Enhanced Background Clearances: All prospective and existing operators, employees, volunteers, and household members age 18 or older must complete enhanced criminal background checks. Individuals who are found to have been convicted of mandatory disqualifying offenses will be prohibited from having a role in any child care program. This rule will increase the safety of children in care.

Training: Every staff person and volunteer is required to obtain a minimum of five hours of training annually addressing topics or subject matters required by state and federal law. Prorating the number of training hours is no longer permitted.

Health and Safety Requirements: This rule adds health and safety mandates in accordance with the federal requirements including prevention of scalding, supervision of sleeping children, prohibition of certain passenger vans and other such health and safety requirements as included below.

Prevention of Scalding: All child care programs are required to take suitable precautions to prevent burns by contact with hot liquids.

Supervision of Sleeping Children: The Office has clarified the requirement for family day care, group family day care, and day care centers with regard to supervising sleeping children. The caregiver is required to conduct a check every 15 minutes to assess the overall safety and well-being of the children, and to make sure infant’s heads are uncovered.

Prohibition of Certain Passenger Vans: The Office is prohibiting all child care programs from transporting children in a vehicle built to hold more than 10 passengers, including the driver, unless the vehicle: 1) meets the National Highway Traffic Safety Administration definition of a school bus or a multifunction school activity bus, 2) complies with the National Highway Traffic Safety Administration Federal Motor Vehicle Safety Standards applicable to a school bus or multifunction school activity bus, and 3) is inspected per New York State Department of Transportation rules and regulations.

Safety Plans: The Office conducts collateral investigations with local child protective services (CPS) agencies. In some instances, the allegations, if true, would be reason to suspend and/or revoke the license or registration of the program. The Office will be requiring all child day care programs follow a safety plan developed by the Office during the investigation.

Identifying Unlicensed/Unregistered Programs: The Office may request attestations from parents describing the relationship of their children to the provider when investigating whether an unlicensed, unregistered program is operating a program for which a license or registration is required.

Back to Sleep: Revisions are being made to comply with the American Academy of Pediatrics recommendation of putting babies on their backs to sleep throughout the first year of life, rather than until the age of 18 months. The Office will no longer allow the use of blankets and stuffed animals in cribs with infants under 12 months of age and will require use of an appropriately sized fitted sheet.

Nutritional Content for School-Age Meal and Snack Plans: School-age child care (SACC) programs are required, as part of the regulations and the state’s obesity prevention initiative, to operate in compliance with the federal Child and Adult Care Food Program (CACFP) meal patterns. SACC programs will now have their menus reviewed for nutritional content, variety and quality at the time of initial application, and once every 24 months by CACFP specialist responsible for reviewing and approving menus, or by a person who has a bachelor's or master's degree with a major in food and institutional management or a closely related field and who has completed a dietician internship, or has been certified as a registered dietician or has an equivalent state certification.

Health Care Consultant: Day care centers that care for infants, toddlers, or moderately ill children will need to have a health care consultant to review its health care plan and practices.

Special Health Care Needs: The Office is requiring that all staff working and substituting in classrooms that have children with special health care needs know those children’s individual needs and how to obtain appropriate assistance. If these special needs include allergies, a message to this effect is to be posted in a discreet location as a reminder to staff.

1. Statutory Authority:

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

Section 390(2)(d) of the SSL authorizes the Office to establish regulations for the licensure and registration of child day care providers.

Section 390(2-a) of the SSL requires the Office to establish minimum quality program requirements for child day care.

2. Legislative Objectives:

The proposed changes the child day care regulations are necessary to implement statutory authority granted to the Office on April 1, 2019. SSL 390 was amended pursuant to the Child Care and Development Block Grant Act (CCDBG) of 2014. These legislative provisions require enhanced background checks, annual inspections, training mandates for child care providers and additional health and safety standards. The proposed changes will significantly improve the safety of children in child care programs, and bring the Office into compliance with federal and state legislative requirements.

