Child Care Services (Article 47 of the NYC Health Code)

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Friday, October 21, 2016
Download Copy of Adopted Rule (.pdf): 
 
 

Statement of Basis and Purpose

 

The Department of Health and Mental Hygiene (the “Department”) enforces Article 47 of the Health Code, which regulates non-residential-based child care centers for children under six years of age.   

The Board of Health is amending Article 47 of the Health Code as follows to enhance the health, safety and supervision of children in Department regulated child care services.

Educational directors

            Department experience has shown that the consistent presence of an educational director is an important factor in providing quality safe child care. The educational director is charged with developing a child care service’s curriculum, implementing teacher training and ensuring that all staff are aware of and compliant with the child care service’s written safety plan and the requirements of the Health Code. When there is no educational director present, or there is constant turnover in the educational director position, child care quality is diminished.

The Department attempts to routinely inspect all the 2,000+ child care services annually. When it finds on inspection that there is no educational director present, it is often told that the person holding the position is “temporarily absent,” a statement which the Department cannot always corroborate.  The Health Code requires that a fully qualified State-certified group teacher be designated as an acting educational director when the educational director is temporarily absent.  The Department has no way of knowing, however, how long the educational director’s absence has been or will last.  To address these concerns, Health Code §§ 47.13, 47.15 and 47.17 have been amended to require that child care service permittees notify the Department when educational directors are terminated or resign.  Notification means that Department staff can timely follow up with the child care service to determine if the educational director has been replaced, and whether there is an appropriate certified teacher supervising other teachers and assuming the duties required of the educational director.  When there is a temporary absence of an educational director, the Health Code will require the permittee to notify teaching staff in writing that there will be a temporary substitute educational director, and make such communication available for Department inspection.

Teacher and trainer qualification verification

      All teaching staff in Article 47 programs are required to hold certain educational credentials and certifications, and many teaching staff in current child care programs present foreign and domestic education institution credentials and teacher certifications that require Department staff to spend a great deal of time checking and verifying such credentials and certifications. Equally important are the qualifications of trainers.  Health Code §§47.13, 47.15, 47.17 and 47.37 have been amended to require child care permittees to submit teachers’ and trainers’ documentation and certifications for review to an agency designated by the Department. The agent would review teaching staff certifications, diplomas, educational transcripts and trainers’ credentials to determine that education and training are in compliance with the Health Code.  

Teacher immunizations

      A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February 2016.  The Department’s requirements for child care staff and volunteer immunizations in Health Code §47.33(c) have been amended to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be allowed to substitute for the vaccines for measles and mumps – the vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.  Vaccinations are also not needed for people born on or before December 31, 1956, regardless of their vaccination history, as such old vaccination histories are unreliable and most people were already exposed to these diseases.

Permit suspensions and revocations

            These amendments also clarify circumstances that may result in suspension and revocation of child care service permits, provide child care services with more concrete information about the Department’s expectations and describe how the Department evaluates performance.

The Department evaluates a child care service’s performance by comparing it to that of other child care services. Child care services found performing below standards may voluntarily enroll in a Department program to improve performance.  As part of this program, Department staff help permittees identify and address administrative and other factors that compromise child safety.  Department staff also work with the permittee to create a corrective action plan to remedy these factors. This voluntary improvement process is being made mandatory, amending §§47.21 and 47.77 and failure to make changes required by the corrective action plan would result in a child care service being required to defend its permit at a hearing at the Office of Administrative Trials and Hearings (OATH).

Health Code §47.77 has been amended to provide that, in addition to actions authorized by other provisions of the Health Code, the Commissioner may revoke a child care service permit in certain circumstances, including but not limited to:

  • having a history of prior or current child care permit,

license or registration suspensions,

  • revocations or suspensions (whether by the Commissioner or other government agencies) or
  • failing to implement required corrective action plans.

