The state is scrambling to figure out its own laws regarding pools at day-care centers and moving to establish stricter ones, while local day-care centers are reassessing their own pool regulations.

These actions follow the March 26 accidental drowning of a child at Koala Child Kare and Learning Center in Westbrook. The Department of Health and Human Services is now examining its regulations and whether they are adequate regarding pools, particularly pools at day-care centers.

The state’s regulations are currently limited to licensing of day-care centers and do not include regular inspections of pools at day-care centers. Although the state requires public pools be registered with a state agency, it does not know how many day cares in Maine have pools, and has no state employees dedicated to inspecting those pools.

The Maine Department of Health and Human Services, which licenses day cares, has 14 licensors and two supervisors on staff. The ratio of licensors to day cares in the state is 1 to 179. Further complicating the issue is confusion over which state body should regulate day-care center pools.

Andrew Thurston, who would have turned 4 on April 17, drowned at the Koala Child Kare and Learning Center pool. The Maine Department of Health and Human Services determined last week that Thurston’s drowning was the result of neglect by a day-care employee, and that the day-care facility was in violation of state regulations. Westbrook police said last week that the drowning appeared to be accidental and criminal charges were unlikely, although the Maine Office of the Attorney General will begin an investigation into the matter in a couple weeks.

Thurston drowned while the day-care center’s swim instructor, Patricia Lobley, was attending four other children in the pool. According to an investigation by Westbrook police and the Department of Health and Human Services, Lobley allowed the five children to swim after they had taken off flotation devices. Thurston was allowed to enter the pool holding onto a flotation device. The boy entered the other side of the pool behind Lobley, who lost track of him, and drowned.

In a statement released April 4, the Department of Health and Human Services said: “The department has concluded that the swim instructor exercised poor judgement by allowing the children to remove their flotation devices and also failed to adequately supervise the children in her care as required by the day-care licensing rules. The owner of Koala Child Kare shares responsibility for the inadequate supervision of children in the pool. The combination of poor judgement, inattention and lack of supervision constitutes neglect.”

Kim Cairns, Koala Child Kare and Learning Center owner, said Tuesday the day-care center is open, but the pool is closed.

State Rep. Tim Driscoll, D-Westbrook, has begun looking at the regulations that are in place and figuring out how they need to be changed. Last Thursday, he had a bill title approved for ensuring safety at day-care facilities with swimming pools.

“I’ll be moving forward with that at the legislative level as well as with the Department of Health and Human Services,” Driscoll said. He plans to hold meetings in the near future, bringing together people in the Red Cross, experts in water safety and day-care owners to discuss what the regulations should be.

“They’re on the same page as me,” Driscoll said of the Department of Health and Human Services.

According to John Martins, spokesman for the Department of Health and Human Services, the department has begun an investigation into strengthening state law regarding pools at day cares. However, he said, it’s still too soon to know what new regulations could be enacted or how the state would enforce those new regulations.

Maine does not keep track of how many day-care centers have pools, and does not regularly inspect those pools, said Martins. Inspections usually occur during a day care’s state licensing process or if the center requests an inspection.

Two divisions within the Department of Health and Human Services provide inspections, although they do not have staff dedicated to that task.

The Division of Licensing and Regulatory Services inspects pools when issuing or reissuing a license for a day care, although those inspections are limited to two points: pools must be cleaned and emptied daily or equipped with a filtration system; and pools must be emptied, removed from play areas, if mobile, or protected by a fence or barrier to prevent access by unsupervised children. The regulations do not address operation of the pool.

The Maine Center for Disease Control and Prevention inspects pools if asked, although the inspections lean more toward public health issues, said Martins. The Center for Disease Control and Prevention inspects pools at facilities with food and lodging only, such as hotels, according to spokeswoman Chris Zukas-Lessard.

The Center for Disease Control appears to have only one rule regarding pool operations. That rule does not specify what safety license a swim instructor should have:

“Every pool shall be under the supervision of a person who is fully capable of, and shall assume responsibility for, compliance with all requirements relating to pool operation, maintenance and safety of bathers. This person should be a certified pool operator (CPO) or have equivalent training.”