3. Needs and Benefits:

As referenced above in sections 1 and 2, the federal and state legislative changes mandate these regulatory changes. These legislative provisions require enhanced background checks, annual inspections, training mandates for child care providers and additional health and safety standards. The proposed changes will significantly improve the safety of children in child care programs, and bring the Office into compliance with federal and state legislative requirements.

4. Costs:

The costs associated with the proposed changes in the child day care regulations that are necessary to implement new statutory authority pursuant to the Child Care and Development Block Grant Act (CCDBG) of 2014 are significant, but are anticipated to be mostly assumed by the Office. New requirements around enhanced background checks, annual inspections, and additional annual training of licensed and registered providers have been estimated to cost approximately $37 million. At this time, the Office is not intending to pass these costs on to regulated providers. The fiscal burden on providers is anticipated to fall primarily on time lost from providing care in order to comply with the enhanced background checks and additional training requirements. As a result of the proposed regulations, day care centers that care for infants, toddlers or moderately ill children will be required to use the services of a health care consultant in completing a health care plan. Approximately 70 percent of day care centers already collaborate with health care consultants and will be unaffected by this change. For the remaining 30 percent of day care centers, the Office has contracted with Child Care Resource and Referral (CCR&R) agencies to employ registered nurses who act as health care consultants to child care programs at a reduced fee.

School-age programs are required, as part of the regulations and the state’s obesity prevention initiative, to operate in compliance with the federal Child and Adult Care Food Program (CACFP) meal patterns. The Office proposes that programs have their menus reviewed for nutritional content, variety and quality at the time of initial application and once every 24 months by a CACFP specialist responsible for reviewing and approving menus or by a person who has a bachelor's or master's degree with a major in food and institutional management or a closely related field and who has completed a dietician internship or has been certified as a registered dietician or has an equivalent state certification. A school-age program that is enrolled in CACFP has their menu approved at no cost. CACFP also offers this service to non-enrolled programs at no charge. Some county cooperative extension programs also offer this service free of charge.

Other changes, primarily the changes related to increasing the Office’s ability to identify illegally operating day care programs is expected to have a positive financial impact on regulated providers by increasing the supply of children and families who will utilize regulated programs, thereby generating increased revenue to these programs. Also, some administrative relief is provided to regulated programs as a result of these new regulations.

5. Local Government Mandates:

No new mandates are imposed on local governments by these proposed regulations.

6. Paperwork:

There is an increase in paperwork associated with the proposed changes in background checks. All prospective and existing operators, employees, volunteers and adult household members will be required to complete the clearance packet. Rescreening will be conducted no less than once every five years. Programs will be required to discreetly post child-specific allergy information. The proposed regulations will require that school-age programs have a nutrition professional approve school age program menus. Paperwork will be reduced, however, by eliminating the family day care health and safety check list and requiring fewer employment references.

7. Duplication:

The new requirements do not duplicate state or federal requirements.

8. Alternatives:

There are no alternatives.

9. Federal Standards:

The regulations are consistent with applicable federal requirements.

10. Compliance Schedule:

The proposed regulations will become effective September 25, 2019.

1. Effect on Small Businesses and Local Governments:

There are 16,566 small day care businesses in New York State that are comprised of day care centers, school age child care programs, family and group family day care homes, and one small day care center. All of these programs will be affected by the regulatory changes proposed. Local government agencies will not be affected by the changes in these proposed regulations.

2. Compliance Requirements:

This rule implements statutory requirements pursuant to the federal Child Care and Development Block Grant Act (CCDBG) of 2014 and associated changes to the New York Social Services Law (SSL). This rule amends Title 18 of the New York State Codes, Rules and Regulations (NYCRR) Parts 413, 414, 416, and 417 and Subparts 418-1 and 418-2 so to require enhanced background checks, annual inspections, annual training, enhanced health and safety requirements in specified areas and other necessary changes.

