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{{#Wiki_filter:Source: New York State Office of Children & Family Services 2010Chapters 1-56, 58-59, 61-223Social Services  
{{#Wiki_filter:ENT000281 Submitted: March 29, 2012 Source: New York State Office of Children & Family Services 2010 Chapters 1-56, 58-59, 61-223 Social Services
     §   390. Child day care; license or registration required. 1.
     §   390. Child day care; license or registration required. 1.
Definitions. (a) (i) "Child day care" shall mean care for a child on a  
Definitions. (a) (i) "Child day care" shall mean care for a child on a regular basis provided away from the child's residence for less than twenty-four hours per day by someone other than the parent, step-parent, guardian, or relative within the third degree of consanguinity of the parents or step-parents of such child.
 
regular basis provided away from the child's residence for less than  
 
twenty-four hours per day by someone other than the parent, step-parent,   guardian, or relative within the third degree of consanguinity of the parents or step-parents of such child.
(ii) Child day care shall not refer to care provided in:
(ii) Child day care shall not refer to care provided in:
(A) a day camp, as defined in the state sanitary code;  
(A) a day camp, as defined in the state sanitary code; (B) an after-school program operated for the purpose of religious education, sports, or recreation; (C) a facility:
 
(1) providing day services under an operating certificate issued by the department; (2) providing day treatment under an operating certificate issued by the office of mental health or office of mental retardation and developmental disabilities; or (D) a kindergarten, pre-kindergarten, or nursery school for children three years of age or older, or after-school program for children operated by a public school district or by a private school or academy which is providing elementary or secondary education or both, in accordance with the compulsory education requirements of the education law, provided that the kindergarten, pre-kindergarten, nursery school, or after school program is located on the premises or campus where the elementary or secondary education is provided.
(B) an after-school program operated for the purpose of religious education, sports, or recreation; (C) a facility:  
(b) "Child day care provider" shall mean any individual, association, corporation, partnership, institution or agency whose activities include providing child day care or operating a home or facility where child day care is provided.
 
(c) "Child day care center" shall mean any program or facility caring for children for more than three hours per day per child in which child day care is provided by a child day care provider except those programs operating as a group family day care home as such term is defined in paragraph (d) of this subdivision, a family day care home, as such term is defined in paragraph (e) of this subdivision, and a school-age child care program, as such term is defined in paragraph (f) of this subdivision.
(1) providing day services under an operating certificate issued by  
(d) "Group family day care home" shall mean a program caring for children for more than three hours per day per child in which child day care is provided in a family home for seven to twelve children of all ages, except for those programs operating as a family day care home, as such term is defined in paragraph (e) of this subdivision, which care for seven or eight children. A group family day care provider may provide child day care services to four additional children if such additional children are of school age and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. There shall be one caregiver for every two children under two years of age in the group family home. A group family day care home must have at least one assistant to the operator present when child day care is being provided to seven or more children when none of the children are school age, or nine or more children when at least two of the children are school age
 
the department;  
 
(2) providing day treatment under an operating certificate issued by the office of mental health or office of mental retardation and developmental disabilities; or  
 
(D) a kindergarten, pre-kindergarten, or nursery school for children  
 
three years of age or older, or after-school program for children  
 
operated by a public school district or by a private school or academy which is providing elementary or secondary education or both, in accordance with the compulsory education requirements of the education  
 
law, provided that the kindergarten, pre-kindergarten, nursery school,   or after school program is located on the premises or campus where the  
 
elementary or secondary education is provided.
(b) "Child day care provider" shall mean any individual, association,   corporation, partnership, institution or agency whose activities include  
 
providing child day care or operating a home or facility where child day care is provided.
(c) "Child day care center" shall mean any program or facility caring  
 
for children for more than three hours per day per child in which child day care is provided by a child day care provider except those programs operating as a group family day care home as such term is defined in paragraph (d) of this subdivision, a family day care home, as such term is defined in paragraph (e) of this subdivision, and a school-age child  
 
care program, as such term is defined in paragraph (f) of this subdivision.
(d) "Group family day care home" shall mean a program caring for  
 
children for more than three hours per day per child in which child day  
 
care is provided in a family home for seven to twelve children of all  
 
ages, except for those programs operating as a family day care home, as such term is defined in paragraph (e) of this subdivision, which care for seven or eight children. A group family day care provider may provide child day care services to four additional children if such additional children are of school age and such children receive services  
 
only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. There shall be one caregiver for every two children under two years of age in the group family home. A group family day care home must have at least one  
 
assistant to the operator present when child day care is being provided to seven or more children when none of the children are school age, or nine or more children when at least two of the children are school age and such children receive services only before or after the period  such children  are  ordinarily  in  school or during school lunch periods, or
 
school holidays, or during those periods of the year in which school  is not in session. This assistant shall be selected by the group family day care  operator  and  shall  meet the qualifications established for such
 
position by the  regulations  of  the  office  of  children  and  family
 
services.
 
(e)  "Family  day  care home" shall mean a program caring for children for more than three hours per day per child in which child day  care  is provided  in a family home for three to six children. There shall be one
 
caregiver for every two children under two years of age  in  the  family
 
day  care  home. A family day care provider may, however, care for seven
 
or eight children at any one time if no more than six  of  the  children are  less  than  school  age  and  the school-aged children receive care primarily before or after the period such  children  are  ordinarily  in school, during school lunch periods, on school holidays, or during those periods of the year in which school is not in session in accordance with
 
the  regulations  of  the office of children and family services and the office inspects such home to determine whether  the  provider  can  care adequately for seven or eight children.
(f)  "School age child care" shall mean a program caring for more than six school-aged children who are under thirteen years of age or who  are
 
incapable  of caring for themselves. Such programs shall be in operation consistent with  the  local  school  calendar. School  age  child  care programs shall offer care during the school year to an enrolled group of
 
children  at  a  permanent  site  before  or  after  the period children enrolled in such program are ordinarily in school or during school lunch periods and may also provide such care  on  school  holidays  and  those periods of the year in which school is not in session.
: 2.    (a) Child day care centers caring for seven or more children and
 
group family day care programs, as defined in subdivision  one  of  this
 
section,  shall  obtain a license from the office of children and family
 
services and shall operate in accordance with the terms of such  license and  the regulations of such office. Initial licenses shall be valid for a period of up to two years; subsequent licenses shall be  valid  for  a
 
period of up to four years so long as the provider remains substantially
 
in compliance with applicable law and regulations during such period.
 
(b)  Family day care homes, child day care centers caring for at least three but fewer than seven children, and school-age child care  programs shall  register with the department and shall operate in compliance with
 
the regulations of the department.
(c) Any child day care provider  not  required  to  obtain  a  license pursuant  to  paragraph  (a) of this subdivision or to register with the department pursuant to paragraph (b) of this  subdivision  may  register with the department.
 
(d)  (i)  The  office of children and family services shall promulgate
 
regulations for  licensure  and  for  registration  of  child  day  care
 
pursuant  to  this  section. Procedures  for  obtaining  a  license  or
 
registration  or  renewing  a  license  shall  include  a  satisfactory inspection of the facility by the office of children and family services prior  to  issuance  of  the  license  or registration or renewal of the license.
(ii) (A) Initial registrations shall be valid for a period  of  up  to
 
two years, subsequent registrations shall be valid for a period of up to four  years  so long as the provider remains substantially in compliance with applicable law and regulations during such period.
(B) After initial registration by the child  day  care  provider,  the
 
office  of  children and family services shall not accept any subsequent registration by such provider, unless:
(1) such provider has met  the  training  requirements  set  forth  in
 
section three hundred ninety-a of this title; (2)  such  provider  has met the requirements of section three hundred ninety-b of this title relating to criminal history screening;
 
(3) such provider has complied with the requirements of  section  four
 
hundred twenty-four-a of this article; and
 
(4)  the  office  of  children  and  family  services  has received no complaints about the home, center,  or  program  alleging  statutory  or regulatory  violations,  or, having received such complaints, the office
 
of  children  and  family  services  has  determined,  after  inspection
 
pursuant to paragraph (a) of subdivision three of this section, that the
 
home,  center,  or  program  is  operated  in compliance with applicable statutory and regulatory requirements.
(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  office of children and family services shall inspect the home or program before 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.
(iv) Child day care providers who have been  issued  a  license  shall openly  display  such  license  in  the  facility  or home for which the
 
license is issued. Child day care providers who have registered with the
 
department shall provide proof of registration upon request.
 
(e) Notwithstanding any other provision of this section, where a child is cared for by a parent, guardian or relative within the  third  degree of  consanguinity  of  the  parent  of  such  child  and  such  person
 
simultaneously provides child day care  for  other  children,  only  the
 
other  children  shall  be considered in determining whether such person
 
must be registered or licensed, provided that such person is not caring,  in total, for more than eight children.
2-a. (a) The office of children and family services  shall  promulgate
 
regulations  which  establish  minimum  quality program requirements for licensed and registered child day care homes, programs  and  facilities.
Such  requirements  shall include but not be limited to (i) the need for age  appropriate  activities,  materials  and  equipment  to  promote cognitive,  educational, social, cultural, physical, emotional, language
 
and recreational development of children in care in a safe, healthy  and
 
caring  environment  (ii)  principles  of  childhood  development  (iii)
 
appropriate staff/child ratios for family day care homes,  group  family
 
day  care  homes,  school  age  day  care programs and day care centers,  provided  however  that  such  staff/child  ratios  shall  not  be  less stringent  than  applicable staff/child ratios as set forth in part four hundred fourteen, four hundred sixteen, four hundred seventeen  or  four hundred  eighteen  of  title  eighteen of the New York code of rules and
 
regulations as of January first, two thousand (iv) appropriate levels of supervision of children in care (v) minimum  standards  for  sanitation,  health,  infection  control, nutrition, buildings and equipment, safety,  security procedures, first aid, fire prevention, fire safety, evacuation
 
plans and drills, prevention of  child  abuse  and  maltreatment,  staff qualifications  and  training,  record  keeping,  and  child  behavior management.
 
