Bill Text: NY S07743 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to defining "critical violations" of applicable statutes and regulations by child care providers licensed or registered by the office of children and family services; the imposition of sanctions and penalties for such violations by the office of children and family services; and processes for administrative appeal of such sanctions and penalties.
Spectrum: Bipartisan Bill
Status: (Introduced) 2024-05-21 - REPORTED AND COMMITTED TO FINANCE [S07743 Detail]
Download: New_York-2023-S07743-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7743 2023-2024 Regular Sessions IN SENATE November 13, 2023 ___________ Introduced by Sen. BRISPORT -- 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 defining crit- ical violations by child care providers; establishing a portal for child care providers to self-report critical violations; clarifying certain sanctions, penalties, and other disciplinary actions taken by the office of children and family services against child care provid- ers for critical violations; and specifying procedures for child care providers to appeal such sanctions, penalties, and disciplinary actions The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 390 of the social services law is 2 amended by adding four new paragraphs (h), (i), (j) and (k) to read as 3 follows: 4 (h) (i) "Critical violation" shall mean: 5 (A) a fatality, near fatality, or serious physical or emotional injury 6 of a child who is in the custody of or receiving services from a child 7 care provider licensed or registered by the office of children and fami- 8 ly services; or 9 (B) circumstances which result in a reasonable belief that a child 10 care provider licensed or registered by the office of children and fami- 11 ly services failed in its duty to protect a child and, as a result, the 12 child was at imminent risk of, or suffered serious physical or emotional 13 injury or death. 14 (ii) Examples of critical violations may include the failure to 15 provide proper supervision of children or comply with health and safety 16 regulations, inadequate staffing levels, and child abuse and maltreat- 17 ment. 18 (i) "Serious physical or emotional injury" shall mean an injury which 19 causes or creates a substantial risk of death, extreme physical pain, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11238-01-3S. 7743 2 1 serious or protracted disfigurement, protracted impairment of physical 2 or emotional health, or protracted loss or impairment of the function of 3 any bodily member, organ, or mental faculty. 4 (j) "Abused child" shall mean a child, less than eighteen years of 5 age, whose parent or other person legally responsible for such child's 6 care: 7 (i) inflicts or allows to be inflicted upon such child serious phys- 8 ical or emotional injury by other than accidental means; 9 (ii) creates or allows to be created a substantial risk of serious 10 physical or emotional injury to such child by other than accidental 11 means; 12 (iii) commits, or allows to be committed, a sex offense, as defined in 13 article one hundred thirty of the penal law, against such child; 14 (iv) permits or encourages such child to engage in any act described 15 in article two hundred thirty of the penal law; 16 (v) commits any of the acts described in section 255.25 of the penal 17 law; or 18 (vi) allows such child to engage in acts or conduct described in arti- 19 cle two hundred sixty-three of the penal law; provided, however, that 20 the corroboration requirements contained in the penal law and the age 21 requirement for the application of article two hundred sixty-three of 22 the penal law shall not apply to proceedings under article ten of the 23 family court act. 24 (k) "Maltreated child" shall mean a child, less than eighteen years of 25 age: 26 (i) whose physical, mental, or emotional condition has been impaired 27 or is in imminent danger of becoming impaired as a result of the failure 28 of such child's parent or other person legally responsible for such 29 child's care to exercise a minimum degree of care in: 30 (A) supplying such child with adequate food, clothing, shelter, or 31 education pursuant to part one of article sixty-five of the education 32 law; or medical, dental, optometrical, or surgical care, if such parent 33 or other person legally responsible for such child's care is financially 34 able to do so or offered financial or other reasonable means to do so; 35 or 36 (B) providing such child with proper supervision or guardianship, by 37 unreasonably inflicting or allowing to be inflicted harm, or a substan- 38 tial risk thereof, including the infliction of excessive corporal 39 punishment; misusing a drug or drugs; misusing alcoholic beverages to 40 the extent that such parent or other person legally responsible for such 41 child's care loses self-control of their actions; or any other acts of a 42 similarly serious nature requiring the aid of the court; provided, 43 however, that where such parent or other person legally responsible for 44 such child's care is voluntarily and regularly participating in a reha- 45 bilitative program, evidence that such parent or other person legally 46 responsible has repeatedly misused a drug or drugs or alcoholic beverag- 47 es to the extent that such parent or other person legally responsible 48 loses self-control of their actions shall not alone establish that the 49 child is a neglected or maltreated child in the absence