CFS-30-16-00001-A Child Day Care Safety Enforcement and Administrative Hearings Regulations  

  • 9/28/16 N.Y. St. Reg. CFS-30-16-00001-A
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 39
    September 28, 2016
    RULE MAKING ACTIVITIES
    OFFICE OF CHILDREN AND FAMILY SERVICES
    NOTICE OF ADOPTION
     
    I.D No. CFS-30-16-00001-A
    Filing No. 864
    Filing Date. Sept. 13, 2016
    Effective Date. Sept. 28, 2016
    Child Day Care Safety Enforcement and Administrative Hearings Regulations
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Amendment of sections 413.3 and 413.5 of Title 18 NYCRR.
    Statutory authority:
    Social Services Law, sections 20(3)(d), 34(3)(f), 390(2)(d) and (2-a)
    Subject:
    Child Day Care Safety Enforcement and Administrative Hearings Regulations.
    Purpose:
    Amends child day care safety regulations and administrative hearing regulations pertaining to child day care safety enforcement.
    Text of final rule:
    Paragraph one of subdivision (a) of 18 NYCRR section 413.3 is amended to read as follows:
    (1) issuance of written inspection reports which include corrective action plans, requests to submit a corrective action plan to the Office, and notices of intention to initiate enforcement through the imposition of a fine or the limitation, suspension, termination, revocation, or denial of a license or registration;
    Paragraphs nine and ten of subdivision (a) of 18 NYCRR section 413.3 are amended and new paragraphs eleven and twelve are added to read as follows:
    (9) requests to the Attorney General to take such action as is necessary to collect civil penalties, seek criminal prosecution, or to bring about compliance with any outstanding hearing decision or order; [or]
    (10) publication in local newspapers of the names and addresses of child day care licensees or registrants whose licenses, registrations or applications for licensure or registration have been rejected, denied, limited, suspended, terminated or revoked, or against whom a fine has been assessed after an administrative hearing[.];
    (11) referrals to law enforcement, including but not limited to District Attorneys, of any child day care provider that has been directed to cease and desist operations by the Office pursuant to existing law that has not ceased operations; or
    (12) requests to the District Attorney to take such action as is necessary to seek criminal prosecution.
    Subdivision (d) of 18 NYCRR section 413.3 is amended to add a new paragraph six to read as follows:
    (6) When an enforcement action for suspension, limitation or revocation is commenced against a child care provider that owns multiple programs, the Office is authorized to assess the health and safety of the children in the other program(s) owned and/or operated by such provider and take appropriate action to protect the health and safety of children when warranted.
    Subparagraphs (ii) and (iii) of paragraph three of subdivision (f) of 18 NYCRR section 413.3 are amended to read as follows:
    (ii) Class II violations are subject to a maximum fine of $[250] 450 a day for first time offense and up to $500 a day for subsequent offenses. A Class II violation is defined as any violation of a regulatory requirement which places a child at risk of physical, mental or emotional harm, including but not limited to:
    (a) the use of corporal punishment or of frightening or humiliating methods of control or discipline;
    (b) inadequate or incompetent supervision;
    (c) inadequate light, ventilation, sanitation, food, water or heating; or
    (d) providing care for more than the maximum number of children permitted by the facility's license or registration.
    (iii) Class III violations are subject to a maximum fine of $[100] 400 a day for a first time offense and no more than $500 a day for a subsequent offense. A Class III violation is defined as any violation of a regulatory requirement other than those included under Class I or II violations.
    Paragraph three of subdivision (g) of 18 NYCRR section 413.3 is amended and a new paragraph four is added to read as follows:
    (3)(i) The Office [may] shall require the child day care program to immediately post upon receipt in a prominent place at the program that is visible to parents a copy of [any written] the most recent inspection [reports] report issued to the program by the Office.
    (ii) In the event that a child day care program is suspended or limited, the Office shall require the child day care program to immediately post the notice of suspension or limitation immediately upon receipt. Such notice shall be posted in a prominent place at the program that is visible to parents. A notice of suspension or limitation required by the Office to be posted by a child day care program must remain posted for a period of at least thirty days or at least until such time as the condition requiring suspension or limitation has been deemed by the Office to have been corrected or in the event that the condition is not deemed corrected by the Office, until the program's license, registration or permit has been revoked.
    (iii) Any notice required to be posted pursuant to subparagraphs (i) or (ii) of this paragraph must also be posted on the child day care program’s website, if possible.
    (4)(i) Where investigation or inspection reveals that a program that must be licensed or registered as a child day care program is not duly licensed or registered, the Office shall provide notice in writing to the program indicating that the program is in violation of the licensing or registration requirements and the Office shall take such further action as is necessary to cause the program to comply with the law, including directing an unlicensed or unregistered program to cease operation immediately.
    (ii) The notice to the program required by subparagraph (i) of this paragraph shall advise parents that the program is closed for failure to comply with the applicable licensing or registration requirements, as applicable, and shall advise the program that the notice is required to be immediately posted in a prominent place at the program that is visible to parents and on the provider's website, if possible.
    Subdivision (a) of 18 NYCRR section 413.5 is amended to read as follows:
    (a) Before any child care license or registration is suspended or revoked, or when an application for such license or registration is denied, or before civil penalties can be imposed the applicant, licensee or registrant for such registration or license is entitled to a hearing before the Office, pursuant to Social Services Law section twenty-two and these regulations. However, a license or registration shall be temporarily suspended or limited without a hearing upon written notice to the licensee or registrant following a finding that the public health, or an individual's safety or welfare, are in imminent danger[.] based on a finding, in accordance with the regulations of the Office, that:
    (1) serious physical injury or death of a child has occurred;
