Stricter Child Care Penalties

Section 1. Subdivision 1 of section 390 of the social services law is amended by adding four new paragraphs (h), (i), (j) and (k) to read as follows:

(h) (i) "Critical violation" shall mean:

(A) a fatality, near fatality, or serious physical or emotional injury of a child who is in the custody of or receiving services from a child care provider licensed or registered by the office of children and family services; or

(B) circumstances which result in a reasonable belief that a child care provider licensed or registered by the office of children and family services failed in its duty to protect a child and, as a result, the child was at imminent risk of, or suffered serious physical or emotional injury or death.

(ii) Examples of critical violations may include the failure to provide proper supervision of children or comply with health and safety regulations, inadequate staffing levels, and child abuse and maltreatment.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD00044-01-5

(i) "Serious physical or emotional injury" shall mean an injury which causes or creates a substantial risk of death, extreme physical pain, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily member, organ, or mental faculty.

(j) "Abused child" shall mean a child, less than eighteen years of age, whose parent or other person legally responsible for such child's care:

(i) inflicts or allows to be inflicted upon such child serious physical or emotional injury by other than accidental means;

(ii) creates or allows to be created a substantial risk of serious physical or emotional injury to such child by other than accidental means;

(iii) commits, or allows to be committed, a sex offense, as defined in article one hundred thirty of the penal law, against such child;

(iv) permits or encourages such child to engage in any act described in article two hundred thirty of the penal law;

(v) commits any of the acts described in section 255.25 of the penal law; or

(vi) allows such child to engage in acts or conduct described in article two hundred sixty-three of the penal law; provided, however, that the corroboration requirements contained in the penal law and the age requirement for the application of article two hundred sixty-three of the penal law shall not apply to proceedings under article ten of the family court act.

(k) "Maltreated child" shall mean a child, less than eighteen years of age:

(i) whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of such child's parent or other person legally responsible for such child's care to exercise a minimum degree of care in:

(A) supplying such child with adequate food, clothing, shelter, or education pursuant to part one of article sixty-five of the education law; or medical, dental, optometrical, or surgical care, if such parent or other person legally responsible for such child's care is financially able to do so or offered financial or other reasonable means to do so; or

(B) providing such child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; misusing a drug or drugs; misusing alcoholic beverages to the extent that such parent or other person legally responsible for such child's care loses self-control of their actions; or any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where such parent or other person legally responsible for such child's care is voluntarily and regularly participating in a rehabilitative program, evidence that such parent or other person legally responsible has repeatedly misused a drug or drugs or alcoholic beverages to the extent that such parent or other person legally responsible loses self-control of their actions shall not alone establish that the child is a neglected or maltreated child in the absence of evidence establishing that such child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired pursuant to this subparagraph;

(ii) who has been abandoned by such child's parent or other person legally responsible for such child's care; or

(iii) who has had serious physical or emotional injury inflicted upon such child by other than accidental means.

§ 2. Clause (C) of subparagraph (ii) of paragraph (d) of subdivision 2 of section 390 of the social services law, as amended by chapter 416 of the laws of 2000, is amended to read as follows:

(C) Where the office of children and family services has determined that a registration should not be continued because the requirements of clause (B) of this subparagraph have not been satisfied, the office of children and family services may terminate the registration. [If the office of children and family services does not terminate the registration, the] The office of children and family services shall inspect the home or program before terminating the registration or acknowledging any subsequent registration. Where the home or program has failed to meet the requirements of this section, the office of children and family services may reject any subsequent registration of a provider. Nothing herein shall prohibit the office of children and family services from terminating or suspending registration pursuant to subdivision ten of this section where the office of children and family services determines that termination or suspension is necessary.

§ 3. Paragraph (b) of subdivision 3 of section 390 of the social services law, as amended by section 5 of part H of chapter 56 of the laws of 2019, is amended to read as follows:

(b) (i) Where inspections have been made and violations of applicable statutes or regulations have been found, the office of children and family services or its designee shall, within ten days, advise the child day care provider or enrolled legally-exempt provider in writing of the violations and require the provider to correct such violations as specified in a corrective action plan. [The office of children and family services may also act pursuant to subdivisions ten and eleven of this section.]

