Tapia, Lunsford, Glick, Clark, Meeks, Gonzalez-Rojas, Solages, Simpson, Jensen, Brown K
MLTSPNSR
Amd §390, Soc Serv L
Directs the office of children and family services to establish an outdoor, nature-based child care program to allow for the operation of licensed outdoor, nature-based child care classrooms which provide early learning services for preschool or school-age children in an outdoor space and that employ a curriculum with nature to teach enrolled children.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5352A
SPONSOR: Kelles TITLE OF BILL:
An act to amend the social services law, in relation to outdoor,
nature-based child care
PURPOSE:
The purpose of this act is to amend Article 6 of the Social Services Law
Part 390 of Title 1 of the Child day care; license or registration
required; to include outdoor childcare providers
SUMMARY OF PROVISIONS:
Sec. 1 - legislative findings and statement of purpose
Sec. 2 - amends section 390 of the social services law by adding a new
paragraph (h) to define "outdoor, nature-based child care";
Sec. 3 - amends section 390 of the social services law by adding a new
subdivision 2-b to provide that the OCFS shall establish an outdoor,
nature-based child care program and may adopt rules and regulations to
implement the program, waiving or adapting certain existing licensing
requirements designed for indoor child care facilities where necessary;
Sec. 4 - effective date.
JUSTIFICATION:
The establishment of licensed outdoor nature-based child care programs
recognizes the importance of nature in children's development. Numerous
studies have shown that exposure to nature enhances cognitive abilities,
creativity, problem-solving skills, and overall mental health. By
providing children with access to outdoor learning environments, this
program will contribute to their holistic development and well-being.
Outdoor activities promote physical fitness and reduce the risk of
obesity and related health issues among children. The licensed outdoor
nature-based child care program will encourage children to engage in
physical activities such as running, climbing, and exploring nature,
fostering a healthy lifestyle from an early age. By immersing children
in natural environments, outdoor childcares can foster a sense of
connection and appreciation for the natural world. This early exposure
to nature will help instill environmental values and promote sustainable
practices among future generations. Children who grow up with a strong
connection to nature are more likely to become environmentally conscious
adults, contributing to the preservation and conservation of our natural
resources.
This bill would create a new child care licensing category in New York
State which is not subject to some of the building requirements appro-
priate for indoor childcares, making it more financially feasible for
new outdoor child care providers to enter the market, providing much-
needed new child care slots in alternative settings.
LEGISLATIVE HISTORY:
none
FISCAL IMPLICATIONS:
none
EFFECTIVE DATE:
immediately
STATE OF NEW YORK
________________________________________________________________________
5352--A
2025-2026 Regular Sessions
IN ASSEMBLY
February 13, 2025
___________
Introduced by M. of A. KELLES, TAPIA, LUNSFORD, GLICK, CLARK, MEEKS,
GONZALEZ-ROJAS, SOLAGES, SIMPSON, JENSEN, K. BROWN -- read once and
referred to the Committee on Children and Families -- reported and
referred to the Committee on Codes -- reported and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the social services law, in relation to outdoor,
nature-based child care
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and statement of purpose. The legisla-
2 ture hereby finds that it is in the interest of the state to provide
3 children with the opportunity to learn and develop in natural outdoor
4 environments. Not only do outdoor activities promote physical fitness
5 and reduce the risk of obesity and related health issues among children,
6 but numerous studies have shown that exposure to nature enhances cogni-
7 tive abilities, creativity, problem-solving skills, and overall mental
8 health. In addition, outdoor child care fosters a sense of connection
9 and appreciation for the natural environment, promotes the development
10 of self-efficacy, autonomy, and overall confidence in interacting with
11 the natural environment, instills environmental values, and promotes
12 sustainable practices.
13 The purpose of this act is to recognize the importance of nature in
14 children's development by providing them with access to outdoor learning
15 environments, thereby encouraging them to engage in physical activities
16 and explore nature, fostering a naturally healthy lifestyle from an
17 early age and contributing to the development and well-being of children
18 in our state and, ultimately, contributing to the preservation and
19 conservation of our natural resources.
