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 Substitute 1 for House Bill 47, signed in September 2024, changed Delaware's background check requirements for child-serving entities. 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) is defined by all three of the following elements:

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 the statutory child-care definition to apply, but the actual structure should be confirmed with OCCL rather than treated as an automatic exemption.

How Microschool Organizers Use This

Parent-present co-op: Parent-present arrangements can qualify for the parent-present exemption when children are not unattended. Parents remain responsible for their own children, but confirm the actual structure with OCCL.

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: K–12 educational structures have stronger exemption or classification arguments. Pre-K programs require special caution and current OCCL guidance; private-school or educator status alone should not be treated as a guaranteed shield.

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, the parent-present analysis is stronger, but the actual structure still matters.

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 statutory elements may be present, so obtain current OCCL guidance before operating and restructure or pursue the appropriate licensing path if required.

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: If using a church or school, confirm whether its licensing and the proposed sub-program arrangement actually cover your activities.
• 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, covered employees, contractors, and volunteers with direct or unsupervised student access must clear the applicable checks. This includes the practical external-educator case and is not limited to a simple volunteer label:

1. SBI check (Delaware State Bureau of Identification) — state criminal history
2. FBI fingerprint check — federal criminal history
3. Child Protection Registry check through the Delaware Department of Services for Children, Youth and Their Families (DSCYF) — screening for 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

Whether HB 47 applies depends on the entity and the person's role. Private-school employees and covered employees, contractors, and volunteers with direct or unsupervised student access require a current-law analysis; an OCCL exemption alone should not be treated as a complete answer for a formalized program using external educators.

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 and employers can use the Delaware State Bureau of Identification process where eligible. Confirm the current eligibility, consent, fee, and timing requirements with SBI.
• FBI check: For a non-licensed program, use an FCRA-compliant process that actually provides the required fingerprint-based national check where applicable. Confirm the current provider, fee, and timing; the reports do not establish a fixed price.
• Child Protection Registry: The Child Protection Registry check runs through DSCYF. Confirm the current eligibility, consent, fee, and timing requirements with the department.

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: Parent-present facts may support an exemption, but OCCL licensing depends on the actual arrangement. Voluntary background checks on all adult participants are best practice but not automatically a legal requirement.

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 analysis worksheet — useful both for evaluating your own situation and for documenting your reasoning if questions ever arise.

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