3. Professional Services:

As a result of the proposed regulations, day care centers that care for infants, toddlers or moderately ill children will be required to use the services of a health care consultant in completing a health care plan.

School-age child care programs will need to have their menus reviewed for nutritional content, variety and quality at the time of initial application and once every 24 months by a designated nutrition specialist.

Family-based child care programs and small day care centers will not be required to use or employ any additional professional services as a result of these proposed changes.

4. Compliance Costs:

The costs associated with the proposed changes in the child day care regulations that are necessary to implement new statutory authority pursuant to the Child Care and Development Block Grant Act (CCDBG) of 2014 are significant, but are anticipated to be mostly assumed by the Office. New requirements around enhanced background checks, annual inspections, and additional annual training of licensed and registered providers have been estimated to cost approximately $37 million. At this time, the Office is not intending to pass these costs on to regulated providers. The fiscal burden on providers is anticipated to fall primarily on time lost from providing care in order to comply with the enhanced background checks and additional training requirements. As a result of the proposed regulations, day care centers that care for infants, toddlers or moderately ill children will be required to use the services of a health care consultant in completing a health care plan. Approximately 70 percent of day care centers already collaborate with health care consultants and will be unaffected by this change. For the remaining 30 percent of day care centers, the Office has contracted with Child Care Resource and Referral (CCR&R) agencies to employ registered nurses who act as health care consultants to child care programs at a reduced fee.

School-age programs are required, as part of the regulations and the State’s obesity prevention initiative, to operate in compliance with the federal Child and Adult Care Food Program (CACFP) meal patterns. The Office proposes that programs have their menus reviewed for nutritional content, variety and quality at the time of initial application and once every 24 months by a CACFP specialist responsible for reviewing and approving menus or by a person who has a bachelor's or master's degree with a major in food and institutional management or a closely related field and who has completed a dietician internship or has been certified as a registered dietician or has an equivalent state certification. A school-age program that is enrolled in CACFP has their menu approved at no cost. CACFP also offers this service to non-enrolled programs at no charge. Some county cooperative extension programs also offer this service free of charge.

Other changes, primarily the changes related to increasing the Office’s ability to identify illegally operating day care programs is expected to have a positive financial impact on regulated providers by increasing the supply of children and families who will utilize regulated programs, thereby generating increased revenue to these programs. Also, some administrative relief is provided to regulated programs as a result of these new regulations.

5. Economic and Technological Feasibility:

There are no technological impacts on child day care programs.

6. Minimizing Adverse Impact:

The Office believes there will be minimal adverse impact on child care programs.

7. Small Business and Local Government Participation:

In the development of the proposed child day care regulations, the Office considered the remarks of and the input from both unions that represent family-based providers. Those unions are the Civil Service Employees Association (CSEA) and the United Federation of Teachers (UFT). The Office has also led discussions and received comment on regulations at professional conferences and forums.

1. Types and Estimated Numbers of Rural Areas:

The proposed regulations will apply to all modalities of child care programs operating in 44 rural areas of the state.

2. Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:

The changes to the child day care regulations are necessary to implement new statutory requirements pursuant to the federal Child Care and Development Block Grant Act (CCDBG) of 2014 and corresponding changes to the New York Social Services Law (SSL). This legislation requires enhanced background checks, annual inspections, annual training, and additional enhanced health and safety requirements in specific areas.

There is an increase in paperwork associated with the proposed changes in background checks. All prospective and existing operators, employees, volunteers and adult household members will be required to complete the clearance packet. Rescreening will occur no less than once every five years. Programs will be required to discreetly post child-specific allergy information. The proposed regulations will require that school-age programs have a nutrition professional approve school age program menus. Paperwork will be reduced, however, by eliminating the family day care health and safety checklist at renewal, and requiring fewer employment references.

