CCDBG Section 658E(c)(2)(H) requires states to develop appropriate child to provider ratios that address group size, limits for specific age populations and the appropriate ratio between the number of children and number of providers in terms of the age of children. Currently, there are no regulatory standards for staff to child supervision ratios and maximum group size requirements for legally-exempt group child care providers, other than local building codes. The Office was granted a waiver from the United States Department of Health and Human Services Administration for Children and Families with respect to these requirements until September 30, 2017. The Office requested an extension of this waiver on August 31, 2017 and has received no official response.

Incentivizing the development of health care plans, having CPR certified employees on site and additional training caregivers of legally-exempt group child care will further enhance the health, safety and welfare of children served in these settings.

(9) Additional health and safety requirements for caregivers of legally-exempt group child care.

(i) Each enrolled legally-exempt group child care program must meet and maintain the following minimum staff-to-child supervision ratios and maximum group size requirements, unless a more stringent standard is required by law:

(a) for three-year-old children:

(1) there must be one employee with a caregiving role for every 20 children when engaged in activities where children will be seated while working on a particular activity or skill;

(2) there must be one employee with a caregiving role for every 10 children when children are not engaged in seated activities or skills; and

(3) the maximum group size is 30 children.

(b) for four-year-old children:

(1) there must be one employee with a caregiving role for every 20 children when engaged in activities where children will be seated while working on a particular activity or skill;

(2) there must be one employee with a caregiving role for every 12 children when children are not engaged in seated activities or skills; and

(3) the maximum group size is 36 children.

(c) for children ages five through 12 years of age:

(1) there must be one employee with a caregiving role for every 25 children; and

(2) the maximum group size is 50 children.

(d) When children younger than five years of age are cared for in mixed age groups, the staff-to-child supervision ratio and maximum group size applicable to the youngest child in the group must be followed.

(ii) Group size refers to the number of children cared for together as a unit. Group size is used to determine the minimum staff-to-child supervision ratio based upon the age of the children in the group.

(iii) The office and its designees, applicable social services district and its designees, and the applicable legally-exempt caregiver enrollment agency are authorized to inspect any legally-exempt group child care program that is enrolled or applying for enrollment.

(iv) Child care assistance cannot be authorized for a child under three years of age for child care provided in a legally-exempt group child care program, except for:

(a) child care programs located on Federal property which are operated in compliance with the applicable Federal laws and regulations for such child care programs;

(b) child care programs located on tribal property which are operated in compliance with the applicable tribal laws and regulations for such child care programs; or

(c) a child who is at least two years of age at the beginning of the school year but will turn three years of age on or before the applicable calendar date for which a child must be at least five years of age to be eligible for admission to school; such a child shall be considered three years of age for the purposes of staff-to-child ratio and maximum group size.

Subdivision (i) of section 415.9 of 18 NYCRR is amended to read as follows:

(i) There may be multiple market rates for legally-exempt group child care, the standard market rate, and the opportunity for an enhanced market rate as provided in this subdivision.

(1) The standard market rate of payment for caregivers of legally-exempt group child care is the actual cost of care up to 75 percent of the applicable market rate for day care center providers as set forth in this section.

(2) A social services district may establish one or both of the following categories of enhanced rates for child care services provided by legally-exempt group child care programs:

(i) A social services district may establish an enhanced market rate for child care services provided by eligible legally-exempt group child care programs up to 81 percent of the applicable market rate for day care center providers if:

(a) the program prepares a health care plan that meets the specifications of paragraph (2) of subdivision (c) of section 418-1.11 of this Title; and

(b) the program has at least one employee with a caregiving role in each classroom during the program’s operating hours who holds a valid certificate in cardio-pulmonary resuscitation (CPR), appropriate to the ages of the children in the classroom.

(ii) A social services district may establish an enhanced market rate for child care services provided by eligible legally-exempt group child care programs up to 81 percent of the applicable market rate for day care center providers, if:

(a) the caregiver of the legally-exempt group child care program completes the Health and Safety: Competencies in Child Care for Day Care Center, School-Age Child Care, and Enrolled Legally Exempt Group Program Directors course or other course as approved by the office, and a minimum of 15 fifteen hours of training annually in areas approved by the office; and

(b) each employee with a caregiving role at the legally-exempt group child care program completes a minimum of five hours of training annually in the areas approved by the office, in addition to the training required by subdivision (f) of section 415.4 of this part.