Section 47.77 has been amended to add that when a child care service permit is revoked by the Commissioner, any application for a new permit by any of the service’s individual or corporate managers or directors will not be accepted for at least five years following the date of revocation. In response to a comment, new subdivision (j) has been amended to authorize the Commissioner to exercise discretion in determining the circumstances in which to invoke this sanction.  

            These measures will enable the Department to take expedited action against unsafe facilities and clarify the bases for taking regulatory actions.  

Fraud prevention

Individuals who work or volunteer in or are in control of any child care service must be fingerprinted in accordance with Health Code §47.19.  Fingerprints are forwarded by the City Department of Investigation (DOI) to the New York State Division of Criminal Justice Services (DCJS). DCJS then reports on the individual’s criminal history to DOI, and DOI informs the permittee of the individual’s relevant criminal background.  In recent years, there have been a number of incidents where permittees claimed as staff members people who did not work in a child care service. Several permittees fraudulently submitted credentials of qualified persons or created false documents and certifications to show the Department that they have a full complement of cleared and/or qualified staff. One permittee allowed an otherwise unidentified individual to assume the identity and credentials of another person and passed her off as a qualified group teacher for many years.  In these cases, the fraud eventually results in revocation of the permits, in accordance with Health Code §5.13.  Requiring permittees to include identification numbers assigned to fingerprints (the New York State Identification or “NYSID” number) by DCJS when applications for permits and staff qualifications are submitted for approval will enable the Department to  more readily verify individuals’ identities.  Accordingly, Health Code § 47.09 (a) has been amended to require permittees to provide NYSID numbers for persons with ownership and other interests in child care services, and any other persons whose credentials the Department is being asked to approve.  

Early Intervention and CPSE services for disabled children

            Health Code §47.19 requires that all staff, volunteers, contractors and others in child care services obtain clearances every two years from the State Central Register of Child Abuse and Maltreatment (SCR), be fingerprinted and have employment references checked unless “such person is working under the direct supervision and within the line of sight of a screened employee of the child care service.”  The Department has been asked to exempt from these requirements persons conducting assessments of or providing services to individual children who are disabled or at risk for disability under the Department’s Early Intervention (EI) program (children under three years of age) or the City Department of Education’s committee on preschool special education (CPSE) (ages three through five). Since these individuals are already cleared, it is unnecessary that child care service permittees also clear them, and this provision is being amended accordingly. 

Lead in water

            Health Code §47.43(a), requiring child care service permittees to test water for lead, has been amended to specify that such testing must be done every five years and to require that test results be sent to the Department.  Any elevated test results that are submitted must be accompanied by a plan for remediation and until remediation is completed alternate sources of potable water provided. The original proposal was changed to extend the amount of time child care service permittees have to conduct drinking water lead testing from 30 days to 60 days after filing the required notice, to accommodate the amount of time needed for such testing.

Fire alarms and sprinklers

            Health Code §47.59 (c), which requires that all child care services attended by 30 or more children have fire alarms, has been amended to require all newly permitted child care facilities and those undergoing extensive renovation (i.e., material alterations requiring a revised certificate of occupancy) to have fire alarms approved by the Fire Department.  Also added is a requirement of the current Building Code that all new infant-toddler child care services and those undergoing material alterations be fitted with sprinkler systems. These requirements will significantly enhance safety.  

Permit posting

Health Code §47.73, which requires that a child care service permit must be posted “in a conspicuous place near its public entrance where staff, parents and others may review” it, has been amended to specify that the permit must be posted in a location where it will be more readily visible to parents and caregivers dropping off and picking up children. It is critical that parents know that a service has a Department permit and is not operating illegally and without oversight.

Statutory Authority

The authority for these amendments is found in §§ 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority.

Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York.

Statement pursuant to Charter §1043

This proposal was not included in the Department’s Regulatory Agenda for FY ’16 since the need for the proposal was not known at the time the Regulatory Agenda was promulgated.