Some confusion exists at the state level over just who governs pools in the state. When asked Monday to provide the state’s rules governing day-care pools, Zukas-Lessard said her division did not inspect day-care pools and the division’s rules did not govern those pools. However, on Tuesday, Martins said day-care pools (2 feet or deeper at any point) are considered public pools and fall under the regulations of the Center for Disease Control and Prevention.

Martins said all day cares are required to register their pools with the Center for Disease Control and Prevention, although there is currently no penalty if they do not.

Driscoll said he believes there should be a list of all day-care facilities in the state that have swimming pools. According to Cathy Cobb of the Department of Health and Human Services, that list is being compiled.

Cobb said the pool at Koala Child Kare was never inspected by the state. At a licensing last November, the pool was not inspected because it was not in use while the inspectors were on the premises.

Martins said Monday that the department is still investigating what violations Koala Child Kare is guilty of beyond neglect and inattention, although one already cited was misrepresentation of the swim instructor’s qualifications to parents.

According to the center’s printed materials presented to parents, a Red Cross-certified swim instructor supervises all swimming activities. Westbrook police said last week that the instructor held an American Heart Association certificate for CPR, although she had not held a Red Cross swim instructor certification since 1978. Cairns said last week that the center never told parents the swim instructor was Red Cross-certified.

Cairns said Tuesday she has not yet seen the state’s final report, but is planning to appeal the findings, nonetheless. She declined to comment on any potential new regulations.

Westbrook parent Alex Stone said he believes the state shares at least 50 percent of the blame for Thurston’s drowning. He said he didn’t think it was fair of the state to say the accident was the result of neglect and not just a mistake, as he sees it. If the state wanted better supervision of kids in pools, it should have regulations governing that.

“There’s no reason to me why there’s no regulations on day-care pools,” said Stone. “Somebody needs to figure that out, and they should have done it by now.”

Stone said a group of Koala parents met with Cairns at the day-care center Friday.

“I’ve had a lot of support from parents,” Cairns said Tuesday.

Kristen Taylor, district manager for Scarborough-based Toddle Inn Child Care centers, said this week that owner Cheryl Carrier plans on meeting with Driscoll and the Department of Health and Human Services in the coming weeks “to share our current policies and safety procedures.”

Toddle Inn has six child-care facilities in Maine, in South Portland, Scarborough, Gorham. Cumberland, Saco and Auburn. The centers in Scarborough, Saco and Auburn have heated, outdoor pools. In an e-mail statement, Taylor said the policies and procedures for their pools have been in place since 1999. Though Toddle Inn has reviewed their pool policies in response to Thurston’s death, Joe Seely, Toddle Inn aquatics director, said the company is comfortable with the restrictions that are in place.

Seely said there is no simple answer to the appropriate ratio of adults to children in the pool at one time.

“It’s all dependent on the age, ability and listening skills of the child,” he said. Seely said the child’s social skills are the biggest factor in determining the amount of supervision that is needed.

Though there is no specific ratio requirement at Toddle Inn, Seely said, the largest group in the pool at a time would be five children, and they would be monitored by at least one swim instructor, a lifeguard and their teacher, who may be in the pool or sitting just outside. According to Seely, all swim instructors are also required to be lifeguards and must have American Red Cross certification.

Michelle Godbout-Clock, who runs a family child-care center in Gray, said she was contacted by the Department of Health and Human Services Friday. She said she was asked what kind of pool she had and what it was used for.

Godbout-Clock called her use “very limited.” She said she holds swim lessons twice a week in the above-ground pool, which has a deck with a locked gate. With the help of parent volunteers, she said, there is always a 1-to-1 parent-child ratio in the water. “If they had more strict regulations than that, then we wouldn’t be able to use the pool,” she said.

Godbout-Clock agrees the Department of Health and Human Services should look at the regulations that are in place. “I hope that the standards we have here are above and beyond anything the Department of Health and Human Services requires.”

Diana Hill, who has a family child-care center in Saco, said she has a 2-foot-deep inflatable pool. “I put it up when I feel like it,” she said. “It’s more of a pain than anything.”

Hill said she only inflates the pool because the parents and children request it, but now she has enough of a reason to not use it at all. “I’m absolutely not going to put it up this year,” she said.

Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.