(b) The use of electronic monitors as a sole means of  supervision  of children  in  day  care  shall  be  prohibited,  except  that electronic monitors may be used in family day care homes and group family day  care
 
homes as an indirect means of supervision where the parents of any child
 
to  be  supervised have agreed in advance to the use of such monitors as
 
an indirect means of  supervision  and  the  use  of  such  monitors  is restricted to situations where the children so supervised are sleeping.
(c) No child less than six weeks of age may be cared for by a licensed
 
or  registered  day  care  provider, except in extenuating circumstances
 
where prior approval for care of such children has  been  given  by  the
 
office  of  children  and family services. Extenuating circumstances for the purposes of this section shall include but not  be  limited  to  the medical or health needs of the parent or child, or the economic hardship of the parent.
: 3.  (a)  The office of children and family services may make announced
 
or unannounced inspections of the records and premises of any child  day care  provider,  whether  or not such provider has a license from, or is registered with, the office of children and family services. The  office of  children  and  family services shall make unannounced inspections of the records and premises of any child day care provider  within  fifteen
 
days  after  the  office  of  children  and  family  services receives a complaint that, if true, would indicate such provider  does  not  comply with  the  regulations  of the office of children and family services or
 
with statutory requirements. If the complaint indicates that  there  may be  imminent  danger  to the children, the office of children and family services shall investigate the complaint no later than the next  day  of operation  of  the  provider. The office of children and family services may provide for inspections through the purchase of services.
 
(b) Where inspections have been  made  and  violations  of  applicable
 
statutes  or  regulations  have  been  found, the office of children and
 
family services shall within ten days advise the child day care provider in writing of the violations and require the provider  to  correct  such violations. The  office  of  children  and family services may also act
 
pursuant to subdivisions ten and eleven of this section.
 
(c) (i) The office of children and family services shall  establish  a
 
toll-free  statewide  telephone  number to receive inquiries about child day care homes, programs and facilities and complaints of violations  of the  requirements  of this section or regulations promulgated under this
 
section. The office of children and  family  services  shall  develop  a system  for  investigation,  which  shall  include  inspection,  of such complaints. The office of children and family services may  provide  for such investigations through purchase of services. The office of children and  family  services  shall  develop  a  process  for  publicizing such
 
toll-free telephone  number  to  the  public  for  making  inquiries  or
 
complaints about child day care homes, programs or facilities.
 
(ii)  Information to be maintained and available to the public through
 
such toll-free telephone number shall include, but not be limited to:
(A) current license and registration status of child day  care  homes,  programs  and  facilities including whether a license or registration is in effect or has been revoked or suspended; and (B) child care  resource  and  referral  programs  providing  services
 
pursuant  to  title  five-B of this article and other resources known to the office of children and family services which  relate  to  child  day care homes, programs and facilities in the state.
(iii)  Upon  written  request  identifying a particular child day care
 
home, program or facility, the office of children  and  family  services shall  provide  the  information set forth below. The office of children and family services may charge reasonable fees for copies  of  documents
 
provided,  consistent  with  the provisions of article six of the public officers law. The information available pursuant to  this  clause  shall be:
(A)  the  results  of  the  most  recent  inspection  for licensure or
 
registration and any subsequent inspections by the  office  of  children
 
and family services; (B)  complaints  filed  against  child  day  care  homes,  programs or facilities which describes the nature of the complaint  and  states  how
 
the  complaint  was  resolved,  including  the  status  of the office of
 
children and family services investigation, the steps taken  to  rectify
 
the complaint, and the penalty, if any, imposed; and (C)  child day care homes, programs or facilities which have requested or received a waiver from any applicable rule  or  regulation,  and  the regulatory requirement which was waived.
(iv) Nothing in this paragraph shall be construed to require or permit
 
the  disclosure  either  orally or in writing of any information that is confidential pursuant to law.
(d) Where investigation or inspection reveals that a  child  day  care provider  which  must  be  licensed  or registered is not, the office of children and family services shall advise the child day care provider in
 
writing  that  the  provider  is  in  violation  of  the  licensing  or registration  requirements  and  shall  take  such  further action as is necessary to cause the  provider  to  comply  with  the  law,  including
 
directing  an unlicensed or unregistered provider to cease operation. In addition, the office of children and family services shall  require  the provider  to  notify the parents or guardians of children receiving care from the provider that the provider is in violation of the licensing  or registration  requirements  and shall require the provider to notify the
 
office of children and family services that the provider  has  done  so.
 
Any  provider  who  is  directed  to  cease  operations pursuant to this
 
paragraph shall be entitled to a hearing before the office  of  children and  family  services. If the provider requests a hearing to contest the directive to  cease  operations,  such  hearing  must  be  scheduled  to
 
commence  as  soon  as  possible  but in no event later than thirty days
 
after the receipt of the request by the office of  children  and  family
 
services. The provider may not operate the center, home or program after being  directed  to cease operations, regardless of whether a hearing is requested. If the provider does not  cease  operations,  the  office  of
 
children  and  family  services  may  impose a civil penalty pursuant to subdivision eleven of this  section,  seek  an  injunction  pursuant  to section three hundred ninety-one of this title, or both.
(e)  (i)  Where  an  authorized  agency  is subsidizing child day care pursuant to any provision of this chapter,  the  authorized  agency  may
 
submit  to  the department justification for a need to impose additional
 
requirements upon child  day  care  providers  and  a  plan  to  monitor
 
compliance  with  such  additional  requirements. No  such  additional
 
requirements or monitoring may be imposed without the  written  approval of the department.
(ii)  An  authorized  agency  may  refuse  to  allow  a child day care provider who is not in compliance  with  this  section  and  regulations issued  hereunder  or  any  approved  additional  requirements  of  the
 
authorized agency to provide child day care to the child. In  accordance with  the  plan  approved  by the department, an authorized agency shall have the right to make  announced  or  unannounced  inspections  of  the records  and  premises  of  any  provider  who  provides  care  for such
 
children, including the right to make inspections  prior  to  subsidized children  receiving  care  in  a  home  where  the inspection is for the purpose of determining  whether  the  child  day  care  provider  is  in
 
compliance  with  applicable  law  and  regulations  and  any additional requirements imposed upon such provider by the authorized agency. Where an authorized agency makes such inspections, the authorized agency shall
 
notify  the  department immediately of any violations of this section or
 
regulations promulgated hereunder, and shall provide the department with
 
an inspection report whether or not violations were  found,  documenting the results of such inspection.
(iii) Nothing contained in this paragraph shall diminish the authority
 
of  the  department  to  conduct  inspections or provide for inspections
 
through purchase of services as otherwise provided for in this  section.
 
Nothing  contained  in  this  paragraph shall obligate the department to take any action to enforce any additional requirements imposed on  child day care providers by an authorized agency.
(f)  Individual  local  social  services  districts  may  alter  their participation in  activities  related  to  arranging  for,  subsidizing, delivering  and  monitoring  the  provision of subsidized child day care provided,  however,  that  the  total  participation  of  an  individual district  in all activities related to the provision of subsidized child day care shall be no less than the participation  level  engaged  in  by such individual district on the effective date of this section.
: 4.  (a)  The office of children and family services on an annual basis shall inspect at least twenty percent of all registered family day  care homes, registered child day care centers and registered school age child
 
care  programs to determine whether such homes, centers and programs are operating in compliance with applicable statutes  and  regulations. The office  of children and family services shall increase the percentage of family day care homes, child day care centers and school age child  care programs which are inspected pursuant to this subdivision as follows: to
 
at  least  thirty  percent by the thirty-first of December two thousand;
 
and to at least fifty  percent  by  the  thirty-first  of  December  two
 
thousand one. The office of children and family services may provide for such  inspections  through purchase of services. Priority shall be given to family day care homes which have never  been  licensed  or  certified
 
prior to initial registration.
 
(b)  Any  family  day  care  home  or  school-age  child  care program
 
licensed,  registered,  or  certified  by  the  department  or  by  any authorized  agency on the effective date of this section shall be deemed registered  until  the  expiration  of  its  then-current  license  or
 
certificate  unless  such license or certificate is suspended or revoked pursuant to subdivision ten of this section. Family day care  homes  and school-age child care programs not licensed, registered, or certified on the  effective  date  of  this  section  shall  register  pursuant  to subdivision two of this section.
: 5. Child day care providers  required  to  have  a  license  from  the
 
department  or  to  be  registered  with the department pursuant to this
 
section shall not be exempt from such requirement  through  registration
 
with  another state agency, or certification, registration, or licensure by any local governmental agency or any authorized agency.
: 6. Unless otherwise limited by law, a parent with legal custody  or  a legal  guardian  of  any  child  in  a child day care program shall have unlimited and on demand access to such child or  ward. Such  parent  or
 
guardian  unless  otherwise limited by law, also shall have the right to inspect on demand during its hours of operation any area of a child  day care  center, group family day care home, school-age child care program,  or family day care home to which the child or ward  of  such  parent  or
 
guardian  has  access  or which could present a hazard to the health and safety of the child or ward.
: 7. (a) The department shall implement on a statewide basis programs to
 
educate parents and other potential consumers of child day care programs about their selection and use. The  department  may  provide  for  such implementation  through  the  purchase of services. Such education shall
 
include, but not be limited to, the following topics:
 
(i) types of child day care programs;
 
(ii)  factors  to  be considered in selecting and evaluating child day care programs; (iii)  regulations  of  the  department  governing  the  operation  of
 
different types of programs;
 
(iv)  rights of parents or guardians in relation to access to children
 
and inspection of child day care programs; (v)  information  concerning  the  availability  of  child  day  care subsidies; (vi) information about licensing and registration requirements; (vii)  prevention  of  child  abuse and maltreatment in child day care
 
programs, including screening of child day care providers and employees; (viii) tax information; and (ix) factors to be considered in selecting and  evaluating  child  day care  programs  when  a child needs administration of medications during the time enrolled.
 
