STATE OF NEW YORK
________________________________________________________________________
8134
IN SENATE
June 14, 2016
___________
Introduced by Sens. KLEIN, AVELLA -- (at request of the Governor) --
read twice and ordered printed, and when printed to be committed to
the Committee on Rules
AN ACT to amend the social services law, in relation to safety in child
day care programs
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (d) of subdivision 3 of section 390 of the social
2 services law, as amended by chapter 416 of the laws of 2000, is amended
3 to read as follows:
4 (d) (i) Where investigation or inspection reveals that a child day
5 care provider which must be licensed [or], registered or permitted is
6 not duly licensed, registered or permitted, the office of children and
7 family services, or for programs referenced in subdivision thirteen of
8 this section, the local governmental entity referenced in such subdivi-
9 sion, shall [advise the child day care provider] provide notice, in
10 writing, to the child day care provider indicating that the provider is
11 in violation of the licensing [or], registration or permitting require-
12 ments and shall take such further action as is necessary to cause the
13 provider to comply with the law, including directing an unlicensed [or],
14 unregistered or unpermitted provider to cease operation [In addition,
15 the office of children and family services shall] immediately.
16 (ii) The notice to the provider required by subparagraph (i) of this
17 paragraph shall advise parents and caregivers that the program is closed
18 for failure to comply with the applicable licensing, registration or
19 permitting requirements, as applicable, and shall be immediately posted
20 on the front door of the provider's premises in a prominent location and
21 on the provider's website, if one exists.
22 (iii) The office of children and family services, or for programs
23 referenced in subdivision thirteen of this section, the local govern-
24 mental entity referenced in such subdivision, shall also require the
25 provider to notify the parents or guardians of children receiving care
26 from the provider in writing that the provider is in violation of the
27 licensing [or], registration or permitting requirements and shall
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12088-01-6
S. 8134 2
1 require the provider to [notify] confirm in writing with the office of
2 children and family services or the local governmental entity referenced
3 in subdivision thirteen of this section, as applicable, that the provid-
4 er has done so.
5 (iv) Any provider who is directed to cease operations pursuant to this
6 paragraph shall be entitled to a hearing before the office of children
7 and family services, or for programs referenced in subdivision thirteen
8 of this section, the local governmental entity referenced in such subdi-
9 vision. If the provider requests a hearing to contest the directive to
10 cease operations, such hearing must be scheduled to commence as soon as
11 possible but in no event later than thirty days after the receipt of the
12 request [by the office of children and family services]. The provider
13 may not operate the center, home or program after being directed to
14 cease operations, regardless of whether a hearing is requested.
15 (v) If the provider does not cease operations, the office of children
16 and family services may impose a civil penalty pursuant to subdivision
17 eleven of this section, seek an injunction pursuant to section three
18 hundred ninety-one of this title, or both.
19 § 2. Subdivision 8 of section 390 of the social services law, as added
20 by chapter 750 of the laws of 1990, is amended to read as follows:
21 8. (a) The [department] office of children and family services shall
22 establish and maintain a [list of all current] searchable registry that
23 provides detailed information for all child day care programs registered
24 and licensed [child day care programs and a list of all programs whose
25 license or registration has been revoked, rejected, terminated, or
26 suspended] by the office of children and family services and all child
27 day care centers referenced in subdivision thirteen of this section that
28 are permitted by the local governmental entity referenced in such subdi-
29 vision. Such information shall be available to the public[, pursuant to
30 procedures developed by the department] on the office of children and
31 family services' website and shall be searchable by the name of the
32 person on the license, registration or permit as well as by the name of
33 the child day care program.
34 (b) (i) Such registry shall include comprehensible information about
35 the programs listed in paragraph (a) of this subdivision that are oper-
36 ating or suspended and any program that has been revoked in the last six
37 years. Such information shall include, but not necessarily be limited
38 to, the particular program's compliance and inspection history, and
39 whether the program's license, registration or permit has been revoked,
40 rejected, denied, limited or suspended and the reason or reasons there-
41 fore.
42 (ii) Such registry shall also contain information on programs that
43 have been found to be operating without the required license, registra-
44 tion or permit in accordance with paragraph (d) of subdivision three of
45 this section.
46 (c) Notwithstanding any other provision of law to the contrary, a
47 local governmental entity referenced in subdivision thirteen of this
48 section shall provide to the office of children and family services, in
49 the time and manner required by the office, any information on child day
50 care centers referenced in subdivision thirteen of this section that is
51 needed pursuant to the requirements of this subdivision for the
52 registry.