As a result of the proposed regulations, day care centers that care for infants, toddlers, or moderately ill children will be required to use the services of a health care consultant in completing a health care plan. School-age programs will need to have their menus reviewed for nutritional content, variety and quality at the time of initial application and once every 24 months by a designated nutrition specialist.

3. Costs:

The costs associated with the proposed changes in the child day care regulations that are necessary to implement new statutory authority pursuant to the Child Care and Development Block Grant Act (CCDBG) of 2014 are significant, but are anticipated to be mostly assumed by the Office. New requirements around enhanced background checks, annual inspections, and additional annual training of licensed and registered providers have been estimated to cost approximately $37 million. At this time, the Office is not intending to pass these costs on to regulated providers. The fiscal burden on providers is anticipated to fall primarily on time lost from providing care in order to comply with the enhanced background checks and additional training requirements. As a result of the proposed regulations, day care centers that care for infants, toddlers or moderately ill children will be required to use the services of a health care consultant in completing a health care plan. Approximately 70 percent of day care centers already collaborate with health care consultants and will be unaffected by this change. For the remaining 30 percent of day care centers, the Office has contracted with Child Care Resource and Referral (CCR&R) agencies to employ registered nurses who act as health care consultants to child care programs at a reduced fee.

School-age programs are required, as part of the regulations and the state’s obesity prevention initiative, to operate in compliance with the federal Child and Adult Care Food Program (CACFP) meal patterns. The Office proposes that programs have their menus reviewed for nutritional content, variety and quality at the time of initial application, and once every 24 months by a CACFP specialist responsible for reviewing and approving menus, or by a person who has a bachelor's or master's degree with a major in food and institutional management or a closely related field and who has completed a dietician internship or has been certified as a registered dietician, or has an equivalent state certification. A school-age program that is enrolled in CACFP has their menu approved at no cost. CACFP also offers this service to non-enrolled programs at no charge. Some county cooperative extension programs also offer this service free of charge.

Other changes, primarily the changes related to increasing the Office’s ability to identify illegally operating day care programs is expected to have a positive financial impact on regulated providers by increasing the supply of children and families who will utilize regulated programs, thereby generating increased revenue to these programs. Also, some administrative relief is provided to regulated programs as a result of these new regulations.

4. Minimizing Adverse Impact:

The Office does not anticipate any adverse impact to rural area child care programs as a result of the proposed regulations.

5. Rural Area Participation:

The Office received comment from child day care directors, providers and owners during forums and conferences held in the past. The Civil Service Employees Association (CSEA) and the United Federation of Teachers (UFT) provided feedback and comment in the development of the proposed regulations.

1. Nature of Impact:

The proposed regulations could impact jobs or employment opportunities for child day care program employees or caregivers in all regions of New York State. The provisions set forth require enhanced background clearances, the results of which could impact the employment of previous screened and approved child care employees due to mandatory disqualifying offenses.

2. Categories and Numbers Affected:

It is anticipated that there are 220,000 current employees and household members needing to be rescreened.

3. Regions of Adverse Impact:

Potential impact would be across all regions.

4. Minimizing Adverse Impact:

For non-mandatory disqualifying offenses, the Office is implementing a fair hearing process for anyone denied a role.

Following publication of the Notice of Proposed Rule Making in the State Register on September 25, 2019, the Office of Children and Family Services (OCFS) received over 400 comments regarding the regulatory package for licensed and registered providers. These comments came from parents, providers, service providers, and child care advocacy groups. The comments received addressed the overall regulatory process, definitions, background clearances, itinerant services, safe sleep, training, inspections, and emergency medical services. After a careful review of public comment, OCFS has revised its regulations where possible to ease burdens on providers, parents, and to allow children to obtain necessary services under Individuals with Disabilities Education Act (IDEA).Such revisions are done in a manner that will not jeopardize the health and safety of children in care, and to align with federal and state law.