(b) The department shall implement a statewide campaign to educate the public as to the legal requirements for registration of family day  care and  school-age  child  care, and the benefits of such registration. The
 
department may provide for such implementation through the  purchase  of services. The campaign shall:
(i) use various types of media; (ii)  include  the  development  of  public  educational materials for families, family day care providers, employers and community agencies;
 
(iii) explain the role  and  functions  of  child  care  resource  and
 
referral programs, as such term is used in title five-B of this article;
 
(iv)  explain  the  role  and functions of the department in regard to registered programs; and (v) publicize the department's toll-free telephone number  for  making
 
complaints  of  violations  of  child  day  care requirements related to
 
programs which are required to be licensed or registered.
: 8. The department shall establish and maintain a list of  all  current registered  and  licensed  child  day  care  programs  and a list of all programs whose license  or  registration  has  been  revoked,  rejected, terminated,  or  suspended. Such  information shall be available to the public, pursuant to procedures developed by the department.
8-a. The office  of  children  and  family  services  shall  not  make available to the public online any group family day care home provider's or  family  day  care  provider's home street address or map showing the
 
location of such provider's home where such provider  has  requested  to
 
opt out of the online availability of this information. The office shall
 
provide a written form informing a provider of their right to opt out of
 
providing  information  online,  and  shall  also  permit  a provider to request to opt out through the office's website.
: 9. The department shall make available, directly or  through  purchase of  services,  to  registered  child  day  care  providers  information concerning:
 
(a) liability insurance; (b) start-up grants; (c) United States department of agriculture food programs; (d) subsidies available for child day care;
 
(e) tax information; and (f) support services required to be provided by  child  care  resource and  referral programs as set forth in subdivision three of section four
 
hundred ten-r of this article.
: 10. Any home or facility providing child day care shall be operated in accordance with applicable statutes and regulations. Any  violation  of
 
applicable  statutes  or  regulations  shall  be a basis to deny, limit, suspend, revoke, or terminate a license or registration. 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. Before any license issued pursuant to  the  provisions  of this  section  is  suspended or revoked, before registration pursuant to this section is suspended or terminated, or when an application for such license is denied or registration rejected, the applicant for or  holder of  such  registration  or  license  is  entitled,  pursuant  to section
 
twenty-two of this chapter and the regulations of the office of children and family services, to a hearing before  the  office  of  children  and family services. However, a license or registration shall be temporarily
 
suspended  or  limited  without  a  hearing  upon  written notice to the operator of the facility following a finding that the public health,  or an individual's safety or welfare, are in imminent danger. The holder of a  license  or  registrant is entitled to a hearing before the office of children and family services to  contest  the  temporary  suspension  or
 
limitation. If the holder of a license or registrant requests a hearing
 
to contest the temporary suspension or limitation, such hearing must  be
 
scheduled  to  commence  as  soon as possible but in no event later than thirty days after the receipt of the request by the office  of  children and  family  services. Suspension  shall  continue  until the condition
 
requiring suspension or limitation  is  corrected  or  until  a  hearing
 
decision  has been issued. If the office of children and family services
 
determines after a hearing that the temporary suspension  or  limitation was  proper,  such  suspension or limitation shall be extended until the condition requiring suspension or limitation has been corrected or until
 
the license or registration has been revoked.
: 11. (a) (i) The office of children and  family  services  shall  adopt regulations  establishing  civil  penalties of no more than five hundred dollars per day to be assessed against child day  care  centers,  school age  child care programs, group family day care homes or family day care
 
homes for violations of this section, sections  three  hundred  ninety-a
 
and three hundred ninety-b of this title and any regulations promulgated
 
thereunder. The  regulations establishing civil penalties shall specify
 
the violations subject to penalty.
(ii)  The  office  of  children  and  family  services  shall  adopt regulations  establishing  civil  penalties of no more than five hundred dollars per day to be assessed against  child  day  care  providers  who operate  child day care centers or group family day care homes without a
 
license or who operate family day  care  homes,  school-age  child  care programs,  or  child  day care centers required to be registered without obtaining such registration.
(iii) In addition to any other civil or criminal penalty  provided  by
 
law,  the office of children and family services shall have the power to assess civil  penalties  in  accordance  with  its  regulations  adopted pursuant  to  this  subdivision  after a hearing conducted in accordance
 
with procedures established by regulations of the office of children and family services. Such procedures shall require that notice of  the  time and  place  of  the  hearing,  together  with  a statement of charges of
 
violations, shall be served in person or by certified mail addressed  to
 
the  school  age  child care program, group family day care home, family
 
day care home, or child day care center at least thirty  days  prior  to the  date  of  the hearing. The statement of charges shall set forth the existence of the violation or violations,  the  amount  of  penalty  for
 
which  the  program  may become liable, the steps which must be taken to
 
rectify the violation, and where applicable, a statement that a  penalty
 
may  be  imposed  regardless  of  rectification. A written answer to the charges of violations shall be filed with the  office  of  children  and family services not less than ten days prior to the date of hearing with respect  to  each  of  the  charges  and  shall include all material and relevant matters which, if not disclosed in the answer, would not likely
 
be known to the office of children and family services.
(iv) The hearing shall be held by the commissioner of  the  office  of children  and family services or the commissioner's designee. The burden of proof at such hearing shall be on the office of children  and  family services  to  show  that the charges are supported by a preponderance of
 
the evidence. The commissioner of the  office  of  children  and  family services  or  the commissioner's designee, in his or her discretion, may allow the child day care center operator or provider to attempt to prove
 
by a preponderance of the  evidence  any  matter  not  included  in  the answer. Where  the  child day care provider satisfactorily demonstrates that it has rectified the violations in accordance with the requirements of paragraph (c) of this subdivision, no penalty shall be imposed except as provided in paragraph (c) of this subdivision.
 
(b)(i) In assessing penalties pursuant to this subdivision, the office
 
of children and family services may consider  the  completeness  of  any
 
rectification  made and the specific circumstances of such violations as mitigating factors.
(ii) Upon the request of the office of children and  family  services, the  attorney general shall commence an action in any court of competent
 
jurisdiction  against  any  child  day  care  program  subject  to  the
 
provisions  of  this  subdivision  and  against  any  person,  entity or corporation operating such center or  school  age  child  care  program,  group  family  day care home or family day care home for the recovery of
 
any penalty assessed by the office of children and  family  services  in accordance with the provisions of this subdivision.
(iii)  Any  such penalty assessed by the office of children and family services may be released or compromised by the office  of  children  and family  services  before  the  matter  has been referred to the attorney
 
general; when such matter has been referred  to  the  attorney  general, such  penalty may be released or compromised and any action commenced to
 
recover the same may be settled and discontinued by the attorney general
 
with the consent of the office of children and family services.
(c)(i) Except as provided for in this  paragraph,  a  child  day  care provider  shall  avoid  payment  of  a  penalty imposed pursuant to this subdivision  where  the  provider  has  rectified  the  condition  which resulted  in  the  imposition  of  the  penalty  within  thirty  days of
 
notification of the existence of the violation of statute or regulation.
(ii) Clause (i) of this paragraph notwithstanding, rectification shall not preclude the imposition of a penalty pursuant  to  this  subdivision where:
(A)  the  child day care provider has operated a child day care center or group family day care home without a license, has refused to  seek  a license  for the operation of such a center or home, or has continued to
 
operate such a center or home after denial  of  a  license  application,  revocation of an existing license or suspension of an existing license; (B)  the  child day care provider has operated a family day care home, school-age child care program or child day care center  required  to  be
 
registered  without  being  registered, has refused to seek registration
 
for the operation of such home, program or center or  has  continued  to operate  such  a  home, program or center after denial of a registration application, revocation of an existing registration or suspension of  an
 
existing registration;
 
(C)  there  has  been a total or substantial failure of the facility's
 
fire detection or prevention systems or emergency evacuation procedures; (D) the child day care provider or an assistant, employee or volunteer has failed to provide adequate and competent supervision; (E) the child day care provider or an assistant, employee or volunteer has failed to provide adequate sanitation;
 
(F) the child day care provider or an assistant,  employee,  volunteer or,  for  a family day care home or group family day care home, a member of the provider's household, has injured a child in  care,  unreasonably failed  to  obtain  medical attention for a child in care requiring such attention, used corporal punishment against a child in care or abused or
 
maltreated a child in care; (G) the child day care provider has violated  the  same  statutory  or regulatory standard more than once within a six month period;
 
(H) the child day care provider or an assistant, employee or volunteer has  failed  to  make  a report of suspected child abuse or maltreatment when required to do so pursuant to section four hundred thirteen of this article; or (I) the child day care provider or an assistant, employee or volunteer
 
has submitted to the office of children and  family  services  a  forged
 
document as defined in section 170.00 of the penal law.
 
(d)  Any  civil  penalty received by the office of children and family services pursuant to this subdivision shall be deposited to  the  credit of  the "quality child care and protection fund" established pursuant to
 
section ninety-seven-www of the state finance law.
 
(e)(i) The office of children and family services  shall  deny  a  new
 
application  for  licensure  or registration made by a day care provider whose license or registration was previously revoked or terminated based on a violation of statute or regulation for a period of two  years  from
 
the  date  that  the  revocation  or  termination  of  the  license  or registration became finally effective, unless such office determines, in its discretion, that approval of the application will  not  in  any  way jeopardize  the  health,  safety  or  welfare of children in the center,  program or home. For the purposes of this paragraph, the date  that  the
 
revocation  or  termination  became  finally  effective  shall  be,  as
 
applicable:
 
(A) the date that the revocation or termination became effective based
 
on the notice of revocation or termination; (B) the date that  the  hearing  decision  was  issued  upholding  the revocation or termination; (C)  the  date  of  issuance  of  a  final  court  order affirming the revocation or termination or affirming a hearing  decision  that  upheld
 
the revocation or termination; or (D)  another  date  mutually agreed upon by the office of children and family services and the provider.
(ii)(A) Such office shall deny a  new  application  for  licensure  or
 
registration  made  by  a day care provider who is enjoined or otherwise prohibited by a court order from operation of a day care  center,  group family  day  care  home,  family  day care home or school-age child care
 
program without a license or registration for a period of two years from the date of the court order unless the court order specifically  enjoins the provider from providing day care for a period longer than two years, in  which  case  the  office  shall deny any new application made by the
 
provider while the provider is so enjoined.
 
