N.Y. Comp. Codes R. & Regs. tit. 18 § 413.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 413.3 - Enforcement of regulations

(a)Types of enforcement actions.

Enforcement actions which may be undertaken by the office include, but are not limited to:

(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;

(2) meetings or telephone conversations between a program and the office to discuss corrective action plans;

(3) the holding of hearings to determine if a licensee or registrant has failed to comply with applicable law and regulation which resulted in the assessment of fines, suspension, limitation, revocation, or denial of the license or registration;

(4) determinations, after hearings, that civil penalties should be imposed;

(5) determinations to deny, reject, revoke, terminate, suspend or limit a license or registration;

(6) issuance of orders to cease and desist operation of day care services, commissioner's orders, or orders approved by a justice of the Supreme Court, requiring a person or entity to immediately remedy conditions dangerous to children receiving child day care;

(7) temporary suspension or limitation of a license or registration upon finding that the public health or child's safety or welfare are in imminent danger;

(8) requests to the Attorney General to seek injunctive relief against licensee or registrant for violations or threatened violations of law or regulation;

(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;

(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.

(b) Current records of visits and findings relative to the issuance, denial, rejection, revocation, termination, suspension or limitation of licenses or registrations, including documentation submitted by applicants or holders of licenses or registrations, must be maintained by the office as well as all criminal history records obtained by the office through criminal history record checks.

(c)Denial, rejection, limitation, suspension, revocation or termination of license or registration.

(1) Any violation of applicable statutes or regulations will be a basis to deny, reject, limit, suspend, revoke or terminate a license or registration.

(2) Consistent with article 23-A of the Correction Law and office guidelines referenced in subdivision two of section 425 of the Social Services Law, if the office is made aware of the existence of a criminal conviction or pending criminal charge concerning the owner of a family day care home, group family day care home, school-age child care program, or child day care center; or concerning any employee, caregiver or volunteer in such homes, programs, or centers; or any person age 18 or over who resides in such a home, such conviction or charge may be a basis to deny, reject, limit, suspend, revoke or terminate the license or registration. When the office is made aware of a conviction or charge, the office shall act in accordance with the provisions of section 413.4 of this Part.

(3) Before a license or registration is revoked or terminated, or when an application for a license or registration is denied or rejected, the applicant for or holder of such license or registration is entitled to a hearing before the office.

(4) The request for such hearing must be made in writing within 30 days of the receipt of written notice of the revocation, termination, denial or rejection.

(5) The revocation, termination, denial or rejection will become final if the applicant or holder fails to request a hearing within the 30 day period.

(6) The office may require the program to post the revocation or termination of licensure or registration on the premises of the facility.

(d)Suspensions or limitations of licenses or registrations.

(1) A license or registration will be temporarily suspended or limited in its terms without a hearing upon written notification to the holder of the license or registration by the office of a finding that the public health or a child's safety or welfare is in imminent danger.

(2) The holder of the license or registration has 10 days from the date of the written notice of the suspension or limitation of the license or registration to request a hearing before the office. Such a request must be in writing.

(3) Failure to make such a request will be prima facie evidence that the finding of imminent danger is valid, and the temporary suspension or limitation will continue in effect until the office has determined that the condition requiring such suspension or limitation is corrected or the license or registration is permanently revoked or terminated pursuant to subdivision (c) of this section.

(4) If the holder requests a hearing, the temporary suspension or limitation will continue in effect until the office has determined that the condition requiring such suspension or limitation is corrected, the license or registration is permanently revoked or terminated pursuant to subdivision (c) of this section, or a hearing decision orders the lifting of the suspension or limitation.

(5) The office may require the program to post the notice of suspension or limitation of licensure or registration on the premises of the facility.

(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.

(e)Fines.

Operating without a license or registration.

(1) A fine of up to $500 per day may be assessed against any person for the provision of child day care without a license or registration.

(2) Such a fine will not be imposed until a hearing has been conducted and a decision has been issued. It is the office's responsibility to request and schedule such hearings.

(3) Rectification of operation without a license or registration, either by becoming licensed or registered or by ceasing operation, will not preclude the assessment of a fine for the period of operation without a license or registration.