53 § 3. Subdivision 10 of section 390 of the social services law, as
54 amended by chapter 416 of the laws of 2000, is amended to read as
55 follows:
S. 8134 3
1 10. (a) Any home or facility providing child day care shall be oper-
2 ated in accordance with applicable statutes and regulations. Any
3 violation of applicable statutes or regulations shall be a basis to
4 deny, reject, limit, suspend[,] or revoke[, or terminate] a license or
5 registration.
6 (b) Consistent with articles twenty-three and twenty-three-A of the
7 correction law, and guidelines referenced in subdivision two of section
8 four hundred twenty-five of this article, if the office of children and
9 family services is made aware of the existence of a criminal conviction
10 or pending criminal charge concerning an operator of a family day care
11 home, group family day care home, school-age child care program, or
12 child day care center or concerning any assistant, employee or volunteer
13 in such homes, programs or centers, or any persons age eighteen or over
14 who reside in such homes, such conviction or charge may be a basis to
15 deny, limit, suspend, revoke, or reject[, or terminate] a license or
16 registration.
17 (c)(i) Before any license or registration issued pursuant to the
18 provisions of this section is suspended, limited or revoked[, before
19 registration pursuant to this section is suspended or terminated], or
20 when an application for such license or registration is denied or
21 [registration] rejected, the applicant for or holder of such registra-
22 tion or license is entitled, pursuant to section twenty-two of this
23 chapter and the regulations of the office of children and family
24 services, to a hearing before the office of children and family
25 services.
26 (ii) However, a license or registration [shall] may be [temporarily]
27 suspended or limited without a hearing upon written notice to the opera-
28 tor of the facility following a finding that suspension or limitation of
29 the license or registration is necessary to protect the public health[,
30 or an individual's safety or welfare, are in imminent danger.] or the
31 health and safety of children. Provided, however, that a finding that
32 suspension or limitation is necessary to protect the health and safety
33 of children in accordance with this subparagraph shall only be made if
34 the office of children and family services determines, as a result of a
35 violation of this section or the applicable regulations of the office of
36 children and family services, that:
37 (A) serious physical injury as defined in section 10.00 of the penal
38 law or death of a child occurred;
39 (B) a condition occurred or exists that places a child at risk of
40 serious physical, mental or emotional harm, or risk of death, serious or
41 protracted disfigurement or protracted impairment of physical or
42 emotional health;
43 (C) the provider refused to provide inspection staff with access to
44 the child day care program as is otherwise required or authorized by law
45 during the program's hours of operation; or
46 (D) the provider refused to provide timely access to information
47 regarding the program that is necessary to make determinations relating
48 to the health and safety of children in the care of the program or that
49 is required by state or federal law, rule or regulation if:
50 (1) the provider was given a reasonable period of time to produce such
51 information; and
52 (2) if the information required to be provided is dependent on a third
53 party providing such information, that the provider did not make reason-
54 able efforts to timely obtain such information.
55 (iii) The holder of a license or registrant is entitled to a hearing
56 before the office of children and family services to contest the [tempo-
S. 8134 4
1 rary] suspension or limitation. If the holder of a license or registrant
2 requests a hearing to contest the [temporary] suspension or limitation,
3 such hearing must be scheduled to commence as soon as possible but in no
4 event later than thirty days after the receipt of the request by the
5 office of children and family services. Suspension shall continue until
6 the condition requiring suspension or limitation is corrected or until a
7 hearing decision has been issued. If the office of children and family
8 services determines after a hearing that the [temporary] suspension or
9 limitation was proper, such suspension or limitation shall be extended
10 until the condition requiring suspension or limitation has been
11 corrected or until the license or registration has been revoked.