(B) Such  office  shall  deny  a  new  application  for  licensure  or registration  made by a day care provider who is assessed a second civil penalty by such office for having operated  a  day  care  center,  group
 
family  day  care  home,  family  day care home or school-age child care
 
program without a license or registration for a period of two years from
 
the date of the second fine. For the purposes  of  this  paragraph,  the date of the second fine shall be either the date upon which the day care provider  signs  a  stipulation  agreement to pay the second fine or the date upon which a hearing decision is issued affirming the determination of such office to impose the second fine, as applicable.
 
(iii) A day care provider who surrenders  the  provider's  license  or registration  while  such  office  is  engaged  in  enforcement  seeking suspension, revocation or termination  of  such  provider's  license  or registration pursuant to the regulations of such office, shall be deemed to  have  had  their  license  or registration revoked or terminated and
 
shall be subject to the prohibitions against licensing  or  registration pursuant to subparagraph (i) of this paragraph for a period of two years from the date of surrender of the license or registration.
: 12.  (a) Notwithstanding any other provision of law, except as may be required as a condition of  licensure  or  registration  by  regulations promulgated pursuant to this section, no village, town (outside the area of  any  incorporated  village), city or county shall adopt or enact any law, ordinance, rule  or  regulation  which  would  impose,  mandate  or
 
otherwise  enforce  standards  for  sanitation,  health,  fire safety or


building construction on a one or two family dwelling  or  multiple
and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. This assistant shall be selected by the group family day care operator and shall meet the qualifications established for such position by the regulations of the office of children and family services.
(e) "Family day care home" shall mean a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children. There shall be one caregiver for every two children under two years of age in the family day care home. A family day care provider may, however, care for seven or eight children at any one time if no more than six of the children are less than school age and the school-aged children receive care primarily before or after the period such children are ordinarily in school, during school lunch periods, on school holidays, or during those periods of the year in which school is not in session in accordance with the regulations of the office of children and family services and the office inspects such home to determine whether the provider can care adequately for seven or eight children.
(f) "School age child care" shall mean a program caring for more than six school-aged children who are under thirteen years of age or who are incapable of caring for themselves. Such programs shall be in operation consistent with the local school calendar. School age child care programs shall offer care during the school year to an enrolled group of children at a permanent site before or after the period children enrolled in such program are ordinarily in school or during school lunch periods and may also provide such care on school holidays and those periods of the year in which school is not in session.
: 2.    (a) Child day care centers caring for seven or more children and group family day care programs, as defined in subdivision one of this section, shall obtain a license from the office of children and family services and shall operate in accordance with the terms of such license and the regulations of such office. Initial licenses shall be valid for a period of up to two years; subsequent licenses shall be valid for a period of up to four years so long as the provider remains substantially in compliance with applicable law and regulations during such period.
(b) Family day care homes, child day care centers caring for at least three but fewer than seven children, and school-age child care programs shall register with the department and shall operate in compliance with the regulations of the department.
(c) Any child day care provider not required to obtain a license pursuant to paragraph (a) of this subdivision or to register with the department pursuant to paragraph (b) of this subdivision may register with the department.
(d) (i) The office of children and family services shall promulgate regulations for licensure and for registration of child day care pursuant to this section. Procedures for obtaining a license or registration or renewing a license shall include a          satisfactory inspection of the facility by the office of children and family services prior to issuance of the license or registration or renewal of the license.
(ii) (A) Initial registrations shall be valid for a period of up to two years, subsequent registrations shall be valid for a period of up to four years so long as the provider remains substantially in compliance with applicable law and regulations during such period.
(B) After initial registration by the child day care provider, the office of children and family services shall not accept any subsequent


dwelling  used  to provide group family day care or family day care than would be applicable were  such child day care not provided on  the premises. No  village, town  (outside  the  area  of any incorporated
registration by such provider, unless:
(1) such provider has met the training requirements set forth in section three hundred ninety-a of this title; (2) such provider has met the requirements of section three hundred ninety-b of this title relating to criminal history screening; (3) such provider has complied with the requirements of section four hundred twenty-four-a of this article; and (4) the office of children and family services has received no complaints about the home, center, or program alleging statutory or regulatory violations, or, having received such complaints, the office of children and family services has determined, after inspection pursuant to paragraph (a) of subdivision three of this section, that the home, center, or program is operated in compliance with applicable statutory and regulatory requirements.
(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 office of children and family services shall inspect the home or program before 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.
(iv) Child day care providers who have been issued a license shall openly display such license in the facility or home for which the license is issued. Child day care providers who have registered with the department shall provide proof of registration upon request.
(e) Notwithstanding any other provision of this section, where a child is cared for by a parent, guardian or relative within the third degree of  consanguinity  of the parent of such child and such person simultaneously provides child day care for other children, only the other children shall be considered in determining whether such person must be registered or licensed, provided that such person is not caring, in total, for more than eight children.
2-a. (a) The office of children and family services shall promulgate regulations which establish minimum quality program requirements for licensed and registered child day care homes, programs and facilities.
Such requirements shall include but not be limited to (i) the need for age appropriate activities, materials and      equipment  to  promote cognitive, educational, social, cultural, physical, emotional, language and recreational development of children in care in a safe, healthy and caring environment (ii) principles of childhood development (iii) appropriate staff/child ratios for family day care homes, group family day care homes, school age day care programs and day care centers, provided however that such staff/child ratios shall not be less stringent than applicable staff/child ratios as set forth in part four hundred fourteen, four hundred sixteen, four hundred seventeen or four hundred eighteen of title eighteen of the New York code of rules and regulations as of January first, two thousand (iv) appropriate levels of supervision of children in care (v) minimum standards for sanitation, health, infection control, nutrition, buildings and equipment, safety, security procedures, first aid, fire prevention, fire safety, evacuation plans and drills, prevention of child abuse and maltreatment, staff


village), city or county shall prohibit or restrict use of a one or two
qualifications  and  training, record keeping, and child behavior management.
(b) The use of electronic monitors as a sole means of supervision of children in day care shall be prohibited, except that electronic monitors may be used in family day care homes and group family day care homes as an indirect means of supervision where the parents of any child to be supervised have agreed in advance to the use of such monitors as an indirect means of supervision and the use of such monitors is restricted to situations where the children so supervised are sleeping.
(c) No child less than six weeks of age may be cared for by a licensed or registered day care provider, except in extenuating circumstances where prior approval for care of such children has been given by the office of children and family services. Extenuating circumstances for the purposes of this section shall include but not be limited to the medical or health needs of the parent or child, or the economic hardship of the parent.
: 3. (a) The office of children and family services may make announced or unannounced inspections of the records and premises of any child day care provider, whether or not such provider has a license from, or is registered with, the office of children and family services. The office of children and family services shall make unannounced inspections of the records and premises of any child day care provider within fifteen days after the office of children and family services receives a complaint that, if true, would indicate such provider does not comply with the regulations of the office of children and family services or with statutory requirements. If the complaint indicates that there may be imminent danger to the children, the office of children and family services shall investigate the complaint no later than the next day of operation of the provider. The office of children and family services may provide for inspections through the purchase of services.
(b) Where inspections have been made and violations of applicable statutes or regulations have been found, the office of children and family services shall within ten days advise the child day care provider in writing of the violations and require the provider to correct such violations. The office of children and family services may also act pursuant to subdivisions ten and eleven of this section.
(c) (i) The office of children and family services shall establish a toll-free statewide telephone number to receive inquiries about child day care homes, programs and facilities and complaints of violations of the requirements of this section or regulations promulgated under this section. The office of children and family services shall develop a system for investigation, which shall include inspection, of such complaints. The office of children and family services may provide for such investigations through purchase of services. The office of children and family services shall develop a process for publicizing such toll-free telephone number to the public for making inquiries or complaints about child day care homes, programs or facilities.
(ii) Information to be maintained and available to the public through such toll-free telephone number shall include, but not be limited to:
(A) current license and registration status of child day care homes, programs and facilities including whether a license or registration is in effect or has been revoked or suspended; and (B) child care resource and referral programs providing services pursuant to title five-B of this article and other resources known to the office of children and family services which relate to child day care homes, programs and facilities in the state.
(iii) Upon written request identifying a particular child day care home, program or facility, the office of children and family services


family dwelling, or multiple  dwelling for family or group family day  
shall provide the information set forth below. The office of children and family services may charge reasonable fees for copies of documents provided, consistent with the provisions of article six of the public officers law. The information available pursuant to this clause shall be:
(A) the results of the most recent inspection for licensure or registration and any subsequent inspections by the office of children and family services; (B) complaints filed against child day care homes, programs or facilities which describes the nature of the complaint and states how the complaint was resolved, including the status of the office of children and family services investigation, the steps taken to rectify the complaint, and the penalty, if any, imposed; and (C) child day care homes, programs or facilities which have requested or received a waiver from any applicable rule or regulation, and the regulatory requirement which was waived.
(iv) Nothing in this paragraph shall be construed to require or permit the disclosure either orally or in writing of any information that is confidential pursuant to law.
(d) Where investigation or inspection reveals that a child day care provider which must be licensed or registered is not, the office of children and family services shall advise the child day care provider in writing that the provider is in violation of the licensing            or registration requirements and shall take such further action as is necessary to cause the provider to comply with the law, including directing an unlicensed or unregistered provider to cease operation. In addition, the office of children and family services shall require the provider to notify the parents or guardians of children receiving care from the provider that the provider is in violation of the licensing or registration requirements and shall require the provider to notify the office of children and family services that the provider has done so.
Any provider who is directed to cease operations pursuant to this paragraph shall be entitled to a hearing before the office of children and family services. If the provider requests a hearing to contest the directive to cease operations, such hearing must be scheduled to commence as soon as possible but in no event later than thirty days after the receipt of the request by the office of children and family services. The provider may not operate the center, home or program after being directed to cease operations, regardless of whether a hearing is requested. If the provider does not cease operations, the office of children and family services may impose a civil penalty pursuant to subdivision eleven of this section, seek an injunction pursuant to section three hundred ninety-one of this title, or both.
(e) (i) Where an authorized agency is subsidizing child day care pursuant to any provision of this chapter, the authorized agency may submit to the department justification for a need to impose additional requirements upon child day care providers and a plan to monitor compliance  with such additional requirements. No such additional requirements or monitoring may be imposed without the written approval of the department.
(ii) An authorized agency may refuse to allow a child day care provider who is not in compliance with this section and regulations issued  hereunder or any approved additional requirements of the authorized agency to provide child day care to the child. In accordance with the plan approved by the department, an authorized agency shall have the right to make announced or unannounced inspections of the records and premises of any provider who provides care for such children, including the right to make inspections prior to subsidized


