PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 413; repeal of Part 414 and Subparts 418-1, 418-2; and addition of new Part 414 and Subparts 418-1 and 418-2 to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 34(3)(f) and 390
Subject:
Child Day Care Regulations.
Purpose:
To revise and update the day care center and school age child care regulations.
Substance of proposed rule (Full text is posted at the following State website:http://ocfs.ny.gov):
After a rigorous review of the current regulatory standards for day care centers, school age child care and small day care centers and research on such issues as emergency preparedness, injuries related to supervision, national health and safety performance standards and guidelines for early care and education programs, the Office proposes numerous changes to Title 18 of the New York State Code of Rules and Regulations (NYCRR) §§ 413, 414, 418-1, and 418-2.
The Office’s main objectives 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 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 day care centers, school age child care programs and small day care centers. These changes include amendments made as a result of lessons learned since 2005 when the administrations 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 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 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 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 also a focus in drafting proposed changes. The proposed regulations address emergency evacuation plans and drills for sheltering in place, installation of carbon monoxide alarms, changes in technology around phone service, safe sleep practices for infants, 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.
Another key proposed change concerns adoption of an orientation session for applicants. The Office proposes that all applicants seeking day care center licenses or a school age child care registrations 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 proposes rewording 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 will also be 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 is proposing changes to the length of the regulations and making minor revisions to two definitions and a deletion in wording in citation 413.4(b). The proposed changes in length is 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 will alleviate 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.
Text of proposed rule and any required statements and analyses may be obtained from:
Public Information Office, Office of Children and Family Services, 52 Washington Street, Rensselaer, NY 12144, (518) 473-7793
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
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 Safety Commission’s 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 care centers are registered to care for more than three and less than seven children. The regulations for small day care 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. School-age child care program serves on average 96 children, costing $960 to come into compliance. A small day care center’s maximum capacity is six children, costing $60 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 will no longer have to track each employee to ensure he/she completes the medical exam every two years, nor will 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 to 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, Centers 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 are missing requirements.
9. Federal standards:
The regulations are consistent with applicable federal requirements.
10. Compliance schedule:
These regulations will become effective 180 days after the notice of adoption appears in the State Register.
Regulatory Flexibility Analysis
1. Effect on small businesses and local governments:
The proposed regulations will affect all licensed and registered day care centers (excluding NYC centers), school age child care programs and small day care centers in New York State, approximately 4, 535 programs. There are five small day care centers in New York State. Small day care centers employ one or two staff per program, and operate much like a home-based program. Of the estimated 2,000 larger day care centers, 1,910 programs employ less than one hundred staff. Of the estimated 2,561 school-age child care programs, 2,378 programs employ less than one hundred staff. The regulation will affect the 58 social services districts. There is no expected effect on local governments.
2. Compliance requirements:
Additional paperwork is required under the proposed regulations, however the additions are limited to maintaining accurate attendance of children and staff present, documenting a daily health check of each child, documenting evacuation and shelter-in-place drills in accordance with approved plans, posting transportation services provided by the program, developing a written aquatic activity safety plan, submission of demographic information to check applicants against the Justice Center staff exclusion list, and posting Office provided signs banning firearms, rifles and shotguns from the facility. To assist providers in their regulatory compliance efforts, the Office is creating or modifying existing forms to capture the required information in a succinct and helpful manner. For example daily health checks will consist of a check box added to the attendance sheet; shelter in place drills can be recorded with a date and time added to the fire drill record. The Office and its contracted Child Care Resource and Referral (CCR&R) Agencies are positioned to provide technical assistance to programs on all additional requirements in regulation.
No new mandates are imposed on local governments by these proposed regulations.
3. Professional services:
Neither social services districts nor child care programs should have to hire additional professional staff in order to implement these regulations.
4. Compliance costs:
The implementation of these regulations and the underlying statutory provisions may have minimal costs associated for some day care center, school age child care programs and small day care centers. Some programs have already instituted these safety measures, but for those who have not, additional costs will be limited to posting 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. The changes are not expected to have any adverse fiscal impact on programs.