GENERAL

Comments were received about the regulatory process, volume of the regulations, form revisions, and ability to access regulatory text. OCFS has reviewed these comments and determined to not make any substantive change to the regulations as a result. The full assessment of public comment addresses each of the comments received.

DEFINITIONS

Comments were received about the definition of volunteer, and request to create a role of temporary staff person. OCFS has reviewed these comments and determined to make substantive change to the regulations as a result. OCFS has revised the definition of volunteer found at 18 NYCRR 413.2(c)(15) and included a more expansive definition for the term within the background check section of the regulations found at 18 NYCRR 413.4. Such revisions will allow volunteers who have been cleared through the background check process to be unsupervised with children, however, they cannot count in ratio. OCFS determined it was not necessary to make any additional changes to the regulatory definitions. The full assessment of public comment addresses each of these comments received.

BACKGROUND CLEARANCES

Comments were received about: allowing provisional employment while background check results were pending, the timeframe and process to conduct the checks, how the checks apply to seasonal employment and employment at multiple programs, the need to conduct subsequent checks every five years, clarification of forms and available electronic processes, applicability of fees, and exemptions for individuals of a certain age. OCFS has reviewed these comments and determined to make substantive change to the regulations as a result. The regulations have been revised to align with the federal option to allow employees to begin work after completing either the State criminal background clearance, or the FBI clearance, provided that employees shall be supervised until the background check eligibility determination has been provided to the program. OCFS has determined to not make any other substantive change to the regulations. The full assessment of public comment addresses each of the comments received.

ITINERANT SERVICES

Comments were received about allowing itinerant services (which includes special education services such as occupational therapy, speech therapy, physical therapy among others) to be able to provide services one-on-one without direct supervision from staff from the child care program. OCFS has reviewed these comments and determined to make substantive changes to the regulations as a result. OCFS has revised the regulation to authorize itinerant providers to receive a comprehensive background check by considering them volunteers solely for the purpose of the background check process. Itinerant service providers who undergo the full background clearance process as volunteers will be able to serve children one on one. The full assessment of public comment addresses each of the comments received.

SAFE SLEEP

Comments were received about the prohibition of blankets in cribs. OCFS has reviewed the comment and determined no changes in the proposed regulations are necessary. The regulation was updated to align with NYS Dept of Health’s Safe Sleep Initiative and American Academy of Pediatrics. The use of a wearable blanket, such as a sleep sack is not prohibited by this regulation. The full assessment of public comment addresses each of the comments received.

TRAINING

Comments were received about reducing the number of training hours and the applicability of the training requirement. OCFS reviewed the comments and determined no changes in the proposed regulations are necessary. Federal law required the states to establish an annual training requirement. The requirement to complete 30 hours of training every two years is established in Social Services Law 390-a. The regulation allows an individual to complete the training at their own pace over the course of the year, but does impose a requirement to complete a minimum of 5 hours per year, to comply with the federal requirement for annual training. No changes in the proposed regulations are necessary in response to these comments. The full assessment of public comment addresses each of the comments received.

INSPECTIONS

A comment was received about inspectors accessing the entire dwelling, as opposed to just the location of the daycare. OCFS has reviewed the comment and determined no changes in the proposed regulations are necessary. Inspections are required by federal law and regulation. Please note, while the frequency for inspecting legally-exempt programs located in homes has changed, the proposed regulations have not changed as they relate to what areas of the home may be inspected. The full assessment of public comment addresses each of the comments received.

EMERGENCY MEDICAL SERVICES

A comment was received about the ability to send a child in an ambulance when the emergency medical service worker is not an employee of the child care program. OCFS has reviewed the comment and determined no changes in the proposed regulations are necessary. The regulation that children can only be with a person who is cleared specifically relates individuals seeking to be enrolled/licensed/registered, volunteer, work, visit, or live at a day care program. The provider must arrange for emergency medical services necessary for the health and safety of the children in the program. The full assessment of public comment addresses each of the comments received.