care where a license or registration for such use  has  been  issued  in accordance  with regulations issued pursuant to this section. Nothing in this paragraph shall preclude  local authorities  with  enforcement
children receiving care in a home where the inspection is for the purpose of determining whether the child day care provider is in compliance with applicable law and regulations and any additional requirements imposed upon such provider by the authorized agency. Where an authorized agency makes such inspections, the authorized agency shall notify the department immediately of any violations of this section or regulations promulgated hereunder, and shall provide the department with an inspection report whether or not violations were found, documenting the results of such inspection.
(iii) Nothing contained in this paragraph shall diminish the authority of the department to conduct inspections or provide for inspections through purchase of services as otherwise provided for in this section.
Nothing contained in this paragraph shall obligate the department to take any action to enforce any additional requirements imposed on child day care providers by an authorized agency.
(f) Individual local social services districts may alter their participation in activities related to arranging for, subsidizing, delivering and monitoring the provision of subsidized child day care provided, however, that the total participation of an individual district in all activities related to the provision of subsidized child day care shall be no less than the participation level engaged in by such individual district on the effective date of this section.
: 4. (a) The office of children and family services on an annual basis shall inspect at least twenty percent of all registered family day care homes, registered child day care centers and registered school age child care programs to determine whether such homes, centers and programs are operating in compliance with applicable statutes and regulations. The office of children and family services shall increase the percentage of family day care homes, child day care centers and school age child care programs which are inspected pursuant to this subdivision as follows: to at least thirty percent by the thirty-first of December two thousand; and to at least fifty percent by the thirty-first of December two thousand one. The office of children and family services may provide for such inspections through purchase of services. Priority shall be given to family day care homes which have never been licensed or certified prior to initial registration.
(b) Any family day care home or school-age child care program licensed, registered, or certified by the department or by          any authorized agency on the effective date of this section shall be deemed registered until the expiration of its then-current        license  or certificate unless such license or certificate is suspended or revoked pursuant to subdivision ten of this section. Family day care homes and school-age child care programs not licensed, registered, or certified on the   effective  date of this section shall register pursuant to subdivision two of this section.
: 5. Child day care providers required to have a license from the department or to be registered with the department pursuant to this section shall not be exempt from such requirement through registration with another state agency, or certification, registration, or licensure by any local governmental agency or any authorized agency.
: 6. Unless otherwise limited by law, a parent with legal custody or a legal guardian of any child in a child day care program shall have unlimited and on demand access to such child or ward. Such parent or guardian unless otherwise limited by law, also shall have the right to inspect on demand during its hours of operation any area of a child day care center, group family day care home, school-age child care program, or family day care home to which the child or ward of such parent or guardian has access or which could present a hazard to the health and


jurisdiction  of the applicable  sanitation, health, fire  safety or building construction code from making appropriate inspections to assure compliance with such standards.
safety of the child or ward.
(b) Notwithstanding any  other  provision  of law, but  pursuant to section  five  hundred  eighty-one-b  of the  real property tax law, no
: 7. (a) The department shall implement on a statewide basis programs to educate parents and other potential consumers of child day care programs about their selection and use. The department may provide for such implementation through the purchase of services. Such education shall include, but not be limited to, the following topics:
(i) types of child day care programs; (ii) factors to be considered in selecting and evaluating child day care programs; (iii) regulations of the department governing the operation of different types of programs; (iv) rights of parents or guardians in relation to access to children and inspection of child day care programs; (v) information concerning the availability of child day          care subsidies; (vi) information about licensing and registration requirements; (vii) prevention of child abuse and maltreatment in child day care programs, including screening of child day care providers and employees; (viii) tax information; and (ix) factors to be considered in selecting and evaluating child day care programs when a child needs administration of medications during the time enrolled.
(b) The department shall implement a statewide campaign to educate the public as to the legal requirements for registration of family day care and school-age child care, and the benefits of such registration. The department may provide for such implementation through the purchase of services. The campaign shall:
(i) use various types of media; (ii) include the development of public educational materials for families, family day care providers, employers and community agencies; (iii) explain the role and functions of child care resource and referral programs, as such term is used in title five-B of this article; (iv) explain the role and functions of the department in regard to registered programs; and (v) publicize the department's toll-free telephone number for making complaints of violations of child day care requirements related to programs which are required to be licensed or registered.
: 8. The department shall establish and maintain a list of all current registered and licensed child day care programs and a list of all programs whose license or registration has been revoked, rejected, terminated, or suspended. Such information shall be available to the public, pursuant to procedures developed by the department.
8-a. The office of children and family services shall not make available to the public online any group family day care home provider's or family day care provider's home street address or map showing the location of such provider's home where such provider has requested to opt out of the online availability of this information. The office shall provide a written form informing a provider of their right to opt out of providing information online, and shall also permit a provider to request to opt out through the office's website.
: 9. The department shall make available, directly or through purchase of  services, to registered child day care providers information concerning:
(a) liability insurance; (b) start-up grants; (c) United States department of agriculture food programs; (d) subsidies available for child day care; (e) tax information; and


assessing unit, as defined in subdivision one of section one hundred two  
(f) support services required to be provided by child care resource and referral programs as set forth in subdivision three of section four hundred ten-r of this article.
: 10. Any home or facility providing child day care shall be operated in accordance with applicable statutes and regulations. Any violation of applicable statutes or regulations shall be a basis to deny, limit, suspend, revoke, or terminate a license or registration. 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. Before any license issued pursuant to the provisions of this section is suspended or revoked, before registration pursuant to this section is suspended or terminated, or when an application for such license is denied or registration rejected, the applicant for or holder of such registration or license is entitled, pursuant to section twenty-two of this chapter and the regulations of the office of children and family services, to a hearing before the office of children and family services. However, a license or registration shall be temporarily suspended or limited without a hearing upon written notice to the operator of the facility following a finding that the public health, or an individual's safety or welfare, are in imminent danger. The holder of a license or registrant is entitled to a hearing before the office of children and family services to contest the temporary suspension or limitation. If the holder of a license or registrant requests a hearing to contest the temporary suspension or limitation, such hearing must be scheduled to commence as soon as possible but in no event later than thirty days after the receipt of the request by the office of children and family services. Suspension shall continue until the condition requiring suspension or limitation is corrected or until a hearing decision has been issued. If the office of children and family services determines after a hearing that the temporary suspension or limitation was proper, such suspension or limitation shall be extended until the condition requiring suspension or limitation has been corrected or until the license or registration has been revoked.
: 11. (a) (i) The office of children and family services shall adopt regulations establishing civil penalties of no more than five hundred dollars per day to be assessed against child day care centers, school age child care programs, group family day care homes or family day care homes for violations of this section, sections three hundred ninety-a and three hundred ninety-b of this title and any regulations promulgated thereunder. The regulations establishing civil penalties shall specify the violations subject to penalty.
(ii) The office of children and family services          shall  adopt regulations establishing civil penalties of no more than five hundred dollars per day to be assessed against child day care providers who operate child day care centers or group family day care homes without a license or who operate family day care homes, school-age child care programs, or child day care centers required to be registered without obtaining such registration.
(iii) In addition to any other civil or criminal penalty provided by law, the office of children and family services shall have the power to


of the real property tax law, in the assessment  of the value  of any  
assess civil penalties in accordance with its regulations adopted pursuant to this subdivision after a hearing conducted in accordance with procedures established by regulations of the office of children and family services. Such procedures shall require that notice of the time and place of the hearing, together with a statement of charges of violations, shall be served in person or by certified mail addressed to the school age child care program, group family day care home, family day care home, or child day care center at least thirty days prior to the date of the hearing. The statement of charges shall set forth the existence of the violation or violations, the amount of penalty for which the program may become liable, the steps which must be taken to rectify the violation, and where applicable, a statement that a penalty may be imposed regardless of rectification. A written answer to the charges of violations shall be filed with the office of children and family services not less than ten days prior to the date of hearing with respect to each of the charges and shall include all material and relevant matters which, if not disclosed in the answer, would not likely be known to the office of children and family services.
(iv) The hearing shall be held by the commissioner of the office of children and family services or the commissioner's designee. The burden of proof at such hearing shall be on the office of children and family services to show that the charges are supported by a preponderance of the evidence. The commissioner of the office of children and family services or the commissioner's designee, in his or her discretion, may allow the child day care center operator or provider to attempt to prove by a preponderance of the evidence any matter not included in the answer. Where the child day care provider satisfactorily demonstrates that it has rectified the violations in accordance with the requirements of paragraph (c) of this subdivision, no penalty shall be imposed except as provided in paragraph (c) of this subdivision.
(b)(i) In assessing penalties pursuant to this subdivision, the office of children and family services may consider the completeness of any rectification made and the specific circumstances of such violations as mitigating factors.
(ii) Upon the request of the office of children and family services, the attorney general shall commence an action in any court of competent jurisdiction against any child day care program subject to          the provisions of this subdivision and against any person, entity or corporation operating such center or school age child care program, group family day care home or family day care home for the recovery of any penalty assessed by the office of children and family services in accordance with the provisions of this subdivision.
(iii) Any such penalty assessed by the office of children and family services may be released or compromised by the office of children and family services before the matter has been referred to the attorney general; when such matter has been referred to the attorney general, such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the attorney general with the consent of the office of children and family services.
(c)(i) Except as provided for in this paragraph, a child day care provider shall avoid payment of a penalty imposed pursuant to this subdivision where the provider has rectified the condition which resulted in the imposition of the penalty within thirty days of notification of the existence of the violation of statute or regulation.
(ii) Clause (i) of this paragraph notwithstanding, rectification shall not preclude the imposition of a penalty pursuant to this subdivision where:
(A) the child day care provider has operated a child day care center


