Int. No. 291
By Council Members Eldridge, Clarke, Marshall, Lopez, Quinn, Reed, Boyland and the Public Advocate (Mr. Green); also Council Members Foster, Harrison, Leffler, Linares and Michels.
A Local Law to amend the administrative code of the city of New York, in relation to family day care services.
Be it enacted by the Council as follows:
Section 1. Section 21-120.1 of the administrative code of the city of New York, as added by local law 45 for the year 1992, is hereby amended to read as follows:
§21-120.1 Subsidized [Family] family day care. a. Definitions. For the purposes of this section, the following definitions shall apply:
1. “Family day care [home] provider” shall [be defined as] mean [a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children. A family day care home may, however, care for seven or eight children at any one time if no more than six of the children are less than school age and the school-aged children receive care primarily before or after the period such children are ordinarily in school, during school lunch periods, on school holidays, or during those periods of the year in which school is not in session, in accordance with the regulations of the state department of social services and if such department inspects such home to determine whether the provider can care adequately for seven or eight children] an individual who is registered with the department of health as an operator of a family day care home in accordance with section 390 of the social services law and the regulations promulgated thereunder.
2. “Group family day care provider” shall mean an individual who is licensed by the department of health to operate a group family day care home in accordance with section 390 of the social services law and the regulations promulgated thereunder.
[2] 3. The “[department of social services] administration” shall mean the [department of social services] administration for children’s services [of the city of New York].
[3. “Authorized agency” shall be as defined in section 371 of the state social services law.]
4. “Child [day] care” shall mean care for a child on a regular basis provided away from the child’s residence for less than twenty-four hours per day by someone other than the parent, step-parent, guardian or relative within the third degree of consanguinity of the parents or step-parents of such child. [Child day care shall not refer to care provided in:
(i) a day camp, as defined in the state sanitary code;
(ii) an after-school program operated for the purpose of religious education, sports or recreation;
(iii) a facility:
(a) providing day care services under an operating certificate issued by the department;
(b) providing day treatment under an operating certificate issued by the office of mental health or office of mental retardation and developmental disabilities; or
(iv) a kindergarten, pre-kindergarten, or nursery school for children three years of age or older, or after-school program for children operated by a public school district or by a private school or academy which is providing elementary or secondary education or both, in accordance with the compulsory education requirements of the education law, provided that the kindergarten, pre-kindergarten, nursery school, or after-school program is located on the premises or campus where the elementary or secondary education is provided.]
5. [“Community-based organization” shall be defined as any agency, association, corporation, institution, society or other organization organized pursuant to the not-for-profit corporations law which has the ability to provide community-based support services and training to family day care providers and parents or guardian of the children in their care, and which has its principle office in the city of New York.] “Child care provider” shall mean any individual, association, corporation, partnership, institution, organization or agency whose activities include providing child day care or operating a home where child day care is provided.
6. “Authorized family day care service” shall mean a child care provider that has been designated by the administration as qualified to inspect the home of a family day care provider or group family day care provider applying to provide subsidized child care, and to help bring such provider into full compliance with all applicable law, rules and regulations in order to certify such family day care provider or group family day care provider as eligible to provide subsidized child care.
7. “Subsidized [family day] child care” [means] shall mean [family day care provided for children under any provision of the New York social services law and publicly funded in whole or part pursuant to 42 U.S.C. sections 620, 1397 and 9858, or the state low income day care program, but does not include day care reimbursed through payments to family day care providers through certificates issued on or after October 1, 1992 pursuant to the Child Care and Development Block Grant, 42 U.S.C. section 9858] child care paid for wholly or partially with public funds. Where a family is able to pay part or all of the costs of such care, payment of such fees as may be reasonable in the light of such ability shall be required.
