The Office’s main objectives in changing day care center, school age child care, and small day care center regulations was to strengthen health and safety standards, correct conflicting regulatory language discovered in existing citations relative to the administration of medication, update the regulations with recent changes made to Social Services Law and the NYS Building Code, and make the regulations easier to understand.

One major category chosen for modifications was the administration of medication in day care centers, school age child care programs and small day care centers. These changes included amendments made as a result of lessons learned since 2005 when the administrations of medication regulations were first adopted. The regulations adhere to the approach that administering medications to children is a serious responsibility, performed best by those who have oversight by a health care consultant and training on administering all types of medications. The regulatory changes focus on when permission to administer medications is required by a parent and a health care provider and when a child’s dose of medication can be altered without requiring a new prescription and added cost. The regulations also answer issues not addressed in 2005 such as, what is permitted when a health care consultant ends his/her affiliation with the program? May a program refuse to administer a medication? May a program stock medication? When may a program administer an auto injector or allow a child to carry an asthma inhaler?

A second category of changes focused on obesity prevention. On this topic, the Office worked in collaboration with the Centers for Disease Control and Prevention, Division of Nutrition, Physical Activity, and Obesity; and the NYS Department of Health. The group discussed best practice and the practicality of adding obesity prevention measures to child day care regulations. As a result of combined efforts, the Office is adopting balanced regulatory requirements for programs that would also allow for parent choice. The regulations will require that low-fat milk, water or 100% juice be served, unless the parent supplies alternatives. Day care center and school age child care programs must also adhere to the Child and Adult Food Program (CACFP) meal pattern standards. In addition, children must have physical activity every day, and screen time activities must be limited during the child day care program.

Health, safety and emergency preparedness was a focus in the regulations. The regulations address emergency evacuation plans and drills for sheltering in place, installation of carbon monoxide alarms, changes in technology around phone service, and safe sleep practices for infants, and also address field trip and water activity safety measures. Firearms, shotguns and rifles will be prohibited at day care centers, school age child care program and small day care centers. However, there will be no prohibition on a police officer, peace officer or security guard from possessing a firearm, shotgun or rifle on the premises for the protection of the child care program. In addition, child care programs will be required to post signs providing notification of such prohibition.

Another key change concerns adoption of an orientation session for applicants. Applicants seeking day care center licenses or a school age child care registrations must complete an on-line orientation program prior to receiving an application. Supervision is the most important element of child care services. Some would argue it is the central safety component in keeping children safe from harm. The meaning and significance of competent supervision, as a way of protecting children from injury, was studied and the Office has reworded the definition to include the need to be close enough to redirect a child and to be aware of each child’s ongoing activity. The Office is also permitting continuity of care classroom models to operate in day care centers. Continuity of care is defined in day care center regulations at 418-1.8(r). A final change is the addition of language requiring all employees hired on or after June 30, 2013 to submit information which would allow directors, and in some cases the Office, to conduct data base checks against the NYS Justice Center Staff exclusion list.

Small day centers are registered to care for more than three and less than seven children. The regulations for small centers are a hybrid between large day care center regulations and family day care regulations. The building safety and equipment sections of the small day care center regulations mirror day care center regulations and program rules and staffing are akin to family day care.

In addition to the categories above, the Office made changes to the length of the regulations and made minor revisions to two definitions and a deletion in wording in citation 413.4(b). The changes in length are more about breaking the regulations up into separate citations than it is about requiring additional standards. This change is significant to programs for the following reason: When an inspector cites a program for a violation of regulation, that violation is listed on the Office website. If the regulatory citation includes multiple requirements, the web user is unable to distinguish what part of the regulatory citation was violated. This change alleviates this problem. In Part 413, Definitions, Enforcement and Hearings, the definition of “employee” will include the day care director. The definition of “volunteer” was changed to clarify that a volunteer may assist in the care of children but may not be counted in ratio as meeting the child to assistant or child to teacher ratio and may not be left unsupervised with children. In addition, the words “effective date of this section” were removed from citation 413.4(b), because the phrase refers to a standard already in place.

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Commissioner of the 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 34(3)(f) of the SSL authorizes the Commissioner to establish regulations for the administration of public assistance and care within the State.

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

Section 410(l) 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.

Chapter 416 of the Laws of 2000, enacting the Quality Child Care and Protection Act of 2000 (the Act), authorizes the Office to strengthen the existing regulations governing child day care programs. Subdivision 2-A of section 390 of the SSL, added by the Act, requires the Office to establish minimum quality program requirements.