20 § 2. Subdivision 1 of section 390 of the social services law is
21 amended by adding a new paragraph (h) to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08350-04-5
A. 5352--A 2
1 (h) "Outdoor, nature-based child care" shall mean a program caring for
2 children that: (i) enrolls preschool or school-age children; (ii)
3 provides early learning services in an outdoor space for not less than
4 four hours per day or fifty percent of the total daily program hours,
5 whichever is less; and (iii) employs a curriculum with nature to teach
6 enrolled children.
7 § 3. Section 390 of the social services law is amended by adding a new
8 subdivision 2-b to read as follows:
9 2-b. (a) The office of children and family services shall establish an
10 outdoor, nature-based child care program, shall adopt rules and regu-
11 lations to implement such program, and may waive or adapt existing child
12 care licensing requirements designed for indoor child care facilities
13 where necessary in order to allow for the operation of licensed outdoor,
14 nature-based child care classrooms, including but not limited to rules
15 for: (i) ensuring adequate shelter to ensure safety during inclement
16 weather but not requiring a building configured for indoor program
17 delivery; (ii) use of buildings for emergencies; (iii) fire drills for
18 programs without a permanent indoor space; (iv) requirements related to
19 the safety of children during inclement weather conditions and account-
20 ing for outdoor hazards; (v) reporting of falls, cuts, and scrapes, or
21 other minor non-emergency injuries; (vi) additional training for staff
22 in skills for outdoor child care settings, including outdoor classroom
23 management, behavior management, risky play analysis, directional profi-
24 ciency in the use of cardinal directions, compasses, and the navigation
25 of natural terrain, familiarity with flora and fauna, wilderness first
26 aid and skills; and (vii) minimum standards for an outdoor, nature-
27 based, early learning curriculum.
28 (b) The office of children and family services shall convene an advi-
29 sory group of outdoor, nature-based early learning practitioners to
30 inform and support implementation of the outdoor, nature-based child
31 care program. Such advisory group shall review best practices and
32 research for outdoor education and child care in outdoor education
33 settings and help inform the development of outdoor, nature-based child
34 care regulations, including minimum standards for a nature-based early
35 learning curriculum. The advisory group shall be compensated only for
36 travel.
37 (c) The office of children and family services shall establish a pilot
38 program for licensed outdoor, nature-based child cares in order to:
39 (i) expand access to affordable, high-quality early learning and child
40 care programs; and
41 (ii) investigate the benefits of outdoor, nature-based classrooms.
42 (d) The office of children and family services shall select, or devel-
43 op with eligible child care providers, up to ten outdoor, nature-based
44 child care programs to participate in the pilot program during the first
45 year of the pilot program.
46 (e) when selecting and approving outdoor, nature-based child care
47 programs to participate in the pilot program, the office of children and
48 family services shall:
49 (i) give priority to:
50 (1) existing outdoor, nature-based child care programs that are
51 already licensed as camps; and
52 (2) existing licensed child care centers or registered family child
53 care homes seeking to expand into nature-based early learning;
54 (3) areas where there are few or limited licensed child care programs;
55 and
A. 5352--A 3
1 (4) areas of need where licensed child care programs are at or near
2 full capacity, and where access may be restricted by enrollment wait-
3 lists.
4 (ii) to the extent practicable, select a mix of rural, urban, and
5 suburban programs.
6 (f) Within two years after the establishment of the pilot program, the
7 office of children and family services shall prepare and publish a
8 report on the activities and outcomes of the outdoor, nature-based child
9 care pilot program.