of evidence 50 establishing that such child's physical, mental, or emotional condition 51 has been impaired or is in imminent danger of becoming impaired pursuant 52 to this subparagraph; 53 (ii) who has been abandoned by such child's parent or other person 54 legally responsible for such child's care; or 55 (iii) who has had serious physical or emotional injury inflicted upon 56 such child by other than accidental means.S. 7743 3 1 § 2. Clause (C) of subparagraph (ii) of paragraph (d) of subdivision 2 2 of section 390 of the social services law, as amended by chapter 416 of 3 the laws of 2000, is amended to read as follows: 4 (C) Where the office of children and family services has determined 5 that a registration should not be continued because the requirements of 6 clause (B) of this subparagraph have not been satisfied, the office of 7 children and family services may terminate the registration. [If the8office of children and family services does not terminate the registra-9tion, the] The office of children and family services shall inspect the 10 home or program before terminating the registration or acknowledging any 11 subsequent registration. Where the home or program has failed to meet 12 the requirements of this section, the office of children and family 13 services may reject any subsequent registration of a provider. Nothing 14 herein shall prohibit the office of children and family services from 15 terminating or suspending registration pursuant to subdivision ten of 16 this section where the office of children and family services determines 17 that termination or suspension is necessary. 18 § 3. Paragraph (b) of subdivision 3 of section 390 of the social 19 services law, as amended by section 5 of part H of chapter 56 of the 20 laws of 2019, is amended to read as follows: 21 (b) (i) Where inspections have been made and violations of applicable 22 statutes or regulations have been found, the office of children and 23 family services or its designee shall, within ten days, advise the child 24 day care provider or enrolled legally-exempt provider in writing of the 25 violations and require the provider to correct such violations as speci- 26 fied in a corrective action plan. [The office of children and family27services may also act pursuant to subdivisions ten and eleven of this28section.] 29 (ii) The corrective action plan shall: 30 (A) include a statement of observations of the violations; 31 (B) indicate which statutes or regulations the holder of a license or 32 child care provider has violated; 33 (C) prescribe the method or methods of compliance with the statutes or 34 regulations; and 35 (D) prescribe a reasonable time period for correction of the 36 violations, depending on the nature of such violations and the time 37 required for correction. 38 (iii) Where inspections have been made and critical violations of 39 applicable statutes or regulations have been found, the office of chil- 40 dren and family services or its designee [shall, within ten days, advise41the enrolled legally-exempt provider] may, in [writing] a notice of 42 sanction, impose one or more sanctions, which may include but shall not 43 be limited to: 44 (A) ceasing the enrollment of new children; 45 (B) reducing the [violations] number of children that a program or 46 component of a program is licensed to serve; 47 (C) hiring one or more consultants to provide technical assistance 48 and/or training; 49 (D) hiring additional staff on a temporary or permanent basis; 50 (E) hiring a monitor selected by and [require] accountable to the 51 [provider] office of children and family services; and 52 (F) restricting an administrator and/or staff person's access to 53 [correct such violations] children. 54 § 4. Section 390 of the social services law is amended by adding a new 55 subdivision 3-a to read as follows:S. 7743 4 1 3-a. (a) (i) Child care providers licensed or registered pursuant to 2 subdivision two of this section shall notify the office of children and 3 family services within forty-eight hours upon learning of an incident 4 involving a critical violation. 5 (ii) The office of children and family services shall develop an 6 online portal for licensed or registered child care providers to self- 7 report critical violations and receive information regarding next steps 8 in the licensing, registration, investigation, or disciplinary process, 9 including but not limited to: 10 (A) a list of violations of applicable statutes or regulations that 11 constitute critical violations; 12 (B) possible sanctions or other actions that may be taken by the 13 office of children and family services in response to reports of crit- 14 ical violations; and 15 (C) appropriate corrective actions that may be taken by the child care 16 provider to come into compliance with applicable statutes or regulations 17 and avoid further violations. 18 (b) Child care providers licensed or registered pursuant to subdivi- 19 sion two of this section shall notify the parent or guardian as soon as 20 possible upon learning of the following events involving a child which 21 occurred while such child was under the care of such child care provider 22 at the program or facility or was being transported by such program: 23 (i) death; 24 (ii) serious incident; 25 (iii) serious injury; 26 (iv) serious condition; 27 (v) communicable disease; 28 (vi) transportation to a hospital; or 29 (vii) any other incident involving a critical violation. 