2. Legislative objectives:

The Office’s objective in proposing changes to current day care center, school age child care and small day care center regulations is to strengthen health and safety standards, correct conflicting regulatory language, update the regulations with recent changes made to SSL and NYS Building Code, and to make the regulations easier to understand.

3. Needs and benefits:

The proposed changes to the day care center, school age child care and small day care center regulations are needed to correct current regulatory inconsistencies, to incorporate recent statutory amendments, and to clarify the specific deficiency when a program is cited for a regulatory violation. The proposed changes can be organized into six categories: the administration of medication and infection control, obesity prevention, safety and emergency preparedness, legislative changes, terminology and definitions, and training requirements.

The first category, the administration of medication and infection control, includes changes that adhere to the approach that administering medications to children is a serious responsibility, performed best by those who have oversight by a health care consultant and training on administering all types of medications. Changes are needed to correct current inconsistencies in the regulations regarding the authorization needed by the program before administering medication to a child. The proposed changes reorganize the layout of the health and infection control section of the regulation to make referring to the regulations easier. The proposed changes will benefit the programs, children in care, and parents, by relaxing the current restrictions on medication administration, allowing programs discretion in medication administration, allowing programs to stock medication, and permitting a 60 day grace period when a health care consultant ends his/her affiliation with the program.

The second category, obesity prevention, is a topic the Office worked on in collaboration with the Centers for Disease Control and Prevention, Division of Nutrition, Physical Activity, and Obesity; and the NYS Department of Health. The current regulations do not require programs to help children cultivate healthy eating and positive exercise habits to prevent childhood obesity. As a result of combined efforts, the proposed changes balance minimal requirements with parent choice. The regulations will require that the center and school age child care program serve nutritious beverages and meals that comply with the Child and Adult Food Program meal pattern unless the parent supplies alternatives. Small day care centers, day care centers and school age child care programs will be required to serve only low fat milk, 100% juice or water, unless otherwise directed by the parent. In addition, children in all programs must have physical activity every day, and screen time activities will be limited.

The changes to the third category, health, safety and emergency preparedness are needed to address safety and security at the child care program. The proposed regulations require that programs plan for and practice emergency evacuations and sheltering in place drills. The regulations require carbon monoxide alarms, expanded requirements for safe sleep practices, and address field trip and water activity safety measures. Firearms, shotguns and rifles will be prohibited at day care centers, school age child care program and small day care centers. However, there will be no prohibition on a police officer, peace officer or security guard from possessing a firearm, shotgun or rifle on the premises for the protection of the child care program. In addition, child care programs will be required to post signs providing notification of such prohibition. A final change is the addition of language requiring all employees hired on or after June 30, 2013 to submit information which would allow directors, and in some cases the Office, to conduct data base checks against the NYS Justice Center Staff exclusion list.

The fourth category includes statutory requirements not yet included in regulation. These changes are needed to clarify that the requests of the Office are being made because of statutory requirements. Specifically the need to complete a training topic, Education on Shaken Baby Syndrome (school age child care program are excluded); that at least one caregiver in Cardio Pulmonary Resuscitation and first aid must be present; the increase in the licensing or registration period from two-year to four-year intervals; and prohibitions against reissuing a license or registration to a child day care provider whose license or registration was revoked or terminated during the previous two years. The Federal Consumer Product Commission new standards for cribs, are now included in regulation.

The fifth category includes changes to definitions and terms, which are needed to keep pace with the field observations, reflect current acceptable practices, and use of more neutral terms. The proposed regulations change the term “discipline” to behavior management, clarifies the meaning and significance of competent supervision to be close enough to redirect a child and to be aware of each child’s ongoing activity. In addition, the proposed regulations allow a continuity of care model to be offered in day care centers. Continuity of care is defined in 418-1.8.(r). Finally, a change was made to the definition of employee and volunteer. The term “employee” will include the day care director. The definition of “volunteer” was changed to clarify that a volunteer may assist in the care of children but may not be counted in ratio as meeting the child to assistant or child to teacher ratio and may not be left unsupervised with children. In addition, the words “effective date of this section” were removed from citation 413.4(b) as it referred to standard already in place.

The sixth category addresses the need to clarify the training requirements associated with operating a child care program. The regulation will require would be applicants to complete an on-line orientation program prior to receiving an application. The changes also include examples of the types of course that will be accepted toward each of the training topics.

