N.Y. Comp. Codes R. & Regs. tit. 18 § 413.2

Current through Register Vol. 46, No. 19, May 8, 2024

Section 413.2 - Definitions

(a)

(1)Child day care means care for a child on a regular basis provided away from the child's residence for less than 24 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. A relative within the third degree of consanguinity of the parent or step-parent includes: the grandparents of the child; the great-grandparents of the child; the great-great-grandparents of the child; the aunts and uncles of the child, including the spouses of the aunts and uncles; the great-aunts and great-uncles of the child, including the spouses of the great-aunts and great-uncles; the siblings of the child; and the first cousins of the child, including the spouses of the first cousins.

(2) Child day care does not refer to care provided in:

(i) a summer day camp, traveling summer day camp or children's overnight camp as defined in the State Sanitary Code;

(ii) a program for school-age children operated solely for the purpose of religious education, sports, classes, lessons or recreation;

(iii) a facility providing day services under an operating certificate issued by the office;

(iv) a facility providing day treatment under an operating certificate issued by the Office of Mental Health or by the Office for People with Developmental Disabilities; or

(v) a kindergarten, pre-kindergarten or nursery school for children three years of age or older, or a program for school-age children conducted during non-school hours, 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 such kindergarten, prekindergarten, nursery school or program is located on the premises or campus where the elementary or secondary education is provided. Provided, however, a kindergarten or a pre-kindergarten operated by a public school district shall not be considered a child day care if the kindergarten or pre-kindergarten is not located on the premises or campus where the elementary or secondary education is provided.

(b)Types of care.

(1)Child day care center means a program or facility which is not a residence in which child day care is provided on a regular basis to more than six children for more than three hours per day per child for compensation or otherwise, except those programs providing care as a school-age child care program as defined in this section. The name, description or form of the entity which operates a child day care center does not affect its status as a child day care center.

(i) Age of children. A child day care center may provide care for children six weeks through 12 years of age; for children 13 years of age or older who are under court supervision; for children 13 years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist; and, in extenuating circumstances, for children under six weeks of age when prior approval has been obtained from the office. Children who attain the maximum age allowed during the school year may continue to receive child day care through the following September 1st or until they enter school for the following school year.

(ii)Maximum capacity means the maximum number of children authorized to be present at any one time as specified on the child day care center license.

(2)Family day care home shall 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.

(i) There shall be one caregiver for every two children under two years of age in the family day care home.

(ii) A family day care provider 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 Office of Children and Family Services and the office inspects such home to determine whether the program can care adequately for seven or eight children.

(iii) Except for children in the legal custody of or boarded out with the provider who are enrolled in school in kindergarten or a grade level higher than kindergarten, all children present must be counted in determining maximum capacity even if they are relatives or are present three hours per day or less.

(iv) A family day care home may provide care for children six weeks through 12 years of age; for children 13 years of age or older who are under court supervision; for children 13 years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist; and, in extenuating circumstances, for children under six weeks of age when prior approval has been obtained from the office. Children who attain the maximum age allowed during the school year may continue to receive child day care through the following September 1st or until they enter school for the following school year.

(3)Group family day care home shall 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 seven to twelve children of all ages, except for those programs operating as a family day care home, which care for seven or eight children. A group family day care program may provide child day care services to four additional children if such additional children are of school age and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session.

(i) There shall be one caregiver for every two children under two years of age in the group family home.

(ii) A group family day care home must have at least one assistant to the provider present when child day care is being provided to seven or more children when none of the children are school age, or nine or more children when at least two of the children are school age and such children receive services only before or after the period such children are ordinarily in school or during school lunch periods, or school holidays, or during those periods of the year in which school is not in session. This assistant shall be selected by the group family day care licensee and shall meet the qualifications established for such position by the regulations of the Office of Children and Family Services.

(iv) A group family day care home may provide care for children six weeks through 12 years of age; for children 13 years of age or older who are under court supervision; for children 13 years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist; and, in extenuating circumstances, for children under six weeks of age when prior approval has been obtained from the office. Children who attain the maximum age allowed during the school year may continue to receive child day care through the following September 1st or until they enter school for the following school year.

(4)School-age child care program means a program or facility which is not a residence in which child day care is provided to an enrolled group of seven or more children under 13 years of age during the school year before and/or after the period such children are ordinarily in school or during school lunch periods. School-age child care programs also may provide care during school holidays and those periods of the year in which school is not in session, including summer vacation. Such programs must operate consistent with the local school calendar. The name, description or form of the entity which operates a school-age child care program does not affect its status as a school-age child care program.

(i) Age of children. A school-age child care program may provide care for school-age children of any age. If the program provides care for children over 13 years of age, the program must meet all regulatory standards in regard to such children just as if the children were under 13 years of age. No child may be admitted unless the child is enrolled in kindergarten or a higher grade or is at least six years of age. Children may receive care through the conclusion of high school.