10 § 4. Subdivision 2 of section 390 of the social services law, as added
11 by chapter 750 of the laws of 1990, paragraph (a) as amended by section
12 3, clause (A) of subparagraph (ii) of paragraph (d) as amended by
13 section 4 and paragraph (d-1) as added by section 2-a of part H of chap-
14 ter 56 of the laws of 2019 and subparagraphs (i) and (ii) of paragraph
15 (d) as amended by chapter 416 of the laws of 2000, is amended to read as
16 follows:
17 2. (a) Child day care centers or outdoor, nature-based child cares
18 caring for seven or more children and group family day care programs, as
19 defined in subdivision one of this section, shall obtain a license from
20 the office of children and family services and shall operate in accord-
21 ance with the terms of such license and the regulations of such office.
22 Initial licenses and subsequent licenses shall be valid for a period of
23 up to four years so long as the provider remains substantially in
24 compliance with applicable law and regulations during such period.
25 (b) Family day care homes, child day care centers caring for at least
26 three but fewer than seven children, outdoor, nature-based child cares,
27 and school-age child care programs shall register with the department
28 and shall operate in compliance with the regulations of the department.
29 (c) Any child day care provider not required to obtain a license
30 pursuant to paragraph (a) of this subdivision or to register with the
31 department pursuant to paragraph (b) of this subdivision may register
32 with the department.
33 (d) (i) The office of children and family services shall promulgate
34 regulations for licensure and for registration of child day care pursu-
35 ant to this section. Procedures for obtaining a license or registration
36 or renewing a license shall include a satisfactory inspection of the
37 facility or outdoor, nature-based child care by the office of children
38 and family services prior to issuance of the license or registration or
39 renewal of the license.
40 (ii) (A) Initial registrations and subsequent registrations shall be
41 valid for a period of up to four years so long as the provider remains
42 substantially in compliance with applicable law and regulations during
43 such period.
44 (B) After initial registration by the child day care provider, the
45 office of children and family services shall not accept any subsequent
46 registration by such provider, unless:
47 (1) such provider has met the training requirements set forth in
48 section three hundred ninety-a of this title;
49 (2) such provider has met the requirements of section three hundred
50 ninety-b of this title relating to criminal history screening;
51 (3) such provider has complied with the requirements of section four
52 hundred twenty-four-a of this article; and
53 (4) the office of children and family services has received no
54 complaints about the home, center, outdoor, nature-based child care, or
55 program alleging statutory or regulatory violations, or, having received
56 such complaints, the office of children and family services has deter-
A. 5352--A 4
1 mined, after inspection pursuant to paragraph (a) of subdivision three
2 of this section, that the home, center, outdoor, nature-based child
3 care, or program is operated in compliance with applicable statutory and
4 regulatory requirements.
5 (C) Where the office of children and family services has determined
6 that a registration should not be continued because the requirements of
7 clause (B) of this subparagraph have not been satisfied, the office of
8 children and family services may terminate the registration. If the
9 office of children and family services does not terminate the registra-
10 tion, the office of children and family services shall inspect the home,
11 outdoor, nature-based child care, or program before acknowledging any
12 subsequent registration. Where the home, outdoor, nature-based child
13 care, or program has failed to meet the requirements of this section,
14 the office of children and family services may reject any subsequent
15 registration of a provider. Nothing herein shall prohibit the office of
16 children and family services from terminating or suspending registration
17 pursuant to subdivision ten of this section where the office of children
18 and family services determines that termination or suspension is neces-
19 sary.
20 [(iv)] (iii) Child day care providers who have been issued a license
21 shall openly display such license in the facility, outdoor, nature-based
22 child care location, or home for which the license is issued. Child day
23 care providers who have registered with the department shall provide
24 proof of registration upon request.
25 (d-1) (i) The office of children and family services shall promulgate
26 regulations for inspections of enrolled legally exempt providers, which
27 shall include the completion of a satisfactory inspection of the prem-
28 ises where care is to be provided, by the office of children and family
29 services.
30 (ii) Provided however, unless a complaint is made in or as otherwise
31 authorized such inspections shall not be required when the enrolled
32 legally exempt provider is an individual, age eighteen or older, and
33 who, by virtue of blood, marriage or court decree, is, to all of the
34 children that such person is enrolled to provide subsidized child care
35 services to in accordance with title five-C of this article:
36 (A) a grandparent;
37 (B) a great-grandparent;
38 (C) a sibling, provided that such sibling resides in a separate house-
39 hold from the child; or
40 (D) [an aunt; or
41 (E) an uncle] a sibling of a parent.