(f)Fines.

Registered and licensed programs.

(1) In addition to any other civil or criminal penalty provided by law including but not limited to the denial, rejection, termination, revocation, limitation or suspension of a license or registration, a fine of up to $500 per day may be assessed against any child day care provider for any violation of office regulations.

(2) Such a fine will not be imposed until a hearing has been conducted and a decision has been issued. It is the office's responsibility to request and schedule such hearings.

(3) Fines will be determined according to the following classifications:

(i) Class I violations are subject to a maximum fine of $500 a day. A Class I violation is defined as:

(a) any violation of a regulatory requirement which harms a child or places a child at risk of death, serious or protracted disfigurement, or protracted impairment of physical or emotional health, including but not limited to:

(1) the existence of any condition which constitutes or creates a serious fire, safety or health risk, including but not limited to a substantial failure of the facility's fire detection or prevention system or conditions which would prevent or impede emergency evacuation procedures;

(2) the use of corporal punishment or of frightening or humiliating methods of control or discipline;

(3) inadequate or incompetent supervision;

(4) inadequate light, ventilation, sanitation, food, water or heating; or

(5) repeated findings that the facility has exceeded its maximum permitted capacity. The term repeated as used in this subdivision includes any violation noted in more than one written inspection report prepared by the office and sent to the child day care licensee or registrant so that corrective action could be taken;

(b) the abuse of a child, as defined in section 1012 (e) of the Family Court Act, who is receiving care at the facility by the owner, caregivers, employees, director or any staff member of the program;

(c) the intentional failure to report instances of alleged child abuse or maltreatment to the Statewide Central Register of Child Abuse and Maltreatment and/or to take appropriate action to protect children when an allegation of such abuse or maltreatment is reported to a caregiver, employee or volunteer; or

(d) the refusal or failure to provide access to the day care facility to a representative from the office for the purpose of inspecting the facility for compliance with the requirements of office regulations.

(ii) Class II violations are subject to a maximum fine of $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 $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.

(4) Where a child care licensee or registrant demonstrates that corrective action has been taken within 30 days of notification of the violation, a fine will not be imposed, except in cases where:

(i) the office determines, after a hearing, that:

(a) there has been a total or substantial failure of the facility's fire detection or prevention systems or emergency evacuation procedures prescribed by office regulation;

(b) a caregiver, employee or volunteer has failed to provide adequate and competent supervision as prescribed by office regulation;

(c) a caregiver, employee or volunteer has failed to provide adequate sanitation as required by office regulation and by State and local departments of health;

(d) a caregiver, employee, volunteer, or a household member, has injured a child in care, unreasonably failed to obtain medical attention for a child in care requiring such attention, used corporal punishment against a child in care or has abused or maltreated a child in care; or

(e) the program has violated the same statutory or regulatory standard more than once within a six-month period; or

(f) the child care provider, caregiver, employee or volunteer has failed to make a report of suspected child abuse or maltreatment when required to do so pursuant to this section; or

(g) the child care provider, caregiver, employee or volunteer has submitted to the office a forged document as defined in section 170.00 of the Penal Law.

(ii) the office determines, after a hearing, that a person has refused to obtain a license or registration or continued to operate a child care program after denial of an application, revocation of a license or termination of a registration.

(g)Complaint procedures.

(1) The office, through duly authorized representatives or agents of the office, may make announced or unannounced inspections of the records and premises of any child day care program, whether or not such program is licensed by or registered with the office. To the maximum extent possible, the office will make unannounced inspections of the records and premises of any program after the office receives a complaint that, if true, would indicate such program does not comply with the regulations of the office or with statutory requirements.

(2) Child day care programs must admit inspectors and other representatives of the office onto the grounds and premises at any time during their hours of operation as those hours are documented in the application or while children are in care for the purpose of conducting inspections. Such inspectors and representatives must be given free access to the entire grounds and premises used by the program, staff and children, and to program records of the program.

(3) Posting of compliance history report and notice of suspension or limitation.

(i) The office 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 the most recent compliance history 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 30 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 subparagraph (i) or (ii) of this paragraph must also be posted on the child day care program's website, if possible.

