Relates to the enforcement of child day care safety and standards; repealer

Sections 2 and 3 of the bill would amend SSL §§390(2)(a) and 390(2)(d)(ii)(A), respectively, to provide that the Office of Children and Family Services (OCFS) may issue an initial child day care license or registration that is valid for a period of up to two years and subsequent licenses valid for a period of up to four years as long as the provider remains substantially in compliance with applicable statutes and regulations.

Section 4 of the bill would amend SSL §390(3)(b) to delete a provision permitting a child day care provider to avoid a sanction by correcting certain regulatory violations within thirty days of notification by OCFS. The bill enables OCFS, in appropriate instances, to seek fines and/or revocation of the provider's license or registration without having to wait thirty days.

Section 5 of the bill would amend SSL §390(11)(c) to provide additional exceptions to instances in which a child day care provider may rectify a regulatory violation in order to avoid a sanction. The bill authorizes OCFS to impose a sanction for the initial violation in these serious situations even though the violation subsequently was corrected. The bill would provide for a sanction where a provider or staff has injured a child in care, failed to obtain necessary medical attention for a child, used corporal punishment against a child, failed to report suspected child abuse or maltreatment when required to do so, or submitted a forged document to OCFS.

Section 6 of the bill would add a new paragraph (e) to SSL §390(11) prohibiting the issuance of a license or registration to a child day care provider whose license or registration was revoked or terminated during the previous two years, unless OCFS determines that licensure or registration would not jeopardize in any way the health, safety, or welfare of the children for whom care would be provided. The prohibition also applies to a child day care provider facing enforcement action who surrenders a license or registration in order to avoid a suspension, revocation, or termination. The prohibition will also apply to a child day care program that is fined on two separate occasions for operating without a required license or registration. Section 7 of the bill would amend paragraph (a) of SSL §390(12), which limits the ability of local governments to prohibit regulated family day care or group family day care programs from operating in one, two or multiple family dwellings, to also preclude restrictions and prohibitions on such use. Section 8 would repeal paragraph (b) of SSL §390(12), which is otherwise duplicative of paragraph (a) as amended.

Section 9 of the bill would amend SSL §390-a(3)(b)(ix) to limit mandated staff training on the shaken baby syndrome to those day care programs that legally may care for infants. The bill would exempt registered school-age child care programs froth the training requirements, as those programs cannot care for infants legally.

Section 10 of the bill would add a new subdivision seven to SSL §410-x permitting a social services district to suspend an informal legally-exempt provider from providing child care services funded under the New York State Child Care Block Grant where the informal legally-exempt provider is under investigation by child protective services as the subject of a report of child abuse or maltreatment.

Section 11 of the bill renumbers Penal Law (PL) §260.30, as added by Chapter 600 of the Laws of 1998, to §260.31 for the purpose of clarity, as two PL sections numbered 260.30 were enacted in 1998.

Section 12 of the bill would provide for an immediate effective date.

Existing law

SSL §390 defines child day care and governs the licensing and registration of child day care providers by OCFS. It includes authority for suspension or revocation of a license or registration and civil penalties against child day care providers who violate applicable statutes or regulations. The holder of a license or registration is entitled to a hearing before OCFS prior to the imposition of any sanction. A child day care provider may avoid imposition of a penalty for most regulatory and statutory violations by correcting the violation. Even where the penalty imposed is the loss of the provider's license or registration, the provider may apply to OCFS for a new license or registration almost immediately.

SSL §390-a sets forth standards and training requirements for child day care providers. In 2004, legislation was enacted requiring training on the shaken baby syndrome for all operators, program directors, employees and assistants of child day care programs, including school-age child care programs that cannot care for infants.

SSL §410-x governs the use of child day care subsidies by social services districts and requires providers of legally-exempt child care who receive subsidy funds to meet minimum health and safety standards.

Informal legally-exempt child care providers are not required to be licensed or registered by OCFS. Informal legally-exempt child care providers must be enrolled with a social services district to be eligible to provide subsidized child care.

Chapter 381 of the Laws of 1998 enacted PL § 260.30 pertaining to the endangerment of vulnerable elderly adults.

Chapter 600 of the Laws of 1998 also enacted a PL § 260.30, known as Jeremy and Julia's Law, which criminalized an intentional misrepresentation by a child day care provider pertaining to: the number of children in care; the area of the home, facility or center used for child day care; or the credentials of the provider and/or staff where the misrepresentation substantially places the health or safety of a child at risk. Such a misrepresentation, when made to a parent, OCFS or law enforcement agency, is a class A misdemeanor. Chapter 416 of the Laws of 2000 enacted the Quality Child Care and Protection Fund as State Finance Law § 97-www. Penalties assessed against child day care providers are deposited in the fund. Monies in the fund may be used for grants to child clay care providers for health and safety purposes, for training of child day care providers' staff, and for other activities to increase the availability and/or quality of child day care programs.

Prior legislative history

New Bill.

Statement in support

The availability of safe, affordable, accessible child care is important to working families and to families that otherwise need child care for a portion of the day or week. Quality child care enormously benefits the development of children and should be available to families seeking such care. This proposal was generated in response to these concerns and also results from discussions arising from Governor Spitzer's Executive Order 12, which directed OCFS to meet with representatives of child day care providers and discuss improvements to the child day care system.

This proposal would expand the capacity of group family day care homes by permitting the program to care for up to 12 children instead of the current maximum of 10. A group family day care home could care for an additional four school-age children during non-school periods instead of the two additional children permitted under present law. The proposal would increase from seven to nine the number of children who could be cared for by the operator of a group family day care home without an assistant present. The proposal would also make consistent the requirement that a group family clay care home or a family day care home must provide one caregiver for every two children under the age of two.

This proposal would enhance OCFS' ability to require child day care providers to meet critical health and safety standards by further limiting those instances where a provider who is in violation of a statutory or regulatory requirement can avoid a penalty by merely fixing the violation. In addition, a provider who has been penalized by the revocation or termination of a license or registration would be ineligible to receive a new child day care license or registration for a period of two years unless OCFS determines that the health, safety, or welfare of children in care would not be jeopardized in any way. A provider who has been sanctioned for illegal operation within the previous two years would also be ineligible for a license or registration for two years. These provisions would deter child day care providers from operating substandard or illegal programs by increasing the potential consequences for statutory and regulatory violations, while reducing the administrative burden for those day care programs that are operating in compliance with statute and regulations by extending the maximum term of renewal of licenses and registrations to four years instead of two years. This proposal would repeal a provision that generally precludes local governments from prohibiting the use of one or two family dwellings or multiple dwellings for family or group family day care if OCFS determines that the program meets the state's regulatory provisions, which include health and fire safety requirements, for such programs. SSL §390(12)(a) includes a similar, more clearly worded restriction. However, the repealed paragraph goes beyond paragraph (a) to enable localities to preclude the Operation of certain family or group family day care programs that have been approved by OCFS. This proposal would also amend §390(12)(a)-to include in that paragraph the prohibition on restricting use that is currently provided for in paragraph (b). This proposal also provides a local social services district with the authority to suspend the enrollment of an informal legally-exempt provider who is being investigated for child abuse or maltreatment. As such, it provides much needed assistance to social services districts that currently lack an effective means to safeguard a child receiving subsidized child care from an informal legally-exempt provider who is the subject of a report of abuse or maltreatment.

Budget implications

This proposal is not expected to have a significant financial impact, although the funds deposited in the Quality Child Care and Protection Fund may increase due to provisions expanding the circumstances where OCFS may impose a penalty for statutory and regulatory violations regardless of whether the violations have been rectified.

Effective date

This bill would take effect immediately.