parcel used for residential purposes and registered as a family day care  
or group family day care home without a license, has refused to seek a license for the operation of such a center or home, or has continued to operate such a center or home after denial of a license application, revocation of an existing license or suspension of an existing license; (B) the child day care provider has operated a family day care home, school-age child care program or child day care center required to be registered without being registered, has refused to seek registration for the operation of such home, program or center or has continued to operate such a home, program or center after denial of a registration application, revocation of an existing registration or suspension of an existing registration; (C) there has been a total or substantial failure of the facility's fire detection or prevention systems or emergency evacuation procedures; (D) the child day care provider or an assistant, employee or volunteer has failed to provide adequate and competent supervision; (E) the child day care provider or an assistant, employee or volunteer has failed to provide adequate sanitation; (F) the child day care provider or an assistant, employee, volunteer or, for a family day care home or group family day care home, a member of the provider's household, has injured a child in care, unreasonably failed to obtain medical attention for a child in care requiring such attention, used corporal punishment against a child in care or abused or maltreated a child in care; (G) the child day care provider has violated the same statutory or regulatory standard more than once within a six month period; (H) the child day care provider or an assistant, employee or volunteer has failed to make a report of suspected child abuse or maltreatment when required to do so pursuant to section four hundred thirteen of this article; or (I) the child day care provider or an assistant, employee or volunteer has submitted to the office of children and family services a forged document as defined in section 170.00 of the penal law.
(d) Any civil penalty received by the office of children and family services pursuant to this subdivision shall be deposited to the credit of the "quality child care and protection fund" established pursuant to section ninety-seven-www of the state finance law.
(e)(i) The office of children and family services shall deny a new application for licensure or registration made by a day care provider whose license or registration was previously revoked or terminated based on a violation of statute or regulation for a period of two years from the  date that the revocation or termination of the license or registration became finally effective, unless such office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of children in the center, program or home. For the purposes of this paragraph, the date that the revocation  or termination became finally effective shall be, as applicable:
(A) the date that the revocation or termination became effective based on the notice of revocation or termination; (B) the date that the hearing decision was issued upholding the revocation or termination; (C) the date of issuance of a final court order affirming the revocation or termination or affirming a hearing decision that upheld the revocation or termination; or (D) another date mutually agreed upon by the office of children and family services and the provider.
(ii)(A) Such office shall deny a new application for licensure or registration made by a day care provider who is enjoined or otherwise


home pursuant to this section, shall consider the use or registration of such parcel as a family day care home.
prohibited by a court order from operation of a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the court order unless the court order specifically enjoins the provider from providing day care for a period longer than two years, in which case the office shall deny any new application made by the provider while the provider is so enjoined.
: 13. Notwithstanding any other provision of law, this section, except for paragraph (a-1) of subdivision two-a of this section, shall not apply to child day care centers in the city of New York.}}
(B) Such office shall deny a new application for licensure or registration made by a day care provider who is assessed a second civil penalty by such office for having operated a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the second fine. For the purposes of this paragraph, the date of the second fine shall be either the date upon which the day care provider signs a stipulation agreement to pay the second fine or the date upon which a hearing decision is issued affirming the determination of such office to impose the second fine, as applicable.
(iii) A day care provider who surrenders the provider's license or registration while such office is engaged in enforcement seeking suspension, revocation or termination of such provider's license or registration pursuant to the regulations of such office, shall be deemed to have had their license or registration revoked or terminated and shall be subject to the prohibitions against licensing or registration pursuant to subparagraph (i) of this paragraph for a period of two years from the date of surrender of the license or registration.
: 12.  (a) Notwithstanding any other provision of law, except as may be required as a condition of licensure or registration by regulations promulgated pursuant to this section, no village, town (outside the area of any incorporated village), city or county shall adopt or enact any law, ordinance, rule or regulation which would impose, mandate or otherwise enforce standards for sanitation, health, fire safety or building construction on a one or two family dwelling or multiple dwelling used to provide group family day care or family day care than would be applicable were such child day care not provided on the premises. No village, town (outside the area of any incorporated village), city or county shall prohibit or restrict use of a one or two family dwelling, or multiple dwelling for family or group family day care where a license or registration for such use has been issued in accordance with regulations issued pursuant to this section. Nothing in this paragraph shall preclude local authorities with        enforcement jurisdiction of the applicable sanitation, health, fire safety or building construction code from making appropriate inspections to assure compliance with such standards.
(b) Notwithstanding any other provision of law, but pursuant to section five hundred eighty-one-b of the real property tax law, no assessing unit, as defined in subdivision one of section one hundred two of the real property tax law, in the assessment of the value of any parcel used for residential purposes and registered as a family day care home pursuant to this section, shall consider the use or registration of such parcel as a family day care home.
: 13. Notwithstanding any other provision of law, this section, except for paragraph (a-1) of subdivision two-a of this section, shall not apply to child day care centers in the city of New York.
}}

Latest revision as of 06:01, 12 November 2019

Entergy Prefiled Hearing Exhibit ENT000281 - Source: New York State Office of Children & Family Services, 2010 Chapters 1-56, 58-59, and 61-223
ML12089A523
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 12/31/2010
From:
State of NY, Office of Children & Family Services
To:
Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML12089A514 List:
References
RAS 22118, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12089A523 (11)
v • d • e


Text

ENT000281 Submitted: March 29, 2012 Source: New York State Office of Children & Family Services 2010 Chapters 1-56, 58-59,61-223 Social Services

§ 390. Child day care; license or registration required. 1.

Definitions. (a) (i) "Child day care" shall mean care for a child on a regular basis provided away from the child's residence for less than twenty-four hours per day by someone other than the parent, step-parent, guardian, or relative within the third degree of consanguinity of the parents or step-parents of such child.

(ii) Child day care shall not refer to care provided in:

(A) a day camp, as defined in the state sanitary code; (B) an after-school program operated for the purpose of religious education, sports, or recreation; (C) a facility:

(1) providing day services under an operating certificate issued by the department; (2) providing day treatment under an operating certificate issued by the office of mental health or office of mental retardation and developmental disabilities; or (D) a kindergarten, pre-kindergarten, or nursery school for children three years of age or older, or after-school program for children operated by a public school district or by a private school or academy which is providing elementary or secondary education or both, in accordance with the compulsory education requirements of the education law, provided that the kindergarten, pre-kindergarten, nursery school, or after school program is located on the premises or campus where the elementary or secondary education is provided.

(b) "Child day care provider" shall mean any individual, association, corporation, partnership, institution or agency whose activities include providing child day care or operating a home or facility where child day care is provided.

(c) "Child day care center" shall mean any program or facility caring for children for more than three hours per day per child in which child day care is provided by a child day care provider except those programs operating as a group family day care home as such term is defined in paragraph (d) of this subdivision, a family day care home, as such term is defined in paragraph (e) of this subdivision, and a school-age child care program, as such term is defined in paragraph (f) of this subdivision.

(d) "Group family day care home" shall mean a program caring for children for more than three hours per day per child in which child day care is provided in a family home for seven to twelve children of all ages, except for those programs operating as a family day care home, as such term is defined in paragraph (e) of this subdivision, which care for seven or eight children. A group family day care provider may provide child day care services to four additional children if such additional children are of school age and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. There shall be one caregiver for every two children under two years of age in the group family home. A group family day care home must have at least one assistant to the operator present when child day care is being provided to seven or more children when none of the children are school age, or nine or more children when at least two of the children are school age

and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. This assistant shall be selected by the group family day care operator and shall meet the qualifications established for such position by the regulations of the office of children and family services.

(e) "Family day care home" shall mean a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children. There shall be one caregiver for every two children under two years of age in the family day care home. A family day care provider may, however, care for seven or eight children at any one time if no more than six of the children are less than school age and the school-aged children receive care primarily before or after the period such children are ordinarily in school, during school lunch periods, on school holidays, or during those periods of the year in which school is not in session in accordance with the regulations of the office of children and family services and the office inspects such home to determine whether the provider can care adequately for seven or eight children.

(f) "School age child care" shall mean a program caring for more than six school-aged children who are under thirteen years of age or who are incapable of caring for themselves. Such programs shall be in operation consistent with the local school calendar. School age child care programs shall offer care during the school year to an enrolled group of children at a permanent site before or after the period children enrolled in such program are ordinarily in school or during school lunch periods and may also provide such care on school holidays and those periods of the year in which school is not in session.

2. (a) Child day care centers caring for seven or more children and group family day care programs, as defined in subdivision one of this section, shall obtain a license from the office of children and family services and shall operate in accordance with the terms of such license and the regulations of such office. Initial licenses shall be valid for a period of up to two years; subsequent licenses shall be valid for a period of up to four years so long as the provider remains substantially in compliance with applicable law and regulations during such period.

(b) Family day care homes, child day care centers caring for at least three but fewer than seven children, and school-age child care programs shall register with the department and shall operate in compliance with the regulations of the department.

(c) Any child day care provider not required to obtain a license pursuant to paragraph (a) of this subdivision or to register with the department pursuant to paragraph (b) of this subdivision may register with the department.

(d) (i) The office of children and family services shall promulgate regulations for licensure and for registration of child day care pursuant to this section. Procedures for obtaining a license or registration or renewing a license shall include a satisfactory inspection of the facility by the office of children and family services prior to issuance of the license or registration or renewal of the license.

(ii) (A) Initial registrations shall be valid for a period of up to two years, subsequent registrations shall be valid for a period of up to four years so long as the provider remains substantially in compliance with applicable law and regulations during such period.

(B) After initial registration by the child day care provider, the office of children and family services shall not accept any subsequent

registration by such provider, unless:

(1) such provider has met the training requirements set forth in section three hundred ninety-a of this title; (2) such provider has met the requirements of section three hundred ninety-b of this title relating to criminal history screening; (3) such provider has complied with the requirements of section four hundred twenty-four-a of this article; and (4) the office of children and family services has received no complaints about the home, center, or program alleging statutory or regulatory violations, or, having received such complaints, the office of children and family services has determined, after inspection pursuant to paragraph (a) of subdivision three of this section, that the home, center, or program is operated in compliance with applicable statutory and regulatory requirements.