12 § 4. Paragraph (a) of subdivision 11 of section 390 of the social
13 services law, as amended by chapter 416 of the laws of 2000, is amended
14 to read as follows:
15 (a) (i) The office of children and family services shall adopt regu-
16 lations establishing civil penalties of no more than [five hundred] two
17 thousand dollars per day to be assessed against child day care centers,
18 school age child care programs, group family day care homes or family
19 day care homes for violations of this section, sections three hundred
20 ninety-a and three hundred ninety-b of this title and any regulations
21 promulgated thereunder. The regulations establishing civil penalties
22 shall specify the violations subject to penalty based on the severity of
23 the violation. Provided, however, that such regulations shall provide
24 that:
25 (A) a civil penalty of no more than one thousand dollars per day for a
26 first time offense and no more than two thousand dollars per day for
27 subsequent offenses may be assessed for a violation of this section or
28 of a regulatory requirement of the office of children and family
29 services which harms a child or places a child at risk of death, serious
30 or protracted disfigurement, or protracted impairment of physical or
31 emotional health;
32 (B) a civil penalty of no more than five hundred dollars per day for a
33 first time offense and no more than one thousand dollars per day for
34 subsequent offenses may be assessed for a violation of this section or
35 of a regulatory requirement of the office of children and family
36 services which places a child at risk of physical, mental or emotional
37 harm; and
38 (C) a civil penalty of no more than two hundred dollars per day for a
39 second offense in an eighteen month period, and no more than four
40 hundred dollars per day for subsequent offenses may be assessed for a
41 violation of this section or of a regulatory requirement of the office
42 of children and family services that is not included in clause (A) or
43 (B) of this subparagraph.
44 (ii) The office of children and family services shall adopt regu-
45 lations establishing civil penalties of no more than two thousand five
46 hundred dollars per day to be assessed against child day care providers
47 who operate child day care centers or group family day care homes with-
48 out a license or who operate family day care homes, school-age child
49 care programs, or child day care centers required to be registered with-
50 out obtaining such registration.
51 (iii) In addition to any other civil or criminal penalty provided by
52 law, the office of children and family services shall have the power to
53 assess civil penalties in accordance with its regulations adopted pursu-
54 ant to this subdivision after a hearing conducted in accordance with
55 procedures established by regulations of the office of children and
56 family services. Such procedures shall require that notice of the time
S. 8134 5
1 and place of the hearing, together with a statement of charges of
2 violations, shall be served in person or by certified mail addressed to
3 the school age child care program, group family day care home, family
4 day care home, or child day care center at least thirty days prior to
5 the date of the hearing. The statement of charges shall set forth the
6 existence of the violation or violations, the amount of penalty for
7 which the program may become liable[,] and the steps which must be taken
8 to rectify the violation, and where applicable, a statement that a
9 penalty may be imposed regardless of rectification. A written answer to
10 the charges of violations shall be filed with the office of children and
11 family services not less than ten days prior to the date of hearing with
12 respect to each of the charges and shall include all material and rele-
13 vant matters which, if not disclosed in the answer, would not likely be
14 known to the office of children and family services.
15 (iv) The hearing shall be held by the commissioner of the office of
16 children and family services or the commissioner's designee. The burden
17 of proof at such hearing shall be on the office of children and family
18 services to show that the charges are supported by a preponderance of
19 the evidence. The commissioner of the office of children and family
20 services or the commissioner's designee, in his or her discretion, may
21 allow the child day care center operator or provider to attempt to prove
22 by a preponderance of the evidence any matter not included in the
23 answer. Where the child day care provider satisfactorily demonstrates
24 that it has rectified the violations in accordance with the requirements
25 of paragraph (c) of this subdivision, no penalty shall be imposed except
26 as provided in paragraph (c) of this subdivision.
27 (v) Nothing herein shall prohibit the office of children and family
28 services from forgiving or reducing a civil penalty in the event that a
29 violation is rectified, or as part of the enforcement or fair hearing
30 process.