42 (e) Notwithstanding any other provision of this section, where a child
43 is cared for by a parent, guardian or relative within the third degree
44 of consanguinity of the parent of such child and such person simultane-
45 ously provides child day care for other children, only the other chil-
46 dren shall be considered in determining whether such person must be
47 registered or licensed, provided that such person is not caring, in
48 total, for more than eight children.
49 § 5. Subdivision 2-a of section 390 of the social services law, as
50 added by chapter 416 of the laws of 2000, is amended to read as follows:
51 2-a. (a) The office of children and family services shall promulgate
52 regulations which establish minimum quality program requirements for
53 licensed and registered child day care homes, programs, outdoor,
54 nature-based child cares and facilities. Such requirements shall
55 include but not be limited to (i) the need for age appropriate activ-
56 ities, materials and equipment to promote cognitive, educational,
A. 5352--A 5
1 social, cultural, physical, emotional, language and recreational devel-
2 opment of children in care in a safe, healthy and caring environment
3 (ii) principles of childhood development (iii) appropriate staff/child
4 ratios for family day care homes, group family day care homes, outdoor,
5 nature-based child cares, school age day care programs and day care
6 centers, provided however that such staff/child ratios shall not be less
7 stringent than applicable staff/child ratios as set forth in part four
8 hundred fourteen, four hundred sixteen, four hundred seventeen or four
9 hundred eighteen of title eighteen of the New York code of rules and
10 regulations as of January first, two thousand (iv) appropriate levels of
11 supervision of children in care (v) minimum standards for sanitation,
12 health, infection control, nutrition, buildings and equipment, the size
13 and suitability of a facility or location for an outdoor, nature-based
14 child care, safety, security procedures, first aid, fire prevention,
15 fire safety, evacuation plans and drills, prevention of child abuse and
16 maltreatment, staff qualifications and training, record keeping, and
17 child behavior management.
18 (b) The use of electronic monitors as a sole means of supervision of
19 children in day care shall be prohibited, except that electronic moni-
20 tors may be used in family day care homes and group family day care
21 homes as an indirect means of supervision where the parents of any child
22 to be supervised have agreed in advance to the use of such monitors as
23 an indirect means of supervision and the use of such monitors is
24 restricted to situations where the children so supervised are sleeping.
25 (c) No child less than six weeks of age may be cared for by a licensed
26 or registered day care provider, except in extenuating circumstances
27 where prior approval for care of such children has been given by the
28 office of children and family services. Extenuating circumstances for
29 the purposes of this section shall include but not be limited to the
30 medical or health needs of the parent or child, or the economic hardship
31 of the parent.
32 § 6. Paragraphs (c) and (d) of subdivision 3 of section 390 of the
33 social services law, as amended by chapter 416 of the laws of 2000, are
34 amended to read as follows:
35 (c) (i) The office of children and family services shall establish a
36 toll-free statewide telephone number to receive inquiries about child
37 day care homes, outdoor, nature-based child cares, programs and facili-
38 ties and complaints of violations of the requirements of this section or
39 regulations promulgated under this section. The office of children and
40 family services shall develop a system for investigation, which shall
41 include inspection, of such complaints. The office of children and fami-
42 ly services may provide for such investigations through purchase of
43 services. The office of children and family services shall develop a
44 process for publicizing such toll-free telephone number to the public
45 for making inquiries or complaints about child day care homes, outdoor,
46 nature-based child cares, programs or facilities.
47 (ii) Information to be maintained and available to the public through
48 such toll-free telephone number shall include, but not be limited to:
49 (A) current license and registration status of child day care homes,
50 outdoor, nature-based child cares, programs and facilities including
51 whether a license or registration is in effect or has been revoked or
52 suspended; and
53 (B) child care resource and referral programs providing services
54 pursuant to title five-B of this article and other resources known to
55 the office of children and family services which relate to child day
A. 5352--A 6
1 care homes, outdoor, nature-based child cares, programs and facilities
2 in the state.