In addition to the above, the Office is proposing changes to the length of the regulations; breaking the current provisions into separate citations. This change is significant because when an inspector cites a violation, that violation is listed on the Office website. If the regulatory citation includes multiple requirements, the web user is unable to distinguish what part of the regulatory citation was violated. This change will alleviate this problem.

Small day centers are registered to care for more than three and less than seven children. The regulations for small centers are a hybrid between large day care center regulations and family day care regulations. The building safety and equipment mirrors center regulations and program rules and staffing are identical to family day care.

4. Costs:

The implementation of these regulations and the underlying statutory provisions may have minimal costs associated for some programs to post street numbers on the building for emergency vehicles when not already posted, installing carbon monoxide detectors where necessary, storing nonperishable food for all children in case of emergencies, and purchasing nutritious beverages and foods. Average day care center has 80 children; compliance would cost approximately $800.00. School-age child care program serves on average 96 children, costing $960.00 to come into compliance. Small day care center’s maximum capacity is six children, costing $ 60.00 to come into compliance. Programs that serve food daily and have food supplies on site or are co-located with a cafeteria, pantry, or eatery of some kind may plan to access those supplies in a declared emergency. The majority of programs will be able to meet these exemption criteria. New day care centers offering care to infants will be required to install an addition sink in the infant room. One sink will be designated for diapering needs and the other for washing dishes and bottles. Day care centers already in existence are not required to install an additional sink.

The Office will provide, at no cost, an on-line orientation session for all applicants. The Office will use existing resources to implement these regulations. It is expected that programs and their employees will have financial relief by changing renewals from every two years to every four years. Programs and their employees will also experience savings by the elimination of required medical examinations, after the initial medical examination associated with employment.

5. Local government mandates:

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

6. Paperwork:

Paperwork will be reduced because the renewal application is now due on a four year cycle instead of a two year cycle. Regulatory waiver requests will be reduced because of the changes made to the medication administration and authorization provisions. In addition, the proposed regulations eliminate routine medical exams for all staff and volunteers at renewal. An estimated 4,535 child care facilities will no longer be tracking and filing staff medical forms (after the initial medical evaluation). Programs would no longer have to track each employee to ensure he/she completes the medical exam every two years, nor would they have to file and keep such records.

Additional paperwork is required in cases where it documents health and safety issues, and the overall impact will be minimal on facilities. Programs will be required to submit a written emergency plan and evacuation diagram, and will need to document that they held two shelter in place drills annually, this notation can be recorded with the other evacuation drills. Programs will be required to post the transportation services they are providing to children and share this with parents using the service. The child day care program will be required to enter the actual attendance times of each child and staff person. The “in” time and “out” time for each child and staff person can be an added to the child’s attendance form, already in use. A child day care program must document that a daily health care check has been completed on each child in attendance. The Office will accept the addition of a check box on the attendance sheet indicating that the health care check was performed.

A provision was added requiring all employees hired on or after June 30, 2013 to submit information which would allow programs, and in some cases the Office, to conduct data base checks against the NYS Justice Center Staff exclusion list.

Finally, an Office provided sign must be posted at entrances to programs to designate the facility as a firearm free area.

7. Duplication:

The new requirements do not duplicate State or federal requirements.

8. Alternatives:

The Office has met with stakeholders, including child care providers, directors, staff from NYS Department of Health, Center for Disease Control and Prevention, NYS Department of Education, Child Care Resource and Referral, to develop the proposed regulatory changes. The alternative to the proposed regulations is to continue operation under the current regulations and cite law when the regulations contain out-of-date information or is missing requirements.

9. Federal standards:

The regulations are consistent with applicable federal requirements.

10. Compliance schedule:

These regulations will become effective on June 1, 2015.

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments. The revisions to the last published rule merely clarify the text and correct technical errors, which requires no change to the Regulatory Flexibility Analysis for Small Businesses and Local Governments.

Changes made to the last published rule do not necessitate revision to the previously published Rural Area Flexibility Analysis. The revisions to the last published rule merely clarify the text and correct technical errors. As such, no change to the Rural Area Flexibility Analysis was required.

Changes made to the last published rule do not necessitate revision to the previously published Job Impact Statement (“JIS”). The revisions to the last published rule merely provide clarifications in the text and correct technical errors, which requires no change to the Job Impact Statement.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.

This assessment responds to the comments received on the Proposed Regulations for Parts 413 and 414, and Sub-parts 418-1, and 418-2, of Title 18 of the New York State Code of Rules and Regulations. The Notice of Proposed Rule Making was contained in the State Register issued on January 29, 2014.

