Enhanced Background Clearances: This rule will increase the safety of children in care. All legally-exempt child care providers, except relative-only providers, and all employees, volunteers, and family child care household members age 18 or older must complete criminal history review and background clearances. An individual found to have been convicted of a mandatory disqualifying offense or who engages in certain uncooperative behaviors associated with the background check process is ineligible to be a provider, director, employee or volunteer at a child care program. Additionally, applicant to become a legally-exempt child care provider subject to the background check requirements cannot be enrolled by an enrollment agency when a family child care household member age 18 or older, who is not related in any way to all children in care, engaged in such conduct.

Training: This rule increases training requirements to be in accordance with the federal requirements. In addition to the pre-service health and safety training, all legally-exempt child care providers, unless exempted by statute, and all employees and volunteers are required to obtain a minimum of five hours of training annually addressing topics or subject matters required by state and federal law.

Inspections: This rule increases the number of inspections required to be conducted by enrollment agencies annually. Enrollment agencies must conduct annual, on-site inspections, of all currently enrolled legally-exempt child care providers, unless otherwise exempted by statute.

Immunization/medical Records: This rule replaces the current emergency rule regarding non-medical vaccinations to make the language consistent with other provisions in this package.

Family Share: This rule removes the family share requirement for a child in foster care in receipt of child care assistance.

Health and Safety Requirements: This rule adds health and safety mandates in accordance with the federal requirements including transportation, supervision of sleeping children, child abuse and maltreatment reporting, among others. Legally-exempt group child care programs that are operating under the auspices of another agency are required to submit a health and safety checklist to the enrollment agency as part of the enrollment application, and to comply with all such health and safety requirements.

Supervision of sleeping children: This rule requires legally-exempt family and in-home child care providers to have a written agreement with parents that addresses sleeping and napping arrangements.

Back to sleep: This rule requires legally-exempt child care providers to put children on their backs to sleep throughout the first year of life.

Emergency Plan: This rule requires all legally-exempt child care providers to have a written emergency plan for the safe and timely evacuation of children.

Allergy Information: This rule requires all legally-exempt group child care programs to discreetly post child-specific food allergy information.

Certificate of Occupancy: This rule requires legally-exempt group child care programs to submit a certificate of occupancy or equivalent documentation showing the facility has been approved for use as a child care program to the enrollment agency prior to enrollment.

Child Abuse and Maltreatment: This rule requires legally-exempt providers, employees and volunteers, who are not related to all children in care by federal definition, to submit to a background check of the Statewide Central Register of Child Abuse and Maltreatment (SCR). Additionally, legally-exempt providers, directors, employees and volunteers must make a report to the SCR when there is reasonable cause to suspect abuse to maltreatment of a child in care.

1. Statutory authority:

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

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

Section 390(2)(d-1) of the SSL, effective September 1, 2019, authorizes OCFS to establish regulations for legally-exempt child care providers to be able to receive child care subsidy funds.

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 OCFS to establish criteria for when such day care is to be provided.

Section 410-x(3) of the SSL requires OCFS 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.

2. Legislative objectives:

The proposed changes to Title 18, of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) are necessary to implement statutory authority granted to OCFS 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 and annual inspections of certain legally-exempt child care providers. 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. This rule is needed for compliance with federal law, including, but not limited to, enhanced background checks, annual inspections, annual training, removal of the family share for youth in foster care and enhancing health and safety standards that will help protect children in care. This rule adds health and safety mandates in accordance with the federal requirements including transportation, supervision of sleeping children, child abuse and maltreatment reporting, among others. 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. The elimination of the family share for child care services for a child in foster care will reduce barriers for such children to be enrolled expeditiously in a child care program.