30 § 5. Subdivision 10 of section 390 of the social services law, as 31 amended by chapter 416 of the laws of 2000, is amended to read as 32 follows: 33 10. (a) Any home or facility providing child day care shall be oper- 34 ated in accordance with applicable statutes and regulations. Any crit- 35 ical violation of applicable statutes or regulations shall be a basis to 36 deny, limit, suspend, revoke, or terminate a license or registration. 37 (b) Additional bases to deny, limit, suspend, revoke, or terminate a 38 license or registration shall include a finding that the holder of such 39 license or registration: 40 (i) failed to comply with any applicable statute or regulation, or any 41 corrective action plan, notice of sanction, suspension, or terms of 42 probation; 43 (ii) failed to pay a fine after either failing to appeal the assess- 44 ment of a fine within the prescribed time or a hearing where assessment 45 of a fine was upheld; 46 (iii) submitted any misleading or false statement or report required 47 under applicable statutes or regulations; 48 (iv) refused to submit any report or make available any records 49 required under applicable statutes or regulations; 50 (v) refused to admit, at a reasonable time, any employee of the office 51 of children and family services authorized by the commissioner of such 52 office to investigate or inspect a program or facility pursuant to para- 53 graph (a) of subdivision three of this section; or 54 (vi) failed to obtain a license prior to opening a program or facility 55 or changing the location of a program or facility.S. 7743 5 1 (c) Consistent with articles twenty-three and twenty-three-A of the 2 correction law, and guidelines referenced in subdivision two of section 3 four hundred twenty-five of this article, if the office of children and 4 family services is made aware of the existence of a criminal conviction 5 or pending criminal charge concerning an operator of a family day care 6 home, group family day care home, school-age child care program, or 7 child day care center or concerning any assistant, employee or volunteer 8 in such homes, programs or centers, or any persons age eighteen or over 9 who reside in such homes, such conviction or charge may be a basis to 10 deny, limit, suspend, revoke, reject, or terminate a license or regis- 11 tration. 12 (d) Before any license [issued] or registration is denied, limited, 13 suspended, revoked, rejected, or terminated pursuant to [the provisions] 14 paragraph (a), (b) or (c) of this [section is suspended or revoked,15before registration pursuant to this section is suspended or terminated] 16 subdivision, the office of children and family services shall conduct an 17 investigation of any critical violations, including an inspection of the 18 program or facility pursuant to paragraph (a) of subdivision three of 19 this section. 20 (e) (i) Before any license or registration is denied, limited, 21 suspended, revoked, rejected, or terminated pursuant to paragraph (a), 22 (b) or (c) of this subdivision, or when an application for such license 23 is denied or registration rejected, the applicant for or holder of such 24 registration or license is entitled, pursuant to section twenty-two of 25 this chapter and the regulations of the office of children and family 26 services, to a hearing before the office of children and family 27 services. However, a license or registration shall be temporarily 28 suspended or limited without a hearing upon written notice to the opera- 29 tor of the facility following a finding that the public health, or an 30 individual's safety or welfare, are in imminent danger. Such written 31 notice shall be hand delivered, mailed to such holder of a registration 32 or license via first class mail, certified or registered, return receipt 33 requested, or delivered by courier requiring a signed receipt. 34 (ii) Upon temporary suspension or limitation of a license or registra- 35 tion pursuant to subparagraph (i) of this paragraph, the holder of such 36 license or registrant shall immediately return such license or registra- 37 tion to the office of children and family services and cease providing 38 services. The licensee or registrant shall notify the parents or guardi- 39 ans of all children enrolled in the program or facility of any such 40 suspension or limitation within two business days of receipt of written 41 notice from the office of children and family services. 42 (iii) (A) The holder of a license or registrant is entitled to a hear- 43 ing before the office of children and family services to contest the 44 temporary suspension or limitation. If the holder of a license or regis- 45 trant requests a hearing to contest the temporary suspension or limita- 46 tion, such hearing must be scheduled to commence as soon as possible but 47 in no event later than thirty days after the receipt of the request by 48 the office of children and family services. [Suspension] The suspension 49 or limitation shall continue until the condition requiring suspension or 50 limitation is corrected or until a hearing decision has been issued. 51 (B) The sole issue at a hearing held pursuant to clause (A) of this 52 subparagraph shall be whether the office of children and family services 53 has reason to believe that the licensee's or registrant's failure to 54 comply with any applicable statutes or regulations resulted in an emer- 55 gency situation in which the public health, or an individual's safety or 56 welfare, was in imminent danger. A finding that any abuse or neglectS. 