31 § 5. Subparagraph (ii) of paragraph (c) of subdivision 11 of section
32 390 of the social services law, as amended by chapter 117 of the laws of
33 2010, is amended to read as follows:
34 (ii) [Clause] Subparagraph (i) of this paragraph notwithstanding,
35 rectification shall not preclude the imposition of a penalty pursuant to
36 this subdivision where:
37 (A) the child day care provider has operated a child day care center
38 or group family day care home without a license, has refused to seek a
39 license for the operation of such a center or home, or has continued to
40 operate such a center or home after denial of a license application,
41 revocation of an existing license or suspension of an existing license;
42 (B) the child day care provider has operated a family day care home,
43 school-age child care program or child day care center required to be
44 registered without being registered, has refused to seek registration
45 for the operation of such home, program or center or has continued to
46 operate such a home, program or center after denial of a registration
47 application, revocation of an existing registration or suspension of an
48 existing registration;
49 (C) there has been a total or substantial failure of the facility's
50 fire detection or prevention systems or emergency evacuation procedures;
51 (D) the child day care provider or an assistant, employee or volunteer
52 has failed to provide adequate and competent supervision;
53 (E) the child day care provider or an assistant, employee or volunteer
54 has failed to provide adequate sanitation;
55 (F) the child day care provider or an assistant, employee, volunteer
56 or, for a family day care home or group family day care home, a member
S. 8134 6
1 of the provider's household, has injured a child in care, unreasonably
2 failed to obtain medical attention for a child in care requiring such
3 attention, used corporal punishment against a child in care or abused or
4 maltreated a child in care;
5 (G) the child day care provider has violated the same statutory or
6 regulatory standard more than once within a [six] eighteen month period;
7 (H) the child day care provider or an assistant, employee or volunteer
8 has failed to make a report of suspected child abuse or maltreatment
9 when required to do so pursuant to section four hundred thirteen of this
10 article; [or]
11 (I) the child day care provider or an assistant, employee or volunteer
12 has submitted to the office of children and family services a forged
13 document as defined in section 170.00 of the penal law; or
14 (J) the child day care provider violated a statutory or regulatory
15 requirement not otherwise contained in this subparagraph that resulted
16 in harm or risk to a child in accordance with the standards contained in
17 clauses (A) or (B) of subparagraph (i) of paragraph (a) of this subdivi-
18 sion.
19 § 6. Paragraph (e) of subdivision 11 of section 390 of the social
20 services law, as added by chapter 117 of the laws of 2010, is amended to
21 read as follows:
22 (e)(i) The office of children and family services shall deny or reject
23 a new application for licensure or registration made by a day care
24 provider whose license or registration was previously suspended or
25 revoked or [terminated] whose renewal was denied or rejected based on a
26 violation of statute or regulation for a period of [two] three years
27 from the date that the revocation [or termination] or suspension of the
28 license or registration became finally effective[, unless such] or the
29 date the renewal was denied or rejected, whichever is earlier. Provided
30 however, the application may be approved if the office determines, in
31 its discretion, that such approval [of the application] will not in any
32 way jeopardize the health, safety or welfare of children in the center,
33 program or home. For the purposes of this paragraph, the date that the
34 revocation [or termination] became finally effective shall be, as appli-
35 cable:
36 (A) the date that the revocation [or termination] became effective
37 based on the notice of revocation [or termination];
38 (B) the date that the hearing decision was issued upholding the revo-
39 cation [or termination];
40 (C) the date of issuance of a final court order affirming the revoca-
41 tion [or termination] or affirming a hearing decision that upheld the
42 revocation [or termination]; or
43 (D) another date mutually agreed upon by the office of children and
44 family services and the provider.
45 (ii)(A) Such office shall deny or reject a new application or the
46 renewal of an application for licensure or registration made by a day
47 care provider who is enjoined or otherwise prohibited by a court order
48 from operation of a day care center, group family day care home, family
49 day care home or school-age child care program without a license or
50 registration for a period of [two] three years from the date of the
51 court order unless the court order specifically enjoins the provider
52 from providing day care for a period longer than [two] three years, in
53 which case the office shall deny or reject any new application made by
54 the provider while the provider is so enjoined.
55 (B) Such office shall deny or reject a new application for licensure
56 or registration made by a day care provider who is assessed a second
S. 8134 7
1 civil penalty by such office for having operated a day care center,
2 group family day care home, family day care home or school-age child
3 care program without a license or registration for a period of [two]
4 five years from the date of the second fine. For the purposes of this
5 paragraph, the date of the second fine shall be either the date upon
6 which the day care provider signs a stipulation agreement to pay the
7 second fine or the date upon which a hearing decision is issued affirm-
8 ing the determination of such office to impose the second fine, as
9 applicable.
10 (iii) A day care provider who surrenders the provider's license or
11 registration while such office is engaged in enforcement seeking suspen-
12 sion[,] or revocation [or termination] of such provider's license or
13 registration pursuant to the regulations of such office, shall be deemed
14 to have had their license or registration revoked [or terminated] and
15 shall be subject to the prohibitions against licensing or registration
16 pursuant to subparagraph (i) of this paragraph for a period of [two]
17 three years from the date of surrender of the license or registration.