4. Costs:

The costs associated with this rule are necessary to implement requirements under the Child Care and Development Block Grant Act (CCDBG) of 2014. While such costs are significant, they are largely born by OCFS. New requirements around enhanced background checks, annual inspections, and additional annual training of legally-exempt child care providers have been estimated to cost approximately $43 million. At this time, OCFS does not intend to pass the costs related to inspections, training or criminal background checks on to providers, except for the $25 processing fee for conducting a check of the Statewide Central Registry of Child Abuse and Maltreatment. Compliance with the enhanced background checks and additional training requirements is anticipated to be the primary fiscal burden for child care providers due to time lost from providing care. However, the Office offers a variety of training courses, at no cost to child care programs, that would satisfy the proposed annual training requirement for providers of legally-exempt child care. For those providers that use the Office training courses to satisfy this requirement, the costs will be minimal.

5. Local government mandates:

This rule imposes no new mandates on local governments. However, local social services districts will need to replace current forms that they distribute to child care assistance applicants with revised forms that will be provided by OCFS. The regulations will alleviate some districts from imposing certain additional standards on individuals applying to be an enrolled legally-exempt child care provider. For example, some districts require a background check and/or an annual inspection in order for a program to provide subsidized child care services. These regulations will impose such standard on a consistent basis at the state level for legally-exempt child care programs seeking to provide subsidized child care services.

6. Paperwork:

This rule results in an increase in paperwork due to the required changes in background checks. Prospective and existing providers, employees, volunteers and adult family child care household members, unless specifically exempted, are required to complete the background check packet. Federal law requires rescreening through the background check process no less than once every five years. Additional documentation on health and safety compliance is also required.

7. Duplication:

This rule does not duplicate, overlap, or conflict with any existing state or federal rules or other legal requirements.

8. Alternatives:

There are no alternatives to this rule. Federal and State law require compliance in September 2019.

9. Federal standards:

This rule is consistent with applicable federal requirements to conduct background checks and, annual inspections, enhance of health and safety standards, and impose annual training standards for child care programs.

10. Compliance schedule:

This rule becomes effective September 25, 2019.

1. Effect on small businesses and local governments:

This rule affects all local social services districts, legally-exempt caregiver enrollment agencies, and providers of legally-exempt child care across New York State.

2. Compliance requirements:

Enhanced background checks require prospective and existing legally-exempt child care providers, employees, volunteers and adult family child care household members, unless specifically exempted by statute, to complete and submit clearance paperwork. These clearances need to be repeated no less than once every five years.

All legally-exempt child care providers, employees and volunteers, unless specifically exempted by statute, are required to obtain a minimum of five hours of training annually addressing required topics.

All legally-exempt child care providers except for relative-only providers are required to be inspected on an annual basis in order to maintain their enrollment to receive child care subsidy funds.

All legally-exempt child care providers are required to have a written emergency plan for the safe and timely evacuation of children.

All legally-exempt group child care programs are required to complete and comply with an expanded health and safety checklist and submit compliance related documentation.

Local social services districts will need to replace current forms that they distribute to child care assistance applicants with revised forms that will be provided by OCFS. The regulations will alleviate some districts from imposing certain additional standards on individuals applying to be an enrolled legally-exempt child care provider. For example, some districts require a background check and/or an annual inspection in order for a program to provide subsidized child care services. These regulations will impose such standards on a consistent basis at the state level for legally-exempt child care programs seeking to provide subsidized child care services.

Enrollment agencies will be responsible for processing enrollment applications, including relevant portions of the background checks process, inspecting child care programs for compliance with regulatory requirements, including the enhanced health and safety standards and verification of the annual training requirements.

3. Professional services:

This rule imposes no requirements for professional services upon small businesses or local governments.

4. Compliance costs:

The costs associated with the proposed changes in the child care regulations that are necessary to implement statutory authority pursuant to the Child Care and Development Block Grant Act (CCDBG) of 2014 are significant but are largely born by OCFS. New requirements around enhanced background checks, annual inspections, and additional annual training of legally-exempt child care providers have been estimated to cost approximately $43 million. At this time, OCFS does not intend to pass the costs related to inspections, training or criminal background checks on to providers, except for the $25 processing fee for conducting a check of the Statewide Central Registry of Child Abuse and Maltreatment. Compliance with the enhanced background checks and additional training requirements is anticipated to be the primary fiscal burden for child care providers due to time lost from providing care. However, the Office offers a variety of training courses, at no cost to child care programs, that would satisfy the proposed annual training requirement for providers of legally-exempt child care. For those providers that use the Office training courses to satisfy this requirement, the costs will be minimal.