3 (iii) Upon written request identifying a particular child day care
4 home, outdoor, nature-based child care, program or facility, the office
5 of children and family services shall provide the information set forth
6 below. The office of children and family services may charge reasonable
7 fees for copies of documents provided, consistent with the provisions of
8 article six of the public officers law. The information available pursu-
9 ant to this clause shall be:
10 (A) the results of the most recent inspection for licensure or regis-
11 tration and any subsequent inspections by the office of children and
12 family services;
13 (B) complaints filed against child day care homes, outdoor, nature-
14 based child cares, programs or facilities which describes the nature of
15 the complaint and states how the complaint was resolved, including the
16 status of the office of children and family services investigation, the
17 steps taken to rectify the complaint, and the penalty, if any, imposed;
18 and
19 (C) child day care homes, outdoor, nature-based child cares, programs
20 or facilities which have requested or received a waiver from any appli-
21 cable rule or regulation, and the regulatory requirement which was
22 waived.
23 (iv) Nothing in this paragraph shall be construed to require or permit
24 the disclosure either orally or in writing of any information that is
25 confidential pursuant to law.
26 (d) Where investigation or inspection reveals that a child day care
27 provider which must be licensed or registered is not, the office of
28 children and family services shall advise the child day care provider in
29 writing that the provider is in violation of the licensing or registra-
30 tion requirements and shall take such further action as is necessary to
31 cause the provider to comply with the law, including directing an unli-
32 censed or unregistered provider to cease operation. In addition, the
33 office of children and family services shall require the provider to
34 notify the parents or guardians of children receiving care from the
35 provider that the provider is in violation of the licensing or registra-
36 tion requirements and shall require the provider to notify the office of
37 children and family services that the provider has done so. Any provid-
38 er who is directed to cease operations pursuant to this paragraph shall
39 be entitled to a hearing before the office of children and family
40 services. If the provider requests a hearing to contest the directive to
41 cease operations, such hearing must be scheduled to commence as soon as
42 possible but in no event later than thirty days after the receipt of the
43 request by the office of children and family services. The provider may
44 not operate the center, outdoor, nature-based child care, home or
45 program after being directed to cease operations, regardless of whether
46 a hearing is requested. If the provider does not cease operations, the
47 office of children and family services may impose a civil penalty pursu-
48 ant to subdivision eleven of this section, seek an injunction pursuant
49 to section three hundred ninety-one of this title, or both.
50 § 7. Paragraph (b) of subdivision 4 of section 390 of the social
51 services law, as added by chapter 750 of the laws of 1990, is amended to
52 read as follows:
53 (b) Any family day care home, outdoor, nature-based care or school-age
54 child care program licensed, registered, or certified by the department
55 or by any authorized agency on the effective date of this section shall
56 be deemed registered until the expiration of its then-current license or
A. 5352--A 7
1 certificate unless such license or certificate is suspended or revoked
2 pursuant to subdivision ten of this section. Family day care homes,
3 outdoor, nature-based child cares, and school-age child care programs
4 not licensed, registered, or certified on the effective date of this
5 section shall register pursuant to subdivision two of this section.
6 § 8. Subdivision 6 of section 390 of the social services law, as added
7 by chapter 750 of the laws of 1990, is amended to read as follows:
8 6. Unless otherwise limited by law, a parent with legal custody or a
9 legal guardian of any child in a child day care program shall have
10 unlimited and on demand access to such child or ward. Such parent or
11 guardian unless otherwise limited by law, also shall have the right to
12 inspect on demand during its hours of operation any area of a child day
13 care center, group family day care home, school-age child care program,
14 outdoor, nature-based child care location or family day care home to
15 which the child or ward of such parent or guardian has access or which
16 could present a hazard to the health and safety of the child or ward.