The Office of Children and Family Services (OCFS) received one thousand nine-hundred and sixty-five (1,965) comments during the public comment period. Responses were received from Child Care Resource & Referral Agencies, child care program directors, registration staff, program employees, public citizens, program owners, site supervisors, administrators, focus group leaders, a school-age network, a city health agency, a youth and community organization, credential advisors, policy chair for a health network, parents, scientific research organization, trainers, a capacity builder, a child care council, community based organizations, city school district, children’s institute, child advocacy group, licensing staff, and others who chose not to identify themselves. Most responders included comments on more than one provision of the proposed regulations. Every comment was processed and considered by OCFS in this assessment.

This summary of the assessment will provide an overview of the issues receiving the most public feedback. In this assessment, OCFS combined similar comments from numerous commenters for the purpose of the assessment and response thereto. The consolidated comments and OCFS responses are grouped in categories into the following topic areas: building and equipment, health and safety, behavior management, program planning, health and infection control and training.

In undertaking this effort, OCFS recognized the need to make minor clarifications to afford clarity to its intent and corrected punctuation where needed.

The majority of comments received concerning building and equipment focused on requirements set in school age child care (SACC) regulations that differ from standards set by the State Education Department (SED). Responders asked that the regulations exempt programs operating in schools from OCFS physical plant requirements and other standards in regulation that may not be consistent with a school’s standards. OCFS does exempt SACCs operating in school buildings from certain requirements concerning structural and environmental systems. In addition, the regulations address past inconsistencies between the two agencies, by: allowing hand dryers to substitute for paper towels, reducing square footage requirements for sedentary activities, and allowing barriers to substitute for radiator covers. OCFS has also set more flexible standards for children to independently use bathroom facilities. OCFS, however, will continue to require a set square footage amount per child and an adequate number of toilets per numbers of children. The use of space in SACCs is quite different than the use of space during classroom lessons. SACCs must program for physical activities that allow children to exercise through play after a long day of seated activities. OCFS supports the continued need for 35 square feet for active play but has reduced the square footage to 20 square feet for sedentary activities. School buildings should have ample toilet facilities for school age child care programs as schools generally serve larger groups of children during the school day. OCFS recognizes this may be a matter of renegotiating needed space with the school district. OCFS reviewed these comments and will make no changes based on its review.

Responders to both SACC and day care center (DCC) regulations disagreed with the requirement that programs receive OCFS permission to re-designate a classroom to a different age group of children. OCFS requires floor plans be approved prior to licensing/registering a program; OCFS asserts that any changes made after licensing/registration must also be approved. Knowing which rooms are used and by which age group is useful to OCFS and responding agencies in times of emergencies. OCFS reviewed these comments and will make no changes based on its review.

OCFS received positive, negative, and neutral comments concerning the ban on firearms, reptiles, and mixing of classroom groups, inclusion of shelter in place, background check requirements, outside play, restriction on cell phone use when supervising, additional safety measures for swimming and field trip purposes, napping, and behavior management techniques.

Of the responders commenting on the ban on firearms, shotguns and rifles, a small number agreed with the ban and just as many opposed the ban. Most responders were against having to post a sign stating that firearms are not permitted on the premises, claiming that the sign would be ineffective in stopping someone who wanted to harm others; and might scare parents and children. Additionally, there were many who questioned whether police or peace officers could be on the premises with a firearm. OCFS has as its core objective the protection, safety and well-being of children. The ban on firearms is consistent with this objective. In addition, OCFS maintains that posting the required sign provides notice to the public of the prohibition. Police and other law enforcement groups are permitted to possess a firearm; this regulation would not ban firearms from those groups. OCFS reviewed these comments and will make no changes based on its review.

Of the responders commenting on the prohibition of reptiles and amphibians in centers, most disagreed with the ban. OCFS reviewed the comments and based on the risk of salmonella and its potential harm to young children, the ban is necessary to protect the children’s health. OCFS reviewed these comments and will make no changes based on its review.

OCFS received many questions and some opposition to the regulation which prohibits programs from mixing classroom groups together in common areas of the building and grounds unless the space is large enough to accommodate the groups separately. OCFS’ proposed regulation allows multiple groups to use the same common area as long as the space provided is large enough to accommodate multiple groups and those groups are kept separate and not comingled. OCFS reviewed these comments and will make no changes based on its review.