7743 6 1 occurred at the program or facility shall be prima facie evidence that 2 such emergency situation exists. 3 (C) If the office of children and family services determines after a 4 hearing held pursuant to clause (A) of this subparagraph that the tempo- 5 rary suspension or limitation was proper, such suspension or limitation 6 shall be extended until the condition requiring suspension or limitation 7 has been corrected or until the license or registration has been 8 revoked. 9 (iv) Any party aggrieved by a final decision of the office of children 10 and family services in any adjudicatory proceeding under this paragraph 11 may petition for judicial review pursuant to section twenty-two of this 12 chapter. 13 § 6. Subparagraphs (i), (iii) and (iv) of paragraph (a) of subdivision 14 11 of section 390 of the social services law, as amended by chapter 416 15 of the laws of 2000, are amended to read as follows: 16 (i) The office of children and family services shall adopt regulations 17 establishing civil penalties of no more than five hundred dollars per 18 day to be assessed against child day care centers, school age child care 19 programs, group family day care homes or family day care homes for crit- 20 ical violations of this section, sections three hundred ninety-a and 21 three hundred ninety-b of this title and any regulations promulgated 22 thereunder. The regulations establishing civil penalties shall specify 23 the violations subject to penalty. 24 (iii) In addition to any other civil or criminal penalty provided by 25 law, the office of children and family services shall have the power to 26 assess civil penalties in accordance with its regulations adopted pursu- 27 ant to this subdivision after a hearing conducted in accordance with 28 procedures established by regulations of the office of children and 29 family services. Such procedures shall require that notice of the time 30 and place of the hearing, together with a statement of charges of 31 violations, shall be served in person or by certified mail addressed to 32 the school age child care program, group family day care home, family 33 day care home, or child day care center at least thirty days prior to 34 the date of the hearing. The statement of charges shall set forth the 35 existence of the critical violation or violations, the amount of penalty 36 for which the program may become liable, the steps which must be taken 37 to rectify [the] such violation or violations, and where applicable, a 38 statement that a penalty may be imposed regardless of rectification. A 39 written answer to the charges of critical violations shall be filed with 40 the office of children and family services not less than ten days prior 41 to the date of hearing with respect to each of the charges and shall 42 include all material and relevant matters which, if not disclosed in the 43 answer, would not likely be known to the office of children and family 44 services. 45 (iv) The hearing shall be held by the commissioner of the office of 46 children and family services or the commissioner's designee. The burden 47 of proof at such hearing shall be on the office of children and family 48 services to show that the charges are supported by a preponderance of 49 the evidence. The commissioner of the office of children and family 50 services or the commissioner's designee, in his or her discretion, may 51 allow the child day care center operator or provider to attempt to prove 52 by a preponderance of the evidence any matter not included in the 53 answer. Where the child day care provider satisfactorily demonstrates 54 that it has rectified the critical violations in accordance with the 55 requirements of paragraph (c) of this subdivision, no penalty shall be 56 imposed except as provided in paragraph (c) of this subdivision.S. 7743 7 1 § 7. Subparagraph (i) of paragraph (b) of subdivision 11 of section 2 390 of the social services law, as amended by chapter 416 of the laws of 3 2000, is amended to read as follows: 4 (i) In assessing penalties pursuant to this subdivision, the office of 5 children and family services may consider the completeness of any recti- 6 fication of critical violations made and the specific circumstances of 7 such critical violations as mitigating factors. 8 § 8. Subparagraph (i) of paragraph (c) of subdivision 11 of section 9 390 of the social services law, as amended by chapter 117 of the laws of 10 2010, is amended to read as follows: 11 (i) Except as provided for in this paragraph, a child day care provid- 12 er shall avoid payment of a penalty imposed pursuant to this subdivision 13 where the provider has rectified the condition which resulted in the 14 imposition of the penalty within thirty days of notification of the 15 existence of the critical violation of statute or regulation. 