(3) When a social services district establishes an enhanced market rate for child care services provided by eligible legally-exempt group child care programs in accordance with subparagraphs (i) and (ii) of paragraph (2) of this subdivision, the district may pay up to 87 percent of the applicable market rate for day care centers when all requirements of both subparagraphs are met.

(4) An enhanced market rate established pursuant to this subdivision will only be available to those legally-exempt group child care programs that have submitted documentation to the applicable legally-exempt caregiver enrollment agency verifying compliance with:

(i) the requirements set forth in this subdivision required to qualify for the enhanced rate; and;

(ii) all applicable health and safety requirements set forth in subdivision (f) of section 415.4 of this part.

(5) The applicable social services district and its designees, or applicable legally-exempt caregiver enrollment agency shall inspect any legally-exempt group child care program that requests or receives an enhanced market rate pursuant to this subdivision.

(6) The social services district must indicate in the district’s consolidated services plan or integrated county plan the percentage and category of any enhanced market rate it will provide for child care services provided by eligible legally-exempt group child care programs.

(7) A legally-exempt group child care program may receive an enhanced market rate pursuant to this subdivision and one or more differential rates pursuant to this section, provided however, that the total payment made to a legally-exempt group child care program must not exceed either 100 percent of the applicable market rate for day care centers as set forth in this section, or the actual cost of care, whichever is less.

1. Statutory Authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Commissioner of the Office of Children and Family Services (the Office) to establish rules, regulations, and policies to carry out the Office’s powers and duties under the SSL.

Section 34(3)(f) of the SSL authorizes the Commissioner of the Office to establish regulations for the administration of public assistance and care within the State.

Section 410(1) of the SSL authorizes a social services official of a county, city or town to provide day care for children at public expense and authorizes the Office to establish criteria for when such day care is to be provided.

Section 410-x(3) of the SSL requires the Office to establish in regulation minimum health and safety standards that must be met by child care providers, funded under the New York State Child Care Block Grant, not required to be licensed or registered under section 390 of the SSL or to be permitted under the administrative code of the City of New York.

The federal Child Care and Development Block Grant Act (CCDBG) Section 658E(c)(2)(H) requires states to develop appropriate child to provider ratios that address group size, limits for specific age populations and the appropriate ratio between the number of children and number of providers in terms of the age of children.

2. Legislative Objectives:

The Office’s objective with this rule making is to comply with federal law and enhance the health, safety and welfare of children in legally-exempt group child care throughout New York State. These regulations support the underlying objectives of sections 410-x(3) of the SSL to protect the health, safety and welfare of children in child care settings.

3. Needs and Benefits:

These regulations set forth standards for group size and supervision ratios in legally-exempt group child care setting and offer caregivers of legally-exempt group child care financial incentives to have cardiopulmonary resuscitation (CPR) trained employees onsite, develop and maintain a health care plan for the program and for caregivers of children to undertake additional annual training.

These regulations are needed on an emergency basis for compliance with federal law and to promote the quality of care provided to children in legally-exempt group child care settings and improve the health, safety and welfare of children in such settings.

CCDBG Section 658E(c)(2)(H) requires states to develop appropriate child to provider ratios that address group size, limits for specific age populations and the appropriate ratio between the number of children and number of providers in terms of the age of children receiving subsidized care. Currently, there are no regulatory standards for staff to child supervision ratios and maximum group size requirements for legally-exempt group child care providers, other than local building codes. The Office was granted a waiver by the federal Administration for Children and Families with respect to these requirements until September 30, 2017. The Office requested an extension of this waiver on August 31, 2017 and has received no official response.

Moreover, allowing caregivers legally-exempt group child care to earn enhanced payment rates in exchange for having CPR trained caregivers onsite, developing and maintain a health care plan for the program and for caregivers of children to undertake additional annual training promotes the health, safety and well-being of children being cared for in legally-exempt group settings.

4. Costs:

Prior to developing the proposed group size and ratio standard, the Office collected extensive stakeholder input and developed the standards in a way to minimize a detrimental impact on access to child care and avoid undue costs to caregivers of legally-exempt group child care. The supervision ratios prescribed are largely based on Article 43 of the New York City Health Code. A large number of caregivers of legally-exempt group child care are already required to comply with the supervision ratios, therefore the Office is not anticipating additional costs for those caregivers.