18 § 7. Subdivision 11 of section 390 of the social services law is
19 amended by adding a new paragraph (f) to read as follows:
20 (f) The office of children and family services shall deny a new appli-
21 cation for licensure or registration or the renewal of an application
22 for licensure or registration made by a child day care provider who
23 operated a program referenced in subdivision thirteen of this section
24 and whose permit was previously revoked or suspended or whose renewal
25 was denied or rejected based on a violation of statute or regulation for
26 a period of three years from the date that the revocation or suspension
27 of the permit became finally effective or the date the renewal was
28 denied or rejected. For the purposes of this paragraph, the date that
29 the revocation or suspension became finally effective shall be based on
30 an application of the provisions enumerated in paragraph (e) of this
31 subdivision, as applicable.
32 § 8. Section 390 of the social services law is amended by adding a new
33 subdivision 11-a to read as follows:
34 11-a. When an enforcement action for suspension or revocation is
35 commenced against a child care provider that owns multiple programs, the
36 office of children and family services is authorized to assess the
37 health and safety of the children in the other programs owned by such
38 provider within two business days.
39 § 9. Subdivision 13 of section 390 of the social services law, as
40 amended by chapter 160 of the laws of 2003, is amended to read as
41 follows:
42 13. Notwithstanding any other provision of law[,] to the contrary:
43 (a) this section, except for this subdivision and, where applicable,
44 paragraph [(a-1) of subdivision two-a] (d) of subdivision three, subdi-
45 vision eight and paragraph (f) of subdivision eleven of this section,
46 shall not apply to child day care centers in the city of New York[.];
47 (b) the applicable regulatory standard for child day care centers
48 referenced in paragraph (a) of this subdivision shall not be less strin-
49 gent than the applicable safety regulations for child day care centers
50 contained in title eighteen of the New York codes, rules and regu-
51 lations; and
52 (c) the office of children and family services may direct the local
53 governmental entity that has oversight over the child day care centers
54 referenced in paragraph (a) of this subdivision to take any action
55 consistent with the provisions of this section when necessary to protect
56 the public health or child health or safety in accordance with the stan-
S. 8134 8
1 dard detailed in subparagraph (ii) of paragraph (c) of subdivision ten
2 of this section in relation to child day care centers referenced in
3 paragraph (a) of this subdivision.
4 § 10. Section 390-i of the social services law, as added by section 1
5 of part Q of chapter 56 of the laws of 2014, is amended to read as
6 follows:
7 § 390-i. Notice of inspection report, limitation, suspension or revo-
8 cation. 1. In every child day care program that is licensed or regis-
9 tered pursuant to section three hundred ninety of this title, the child
10 day care provider shall immediately post and maintain in a prominent
11 place[, a] visible to parents or caregivers:
12 (a) A notice, to be provided by the office of children and family
13 services, that shall state the date the most recent child care
14 inspection occurred and provide information for parents and caregivers
15 regarding how to obtain information from such office regarding the
16 results of the inspection; and
17 (b) The provider's most recent compliance history as shown on the
18 office of children and family services website.
19 2. In every child day care program that is licensed or registered
20 pursuant to section three hundred ninety of this title and every child
21 day care center referenced in subdivision thirteen of section three
22 hundred ninety of this title, the child day care provider shall imme-
23 diately post and maintain in a prominent place, visible to parents or
24 caregivers, any notice issued to the provider of the suspension, revoca-
25 tion or limitation of the program. A notice of suspension or limitation
26 must remain posted for a period of at least thirty days and at least
27 until such time as the condition requiring suspension or limitation has
28 been deemed corrected by the office of children and family services or
29 the local governmental entity referenced in subdivision thirteen of
30 section three hundred ninety of this title, or in the event that the
31 condition is not deemed corrected, until the program's license, regis-
32 tration or permit has been revoked.
33 3. If possible, the child day care provider shall also post [such] all
34 the information and notices listed in subdivisions one and two of this
35 section on the child day care program's website. [Such child day care
36 programs shall post and maintain, in a prominent place, such program's
37 most recent compliance history as shown on the office of children and
38 family services website.]
39 § 11. This act shall take effect immediately, provided, however, that:
40 a. Sections one, three, four, five, six, eight, and nine of this act
41 shall take effect on the ninetieth day after it shall have become a law;
42 b. Section ten of this act shall take effect twelve months after it
43 shall have become a law;
44 c. Sections two and seven of this act shall take effect eighteen
45 months after it shall have become a law; and
46 d. The office of children and family services is authorized to promul-
47 gate any rule or regulation necessary for the timely implementation of
48 this act.
