Dino Colucci Testifies at the Massachusetts State House Disclosure by Daycare Providers

On behalf of Darin Colucci of Colucci, Colucci, Marcus & Flavin, P.C. on Thursday, June 18, 2015.

Madam Chairman and Esteemed Members of the Committee:

It is with genuine gratitude that I come before you today urging your favorable consideration of H. 3378 which seeks to better inform parents who are faced with the critical task of choosing a responsible day care provider for their children. There can be no reasonable disagreement that the ever increasing cost of living in Massachusetts has brought about the proliferation of dual wage earner parents. As a consequence, more and more of our children are left in the custody of daycare with complete strangers who are often but not always qualified and who are themselves subject to a similar economic tension of finding a balance between ensuring child safety and the bottom line realities of running a business for profit. Sadly, accidents can and do occasionally occur, almost always with horrifying consequences. It is axiomatic that the safety of our children is of paramount concern to us all. Protecting those who are the most vulnerable of our society is unambiguously the right thing for us to do. How then can we move closer to achieving this essential goal without foisting an untenable burden on those charged with our children’s daycare? I see H. 3378 as a big stride forward. While the provisions of this Bill exact no mandatory financial consequences on daycare providers it does compel those same providers to operate with greater transparency. For the first time in Massachusetts, parents struggling with a choice of where to send their kids to daycare will be informed as to whether a daycare provider has taken the responsible course of procuring insurance. As a general precept, I suggest that any legislation that promotes a more informed consumer is nearly always a good idea. When applied to the goal of enhancing the care of our children, however, the wisdom of implementing such a provision cannot be the subject of honest dispute.

Mandating that daycare providers disclose whether they are insured will likely eliminate misunderstanding by parents who might tend to wrongly assume that such a business has insurance securely in place. I daresay that many of you might have initially been surprised to learn that these businesses are not currently required to maintain insurance. I know that I was. Required disclosure will remove the guesswork and educate parents on this critical issue.

Required disclosure will no doubt have the ancillary effect of persuading a percentage of daycare providers, (who would have otherwise continued to remain uninsured), to instead procure insurance as a “value added” benefit to distinguish themselves from their competition. And why is this a desirable consequence? As a lawyer who has frequently represented injured children, I have seen firsthand the anguish of parents whose children have been denied recompense due to an uninsured daycare provider. In these instances, children who were injured due to the negligence, (sometimes the gross negligence), of their daycare provider were unable to receive insurance proceeds to pay for related medical costs and expenses which can sometimes cost hundreds or even thousands of dollars. And, sadly, over the course of my legal career, I’ve seen much worse. My clients, Nick and Renee McKain lost their infant son, Dax, in daycare. The provider in that instance was uninsured, as many are, and the McKains were forced to pay Dax’s hospital bills and, eventually, his funeral expenses out of their own pocket. My clients, Topher and Erin Smith would have liked to testify here today. They would have told you about their four month old son, Graham, who was the love of their lives. Graham struggled for breath while in his crib at daycare but his provider couldn’t help him because she had previously made the decision to leave the facility in order to get her hair done. Instead, she left Graham and the other children in her care with a person who had no CPR or child care training whatsoever. Sadly, Graham also died.

Other occupations and trades often proudly promote to the public that their company is “bonded and insured.” I would hazard a guess that most consumers wouldn’t do business with a contractor, a plumber, a moving company or a house painter without assurance that he or she is in fact insured. As many of you already know, lawyers have long been required to annually disclose whether or not they maintain malpractice insurance. In turn, this information is posted at the Board of Bar Overseers website which is readily accessible to the public. As best I can tell, I discern absolutely no appreciable burden or negative consequence associated with disclosing and posting such information.

Therefore, it is perhaps well for us to ask: if such disclosure by these other trades and professions are generally deemed of great benefit to the consuming public, why then would we ever exempt day care providers to whom we entrust something as precious as our own children? The answer is self-evident: clearly we shouldn’t.

I’m ever mindful that you are constantly called upon to make hard choices in this chamber nearly always after engaging in fair, honest and vigorous debate. Contemplating, as you must, the balance between both the merits and consequences of adopting H. 3378, I suggest that your decision should be an uncharacteristically easy one to make. Partisanship should end at the “water’s edge” when we are discussing the safety of our children.

Accordingly, I urge you to report favorably on H. 3378 which will provide parents in our Commonwealth with important information without imposing a concomitant expense or unreasonable burden.