(5)Small day care center means a program or facility which is not a residence in which child day care is provided to three through six children for more than three hours per day per child for compensation or otherwise. The name, description or form of the entity which operates a small day care center does not affect its status as a small day care center.

(i) Age of children. A small day care center may provide care for children six weeks through 12 years of age; for children 13 years of age or older who are under court supervision; for children 13 years of age or older who are incapable of caring for themselves when such inability is documented by a physician, psychiatrist or psychologist; and, in extenuating circumstances, for children under six weeks of age when prior approval has been obtained from the office. Children who attain the maximum age allowed during the school year may continue to receive child day care through the following September 1st or until they enter school for the following school year.

(ii)Maximum capacity means the maximum number of children authorized to be present at any one time as specified on the small day care center registration.

(iii) No more than two children under the age of two may be cared for at any one time.

(iv) When any child who is less than two years of age is present, the maximum capacity is five.

(v) When all children present are at least two years of age, maximum capacity is six.

(c)Roles.

(1)Applicant means any individual submitting an application for a license or registration or the director or other individual designated by any association, corporation, partnership, institution, organization or agency submitting an application for a license or registration to represent such entity in the application process.

(2)Assistant means any person who has been selected by the licensee to provide child day care to children in a family or group family day care home.

(3)Caregiver means all persons who are providers, assistants, or substitutes in a family or group family day care home or a small day care center.

(4)Child day care provider is used interchangeably with the terms owner, licensee or registrant, and means any individual, association, corporation, partnership, institution, organization or agency whose activities include providing child day care or operating a facility where child day care is provided. The child day care provider is responsible for all matters related to the operation, oversight and direction of the child care program.

(5)Director means the person or persons who have responsibility for the development and supervision of the daily activity programs for children and the administrative authority and responsibility for the daily operations of a child day care center or school-age child care program.

(6)Employee is used interchangeably with the term staff and means all personnel, including directors, caregivers, and non-caregivers, temporary personnel, teachers, aides, para-professionals, cooks, custodians, administrative staff and any other person(s) employed by a child care program.

(7)Health care consultant means a physician, physician assistant, nurse practitioner or registered nurse who possesses a valid New York State license in his or her field. Such consultant may include a health care professional who is an employee of a local Department of Health.

(8)Health care provider means a licensed physician, physician's assistant, or nurse practitioner.

(9)Health professional means a licensed physician trained in pediatrics or family health, or a registered nurse, nurse practitioner or physician's assistant with at least one year of pediatric or public health experience.

(10)Licensed authorized prescriber means a person licensed, currently registered and authorized under the Education Law to issue prescriptions for medication or medical treatment.

(11)Medication administrant is a physician, physician assistant, registered nurse, nurse practitioner, licensed practical nurse, advanced emergency medical technician or a child care program staff or caregiver who is trained in medication administration, cardio pulmonary resuscitation and first aid and who is designated in the health care plan to administer medication to children in day care programs authorized by the office to administer medications.

(12)Provider is the person present at the child care program who has responsibility for the supervision of children and staff, is responsible for daily operations and has administrative authority for the family day care, group family day care, or small day care center.

(13)Substitute means any person who has been selected by the licensee to provide child day care to children in a family or group family day care home or small day care center during short-term, non-recurring absences of the day care provider or assistants. Substitutes who are filling in for the family day care provider must be approved by the office.

(14)Visitor means any person who is not a day care child, staff person, caregiver, volunteer, household member, employee, parent of a child in care, or person authorized to pick up or drop off a child to the day care program.

(15)Volunteer means any unpaid person, that is not in the role of a caregiver or staff as defined herein, who is present at the day care program for the purpose of assisting with care of children or the operation of the child care program. A volunteer is not employed by the program and he or she may not be counted in the supervision ratio. All volunteers have the potential for either unsupervised contact or regular and substantial contact with children in care.

(16)Group teacher means a classroom staff person who, under the supervision of a director, is responsible for planning and supervising age appropriate activities for a given group of children. A group teacher must possess the minimal regulatory qualifications required to oversee the needs and safety of children in a child care center or school age child care group.

(17)Assistant teacher means a classroom staff person who assists the group teacher as part of the teaching staff, works under the supervision of the director and group teacher and whose assignment to a group of children may be considered in calculating compliance with required teacher to child ratios. The assistant teacher must possess the minimal regulatory qualifications required to assist the group teacher in overseeing the needs and safety of children in a day care center or school age child care program group.

(18)Teacher is used to describe when the designated function or responsibility may be performed by either a group teacher or an assistant teacher, and whenever both roles are referenced together.

(d)Miscellaneous.

(1)Children with special health care needs means children who have chronic physical, developmental, behavioral or emotional conditions expected to last 12 months or more and who require health and related services of a type or amount beyond that required by children generally.

(2)Enforcement means the action(s) undertaken or initiated by the office when child day care programs are not operated in compliance with all applicable provisions of law and regulation.

(3)Evening care means care provided from late afternoon or evening until children begin their night's sleep.

