NY State Senate Bill 2023-S7743

Senate Bill S7743

2023-2024 Legislative Session

Relates to violations by licensed or registered child care providers; sanctions and penalties for such violations; and administrative appeal of such sanctions and penalties

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Current Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 21, 2024	reported and committed to finance
Jan 03, 2024	referred to children and families
Nov 13, 2023	referred to rules

Votes

- May 21, 2024 - Children And Families Committee Vote
  S7743
  
  7
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 21, 2024
      
      aye (7)
      
      Ashby
      
      Bailey
      
      Brisport
      
      Brouk
      
      Hoylman-Sigal
      
      Persaud
      
      Rolison

co-Sponsors

2023-S7743 (ACTIVE) - Details

See Assembly Version of this Bill:: A7945
Current Committee:: Senate Finance
Law Section:: Social Services Law
Laws Affected:: Amd §390, Soc Serv L

2023-S7743 (ACTIVE) - Summary

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.

2023-S7743 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S7743

SPONSOR: BRISPORT
 
TITLE OF BILL:

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 providers for crit-
ical violations; and specifying procedures for child care providers to
appeal such sanctions, penalties, and disciplinary actions

 
SUMMARY OF PROVISIONS:

Section one amends subdivision 1 of section 390 of the social services
law by adding four new paragraphs to define the meaning of "critical
violation", "serious physical or emotional injury", "abused child", and
"maltreated child."

Section two amends clause (C) of subparagraph (ii) of paragraph (d) of
subdivision 2 of section 390 of the social services law to clarify if
the Office of Children and Family Services determines that a registra-

tion should not be continued, they may terminate the registration. If
the Office of Children and Family Services seeks to terminate the regis-
tration, they shall inspect the home or program before terminating the
registration. Where the home or program has failed to meet the require-
ments of this section, the Office of Children and Family Services may
reject any subsequent registration of a provider.

Section three amends paragraph (b) of subdivision 3 of section 390 of
the social services law to require that where inspections have been made
and violations of applicable statutes or regulations have been found,
the Office of Children and Family Services or its designee shall, within
ten days, advise the provider in writing of the violations and require
the provider to correct such violations as specified in a corrective
action plan.

Section four amends section 390 of the social services law by adding a
new subdivision 3-a to require that providers notify the Office of Chil-
dren and Family Services within forty-eight hours upon learning of an
incident involving a critical violation. Additionally, the Office of
Children and Family Services shall develop an online portal for provid-
ers to self-report critical violations and receive information regarding
next steps.

Section five amends subdivision 10 of section 390 of the social services
law to require that any home or facility providing child day care be
operated in accordance with applicable statutes and regulations. Any
critical violation of applicable statutes or regulations shall be a
basis to deny, limit, suspend, revoke, or terminate a license or regis-
tration.

Section six amends subparagraphs (i), (iii) and (iv) of paragraph (a) of
subdivision 11 of section 390 of the social services law to require that
the Office of Children and Family Services establish civil penalties of
no more than five hundred dollars per day to be assessed against child
day care centers, school age child care programs, group family day care
homes or family day care homes for critical violations of this section.
In addition, the Office of Children and Family Services shall have the
power to assess civil penalties after a hearing is conducted in accord-
ance with procedures established by regulations of the Office of Chil-
dren and Family Services.

Section seven amends subparagraph (i) of paragraph (b) of subdivision 11
of section 390 of the social services law to provide that in assessing
penalties, the Office of Children and Family Services may consider the
completeness of any, rectification of critical violations made and the
specific circumstances of such critical violations as mitigating
factors.

Section eight amends subparagraph (i) of paragraph (c) of subdivision 11
of section 390 of the social services law to state that a provider shall
avoid payment of a penalty imposed under this subdivision where the
provider has rectified the condition which resulted in the imposition of
the penalty within thirty days of notification of the existence of the
critical violation of statute or regulation.