8. “Certified family day care” shall mean child care provided in the home of a family day care provider or a group family day care provider that has been certified by an authorized family day care service that has inspected such home, determined that such home and such family day care provider or group family day care provider is in full compliance with all applicable law, regulations and rules, and that such family day care provider or group family day care provider is eligible to provide subsidized child care.
b. A family day care provider may provide child care for no more than the authorized number of children shown on the registration issued by the department of health. Such authorized number shall include the provider’s own children, foster children or relatives who are not attending school at the kindergarten or higher grade level if such children are present in the home.
1. Such care shall be provided for children six weeks through twelve years of age, for older children under court supervision or for children who are thirteen years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist.
2. No child under six weeks of age shall be admitted to a family day care home.
3. No more than two children under the age of two may be cared for at any given time.
4. A family day care provider may provide care for:
(i) up to five children between the ages of six weeks to six years, or
(ii) up to six children between the ages of two years to six years, and
(iii) an additional two children who attend kindergarten or higher grade level, provided that they are receiving child care primarily during the hours or the days that school is not in session. The registration authorizing the care of the additional children shall be issued only if the department of health has inspected the home and determined that the provider can care adequately for the additional school-age children.
c. A group family day care provider may provide child care for no more than the authorized number of children shown on the permit issued by the department of health pursuant to section 390 of the state social services law. Such authorized number shall include the provider’s own children or foster children who are not attending school at the kindergarten or higher grade level if such children are present in the home.
1. Such child care shall be provided for children six weeks through twelve years of age, for older children under court supervision or for children who are thirteen years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist.
2. No child under six weeks of age shall be admitted to a group family day care home.
3. There shall be at least one caregiver for every two children under the age of two. A caregiver who is not a licensed group family day care provider or a registered family day care provider must meet the minimum qualifications of an assistant pursuant to section 390 of the social services law and the regulations promulgated thereunder.
4. Unless a second caregiver is present, a group family day care provider may care for no more than the maximum number of children authorized for a family day care provider.
5. When at least one other caregiver is present, a group family day care provider may provide care for:
(i) up to ten children between the ages of six weeks to six years, or
(ii) up to twelve children between the ages of two years to six years, and
(iii) an additional two children who attend kindergarten or higher grade level, provided that they are receiving care primarily during the hours or the days that school is not in session.
d. Parents or guardians eligible for subsidized child care may apply to an authorized family day care service to place their child in certified family day care sponsored by such authorized family day care service.
1. An eligible parent or guardian and either a family day care provider or a group family day care provider selected by the parent or guardian may jointly apply to an authorized family day care provider, requesting inspection and certification of such family day care provider or group family day care provider as a provider of subsidized child care.
e. The [department of social services] administration shall draft a plan providing that family day care [homes] providers and group family day care providers applying to provide subsidized [family] child care shall [obtain a certificate of registration from the state department of social services pursuant to the registration process provided under section 390 of the social services law, and regulations promulgated thereunder, and shall operate in accordance with the terms of such registration] first be inspected and brought into full compliance with all applicable law, rules and regulations, and shall be monitored thereafter on a regular basis to ensure that child care is provided in accordance with all such applicable law, rules and regulations.
1. Not later than thirty days following the effective date of the local law that amended this section, [pursuant to section 390 of the social services law,] the [department] administration shall submit such draft plan to the state [department] office of [social] children and family services in accordance with section 390 of the social services law, together with an explanation justifying the need to impose additional requirements [on child] upon family day care providers of subsidized child care and group family day care providers of subsidized child care, and describing a plan to monitor compliance with [such] all applicable law, rules and regulations [additional requirements].
2. Upon receipt of written approval of the state [department] office of [social] children and family services, the [department] administration shall promulgate such a plan and shall implement such plan to monitor compliance by contracting with qualified not-for-profit child care providers to serve as an authorized family day care service responsible for inspecting, certifying and monitoring the providers and the homes of providers of subsidized child care.