(4)Infant means a child up to 18 months of age.

(5)License means a document issued by the office authorizing a licensee to operate a child day care center in accordance with Subpart 418-1 of this Title or a group family day care home in accordance with Part 416 of this Title.

(6)Mildly ill child means a child who has symptoms of a minor childhood illness which does not represent a serious risk to other children and who is able to participate in the routine program activities with minor accommodations. The office's health care plan guidelines discuss the symptoms and illnesses which commonly constitute minor illness.

(7)Moderately ill child means a child whose health status requires a level of care and attention that cannot be accommodated in a child day care setting without the specialized services of a health professional. The office's health care plan guidelines discuss the symptoms and illnesses which commonly constitute moderate illness.

(8)Nap means a short sleep during the day.

(9)Night care means care provided during the hours when children have begun or will be continuing their night's sleep.

(10)Office means the New York State Office of Children and Family Services.

(11)Parent means custodial parent(s), legal guardian(s), other persons having legal custody of a child or any other person with whom a child lives who has assumed responsibility for the day-to-day care and custody of the child.

(12)Personal residence means a one- or two-family dwelling or a single dwelling unit in a multiple dwelling classified for permanent occupancy under the New York State Building Code, except that a community residence shall not be considered a residence for purposes of the child day care regulations. A one-family residence shall be considered to have one dwelling unit and a two-family residence shall be considered to have two dwelling units. A dwelling unit must be occupied or used as living space to be used for family or group family day care and considered a residence for purposes of the child day care regulations, except as follows:

(i) when one dwelling unit of a two-family dwelling is occupied and is used for family or group family day care, the second dwelling unit may not be used for family day care or group family day care unless the second dwelling unit is also occupied;

(ii) when one dwelling unit of a two-family dwelling is occupied and is not used for family day care or group family day care, the second dwelling unit need not be occupied to be used for family day care or group family day care by an occupant of the first dwelling unit;

(iii) where a property includes a dwelling unit which is occupied and is used for family day care or group family day care and there is a separate building on the property under the control of the occupant of the dwelling unit which contains an additional dwelling unit, the additional dwelling unit may not be used for family day care or group family day care unless the second dwelling unit is also occupied;

(iv) where a property includes a dwelling unit which is occupied and is not used for family day care or group family day care and there is a separate building on the property under the control of the occupant of the dwelling unit which contains an additional dwelling unit, the additional dwelling unit need not be occupied to be used for family day care or group family day care by an occupant of the first dwelling unit;

(v) where a property includes a dwelling unit which is occupied and is used for family day care or group family day care and there is a separate building on the property under the control of the occupant of the dwelling unit which does not contain a dwelling unit, neither the separate building nor any portion thereof may be used for family day care or group family day care; and

(vi) where a property includes a dwelling unit which is occupied and is not used for family day care or group family day care and there is a separate building on the property under the control of the occupant of the dwelling unit which does not contain a dwelling unit, upon inspection and approval by the office, the separate building or a portion thereof may be used by the occupant for family day care or group family day care by an occupant of the dwelling unit.

(13)Plan of study means a written plan which sets forth reasonable timeframes and shows continuous progress towards completion of the requirements for a degree or credential. If the plan is for a director of a program, the plan must be signed by the director and the office, and be overseen and monitored by the office. For all other individuals, the plan must be signed by the participant and the director of the program, and be overseen and monitored by the director.

(14)Preschooler means a child who is at least three years of age and who is not yet enrolled in kindergarten or a higher grade.

(15)Registration means a document issued by the office authorizing a registrant to operate a school-age child care program in accordance with Part 414 of this Title, a family day care home in accordance with Part 417 of this Title or a small day care center in accordance with Subpart 418-2 of this Title.

(16)School-aged child means a child under 13 years of age who is enrolled in kindergarten or a higher grade.

(17)Shift means an eight to ten hour period during which care is provided to a group of enrolled children.

(18)Toddler means a child 18 months to 36 months of age.

(19)Business interest means a share in the entity or decision rights within the ownership of the entity. Examples of a business interest include, but are not limited to, being a shareholder, partner or member of the entity.

(20)Safety plan is a written strategy in which the office imposes restrictions on a licensed or registered child care program when allegations of risk of harm to child(ren) exist in the program or are made against a person working, volunteering, visiting or living at the site of the child care program.

(21) Non-school hours shall mean any time a specific child is not physically required to be present in school as part of the regular school day, including during virtual and/or remote learning.

(22) Those periods of the year in which school is not in session shall mean any time a specific child is not physically required to be present in school as part of the regular school day, including during virtual and/or remote learning.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 413.2

Amended New York State Register June 3, 2020/Volume XLII, Issue 22, eff.6/3/2020

Amended New York State Register December 30, 2020/Volume XLII, Issue 52, eff. 12/30/2020

Amended New York State Register September 7, 2022/Volume XLIV, Issue 36, eff. 9/7/2022