(ii) The corrective action plan shall:

(A) include a statement of observations of the violations;

(B) indicate which statutes or regulations the holder of a license or child care provider has violated;

(C) prescribe the method or methods of compliance with the statutes or regulations; and

(D) prescribe a reasonable time period for correction of the violations, depending on the nature of such violations and the time required for correction.

(iii) Where inspections have been made and critical violations of applicable statutes or regulations have been found, the office of children and family services or its designee [shall, within ten days, advise the enrolled legally-exempt provider] may, in [writing] a notice of sanction, impose one or more sanctions, which may include but shall not be limited to:

(A) ceasing the enrollment of new children;

(B) reducing the [violations] number of children that a program or component of a program is licensed to serve;

(C) hiring one or more consultants to provide technical assistance and/or training;

(D) hiring additional staff on a temporary or permanent basis;

(E) hiring a monitor selected by and [require] accountable to the [provider] office of children and family services; and

(F) restricting an administrator and/or staff person's access to [correct such violations] children.

§ 4. Section 390 of the social services law is amended by adding a new subdivision 3-a to read as follows:

3-a. (a) (i) Child care providers licensed or registered pursuant to subdivision two of this section shall notify the office of children and family services within forty-eight hours upon learning of an incident involving a critical violation.

(ii) The office of children and family services shall develop an online portal for licensed or registered child care providers to selfreport critical violations and receive information regarding next steps in the licensing, registration, investigation, or disciplinary process, including but not limited to:

(A) a list of violations of applicable statutes or regulations that constitute critical violations;

(B) possible sanctions or other actions that may be taken by the office of children and family services in response to reports of critical violations; and

(C) appropriate corrective actions that may be taken by the child care provider to come into compliance with applicable statutes or regulations and avoid further violations.

(b) Child care providers licensed or registered pursuant to subdivision two of this section shall notify the parent or guardian as soon as possible upon learning of the following events involving a child which occurred while such child was under the care of such child care provider at the program or facility or was being transported by such program:

(i) death;

(ii) serious incident;

(iii) serious injury;

(iv) serious condition;

(v) communicable disease;

(vi) transportation to a hospital; or

(vii) any other incident involving a critical violation.

§ 5. Subdivision 10 of section 390 of the social services law, as amended by chapter 416 of the laws of 2000, is amended to read as follows:

10. (a) Any home or facility providing child day care shall be operated in accordance with applicable statutes and regulations. Any critical violation of applicable statutes or regulations shall be a basis to deny, limit, suspend, revoke, or terminate a license or registration.

(b) Additional bases to deny, limit, suspend, revoke, or terminate a license or registration shall include a finding that the holder of such license or registration:

(i) failed to comply with any applicable statute or regulation, or any corrective action plan, notice of sanction, suspension, or terms of probation;

(ii) failed to pay a fine after either failing to appeal the assessment of a fine within the prescribed time or a hearing where assessment of a fine was upheld;

(iii) submitted any misleading or false statement or report required under applicable statutes or regulations;

(iv) refused to submit any report or make available any records required under applicable statutes or regulations;

(v) refused to admit, at a reasonable time, any employee of the office of children and family services authorized by the commissioner of such office to investigate or inspect a program or facility pursuant to paragraph (a) of subdivision three of this section; or

(vi) failed to obtain a license prior to opening a program or facility or changing the location of a program or facility.

(c) Consistent with articles twenty-three and twenty-three-A of the correction law, and guidelines referenced in subdivision two of section four hundred twenty-five of this article, if the office of children and family services is made aware of the existence of a criminal conviction or pending criminal charge concerning an operator of a family day care home, group family day care home, school-age child care program, or child day care center or concerning any assistant, employee or volunteer in such homes, programs or centers, or any persons age eighteen or over who reside in such homes, such conviction or charge may be a basis to deny, limit, suspend, revoke, reject, or terminate a license or registration.

(d) Before any license [issued] or registration is denied, limited, suspended, revoked, rejected, or terminated pursuant to [the provisions] paragraph (a), (b) or (c) of this [section is suspended or revoked, before registration pursuant to this section is suspended or terminated] subdivision, the office of children and family services shall conduct an investigation of any critical violations, including an inspection of the program or facility pursuant to paragraph (a) of subdivision three of this section.