[c. In drafting a plan as provided in subdivision b hereof, the department of social services shall request authority to provide, or contract for services with community-based organizations to provide the training mandated by section 390-a(3)(b) of the social services law. The department of social services shall include in this request a request for the release of such funds as may be available for such training within the city of New York. The authority of the department of social services to provide training under such a plan shall be contingent upon granting of the authority and the release of funds therefor from the state department of social services.
d] f. The plan [provided in] required by subdivision [b] e [hereof] of this section shall provide the following:
1. With the exclusion of a child care provider that has been certified in accordance with this local law, prior to [the department’s placement of] a child receiving subsidized [family day] child care [in] from a family day care [home] provider or a group family day care provider, such child care provider’s home shall be visited by an authorized [agency or community-based organization] family day care service for the purpose of [ensuring] determining if [that] such [home] child care provider meets the requirements of section 390 of the state social services law and regulations[;] and that the family day care provider or group family day care provider is capable of providing safe and suitable care to children which is supportive of their physical, intellectual, emotional and social well-being.
2. Before the initial visit to such child care provider’s home, the department of health shall provide such authorized family day care service with a copy of such provider’s completed application form and all other supporting documents based upon which the department of health based its determination to register or license such provider.
3. Family day care providers and group family day care providers in the city of New York shall be certified as eligible to provide subsidized child care only if such provider is:
(i) personally providing the children’s care in such provider’s own home,
(ii) the only operator of a family day care home or group family day care home in such provider’s home,
(iii) providing group family day care to no more than four children under the age of two and no more than six children under the age of three, with at least two caregivers present,
(iv) providing caregivers in a family day care home or a group family day care home with any and all employment benefits as may be required by state and/or federal law including paying such caregivers at least the minimum wage set forth in article 19 of the New York state labor law, and
(v) determined to be capable of providing family day care or group family day care in accordance with all applicable law, rules and regulations.
4. [after registration of a family day care home by the state department of social services, each home providing day care to a child receiving subsidized family day care shall be visited no less than eight times each year, including the visits mandated by the United States department of agriculture, by an authorized agency or community-based organization for the purpose of ensuring that family day care is provided in accordance] The authorized family day care service shall determine whether such provider is in compliance with the requirements of sections 390 and 390-a of the social services law, applicable provisions of the health code, this code, and any such rules and regulations as may be promulgated thereunder, including, but not being limited to the following requirements[, registration pursuant to section 390 of the social services law which indicates]:
(i) that clearance with the State Central Register of Child Abuse and Maltreatment has been completed for the [applicant] child care provider and for any person eighteen years of age or older who resides in the home of [the applicant] such child care provider; and
(ii) [whether the applicant, or any person residing in the applicant’s household has a record of criminal conviction] that such child care provider and any household members sixteen years of age or older have received criminal record screening which includes fingerprinting by the department of investigation and review of any criminal record convictions or pending criminal actions pertaining to them; and
(iii) that the [applicant] child care provider has had an annual physical examination including an examination for tuberculosis and that all other members of the household have been examined for tuberculosis; and
(iv) that the [family day care home facility] child care provider maintains a register, or an approved equivalent, in a form to be provided by the state [department] office of [social] children and family services showing for each child to whom day care is provided:
[A.] (a) the name and date of birth of such child;
[B.] (b) the names and addresses of his or her parents or guardians, including designated emergency contact persons and their telephone numbers; and
[C.] (c) such other information as may be required by the rules and regulations of the state [department] office of [social] children and family services[.]; and
(v) that the [family day] child care provider has received or shall receive not less than fifteen hours of training during the first year after being registered and that [they have] the child care provider has received or shall receive not less than fifteen hours of training every second year thereafter. Such training is required to include, but not be limited to, the following topics:
[A.] (a) principles of early childhood development;
[B.] (b) nutrition and health needs of infants and children;
[C.] (c) child day care program development;
[D.] (d) safety and security procedures;
[E.] (e) business record maintenance and management;
[F.] (f) child abuse and maltreatment identification and prevention; and
[G.] (g) statutes and regulations pertaining to child day care and child abuse and maltreatment[.]; and
(vi) that children in [family day] child care [homes] have received or will receive instruction, consistent with their age, needs and circumstances as well as the needs and circumstances of the [day] child care provider, in techniques and procedures which will enable such children to protect themselves from abuse and maltreatment[.]; and
(vii) that the [family day care home] child care provider has a daily program [as provided by] that meets the program requirements set forth in the state regulations promulgated [by the department of social services] in [718 N.Y.C.R.R. section] sections 416.11 and 417.11 of title 18 of the official compilation of the codes, rules and regulations of the state of New York governing group family day care and family day care.