The Office will provide an on-line orientation session for all applicants. The Office will use existing resources to implement these regulations. It is expected that programs will have financial relief by changing renewals from every two years to every four years. Programs and their staff will also experience savings by the elimination of required medical examinations, after the initial medical examination associated with employment.
Cure Period
Part 413.2(f)(4) includes a period of time for regulated parties to cure matters that will become subject to a penalty. Where a child day care licensee or registrant demonstrates that corrective action has been taken within thirty (30) days of notification of the imposition of the penalty, a fine will not be imposed, except as permitted pursuant to Social Services Law Section 390(11)(c)(ii).
5. Economic and technological feasibility:
The child care programs and social services districts affected by the regulations have the economic and technological ability to comply with the regulations.
6. Minimizing adverse impact:
The Office collaborated with staff from NYS Department of Health, Center for Disease Control and Prevention, NYS Department of Education, Child Care Resource and Referral, Directors, staff and social services districts in developing the proposed regulatory changes. Orientation will be a free on-line session. All requirements for documentation (paperwork) are supported by Office supplied and web-based access to forms designated for each purpose. The Office currently offers CPR and first aid training slots to eligible staff at no cost. Red Cross is the Office contracted agency that offers CPR and first aid to child care providers and classes are held during times when providers would be available (evenings and weekends). The Office is working in collaboration with the New York State Child Care and Adult Food Program (CACFP) to advertise and support enrollment in the CACFP program which will reimburse eligible providers for food and drink for children at the child day care program.
7. Small business and local government participation:
The Office has met with day care providers, Child Care Resource and Referral Agencies, directors and staff, and social service districts to inform the field of regulations under review and marked for changes. Comments and input have been assessed for inclusion in the proposed regulations.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The regulations will affect all day care centers, school age child care programs and small day care centers in all 44 rural areas of the State. There are approximately 1,029 programs in rural areas.
2. Reporting, recordkeeping, and other compliance requirements and professional services:
Additional paperwork is required under the proposed regulations, however the additions are limited to maintaining accurate attendance of children and staff present, documenting a daily health check of each child, documenting evacuation and shelter-in-place drills in accordance with approved plans, posting transportation services provided by the program, submission of demographic information to check applicants against the Justice Center staff exclusion list and posting Office provided signs banning firearms, rifles and shotguns from the facility.
No new mandates are imposed on local governments by these proposed regulations.
3. Costs:
The implementation of these regulations and the underlying statutory provisions may have minimal costs associated with them. Some programs have already instituted these safety measures, however, necessary additional costs will be limited to posting 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. The changes are not expected to have any adverse fiscal impact on programs.
The Office will provide an on-line orientation session for all applicants. The Office will use existing resources to implement these regulations. It is expected that programs will have financial relief by changing renewals from every two years to every four years. Programs and their staff will also experience savings by the elimination of required medical examinations, after the initial medical examination associated with employment.
4. Minimizing adverse impact:
The Office collaborated with staff from NYS Department of Health, Center for Disease Control and Prevention, NYS Department of Education, Child Care Resource and Referral, directors and child care staff and social services districts in developing the proposed regulatory changes. Orientation will be an on-line session offered at no cost. All requirements for documentation (paperwork) are supported by Office supplied and web-based access to forms designated for each purpose. The Office currently offers CPR and first aid training slots to eligible staff at no cost. The Office is working in collaboration with the New York State Child Care and Adult Food Program (CACFP) to advertise and support enrollment in the CACFP program which will reimburse eligible programs for food and drink for children at the child day care program.
The Office is preparing revised forms and new forms to capture all required documentation. Forms will be available on its website or through the OCFS warehouse.
5. Rural area participation:
The Office has met with providers, Child Care Resource and Referral agencies, directors and staff, social service districts and Infant-Toddler Specialists to help inform our thinking on these regulations.
Job Impact Statement
Nature of Impact: The Office does not expect any employee reductions based on proposed regulation.
Categories and Numbers Affected: There are no changes in categories or numbers.
Regions of Adverse Impact: There are no regions where the regulations would have a disproportionate adverse impact on jobs or employment opportunities.
Self-Employment Opportunities: No measureable impact on opportunities for self-employment is expected.