17 § 9. Subdivision 8-a of section 390 of the social services law, as
18 added by chapter 354 of the laws of 2009, is amended to read as follows:
19 8-a. The office of children and family services shall not make avail-
20 able to the public online any group family day care home provider's,
21 outdoor, nature-based child care provider's, or family day care provid-
22 er's home street address or map showing the location of such provider's
23 home or outdoor, nature-based child care location where such provider
24 has requested to opt out of the online availability of this information.
25 The office shall provide a written form informing a provider of their
26 right to opt out of providing information online, and shall also permit
27 a provider to request to opt out through the office's website.
28 § 10. Subdivision 10 of section 390 of the social services law, as
29 amended by chapter 416 of the laws of 2000, is amended to read as
30 follows:
31 10. Any home, outdoor, nature-based child care, or facility providing
32 child day care shall be operated in accordance with applicable statutes
33 and regulations. Any violation of applicable statutes or regulations
34 shall be a basis to deny, limit, suspend, revoke, or terminate a license
35 or registration. Consistent with articles twenty-three and
36 twenty-three-A of the correction law, and guidelines referenced in
37 subdivision two of section four hundred twenty-five of this article, if
38 the office of children and family services is made aware of the exist-
39 ence of a criminal conviction or pending criminal charge concerning an
40 operator of a family day care home, group family day care home, school-
41 age child care program, outdoor, nature-based child care, or child day
42 care center or concerning any assistant, employee or volunteer in such
43 homes, programs or centers, or any persons age eighteen or over who
44 reside in such homes, such conviction or charge may be a basis to deny,
45 limit, suspend, revoke, reject, or terminate a license or registration.
46 Before any license issued pursuant to the provisions of this section is
47 suspended or revoked, before registration pursuant to this section is
48 suspended or terminated, or when an application for such license is
49 denied or registration rejected, the applicant for or holder of such
50 registration or license is entitled, pursuant to section twenty-two of
51 this chapter and the regulations of the office of children and family
52 services, to a hearing before the office of children and family
53 services. However, a license or registration shall be temporarily
54 suspended or limited without a hearing upon written notice to the opera-
55 tor of the facility following a finding that the public health, or an
56 individual's safety or welfare, are in imminent danger. The holder of a
A. 5352--A 8
1 license or registrant is entitled to a hearing before the office of
2 children and family services to contest the temporary suspension or
3 limitation. If the holder of a license or registrant requests a hearing
4 to contest the temporary suspension or limitation, such hearing must be
5 scheduled to commence as soon as possible but in no event later than
6 thirty days after the receipt of the request by the office of children
7 and family services. Suspension shall continue until the condition
8 requiring suspension or limitation is corrected or until a hearing deci-
9 sion has been issued. If the office of children and family services
10 determines after a hearing that the temporary suspension or limitation
11 was proper, such suspension or limitation shall be extended until the
12 condition requiring suspension or limitation has been corrected or until
13 the license or registration has been revoked.
14 § 11. Subdivision 11 of section 390 of the social services law, as
15 added by chapter 750 of the laws of 1990, paragraphs (a) and (b) as
16 amended and paragraph (d) as added by chapter 416 of the laws of 2000
17 and paragraph (c) as amended and paragraph (e) as added by chapter 117
18 of the laws of 2010, is amended to read as follows:
19 11. (a) (i) The office of children and family services shall adopt
20 regulations establishing civil penalties of no more than five hundred
21 dollars per day to be assessed against child day care centers, outdoor,
22 nature-based child cares, school age child care programs, group family
23 day care homes or family day care homes for violations of this section,
24 sections three hundred ninety-a and three hundred ninety-b of this title
25 and any regulations promulgated thereunder. The regulations establishing
26 civil penalties shall specify the violations subject to penalty.
27 (ii) The office of children and family services shall adopt regu-
28 lations establishing civil penalties of no more than five hundred
29 dollars per day to be assessed against child day care providers who
30 operate child day care centers, outdoor, nature-based child cares, or
31 group family day care homes without a license or who operate family day
32 care homes, school-age child care programs, or child day care centers
33 required to be registered without obtaining such registration.