5. An authorized family day care service shall encourage family day care providers and group family day care providers to offer flexible hours of child care. An application for child care shall not be denied solely by reason of the time of day or days for which child care is required, provided that an available child care provider can accommodate such hours and days of care in accordance with applicable law, rules and regulations.
6. If a family day care provider or a group family day care provider is not in compliance with applicable law, rules and regulations, the authorized family day care service will provide technical assistance on how to comply.
7. The plan required by subdivision e of this section shall include provisions for delegating to an authorized family day care service authority to provide additional child care services, contingent upon an increase in the payment rate for such authorized family day care service to cover their costs in providing these services. Until such increased payment rate takes effect, such authorized family day care service shall be responsible for providing only those child care services originally authorized during the period immediately prior to the effective date of the local law that added this paragraph. The additional child care services that an authorized family day care service may be funded to carry out shall include, but not be limited to, the following:
(i) visiting each of the homes where certified family day care is provided no less than twelve times each year including the three monitoring visits mandated by the United States department of agriculture, for the purpose of ensuring that family day care is provided in accordance with the requirements of sections 390 and 390-a of the social services law and such regulations governing family day care and group family day care;
(ii) reviewing an application for subsidized child care, undertaking the initial review of their eligibility for subsidized child care, and recertifying the eligibility of the parent or guardian at required intervals;
(iii) assisting the parent or guardian in choosing an appropriate child care provider from among the certified child care providers sponsored by such authorized family day care service;
(iv) monitoring the care provided to each child and ensuring that each child's individual needs are being met;
(v) following up on each child’s health care needs, maintaining the child’s health record and supplying the child’s child care provider with a copy of the health record;
(vi) providing in-service training and technical assistance to the child care providers to enhance their skills as caregivers of young children;
(vii) providing supportive services to the providers and the parents or guardians of the children in their care; and
(viii) collecting and checking the children’s attendance records, collecting fees, billing the administration and paying the family day care providers and the group family day care providers.
8. The payment rate to an authorized family day care service providing subsidized child care shall be a rate that covers both the payment for the family day care provider or the group family day care provider and the costs incurred by the authorized family day care service in carrying out its responsibilities as an authorized family day care service.
[e] g. In drafting [a] the plan [as provided in] required by subdivision [b] e [hereof] of this section, the [department of social services] administration shall include such other provisions as are necessary to implement the requirements of this section.
[f] h. In the event that an authorized [agency or community-based organization] family day care service obtains information that [such home] a provider of certified family day care cannot provide or is not providing [family] child care in accordance with the requirements of [state law] all applicable law, rules and regulations, [such agency] the authorized family day care [program] service shall immediately provide the administration and the department of health with such information. If the [department] administration concludes that [day] child care cannot be or is not being provided in accordance with the requirements of [state law] any applicable law, rules and regulations, [the department shall remove children, if any, receiving subsidized family day care in such home and shall not place children in such home] such child care provider shall not be eligible to provide subsidized child care until such time as the administration, the department of health and the authorized family day care service have [determines] determined that such [family day care home is] child care provider is in full compliance with the requirements of applicable law, rules and regulations.
§2. Should any provision of this local law become invalid or unenforceable, either because of a change in federal or state law or otherwise, the remaining provisions shall be and continue to be fully effective.
§3. This local law shall take effect immediately.
04/27/98, 4:00 p.m.