(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 office of children and family services shall inspect the home or program before 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.

(iv) Child day care providers who have been issued a license shall openly display such license in the facility or home for which the license is issued. Child day care providers who have registered with the department shall provide proof of registration upon request.

(e) Notwithstanding any other provision of this section, where a child is cared for by a parent, guardian or relative within the third degree of consanguinity of the parent of such child and such person simultaneously provides child day care for other children, only the other children shall be considered in determining whether such person must be registered or licensed, provided that such person is not caring, in total, for more than eight children.

2-a. (a) The office of children and family services shall promulgate regulations which establish minimum quality program requirements for licensed and registered child day care homes, programs and facilities.

Such requirements shall include but not be limited to (i) the need for age appropriate activities, materials and equipment to promote cognitive, educational, social, cultural, physical, emotional, language and recreational development of children in care in a safe, healthy and caring environment (ii) principles of childhood development (iii) appropriate staff/child ratios for family day care homes, group family day care homes, school age day care programs and day care centers, provided however that such staff/child ratios shall not be less stringent than applicable staff/child ratios as set forth in part four hundred fourteen, four hundred sixteen, four hundred seventeen or four hundred eighteen of title eighteen of the New York code of rules and regulations as of January first, two thousand (iv) appropriate levels of supervision of children in care (v) minimum standards for sanitation, health, infection control, nutrition, buildings and equipment, safety, security procedures, first aid, fire prevention, fire safety, evacuation plans and drills, prevention of child abuse and maltreatment, staff

qualifications and training, record keeping, and child behavior management.

(b) The use of electronic monitors as a sole means of supervision of children in day care shall be prohibited, except that electronic monitors may be used in family day care homes and group family day care homes as an indirect means of supervision where the parents of any child to be supervised have agreed in advance to the use of such monitors as an indirect means of supervision and the use of such monitors is restricted to situations where the children so supervised are sleeping.

(c) No child less than six weeks of age may be cared for by a licensed or registered day care provider, except in extenuating circumstances where prior approval for care of such children has been given by the office of children and family services. Extenuating circumstances for the purposes of this section shall include but not be limited to the medical or health needs of the parent or child, or the economic hardship of the parent.

3. (a) The office of children and family services may make announced or unannounced inspections of the records and premises of any child day care provider, whether or not such provider has a license from, or is registered with, the office of children and family services. The office of children and family services shall make unannounced inspections of the records and premises of any child day care provider within fifteen days after the office of children and family services receives a complaint that, if true, would indicate such provider does not comply with the regulations of the office of children and family services or with statutory requirements. If the complaint indicates that there may be imminent danger to the children, the office of children and family services shall investigate the complaint no later than the next day of operation of the provider. The office of children and family services may provide for inspections through the purchase of services.

(b) Where inspections have been made and violations of applicable statutes or regulations have been found, the office of children and family services shall within ten days advise the child day care provider in writing of the violations and require the provider to correct such violations. The office of children and family services may also act pursuant to subdivisions ten and eleven of this section.

(c) (i) The office of children and family services shall establish a toll-free statewide telephone number to receive inquiries about child day care homes, programs and facilities and complaints of violations of the requirements of this section or regulations promulgated under this section. The office of children and family services shall develop a system for investigation, which shall include inspection, of such complaints. The office of children and family services may provide for such investigations through purchase of services. The office of children and family services shall develop a process for publicizing such toll-free telephone number to the public for making inquiries or complaints about child day care homes, programs or facilities.

(ii) Information to be maintained and available to the public through such toll-free telephone number shall include, but not be limited to:

(A) current license and registration status of child day care homes, programs and facilities including whether a license or registration is in effect or has been revoked or suspended; and (B) child care resource and referral programs providing services pursuant to title five-B of this article and other resources known to the office of children and family services which relate to child day care homes, programs and facilities in the state.

(iii) Upon written request identifying a particular child day care home, program or facility, the office of children and family services

shall provide the information set forth below. The office of children and family services may charge reasonable fees for copies of documents provided, consistent with the provisions of article six of the public officers law. The information available pursuant to this clause shall be:

(A) the results of the most recent inspection for licensure or registration and any subsequent inspections by the office of children and family services; (B) complaints filed against child day care homes, programs or facilities which describes the nature of the complaint and states how the complaint was resolved, including the status of the office of children and family services investigation, the steps taken to rectify the complaint, and the penalty, if any, imposed; and (C) child day care homes, programs or facilities which have requested or received a waiver from any applicable rule or regulation, and the regulatory requirement which was waived.

(iv) Nothing in this paragraph shall be construed to require or permit the disclosure either orally or in writing of any information that is confidential pursuant to law.

(d) Where investigation or inspection reveals that a child day care provider which must be licensed or registered is not, the office of children and family services shall advise the child day care provider in writing that the provider is in violation of the licensing or registration requirements and shall take such further action as is necessary to cause the provider to comply with the law, including directing an unlicensed or unregistered provider to cease operation. In addition, the office of children and family services shall require the provider to notify the parents or guardians of children receiving care from the provider that the provider is in violation of the licensing or registration requirements and shall require the provider to notify the office of children and family services that the provider has done so.

Any provider who is directed to cease operations pursuant to this paragraph shall be entitled to a hearing before the office of children and family services. If the provider requests a hearing to contest the directive to cease operations, such hearing must be scheduled to commence as soon as possible but in no event later than thirty days after the receipt of the request by the office of children and family services. The provider may not operate the center, home or program after being directed to cease operations, regardless of whether a hearing is requested. If the provider does not cease operations, the office of children and family services may impose a civil penalty pursuant to subdivision eleven of this section, seek an injunction pursuant to section three hundred ninety-one of this title, or both.

(e) (i) Where an authorized agency is subsidizing child day care pursuant to any provision of this chapter, the authorized agency may submit to the department justification for a need to impose additional requirements upon child day care providers and a plan to monitor compliance with such additional requirements. No such additional requirements or monitoring may be imposed without the written approval of the department.

(ii) An authorized agency may refuse to allow a child day care provider who is not in compliance with this section and regulations issued hereunder or any approved additional requirements of the authorized agency to provide child day care to the child. In accordance with the plan approved by the department, an authorized agency shall have the right to make announced or unannounced inspections of the records and premises of any provider who provides care for such children, including the right to make inspections prior to subsidized

children receiving care in a home where the inspection is for the purpose of determining whether the child day care provider is in compliance with applicable law and regulations and any additional requirements imposed upon such provider by the authorized agency. Where an authorized agency makes such inspections, the authorized agency shall notify the department immediately of any violations of this section or regulations promulgated hereunder, and shall provide the department with an inspection report whether or not violations were found, documenting the results of such inspection.

(iii) Nothing contained in this paragraph shall diminish the authority of the department to conduct inspections or provide for inspections through purchase of services as otherwise provided for in this section.

Nothing contained in this paragraph shall obligate the department to take any action to enforce any additional requirements imposed on child day care providers by an authorized agency.

(f) Individual local social services districts may alter their participation in activities related to arranging for, subsidizing, delivering and monitoring the provision of subsidized child day care provided, however, that the total participation of an individual district in all activities related to the provision of subsidized child day care shall be no less than the participation level engaged in by such individual district on the effective date of this section.

4. (a) The office of children and family services on an annual basis shall inspect at least twenty percent of all registered family day care homes, registered child day care centers and registered school age child care programs to determine whether such homes, centers and programs are operating in compliance with applicable statutes and regulations. The office of children and family services shall increase the percentage of family day care homes, child day care centers and school age child care programs which are inspected pursuant to this subdivision as follows: to at least thirty percent by the thirty-first of December two thousand; and to at least fifty percent by the thirty-first of December two thousand one. The office of children and family services may provide for such inspections through purchase of services. Priority shall be given to family day care homes which have never been licensed or certified prior to initial registration.

(b) Any family day care home or school-age child care program licensed, registered, or certified by the department or by any authorized agency on the effective date of this section shall be deemed registered until the expiration of its then-current license or certificate unless such license or certificate is suspended or revoked pursuant to subdivision ten of this section. Family day care homes and school-age child care programs not licensed, registered, or certified on the effective date of this section shall register pursuant to subdivision two of this section.

5. Child day care providers required to have a license from the department or to be registered with the department pursuant to this section shall not be exempt from such requirement through registration with another state agency, or certification, registration, or licensure by any local governmental agency or any authorized agency.
6. Unless otherwise limited by law, a parent with legal custody or a legal guardian of any child in a child day care program shall have unlimited and on demand access to such child or ward. Such parent or guardian unless otherwise limited by law, also shall have the right to inspect on demand during its hours of operation any area of a child day care center, group family day care home, school-age child care program, or family day care home to which the child or ward of such parent or guardian has access or which could present a hazard to the health and

safety of the child or ward.

7. (a) The department shall implement on a statewide basis programs to educate parents and other potential consumers of child day care programs about their selection and use. The department may provide for such implementation through the purchase of services. Such education shall include, but not be limited to, the following topics:

(i) types of child day care programs; (ii) factors to be considered in selecting and evaluating child day care programs; (iii) regulations of the department governing the operation of different types of programs; (iv) rights of parents or guardians in relation to access to children and inspection of child day care programs; (v) information concerning the availability of child day care subsidies; (vi) information about licensing and registration requirements; (vii) prevention of child abuse and maltreatment in child day care programs, including screening of child day care providers and employees; (viii) tax information; and (ix) factors to be considered in selecting and evaluating child day care programs when a child needs administration of medications during the time enrolled.

(b) The department shall implement a statewide campaign to educate the public as to the legal requirements for registration of family day care and school-age child care, and the benefits of such registration. The department may provide for such implementation through the purchase of services. The campaign shall:

(i) use various types of media; (ii) include the development of public educational materials for families, family day care providers, employers and community agencies; (iii) explain the role and functions of child care resource and referral programs, as such term is used in title five-B of this article; (iv) explain the role and functions of the department in regard to registered programs; and (v) publicize the department's toll-free telephone number for making complaints of violations of child day care requirements related to programs which are required to be licensed or registered.