34 (iii) In addition to any other civil or criminal penalty provided by
35 law, the office of children and family services shall have the power to
36 assess civil penalties in accordance with its regulations adopted pursu-
37 ant to this subdivision after a hearing conducted in accordance with
38 procedures established by regulations of the office of children and
39 family services. Such procedures shall require that notice of the time
40 and place of the hearing, together with a statement of charges of
41 violations, shall be served in person or by certified mail addressed to
42 the school age child care program, group family day care home, family
43 day care home, outdoor, nature-based child care, or child day care
44 center at least thirty days prior to the date of the hearing. The state-
45 ment of charges shall set forth the existence of the violation or
46 violations, the amount of penalty for which the program may become
47 liable, the steps which must be taken to rectify the violation, and
48 where applicable, a statement that a penalty may be imposed regardless
49 of rectification. A written answer to the charges of violations shall be
50 filed with the office of children and family services not less than ten
51 days prior to the date of hearing with respect to each of the charges
52 and shall include all material and relevant matters which, if not
53 disclosed in the answer, would not likely be known to the office of
54 children and family services.
55 (iv) The hearing shall be held by the commissioner of the office of
56 children and family services or the commissioner's designee. The burden
A. 5352--A 9
1 of proof at such hearing shall be on the office of children and family
2 services to show that the charges are supported by a preponderance of
3 the evidence. The commissioner of the office of children and family
4 services or the commissioner's designee, in [his or her] their
5 discretion, may allow the child day care center operator or provider to
6 attempt to prove by a preponderance of the evidence any matter not
7 included in the answer. Where the child day care provider satisfactorily
8 demonstrates that it has rectified the violations in accordance with the
9 requirements of paragraph (c) of this subdivision, no penalty shall be
10 imposed except as provided in paragraph (c) of this subdivision.
11 (b)(i) In assessing penalties pursuant to this subdivision, the office
12 of children and family services may consider the completeness of any
13 rectification made and the specific circumstances of such violations as
14 mitigating factors.
15 (ii) Upon the request of the office of children and family services,
16 the attorney general shall commence an action in any court of competent
17 jurisdiction against any child day care program subject to the
18 provisions of this subdivision and against any person, entity or corpo-
19 ration operating such center or school age child care program, outdoor,
20 nature-based child care, group family day care home or family day care
21 home for the recovery of any penalty assessed by the office of children
22 and family services in accordance with the provisions of this subdivi-
23 sion.
24 (iii) Any such penalty assessed by the office of children and family
25 services may be released or compromised by the office of children and
26 family services before the matter has been referred to the attorney
27 general; when such matter has been referred to the attorney general,
28 such penalty may be released or compromised and any action commenced to
29 recover the same may be settled and discontinued by the attorney general
30 with the consent of the office of children and family services.
31 (c)(i) Except as provided for in this paragraph, a child day care
32 provider shall avoid payment of a penalty imposed pursuant to this
33 subdivision where the provider has rectified the condition which
34 resulted in the imposition of the penalty within thirty days of notifi-
35 cation of the existence of the violation of statute or regulation.