5. Economic and technological feasibility:

This rule has minimal economic or technological impact to small business or local governments.

6. Minimizing adverse impact:

This rule will have minimal adverse impact on small business or local governments. Prior to developing this rule, OCFS collected stakeholder input and developed the standards in a way to minimize a detrimental impact and avoid undue costs. OCFS has exempted relative-only legally-exempt child care providers from the background and inspection requirements. Additionally, these regulations only establish minimal health and safety standards. These requirements do not raise the legally-exempt health and safety standards to the same level of licensed and registered health and safety standards.

7. Small business and local government participation:

OCFS sought input and received and considered comments from legally exempt child care directors, providers, and owners during forums and conferences. The Civil Service Employees Association (CSEA) and the United Federation of Teachers (UFT) provided feedback and comments in the development of the proposed regulations. OCFS has also led discussions and received comment on regulations at professional conferences and forums.

1. Types and estimated numbers of rural areas

This rule applies statewide including to any legally exempt child care programs operating in rural areas of the state. 18 NYCRR Subpart 358-3 and Parts 403, 404, 405, 406 and 415 affect local social services districts, legally-exempt caregiver enrollment agencies, and providers of legally-exempt child care in all 44 rural areas of the State.

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

This rule is necessary to implement 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 and annual inspections of legally-exempt child care providers. There is an increase in record keeping associated with the proposed changes in background checks. Prospective and existing providers, employees, volunteers and adult family child care household members, unless specifically exempted, are required to complete the background check. Federal law requires rescreening through the background check process no less than once every five years. Additional documentation on health and safety compliance is also required.

3. Costs

The costs associated with this rule are necessary to implement requirements under the CCDBG Act of 2014. While such costs are significant, they are largely born by the Office of Children and Family Services (OCFS). New requirements around enhanced background checks, annual inspections, and additional annual training of legally-exempt child care providers have been estimated to cost approximately $43 million. At this time, OCFS does not intend to pass the costs related to inspections, training or criminal background checks on to providers, except for the $25 processing fee for conducting a check of the Statewide Central Registry of Child Abuse and Maltreatment. Compliance with the enhanced background checks and additional training requirements is anticipated to be the primary fiscal burden for child care providers due to time lost from providing care. However, the Office offers a variety of training courses, at no cost to child care programs, that would satisfy the proposed annual training requirement for providers of legally-exempt child care. For those providers that use the Office training courses to satisfy this requirement, the costs will be minimal.

4. Minimizing adverse impact

This rule will have minimal adverse impact on child care programs or local social services districts in rural areas. Prior to developing this rule, OCFS collected stakeholder input and developed the standards in a way to minimize a detrimental impact and avoid undue costs. OCFS has exempted relative-only legally-exempt child care providers from the background and inspection requirements. Additionally, these regulations only establish minimal health and safety standards. These requirements do not raise the legally-exempt health and safety standards to the same level of licensed and registered health and safety standards.

5. Rural area participation

OCFS received comment from legally exempt child care directors, providers and owners during forums and conferences. The Civil Service Employees Association (CSEA) and the United Federation of teachers (UFT) provided feedback and comment in the development of the proposed regulations. OCFS has also led discussions and received comment on regulations at professional conferences and forums.

1. Nature of impact

This rule may impact job opportunities for providers and caregivers at legally exempt child care programs in New York State. The provisions set forth require enhanced background clearances for such persons. As such, an individual may be denied an opportunity or terminated from a position if such background checks produce a criminal history or other information that makes the individual inappropriate for the position. All such background checks are mandated by federal law.

2. Categories and numbers affected

It is anticipated that there are 60,000 legally exempt providers and caregivers subject to this process.

3. Regions of adverse impact

This rule applies throughout New York.

4. Minimizing adverse impact

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