(4) Failure to comply with the requirement to be licensed or registered.

(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.

(5) An unlicensed or unregistered program suspected of operating a child care program for which a license or registration is required must, upon request of the office, submit a signed statement explaining how the individual providing care is related to a parent or step-parent of every child in care. The office may request a signed statement from the parent or step-parent of each child, stating the familial relationship to the individual providing care. In the absence of any documentation, the office may determine that the individual providing care is not related to the parent or step-parent within the third degree of consanguinity.

(h)Additional local standards, inspections and participation in activities.

(1) Where an authorized agency, as defined in Social Services Law section 371, is subsidizing child day care pursuant to New York State Social Services Law, the authorized agency may submit to the office, justification for a need to impose additional requirements upon licensed or registered child care programs and a plan to monitor compliance with such additional requirements. No such additional requirements or monitoring may be imposed without the written approval of the office.

(2) An authorized agency may refuse to allow a licensed or registered child care program that is not in compliance with Social Services Law, office regulations, or any approved additional requirements of the authorized agency to provide child day care to the child. In accordance with the plan approved by the office, an authorized agency shall have the right to make announced or unannounced inspections of the records and premises of any program who provides care for such children, including the right to make inspections prior to subsidized children receiving care in a home where the inspection is for the purpose of determining whether the program is in compliance with applicable law and regulations and any additional requirements imposed upon such program by the authorized agency. Where an authorized agency makes such inspections, the authorized agency shall notify the office immediately of any violations of this section or regulations promulgated hereunder, and shall provide the office with an inspection report whether or not violations were found, documenting the results of such inspection.

(3) Nothing contained herein shall diminish the authority of the office to conduct inspections or provide for inspections through purchase of services. Nothing contained herein shall obligate the office to take any action to enforce any additional requirements imposed on licensed or registered programs by an authorized agency.

(4) Individual local social services districts may alter their participation in activities related to arranging for, subsidizing, delivering and monitoring the provision of subsidized child day care provided, however, that the total participation of an individual district in all activities related to the provision of subsidized child day care shall be no less than the participation level engaged in by such individual district as required by Social Services Law section 390(3)(f).

(i) An applicant, licensee or registrant may apply or reapply as described in Parts 414, 416, 417 and 418 of this Title, as applicable.

(j) Denial of a new or pending application for licensure or registration, after a program has been involved in an enforcement action.

(1) The office shall deny a new application for licensure or registration made by an individual or entity whose license or registration was previously revoked or terminated, for a period of two years from the date that the revocation or termination of the license or registration became finally effective, unless the office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of children in care. For this purpose, the date that the revocation or termination became finally effective shall be, as applicable:

(i) the date the revocation or termination became effective based on the notice of revocation or termination;

(ii) the date the hearing decision was issued upholding the revocation or termination;

(iii) the date of issuance of a final court order affirming the revocation or termination or affirming a hearing decision that upheld the revocation or termination; or

(iv) another date mutually agreed upon by the office and the licensee or registrant.

(2) The office shall deny a new application for licensure or registration made by an individual or entity who is enjoined or otherwise prohibited by a court order from operation of a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the court order unless the court order specifically enjoins the individual or entity from providing day care for a period longer than two years, in which case the office shall deny any new application made by the individual or entity while so enjoined.

(3) The office shall deny a new application for licensure or registration made by an individual or entity who is assessed a second civil penalty by such office for having operated a day care center, group family day care home, family day care home or school-age child care program without a license or registration for a period of two years from the date of the second fine. For this purpose, the date of the second fine shall be either the date upon which the individual or entity signs a stipulation agreement to pay the second fine or the date upon which a hearing decision is issued affirming the determination of such office to impose the second fine, as applicable.

(4) A licensee or registrant who surrenders a license or registration while the office is engaged in enforcement seeking suspension, revocation or termination of the license or registration, shall be deemed to have had the license or registration revoked or terminated and shall be subject to the prohibitions against licensing or registration pursuant to paragraph (1) of this subdivision for a period of two years from the date of surrender of the license or registration.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 413.3

Amended New York State Register September 28, 2016/Volume XXXVIII, Issue 39, eff. 9/28/2016

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