument that its new crib regulations would impose a substantial cost on many child care centers. CPSC Commissioner Inez Tenenbaum observed:
I deeply appreciate—and am very much concerned about—the impact of this Congressionally-mandated rule on smaller entities, particularly child care facilities and places of public accommodation. Serious concerns have arisen that child care facilities in particular would not be able to obtain cribs that meet the new standard immediately after it becomes effective. Based upon a close examination of the information, CPSC staff anticipates that more than 59,000 child care facilities, 98 percent of which are small businesses, could be affected. Taking into account that the average child care center has between four and forty-five cribs, staff anticipates that about 775,000 cribs will require replacement, with the average cost of replacement per facility ranging from $2,000 to $22,000. Together, our staff estimated that child care facilities and places of public accommodation will create a demand of approximately 935,000 cribs, which would amount to nearly $467 million in replaced crib costs altogether.
These numbers are not inconsequential, and responsible implementation of this rule required that we carefully consider how quickly affected entities may reasonably be able to comply. I believe that sufficient time must be built into the process not only to allow enough crib inventory to reach the market but also to allow affected entities to purchase the new cribs. The entire purpose of the new standard—as well as the statute that required we make the standard mandatory—would be undermined by picking a date for compliance that is too early and results in the unintended consequence of well-intentioned facilities that are unable to comply having no choice but to avoid penalty by switching to potentially less safe sleep environments.
questions and answers
Here are responses to several questions pertaining to the new crib regulations.
Starting June 28, 2011, all cribs sold in the United States needed to meet the new federal requirements. After that date, it became illegal to manufacture, sell, contract to sell or resell, lease, sublet, offer, provide for use, or otherwise place in the stream of commerce a crib that does not comply with the CPSC’s new standards for full-size and non-full-size cribs. This includes manufacturers, retail stores, Internet retailers, resale shops, auction sites and consumers.
Some compliant cribs may have been available before the required date. However, you will not be able tell if the crib is compliant by looking at it. You should ask the manufacturer or retailer whether the crib complies with the new standards. Manufacturers are required to test samples of their cribs to the new standards and to certify that they comply with the new standards. They must provide this certification to the retailer. You can ask the manufacturer or retailer for a copy of the certificate of compliance that should indicate that the crib is certified to meet the new crib standards. After June 28, 2011, all cribs manufactured or offered for sale, lease, or resale are required to meet the new crib standards.
No, these are sweeping new safety rules that will bring a safer generation of cribs to the marketplace in 2011. CPSC’s new crib standards address many factors related to crib safety in addition to the drop-side rail. A crib’s mattress support, slats, and hardware are now required to be more durable and manufacturers will have to test to the new, more stringent requirements to prove compliance.
There has not been a specific “recall” of all drop-side cribs due to the new regulation. Instead, some manufacturers recently have recalled their cribs in cooperation with the CPSC because a specific defect or risk of harm has been discovered relating to a particular crib. Although these recalls are separate from CPSC’s new crib standards, traditional drop-side cribs will not meet the new crib standards that will take effect on June 28, 2011, and cribs with traditional drop-sides cannot be sold after that date.
You cannot tell from looking at a crib whether it meets the new standards. It is not likely that cribs in use before the CPSC issued its crib regulations in December 2010 will comply with the new standards. If you are considering purchasing new cribs that meet the standards, you may want to ask the manufacturer or retailer whether the crib complies with the new standards. Manufacturers are required to test samples of their cribs to the new standards and to certify that they comply with the new standards. They must provide this certification to the retailer.
You can ask the manufacturer or retailer for a copy of the certificate of compliance that should indicate that the crib is certified to meet the new crib standards. After June 28, 2011, all cribs manufactured or offered for sale, lease, or resale are required to meet the new crib standards.
CPSC primarily will enforce the new crib standards. The initial focus will be on manufacturers and sellers since they needed to comply with the new standards by June 28, 2011. Anyone who is covered by the new crib standards and does not comply commits a prohibited act under section 19(a)(1) of the Consumer Product Safety Act (CPSA). A person or company that knowingly commits a prohibited act is subject to “a civil penalty not to exceed $100,000, for each such violation.” In addition, the CPSA specifies that:
Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent, shall recover damages sustained, and may, if the court determines it to be in the interest of justice, recover the costs of suit, including reasonable attorneys’ fees and reasonable expert witnesses’ fees.
Example. A church has a child care center with six cribs that it operates each weekday. Parents are charged a monthly fee to enroll their children in the center, and the center is staffed by compensated employees. This facility meets CPSC’s definition of a “child care facility,” and so it must begin using compliant cribs no later than December 28, 2012. If it fails to do so, it is subject to the following penalties: (1) a civil penalty not to exceed $100,000 for each of its noncompliant cribs, and (2) civil damages, including attorneys’ fees and expert witnesses’ fees, in a lawsuit brought by the legal representatives of a child who is killed or injured as a result of a noncompliant crib.
That depends on whether a church meets the definition of a child care facility. The CPSC has provided two definitions of this term in the context of church coverage, as noted earlier in this article. Both definitions stress that a church child care facility subject to the new crib regulations is one that provides child care services for a fee.