The concept of shelter-in-place received much attention. Comments included such topics as: suggesting that drills would scare children, suggesting that a parent may be a threat, questioning how to document drills, questioning the number of drills, and questioning how staff can be trained on this issue. OCFS maintains that preparedness is essential to safety. Any number of environmental or manmade threats can occur during day care hours. Programs must be prepared to evacuate and shelter-in-place. OCFS will have forms available. OCFS has developed an on-line training available to employees who work in child day care programs. OCFS reviewed these comments and will make no changes.

Comments regarding background checks focused on providing documents to OCFS when employing new staff. Most commenters opposed this requirement, while others posed many questions about how such a system would work. OCFS will revise the regulatory provision in Part 414 and Sub-parts 418-1 and 418-2 to clarify that this requirement only applies when there is a change in director.

There were nearly equal pro and con comments on the prohibition of using electronic devices, such as cell phones, while supervising children. OCFS maintains that supervision is an interactive exercise that relies on active attention to children and quick response time when a need arises. Use of electronic devices while supervising hinders active supervision and response time. OCFS reviewed these comments and will make no changes based on its review.

OCFS added to its regulations stricter standards as it concerns water activities and field trips. There were some commenters asking that OCFS adhere to the Department of Health (DOH) Sanitary code in these matters. OCFS has made it mandatory in regulation that programs may only use facilities for swimming that have permits issued by DOH and operate according to sanitary code. OCFS asserts that its regulations sufficiently address safety on field trips and at water activities. OCFS reviewed this comment and will make no changes based on its review.

Nap time procedures and policies, specifically concerning those children who no longer require a nap, received much attention from those commenting on day care center regulations. More responders disagreed with this addition to regulation than agreed. In addition, many disagreed with the requirement to develop, in writing nap agreements between the program and the parent. Some responders had questions about the age at which children generally stop napping. Negative comment received concerning nap agreements suggested that agreements would be too varied to maintain, others asked that OCFS define what an agreement contains, and how often agreements have to be updated. It was OCFS’ goal to end the practice of requiring a non-napping child to stay on a sleep surface for hours while other children nap. The content of a nap agreement need only address where, on what and how supervision is provided during nap time. If any of these arrangements change, the program would need to inform the parent and update the agreement. OCFS reviewed these comments and will make no changes based on its review.

The bulk of comments received relative to behavior management concerned the prohibition of physical restraint. Responders focused on how the prohibition would affect children with individual educational plans (IEPs). OCFS asserts that IEPs do not and should not include physical restraint and prohibition of physical restraint will not interfere with IEPs. OCFS reviewed these comments and will make no changes based on its review.

Comment received on program requirements focused on the need for physical activity every day and the use of electronic devices. Those opposing SACC regulations requiring daily physical activity requirement noted limited time and space constraints and suggested that physical activity remain an option, not a requirement. Those in favor of the daily physical activity requirement at SACCs suggested that OCFS add a prescribed duration and intensity level for physical activities. It is OCFS’s position that SACCs should not focus entirely on academics. Children need variety in their activities and for health reasons they need daily physical activity. Physical activity does not have to take place in large spaces. OCFS has and will continue to provide guidance in this area but no changes will be made to this regulatory language. DCC responders focused on clarifying the regulatory language concerning required outdoor play and parent’s ability to request that their child remain inside. The regulatory language concerning parents request to keep their child inside will remain in regulation, as it does not require that a program comply with the parent’s request. In response to the comment from day care center responders, OCFS will clarify that outdoor play is a daily requirement.

OCFS received many favorable comments supporting the discontinuation of regular medical exams and tuberculin tests for staff. In addition, OCFS received many comments suggesting that the need for a health care consultant in programs serving infants, toddlers and mildly ill children be returned to regulation. Most DCCs are certified to administer medication and therefore have a health care consultant. OCFS will continue to research this matter while advising programs to contact a health care consultant when needed. OCFS reviewed these comments and will make no changes based on its review.

Comment received in regard to the training section of regulation concentrated on the provision that all mandatory training be approved by OCFS as per OCFS training policy. Of particular concern was how OCFS’s approval process would work, what credentials would be needed to provide training and how this change might affect the expense of training. Currently, a director can train staff and those staff can receive credit toward the regulatory requirement. OCFS has been working with an on-line registry to compile a listing of persons who have certain qualifications to train day care providers, staff and caregivers. Once the registry verifies that the qualifications have been met, the person is considered to be a credentialed trainer. If a director has taken the opportunity to apply to be a “credentialed” trainer with the NYS training registry and their qualifications met the standard, they are considered to be a credentialed trainer. Training by a credentialed trainer is required only for those applying for educational incentive program funds. OCFS reviewed this comment and will make no changes based on its review.