The Office’s main objectives in proposing changes to current family-based child day care regulations is to strengthen health and safety standards, correct conflicting regulatory language discovered in existing citations relative to the administration of medication, to update the regulations with recent changes made to Social Services Law and the NYS Building Code, and to make the regulations easier to understand.

One major category chosen for modifications is the administration of medication in group family day care and family day care. These changes include amendments made as a result of lessons learned since 2005 when the administration of medication regulations were first adopted. The proposed 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 proposed 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 proposed 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 provider refuse to administer a medication? May a Provider stock medication? When may a provider administer an auto injector or allow a child to carry an asthma inhaler?

A second category of changes focuses 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 was able to craft balanced regulatory requirements for providers 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 the provider with alternatives. 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 also a focus in drafting proposed changes. The proposed regulations address emergency evacuation plans and drills for sheltering in place, additional smoke detectors inside sleeping areas, carbon monoxide alarms, changes in technology around phone service, safe storage of firearms, shotguns and rifles and safe sleep practices for infants.

Another key proposed change concerns adoption of an orientation session for applicants and a new training requirement for owners operating multiple sites. The Office proposes that all applicants seeking a family-based child day care license or registration complete an on-line orientation program prior to receiving an application. In addition, the Office proposes a requirement for all owners who operate multiple family-based child day care programs to receive training in administration and management of multiple sites.

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 proposes rewording the term to include the need to be close enough to redirect a child and to be aware of each child’s ongoing activity.

A final category focuses on the proposed requirement for providers to be the main caregivers in family-based programs. In recent years, there has been an escalation in the number of providers who open multiple family-based programs. Providers then hire “on-site providers” to operate the programs. A number of safety issues arise from this arrangement, not the least of which are: un-cleared caregivers supervising children, un-trained providers starting in their roles as primary caregivers without health and safety training, and increases in enforcement cases with regard to these programs. Existing programs will be grandfathered, new applicants will be denied.

In addition to the categories above, the Office is proposing changes to the length of the regulations. This is more about breaking the regulations up into separate citations than it is about requiring additional standards. This change is significant to providers for the following reason: When an inspector cites a provider 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 will alleviate this problem.

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 family-based child care 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 in the family-based child care 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 seven categories: the administration of medication and infection control, obesity prevention, safety and emergency preparedness, legislative changes, terminology and definitions, training requirements and responsibility of child care owners to administer and supervise programs.

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 provider 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 providers, children in care, and parents, by relaxing the current restrictions on medication administration, allowing providers discretion in medication administration, allowing providers 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 providers 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 nutritious beverages and snacks unless the parent supplies the provider with alternatives. In addition, children 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 allow providers to plan for and practice emergency evacuations and sheltering in place drills. The regulations require additional smoke detectors and carbon monoxide alarms, expanded requirements for safe sleep practices, and permit providers to discontinue the expense of a landline telephone where there is a designated and operational phone.

The fourth category includes statutory requirements not yet included in regulation. These changes are needed to clarify to providers 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; 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; the change in child capacity limits in family-based programs; 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; an expanded list of violations for which the Office may seek a fine; and an explanation of the responsibility of an authorized agency to inspect and monitor providers who care for children receiving subsidy from the authorized agency. The Federal Consumer Product Commission’s new standards for cribs are 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, clarify 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. The Office is also seeking to increase Class II fines from $200 to $250 a day and Class III fines from $50 to $100 a day.

The sixth category addresses the need to clarify the training requirements associated with operating a child care program. The regulation will require applicants to complete an on-line orientation program prior to receiving an application, and owners who operate multiple family-based child care programs must receive training in administration and management of multiple sites. The changes also include examples of the types of course that will be accepted toward each of the training topics.

The last category focuses on the requirement for providers to be the main caregivers in family-based programs. In recent years, there has been an escalation in the number of providers who open multiple family-based programs. Providers then hire “on-site providers” to operate the programs. A number of safety issues arise from this arrangement: unapproved staff supervising children, untrained providers without health and safety training, and increases in enforcement cases with regard to these programs. Existing programs will be grandfathered, and applicants will be denied. The enforcement of this requirement will directly protect the health and safety of children.

In addition to the above, the Office is proposing changes to the length of the regulations, to break the current provisions into separate citations, not to require additional standards. This change is significant to providers 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.

4. Costs:

The implementation of these regulations and the underlying statutory provisions may have minimal costs associated for some home-based child care providers. Some providers have already instituted these safety measures, however as necessary additional costs will be limited to complying with firearms safety provisions, posting house numbers for emergency vehicles when not already posted, installing smoke detectors and carbon monoxide detectors where necessary, storing nonperishable food for all children in case of emergencies, and purchasing nutritious beverages and foods. The changes are not expected to have any adverse fiscal impact on providers.

The Office will provide an on-line orientation session for all applicants, and training to grandfathered owners of multiple home-based child care programs. The Office will use existing resources to implement these regulations. It is expected that providers will have financial relief by changing renewals from every two years to every four years. Providers will also experience savings by the elimination of required medical examinations for providers and employees after 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 providers, caregivers and household members, at renewal. An estimated 47,000 family-based child day care staff will no longer be submitting medical forms (after the initial medical evaluation) to their employer for filing. Providers would no longer have to track each employee to ensure he/she completes the medical exam, nor would they have to file and keep such records.

Additional paperwork is required, however the additions are necessary for the health and safety of children in care, and the overall impact will be minimal on home-based child care programs. Providers 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. Providers will be required to post the transportation services they are providing to children and share this with parents using the service. A substitute (not a required role in home-based child care) employed by a child day care program will be required to submit references, criminal history attestation and a health statement. This documentation is important as it verifies the background of a person who is sometimes left in sole charge of a group of children.

The child day care provider will be required to enter the actual attendance times of each child and caregiver. 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 provider 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.

The Provider must collect the signatures of parents, indicating that each parent has been told that a firearm, shotgun, rifle or ammunition is on the premises.

7. Duplication:

The new requirements do not duplicate State or federal requirements.

8. Alternatives:

The Office has met with stakeholders, including child care provider union representatives, staff from NYS Department of Health, Centers for Disease Control and Prevention, NYS Education Department, 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 are missing requirements.

9. Federal standards:

The regulations are consistent with applicable federal requirements.

10. Compliance schedule:

The regulations will become effective on May 1, 2014.

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, which requires no change to the Rural Area Flexibility Analysis.

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.