In addition, both definitions clarify that a church nursery that operates during worship services, that does not charge a fee for its services, and that does not compensate workers, is not a child care facility subject to the new regulations. What neither definition addresses is the common scenario in which a church operates a nursery during worship services without charging a fee, but that compensates its nursery workers. Does a church’s decision to compensate its nursery workers transform its nursery into a child care facility fully subject to the new crib regulations? Unless the CPSC or the courts provide definitive guidance to the contrary, church leaders should play it safe and regard such a nursery as a covered child care facility given the many adverse consequences that may result from an erroneous assumption that the church is exempt.
Also, as noted above, the continued use of noncompliant cribs may expose a church, and members of the church board, to civil liability even if the church does not meet the definition of a “child care facility” and therefore would be exempt from the penalties the CPSC can assess for the use of noncompliant cribs.
CPSC staff does not believe that a crib currently in use can be retrofitted and tested to show compliance with the new crib standards. Typically, a crib is destroyed in the process of testing; therefore, retrofitting cribs currently in use cannot be done. The crib standards include multiple, complex requirements for many parts of a crib, making it difficult to determine whether a retrofitted crib currently in use would meet the requirements without testing that specific crib. Also, a retrofit, such as a side rail immobilizer, which previously might have been an acceptable remedy to address a defect in a recalled crib, may not necessarily make a crib compliant with the new crib standards because additional new compliance requirements now apply to that crib design.
Before June 28, 2011, a retailer could have sold a crib that does not meet the new crib standards and delayed delivery until after June 28, 2011, if a customer paid the full amount due on the crib before that date. By paying before June 28, the sale is considered complete and the crib effectively is in the customer’s possession when the crib has been paid in full. However, if a customer purchased a crib under an arrangement where only partial payment of the purchase price of the crib was made before June 28, 2011 (often called layaway), and did not take possession before June 28, 2011, the crib must meet the new crib standards.
Under these circumstances, a retailer could not legally provide a noncompliant crib to the customer after June 28, 2011.
Conclusions
CPSC Commissioner Tenenbaum, in commenting on the new regulations, observed:
Full compliance for every child care center in the United States will be no easy task, and choosing how best to achieve this goal in a reasonable and timely fashion has not been accomplished with ease. I believe we have struck the right balance to ensure that children will benefit from safer cribs while at the same time working to prevent a crippling impact on smaller entities and a crisis in available child care for working families.
All these changes are intended to usher in a new generation of safer cribs for consumers in 2011. This new standard and the new cribs that will come to the market next year is our way at CPSC to honor … all the children who have died in crib incidents. We have taken strong action today to ensure that cribs are safer so that all children using cribs can have a safer sleep.
About the CPSC
The U.S. Consumer Product Safety Commission is a federal agency charged with protecting the public from unreasonable risks of injury or death from thousands of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children. The CPSC’s work in promoting the safety of consumer products, such as toys, cribs, power tools, cigarette lighters, and household chemicals, contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products during the past 30 years.
Drop-Side Hazards
The CPSC determined that drop-side cribs generally have a tendency to be less structurally sound than cribs with four fixed sides. Drop-side hardware is prone to break, deform or experience other problems during normal or foreseeable use. The older the crib, the more problems can be expected. When drop-side hardware breaks or deforms, the drop side can detach in one or more corners from the crib. If an infant or toddler rolls or moves into the space created by a partially detached drop side, the child can become entrapped or wedged between the crib mattress and the drop side and suffocate. Infants can also strangle in the “V” shape formed by a drop side that detaches in an upper corner.
Does a church’s decision to compensate its nursery workers transform the nursery into a child care facility fully subject to the new crib regulations?
The Risks of Noncompliance
Churches that continue to use noncompliant cribs face an array of risks, including the following:
Substantial penalties under the Consumer Product Safety Act of up to $100,000 per noncompliant crib.
Compensatory damages in a civil lawsuit in the event that a child is killed or injured as a result of a defective and noncompliant crib.
Punitive damages in a civil lawsuit in the event that a child is killed or injured as a result of a defective and noncompliant crib. These damages can be substantial, and they are not covered by a church’s general liability insurance policy since such coverage generally is deemed to be contrary to public policy.
Personal liability of members of the church’s governing board who approved the use of noncompliant cribs in the event that a child is killed or injured as a result of a defective and noncompliant crib, since the immunity from liability under state and federal law for uncompensated board members of nonprofit corporations does not extend to gross negligence.
A church’s general liability insurance policy may contain an exclusion barring coverage for claims resulting from deaths and injuries caused by a defective product.
It is important for church leaders to understand that all of these risks, except the first one, apply equally to churches that do not offer child care for a fee and therefore are not “child care facilities” subject to the new crib regulations. As a result, church leaders should not permit noncompliant cribs to be used in a church nursery or child care facility regardless of whether the church satisfies the definition of a child care facility. Churches that continue to use noncompliant cribs, both before and after December 28, 2012, not only jeopardize the health and life of infants, but also expose themselves, and potentially members of the church board, to substantial liability.
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