    (2) a condition occurred or exists that places a child at risk of serious physical, mental or emotional harm, or risk of death, serious or protracted disfigurement or protracted impairment of physical or emotional health which may include, but not be limited to:
    (i) inadequate supervision;
    (ii) overcapacity;
    (iii) inappropriate staff-to-child ratios;
    (iv) corporal punishment of a child;
    (v) failure to obtain appropriate medical treatment for a child, which may include the failure to call 911;
    (vi) blocked exits or means of egress; or
    (vii) failure to maintain adequate sanitation, heating, cooling or ventilation conditions within the program; or
    (3) the program has prevented the Office from effectively assessing whether the public health, or an individual's safety or welfare, are in imminent danger as a result of a condition that occurred or exists in the program, by taking actions, which may include, but not be limited to:
    (i) refusal to provide inspection staff with access to the child day care program, premise or children, as is otherwise required or authorized by law during the program’s hours of operation; or
    (ii) use of force or verbal or written threats of force made against inspection staff or staff of the Office.
    Paragraph three of subdivision (d) of 18 NYCRR section 413.5 is amended to read as follows:
    (3) If the person does not cease operations, the Office may impose a civil penalty pursuant to subdivision eleven of Section 390 of the Social Services Law, seek an injunction pursuant to Section 391 of the Social Services Law, refer the person to law enforcement, including District Attorneys, pursuant to 413.3(a)(11) and Penal Law Section 260.31, or [both] all three.
    Final rule as compared with last published rule:
    Nonsubstantive changes were made in sections 413.3(g)(3) and 413.5(a)(2).
    Text of rule and any required statements and analyses may be obtained from:
    Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, (518) 486-9563, email: info@ocfs.ny.gov
    Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement
    Changes made to the last published rule do not necessitate revision to the previously published regulatory impact statement, regulatory flexibility analysis, rural area flexibility analysis and job impact statement.
    Initial Review of Rule
    As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.
    Assessment of Public Comment
    The Office of Children and Family Services (OCFS) received three comments from one responder, South Brooklyn Legal Services, on the Notice of Proposed Rule Making for the New York State Child Day Care Regulations, Parts 413.3 and 413.5 of Title 18 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), included in the New York State Register dated July 27, 2016.
    Referrals to Law Enforcement
    Comments:
    The responder’s first comment relates to § 413.3(a)(11) which permits OCFS to refer to law enforcement, including but not limited District Attorneys, any child day care provider that has been directed to cease and desist operations by the Office pursuant to existing law and that has not ceased operations. Responder comments, in sum, that the proposed regulation does not specify a timeframe for providers to comply with a cease and desist order before a referral is made to law enforcement; that the safety of children in care is in jeopardy by law enforcement intervention; and that it should be within the District Attorney’s discretion whether to notify law enforcement.
    Response:
    Pursuant to Social Services Law § 390(3)(d) and 18 NYCRR § 413.5(d), providers shall not operate a day care program after being directed to cease and desist operations. Furthermore, the term “law enforcement” may include entities such as the local or state police or the Attorney General. The proposed regulation provides OCFS with flexibility to contact the most appropriate law enforcement office or official under the circumstances. Finally, the safety of children in care is always a paramount consideration for OCFS, and the option to refer to law enforcement, including District Attorneys, is in keeping with that consideration.
    No changes to the proposed regulation were made as a result of these comments.
    Fines
    Comments:
    The responder’s second comment relates to § 413.3(f) which provides for increases in the maximum fines for Class II and Class III violations. Responder comments, in sum, that under the proposed regulation the fines are increased for licensed and registered providers, but not for unlicensed and unregistered providers and that the fines are too high which jeopardizes the ability of providers to stay in business.
    Response:
    Social Services Law § 390(11) places a statutory cap of $500 per day on the amount of fines that may be assessed against licensed and registered and unlicensed and unregistered providers. 18 NYCRR § 413.3(e) already authorizes OCFS to charge the maximum amount of $500 per day against a program that is operating without the requisite license or registration. The increase in allowable fines that may be assessed against licensed and registered programs under the proposed regulation appropriately permits s OCFS to impose graduated sanctions, within the statutory cap, for providers that are repeatedly found to have committed the same offense.
    No changes to the proposed regulation were made as a result of these comments.
    Circumstances that the Warrant Temporary Suspension or Limitation
    Comments:
    The responder’s final comment relates to § 413.5(a) which clarifies those circumstances that warrant the temporary suspension or limitation without a hearing of a provider’s license or registration. Responder comments, in sum, that the language is overly broad, subject to numerous possible interpretations and fails to clarify the parameters for temporarily suspending or limiting a program without a hearing and that case-by-case judgment should continue to be employed prior to suspension without hearing.
    Response:
    The proposed regulation provides more clarity for inspectors and providers regarding circumstances that may constitute imminent danger, thereby providing for more consistent enforcement outcomes and better notice. As evidenced by the regulation’s language, most of the circumstances delineated may be considered and do not represent an exhaustive list. Moreover, the proposed regulation does not eliminate OCFS’ discretion, or case-by-case analysis, in determining whether a provider’s license or registration should be temporarily suspended or limited. Furthermore, the regulation would not change the statutory requirement contained within Social Services § 390(10) for a finding that the public health or an individual’s safety or welfare be in imminent danger for a child care program to be temporarily suspended or limited.
    No changes to the proposed regulation were made as a result of these comments.

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