8. The department shall establish and maintain a list of all current registered and licensed child day care programs and a list of all programs whose license or registration has been revoked, rejected, terminated, or suspended. Such information shall be available to the public, pursuant to procedures developed by the department.

8-a. The office of children and family services shall not make available to the public online any group family day care home provider's or family day care provider's home street address or map showing the location of such provider's home where such provider has requested to opt out of the online availability of this information. The office shall provide a written form informing a provider of their right to opt out of providing information online, and shall also permit a provider to request to opt out through the office's website.

9. The department shall make available, directly or through purchase of services, to registered child day care providers information concerning:

(a) liability insurance; (b) start-up grants; (c) United States department of agriculture food programs; (d) subsidies available for child day care; (e) tax information; and

(f) support services required to be provided by child care resource and referral programs as set forth in subdivision three of section four hundred ten-r of this article.

10. Any home or facility providing child day care shall be operated in accordance with applicable statutes and regulations. Any violation of applicable statutes or regulations shall be a basis to deny, limit, suspend, revoke, or terminate a license or registration. 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. Before any license issued pursuant to the provisions of this section is suspended or revoked, before registration pursuant to this section is suspended or terminated, or when an application for such license is denied or registration rejected, the applicant for or holder of such registration or license is entitled, pursuant to section twenty-two of this chapter and the regulations of the office of children and family services, to a hearing before the office of children and family services. However, a license or registration shall be temporarily suspended or limited without a hearing upon written notice to the operator of the facility following a finding that the public health, or an individual's safety or welfare, are in imminent danger. The holder of a license or registrant is entitled to a hearing before the office of children and family services to contest the temporary suspension or limitation. If the holder of a license or registrant requests a hearing to contest the temporary suspension or limitation, such hearing must be scheduled to commence as soon as possible but in no event later than thirty days after the receipt of the request by the office of children and family services. Suspension shall continue until the condition requiring suspension or limitation is corrected or until a hearing decision has been issued. If the office of children and family services determines after a hearing that the temporary suspension or limitation was proper, such suspension or limitation shall be extended until the condition requiring suspension or limitation has been corrected or until the license or registration has been revoked.
11. (a) (i) The office of children and family services shall adopt regulations establishing civil penalties of no more than five hundred dollars per day to be assessed against child day care centers, school age child care programs, group family day care homes or family day care homes for violations of this section, sections three hundred ninety-a and three hundred ninety-b of this title and any regulations promulgated thereunder. The regulations establishing civil penalties shall specify the violations subject to penalty.

(ii) The office of children and family services shall adopt regulations establishing civil penalties of no more than five hundred dollars per day to be assessed against child day care providers who operate child day care centers or group family day care homes without a license or who operate family day care homes, school-age child care programs, or child day care centers required to be registered without obtaining such registration.

(iii) In addition to any other civil or criminal penalty provided by law, the office of children and family services shall have the power to

assess civil penalties in accordance with its regulations adopted pursuant to this subdivision after a hearing conducted in accordance with procedures established by regulations of the office of children and family services. Such procedures shall require that notice of the time and place of the hearing, together with a statement of charges of violations, shall be served in person or by certified mail addressed to the school age child care program, group family day care home, family day care home, or child day care center at least thirty days prior to the date of the hearing. The statement of charges shall set forth the existence of the violation or violations, the amount of penalty for which the program may become liable, the steps which must be taken to rectify the violation, and where applicable, a statement that a penalty may be imposed regardless of rectification. A written answer to the charges of violations shall be filed with the office of children and family services not less than ten days prior to the date of hearing with respect to each of the charges and shall include all material and relevant matters which, if not disclosed in the answer, would not likely be known to the office of children and family services.

(iv) The hearing shall be held by the commissioner of the office of children and family services or the commissioner's designee. The burden of proof at such hearing shall be on the office of children and family services to show that the charges are supported by a preponderance of the evidence. The commissioner of the office of children and family services or the commissioner's designee, in his or her discretion, may allow the child day care center operator or provider to attempt to prove by a preponderance of the evidence any matter not included in the answer. Where the child day care provider satisfactorily demonstrates that it has rectified the violations in accordance with the requirements of paragraph (c) of this subdivision, no penalty shall be imposed except as provided in paragraph (c) of this subdivision.

(b)(i) In assessing penalties pursuant to this subdivision, the office of children and family services may consider the completeness of any rectification made and the specific circumstances of such violations as mitigating factors.

(ii) Upon the request of the office of children and family services, the attorney general shall commence an action in any court of competent jurisdiction against any child day care program subject to the provisions of this subdivision and against any person, entity or corporation operating such center or school age child care program, group family day care home or family day care home for the recovery of any penalty assessed by the office of children and family services in accordance with the provisions of this subdivision.

(iii) Any such penalty assessed by the office of children and family services may be released or compromised by the office of children and family services before the matter has been referred to the attorney general; when such matter has been referred to the attorney general, such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the attorney general with the consent of the office of children and family services.

(c)(i) Except as provided for in this paragraph, a child day care provider shall avoid payment of a penalty imposed pursuant to this subdivision where the provider has rectified the condition which resulted in the imposition of the penalty within thirty days of notification of the existence of the violation of statute or regulation.

(ii) Clause (i) of this paragraph notwithstanding, rectification shall not preclude the imposition of a penalty pursuant to this subdivision where:

(A) the child day care provider has operated a child day care center

or group family day care home without a license, has refused to seek a license for the operation of such a center or home, or has continued to operate such a center or home after denial of a license application, revocation of an existing license or suspension of an existing license; (B) the child day care provider has operated a family day care home, school-age child care program or child day care center required to be registered without being registered, has refused to seek registration for the operation of such home, program or center or has continued to operate such a home, program or center after denial of a registration application, revocation of an existing registration or suspension of an existing registration; (C) there has been a total or substantial failure of the facility's fire detection or prevention systems or emergency evacuation procedures; (D) the child day care provider or an assistant, employee or volunteer has failed to provide adequate and competent supervision; (E) the child day care provider or an assistant, employee or volunteer has failed to provide adequate sanitation; (F) the child day care provider or an assistant, employee, volunteer or, for a family day care home or group family day care home, a member of the provider's household, has injured a child in care, unreasonably failed to obtain medical attention for a child in care requiring such attention, used corporal punishment against a child in care or abused or maltreated a child in care; (G) the child day care provider has violated the same statutory or regulatory standard more than once within a six month period; (H) the child day care provider or an assistant, employee or volunteer has failed to make a report of suspected child abuse or maltreatment when required to do so pursuant to section four hundred thirteen of this article; or (I) the child day care provider or an assistant, employee or volunteer has submitted to the office of children and family services a forged document as defined in section 170.00 of the penal law.

(d) Any civil penalty received by the office of children and family services pursuant to this subdivision shall be deposited to the credit of the "quality child care and protection fund" established pursuant to section ninety-seven-www of the state finance law.

(e)(i) The office of children and family services shall deny a new application for licensure or registration made by a day care provider whose license or registration was previously revoked or terminated based on a violation of statute or regulation for a period of two years from the date that the revocation or termination of the license or registration became finally effective, unless such office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of children in the center, program or home. For the purposes of this paragraph, the date that the revocation or termination became finally effective shall be, as applicable:

(A) the date that the revocation or termination became effective based on the notice of revocation or termination; (B) the date that the hearing decision was issued upholding the revocation or termination; (C) the date of issuance of a final court order affirming the revocation or termination or affirming a hearing decision that upheld the revocation or termination; or (D) another date mutually agreed upon by the office of children and family services and the provider.

(ii)(A) Such office shall deny a new application for licensure or registration made by a day care provider who is enjoined or otherwise

prohibited by a court order from operation of a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the court order unless the court order specifically enjoins the provider from providing day care for a period longer than two years, in which case the office shall deny any new application made by the provider while the provider is so enjoined.

(B) Such office shall deny a new application for licensure or registration made by a day care provider who is assessed a second civil penalty by such office for having operated a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the second fine. For the purposes of this paragraph, the date of the second fine shall be either the date upon which the day care provider signs a stipulation agreement to pay the second fine or the date upon which a hearing decision is issued affirming the determination of such office to impose the second fine, as applicable.

(iii) A day care provider who surrenders the provider's license or registration while such office is engaged in enforcement seeking suspension, revocation or termination of such provider's license or registration pursuant to the regulations of such office, shall be deemed to have had their license or registration revoked or terminated and shall be subject to the prohibitions against licensing or registration pursuant to subparagraph (i) of this paragraph for a period of two years from the date of surrender of the license or registration.

12. (a) Notwithstanding any other provision of law, except as may be required as a condition of licensure or registration by regulations promulgated pursuant to this section, no village, town (outside the area of any incorporated village), city or county shall adopt or enact any law, ordinance, rule or regulation which would impose, mandate or otherwise enforce standards for sanitation, health, fire safety or building construction on a one or two family dwelling or multiple dwelling used to provide group family day care or family day care than would be applicable were such child day care not provided on the premises. No village, town (outside the area of any incorporated village), city or county shall prohibit or restrict use of a one or two family dwelling, or multiple dwelling for family or group family day care where a license or registration for such use has been issued in accordance with regulations issued pursuant to this section. Nothing in this paragraph shall preclude local authorities with enforcement jurisdiction of the applicable sanitation, health, fire safety or building construction code from making appropriate inspections to assure compliance with such standards.

(b) Notwithstanding any other provision of law, but pursuant to section five hundred eighty-one-b of the real property tax law, no assessing unit, as defined in subdivision one of section one hundred two of the real property tax law, in the assessment of the value of any parcel used for residential purposes and registered as a family day care home pursuant to this section, shall consider the use or registration of such parcel as a family day care home.

13. Notwithstanding any other provision of law, this section, except for paragraph (a-1) of subdivision two-a of this section, shall not apply to child day care centers in the city of New York.



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