36 (ii) [Clause] Subparagraph (i) of this paragraph notwithstanding,
37 rectification shall not preclude the imposition of a penalty pursuant to
38 this subdivision where:
39 (A) the child day care provider has operated a child day care center,
40 outdoor, nature-based child care, or group family day care home without
41 a license, has refused to seek a license for the operation of such a
42 center or home, or has continued to operate such a center or home after
43 denial of a license application, revocation of an existing license or
44 suspension of an existing license;
45 (B) the child day care provider has operated a family day care home,
46 outdoor, nature-based child care, school-age child care program or child
47 day care center required to be registered without being registered, has
48 refused to seek registration for the operation of such home, outdoor,
49 nature-based child care, program or center or has continued to operate
50 such a home, program or center after denial of a registration applica-
51 tion, revocation of an existing registration or suspension of an exist-
52 ing registration;
53 (C) there has been a total or substantial failure of the facility's
54 fire detection or prevention systems or emergency evacuation procedures;
55 (D) the child day care provider or an assistant, employee or volunteer
56 has failed to provide adequate and competent supervision;
A. 5352--A 10
1 (E) the child day care provider or an assistant, employee or volunteer
2 has failed to provide adequate sanitation;
3 (F) the child day care provider or an assistant, employee, volunteer
4 or, for a family day care home or group family day care home, a member
5 of the provider's household, has injured a child in care, unreasonably
6 failed to obtain medical attention for a child in care requiring such
7 attention, used corporal punishment against a child in care or abused or
8 maltreated a child in care;
9 (G) the child day care provider has violated the same statutory or
10 regulatory standard more than once within a six month period;
11 (H) the child day care provider or an assistant, employee or volunteer
12 has failed to make a report of suspected child abuse or maltreatment
13 when required to do so pursuant to section four hundred thirteen of this
14 article; or
15 (I) the child day care provider or an assistant, employee or volunteer
16 has submitted to the office of children and family services a forged
17 document as defined in section 170.00 of the penal law.
18 (d) Any civil penalty received by the office of children and family
19 services pursuant to this subdivision shall be deposited to the credit
20 of the "quality child care and protection fund" established pursuant to
21 section ninety-seven-www of the state finance law.
22 (e)(i) The office of children and family services shall deny a new
23 application for licensure or registration made by a day care provider
24 whose license or registration was previously revoked or terminated based
25 on a violation of statute or regulation for a period of two years from
26 the date that the revocation or termination of the license or registra-
27 tion became finally effective, unless such office determines, in its
28 discretion, that approval of the application will not in any way jeop-
29 ardize the health, safety or welfare of children in the center, program
30 or home. For the purposes of this paragraph, the date that the revoca-
31 tion or termination became finally effective shall be, as applicable:
32 (A) the date that the revocation or termination became effective based
33 on the notice of revocation or termination;
34 (B) the date that the hearing decision was issued upholding the revo-
35 cation or termination;
36 (C) the date of issuance of a final court order affirming the revoca-
37 tion or termination or affirming a hearing decision that upheld the
38 revocation or termination; or
39 (D) another date mutually agreed upon by the office of children and
40 family services and the provider.
41 (ii)(A) Such office shall deny a new application for licensure or
42 registration made by a day care provider who is enjoined or otherwise
43 prohibited by a court order from operation of a day care center,
44 outdoor, nature-based child care, group family day care home, family day
45 care home or school-age child care program without a license or regis-
46 tration for a period of two years from the date of the court order
47 unless the court order specifically enjoins the provider from providing
48 day care for a period longer than two years, in which case the office
49 shall deny any new application made by the provider while the provider
50 is so enjoined.
51 (B) Such office shall deny a new application for licensure or regis-
52 tration made by a day care provider who is assessed a second civil
53 penalty by such office for having operated a day care center, outdoor,
54 nature-based child care, group family day care home, family day care
55 home or school-age child care program without a license or registration
56 for a period of two years from the date of the second fine. For the
A. 5352--A 11
1 purposes of this paragraph, the date of the second fine shall be either
2 the date upon which the day care provider signs a stipulation agreement
3 to pay the second fine or the date upon which a hearing decision is
4 issued affirming the determination of such office to impose the second
5 fine, as applicable.
6 (iii) A day care provider who surrenders the provider's license or
7 registration while such office is engaged in enforcement seeking suspen-
8 sion, revocation or termination of such provider's license or registra-
9 tion pursuant to the regulations of such office, shall be deemed to have
10 had their license or registration revoked or terminated and shall be
11 subject to the prohibitions against licensing or registration pursuant
12 to subparagraph (i) of this paragraph for a period of two years from the
13 date of surrender of the license or registration.
14 § 12. This act shall take effect immediately.