16 § 9. The opening paragraph of subparagraph (i) of paragraph (e) of 17 subdivision 11 of section 390 of the social services law, as added by 18 chapter 117 of the laws of 2010, is amended to read as follows: 19 The office of children and family services shall deny a new applica- 20 tion for licensure or registration made by a day care provider whose 21 license or registration was previously revoked or terminated based on a 22 critical violation of statute or regulation for a period of two years 23 from the date that the revocation or termination of the license or 24 registration became finally effective, unless such office determines, in 25 its discretion, that approval of the application will not in any way 26 jeopardize the health, safety or welfare of children in the center, 27 program or home. For the purposes of this paragraph, the date that the 28 revocation or termination became finally effective shall be, as applica- 29 ble: 30 § 10. Section 390 of the social services law is amended by adding a 31 new subdivision 11-a to read as follows: 32 11-a. (a) (i) Within seven days of receipt of a corrective action plan 33 or notice of sanction pursuant to paragraph (b) of subdivision three of 34 this section, a child care provider licensed or registered pursuant to 35 subdivision two of this section may file with the commissioner of the 36 office of children and family services a written request for administra- 37 tive reconsideration. Such request shall be limited to direct and 38 specific reasons why such notice of sanction or any item in such correc- 39 tive action plan or any portion thereof should be rescinded or modified, 40 and the approximate times requested by such child care provider to take 41 corrective measure, if any. 42 (ii) Within fifteen business days after receipt of such request for 43 administrative reconsideration, the commissioner of the office of chil- 44 dren and family services shall grant, deny, or otherwise act on such 45 request. 46 (iii) Filing such request for administrative reconsideration shall not 47 alter the time required for compliance with such notice of sanction or 48 corrective action plan. 49 (b) (i) An applicant for or a holder of a license or registration 50 whose license or registration the office of children and family services 51 intends to deny, limit, refuse to renew, make probationary, suspend, 52 revoke, or terminate pursuant to subdivision ten of this section, or 53 whom the office of children and family services intends to fine pursuant 54 to subdivision eleven of this section, may request a hearing pursuant to 55 section twenty-two of this chapter.S. 7743 8 1 (ii) The hearing officer shall enter a recommended decision regarding 2 the intention of the office of children and family services to deny, 3 limit, refuse to renew, make probationary, suspend, revoke, or terminate 4 a license or registration pursuant to subdivision ten of this section or 5 fine an applicant for or a holder of a license or registration pursuant 6 to subdivision eleven of this section. A final decision shall be issued 7 by the commissioner of the office of children and family services. 8 Hearings shall be held pursuant to regulations to be determined by the 9 commissioner of the office of children and family services. 10 (iii) Failure of an applicant for or a holder of a license or regis- 11 tration to request a hearing and file timely answers may be deemed a 12 waiver of such right and a final decision may be entered without further 13 notice. 14 (iv) Any party aggrieved by a final decision of the office of children 15 and family services in any adjudicatory proceeding under this paragraph 16 may petition for judicial review pursuant to section twenty-two of this 17 chapter. 18 (c) (i) Upon the expiration of the time periods prescribed in a 19 corrective action plan or notice of sanction issued pursuant to para- 20 graph (b) of subdivision three of this section, a duly authorized 21 employee of the office of children and family services shall determine 22 compliance with such plan or notice by visiting the facility or program, 23 reviewing documents, and/or verifying compliance through whatever other 24 means the office of children and family services deems suitable. If a 25 determination of non-compliance with such plan or notice is made, the 26 office of children and family services may issue an additional correc- 27 tive action plan or take any other action pursuant to subdivisions ten 28 and eleven of this section. 29 (ii) Following the suspension, revocation, rejection, or termination 30 of a license or registration pursuant to paragraph (a), (b), or (c) of 31 subdivision ten of this section, a duly authorized employee of the 32 office of children and family services shall determine compliance with 33 applicable statutes or regulations by visiting the facility or program, 34 reviewing documents, and/or verifying compliance through any other means 35 the office of children and family services deems suitable. 36 (d) Factors which the office of children and family services shall 37 consider before imposing any sanction or fine or any other action 38 authorized pursuant to paragraph (b) of subdivision three and subdivi- 39 sions ten and eleven of this section shall include, but shall not be 40 limited to, the following: 41 (i) any violations of applicable statutes or regulations at the facil- 42 ity or program; 43 (ii) the risk the violations present to the health, safety, and 44 welfare of children, including whether such violations are critical 45 violations; 46 (iii) the nature, scope, severity, degree, number, and frequency of 47 the violations; 48 (iv) the failure of a holder of a license or registrant to correct the 49 violations; 50 (v) any previous violations; and 51 (vi) any previous enforcement actions. 52 § 11. This act shall take effect on the ninetieth day after it shall 53 have become a law. Effective immediately, the addition, amendment and/or 54 repeal of any rule or regulation necessary for the implementation of 55 this act on its effective date are authorized to be made and completed 56 on or before such effective date.
