Delaware Microschool Background Checks and OCCL Exemptions: HB 47 Explained

Two questions Delaware microschool and pod organizers face immediately: Do I need a child care license? And do I need to run background checks on anyone supervising children? The answers aren't always obvious, because they depend on details most organizers don't think about until someone asks.

House Bill 47, signed in September 2024, changed Delaware's background check requirements for child-related settings. And the OCCL (Office of Child Care Licensing) has a three-prong test that determines whether your pod needs a license in the first place. Here's how both work.

The OCCL Three-Prong Test: Do You Need a Child Care License?

The Office of Child Care Licensing regulates child care facilities in Delaware. "Child care" under Delaware law (14 Del. C. § 3001A) requires a license when all three of the following are true:

1. Custody: Children are in your care without their parents or guardians present
2. Care: You're providing supervision, oversight, or structured programming for the children
3. Compensation: You're receiving payment — money, tuition, or something of value — for that care

All three prongs must be present for OCCL licensing to apply. Remove any one of them and you fall outside the licensing requirement.

How Microschool Organizers Use This

Parent-present co-op: If participating parents are on-site at all times, the custody prong isn't met. Parents haven't relinquished custody to you — they're present and supervising their own children. This is the cleanest exemption.

Cost-sharing vs. compensation: If families pool money to buy curriculum or supplies and no one is being paid for their time, OCCL may determine this is expense-sharing rather than compensation. The analysis gets murkier when one family is receiving significantly more than they're contributing — at that point, compensation for services becomes harder to distinguish from cost-sharing.

Educational programs: Delaware law carves out an exemption for K–12 educational programs operating as recognized private schools or under the supervision of a licensed educator. If your pod registers as a private school or operates under the umbrella of a homeschool association with educational oversight, you may fall outside OCCL jurisdiction on this basis.

Pure homeschool enrichment: If you're a parent providing supplementary classes to other families' children — music lessons, science enrichment, writing workshops — and parents are present, OCCL licensing isn't typically triggered.

The Drop-Off Problem

Where things break down: if you're running a drop-off program (parents leave their children with you for the day), you're providing custody. If you're charging tuition, you're receiving compensation. If you're providing structured educational programming, you're providing care. All three prongs are met, and you'd need a child care license to operate legally — or need to restructure to avoid one of the prongs.

The most common restructuring approach Delaware pod organizers use:

• Parent participation requirement: Rotate families through supervision duties so someone's parent is always on-site, removing the custody prong.
• Facility-based operation: Partner with a church or school that already holds appropriate licensing, operating as a sub-program under their umbrella.
• Keep it informal: Limit participation to families where parents can be present, and don't charge tuition (use cost-sharing for materials only).

House Bill 47: Delaware's New Background Check Law

Delaware House Bill 47 was signed in September 2024 and takes full effect September 1, 2026. It expands fingerprint-based background check requirements for anyone working with children in child care settings.

What the Law Requires

Under HB 47, anyone employed or volunteering in a Delaware-licensed child care facility must clear:

1. SBI check (Delaware State Bureau of Identification) — state criminal history
2. FBI fingerprint check — federal criminal history
3. Child Protection Registry check — Delaware's registry of substantiated child abuse and neglect findings

The fingerprint-based FBI check is the significant expansion from prior law, which relied more on name-based checks. Fingerprint checks catch records that don't match cleanly on name alone.

Who This Applies To

HB 47 applies to individuals working in OCCL-licensed facilities. If your microschool or pod is operating legally outside OCCL licensing (using the parent-present or cost-sharing exemptions), HB 47's requirements don't apply to you as a legal mandate.

That said, parents in any microschool community reasonably expect background checks on adults who will be supervising their children. Running voluntary background checks on all adult participants — even where not legally required — is standard practice in well-run pods and should be reflected in your parent agreement.

Running Background Checks as a Non-Licensed Program

If you want to run background checks on facilitators or co-op participants voluntarily:

• SBI check: Delaware residents can request a personal criminal history check through the State Bureau of Identification. Employers and program operators can request checks on prospective employees with written consent.
• FBI check: For non-licensed programs, you'd typically use an FCRA-compliant commercial background check service (Checkr, Sterling, HireRight) that includes federal criminal records. Cost: $30–$80 per person.
• Child Protection Registry: The Delaware Family Services Division maintains this registry. Requests can be made for employment or volunteer screening purposes.

For a small pod, a commercial background check service is the practical path — it bundles national criminal records, sex offender registry, and county records in one report.

Practical Guidance by Program Type

Parent-rotation co-op, no tuition: OCCL licensing almost certainly doesn't apply. Voluntary background checks on all adult participants are best practice but not legally required.

Drop-off pod with tuition: All three OCCL prongs are met. You either need a child care license (triggering HB 47 background check requirements for staff) or need to restructure. Consult an attorney if you're uncertain.

Hybrid pod (parents present some days, drop-off on others): This is the gray zone. OCCL staff have taken varying positions on hybrid arrangements. If drop-off days are regular and compensated, don't assume the part-time parent presence removes the custody prong entirely.

Microschool operating as a private school: If you've registered as a private school with the Delaware Department of Education, different requirements apply. Private schools are regulated separately from child care facilities. Background check requirements for private school employees exist under separate statute.

What to Put in Your Parent Agreement

Regardless of your licensing status, your parent agreement should address background checks explicitly:

• State which background check components all adult facilitators or volunteers have cleared
• Specify that parents entering the facility for participation days are attesting to having no disqualifying criminal history
• Include a consent clause for any formal background check you run on co-op members

This creates a record of your diligence and establishes community standards.

The Delaware Micro-School & Pod Kit at homeschoolstartguide.com/us/delaware/microschool/ includes a background check consent form and OCCL exemption analysis worksheet — useful both for evaluating your own situation and for documenting your reasoning if questions ever arise.

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