5. Local Government Mandates:

The emergency regulations impose no new mandates on local governments.

6. Paperwork:

Caregivers of legally-exempt group child care will have to keep a record of compliance with the new training standards to qualify for the enhanced payment rates, as they are required to do with the current training standards.

7. Duplication:

The new requirements do not duplicate any existing State or federal requirements.

8. Alternatives:

No alternative approaches were considered.

9. Federal Standards:

The regulations are consistent with CCDBG, which requires the Office to establish supervision ratios and set maximum group sizes.

10. Compliance Schedule:

The regulations are effective on April 16, 2018, as the federal requirement is already in effect, and New York may be penalized if it cannot demonstrate compliance with the requirements of CCDBG.

1. Effect on small businesses and local governments:

It is anticipated that the groups size and supervision ratio requirements will have a minimal impact, if any on small business and local governments.

Prior to developing the proposed group size and supervision ratio standards, the Office of Children and Family Services (the Office) collected extensive stakeholder input and developed the standards in a way to minimize a detrimental impact on access to child care and avoid undue costs to legally-exempt group child care providers that are small businesses.

The Office does not expect this rulemaking to have a detrimental impact on local governments with respect to the enhanced payment rates because the option to award the enhanced payment rates is permissive for local governments.

2. Compliance requirements:

Caregivers of legally-exempt group child care will be required to adhere to the group-size supervision ratios set forth in the emergency regulations. In order to qualify for an enhanced payment rate, caregivers of legally-exempt group child care will be required to undertake additional health and safety measures as provided for in the rule.

3. Professional services:

No new professional services are required by small businesses or local governments to comply with this change.

4. Compliance costs:

It is expected that there will be minimal costs, if any, associated with compliance with these rules. Prior to developing the proposed group size and supervision ratio standards, the Office collected extensive stakeholder input and developed the standards in a way to minimize a detrimental impact on access to child care and avoid undue costs to small businesses.

The option to award the enhanced payment rates is permissive for local governments and therefore does not mandate new costs.

5. Economic and technological feasibility:

No new economic or technology requirements for small business or local governments are expected.

6. Minimizing adverse impact:

This regulatory change is not expected to have an adverse impact on small business or local governments.

7. Small business and local government participation:

In the development of the 2016-2018 Child Care and Development Fund Plan, the Office held three regional public hearings, in which requirements were presented to child day care providers and local social services districts and input was gathered. Additionally, the Office collected stakeholder input in developing the group size and staff to child ratio requirements that this rule creates.

1. Types and estimated numbers of rural areas:

The emergency regulations will potentially affect caregivers of legally-exempt group child care in all 44 rural areas of the State.

2. Reporting, recordkeeping, and other compliance requirements; and professional services:

Caregivers of legally-exempt group child care will be required to adhere to the group size limitations and supervision ratios set forth in the emergency regulations. In order to qualify for the enhanced rate payments, caregivers of legally-exempt group child care will be required to maintain documentation of a health care plan, cardio-pulmonary resuscitation training certification and additional training requirements.

3. Costs:

Prior to developing the proposed group size and supervision ratio standards, the Office of Children and Family Services (the Office) collected stakeholder input and developed the standards in a way to minimize a detrimental impact on access to child care and avoid undue costs to caregivers of legally-exempt group child care.

4. Minimizing adverse impact:

Prior to developing the proposed group size and supervision ratio standards, the Office collected extensive stakeholder input and developed the standards in a way to minimize a detrimental impact on access to child care and avoid undue costs to caregivers of legally-exempt group child care.

5. Rural area participation:

In the development of the 2016-2018 Child Care and Development Fund Plan, the Office held three regional public hearings, in which the federal training requirements were presented to child day care providers and local social services districts.

Section 201-a of the State Administrative Procedures Act requires a job impact statement to be filed if proposed regulations will have an adverse impact on jobs and employment opportunities in the State.

It is not anticipated the regulations will have a significantly detrimental impact on jobs and employment opportunities for caregivers of legally-exempt group child care. The regulations are designed to provide for the health, safety and welfare of children in care and to comply with federal law.

The agency received no public comment.