Section nine amends the opening paragraph of subparagraph (i) of para-
graph (e) of subdivision 11 of section 390 of the social services law to
require that the Office of Children and Family Services deny a new
application for licensure or registration made by a provider whose
license or registration was previously revoked or terminated based on a
critical violation for a period of two years from the date that the
revocation or termination of the license.

Section ten amends section 390 of the social services law by adding a
new subdivision 11-a that allows for a provider to file a written
request for administrative reconsideration within seven days of receipt
of a corrective action plan with the Commissioner of the Office of Chil-
dren and Family Services. Within fifteen business days after receipt,
the Commissioner shall grant, deny, or otherwise act on such request.

Section eleven establishes the effective date of the bill.

 
JUSTIFICATION:

This bill intends to ensure uniform licensing interpretation and
enforcement across jurisdictions and break down barriers for child care
providers to operate and expand.

New York State has one of the most complex child care licensing environ-
ments in the country. Adding to this complexity, the enforcement of
violations varies drastically across jurisdictions.  Under the current
system, there is little distinction between violations that may impact
the health and safety of children and minor administrative compliance
infractions. Without a provision for a warning system or a tiered
response to infractions that aligns the outcomes with the severity of
the violation, any New York violation can immediately trigger a notice
of intent to revoke. License revocation, termination, or limitation is
immediate, and the request for a hearing must be made in writing within
30 days and requires an administrative process with an Administrative
Law Judge (AU), a settlement agreement, and frequently a monetary fine.
Any request for a hearing to contest the suspension of a registration or
license must be made within 10 days of the receipt of the suspension
notice. The standard of review is whether the enforcement determination
was "arbitrary and capricious."
For providers without the resources to hire counsel and settle a minis-
terial matter, it means the closure of the center and tremendous incon-
venience and disruption for families and children. Employees in New
York's child care system face many workforce challenges already and the
harshness of New York's system creates a fearful, punitive, and unpro-
ductive atmosphere and adds yet another impediment to hiring in a
competitive environment. Further, this system of enforcing infractions
creates a disincentive for child care providers to expand their program-
ming or open new centers in New York at a time when the State wants to
expand access to child care and early education.

This legislation also allows OCFS discretion to deploy its staff in a
more prudent manner prioritizing and expend resources more judiciously
on those infractions that are more serious and pose real health and
safety risks. This legislation would improve the licensing infraction
system in New York State by adopting best practices in other states such
as Massachusetts. In Massachusetts, the state agency conducts investi-
gations before revoking a license, and outcomes are aligned with the
severity of the violation based on a three-tiered system. Massachusetts
uses a portal for self-reporting that facilitates clear, consistent, and
immediate reporting and allows for real-time next steps and corrective
action as well as offers the option of technical assistance. Appeals can
be made through an independent body (the Massachusetts licensing agen-
cy), whereas appeals in New York are considered by the same entity that
issued the infraction.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

2023-S7743 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7743
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             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:
 
   Section 1. Subdivision 1 of section 390 of the social services law  is
 amended  by  adding four new paragraphs (h), (i), (j) and (k) to read as
 follows:
   (H) (I) "CRITICAL VIOLATION" SHALL MEAN:
   (A) A FATALITY, NEAR FATALITY, OR SERIOUS PHYSICAL OR EMOTIONAL INJURY
 OF A CHILD WHO IS IN THE CUSTODY OF OR RECEIVING SERVICES FROM  A  CHILD
 CARE PROVIDER LICENSED OR REGISTERED BY THE OFFICE OF CHILDREN AND FAMI-
 LY SERVICES; OR
   (B)  CIRCUMSTANCES  WHICH  RESULT  IN A REASONABLE BELIEF THAT A CHILD
 CARE PROVIDER LICENSED OR REGISTERED BY THE OFFICE OF CHILDREN AND FAMI-
 LY SERVICES FAILED IN ITS DUTY TO PROTECT A CHILD AND, AS A RESULT,  THE
 CHILD WAS AT IMMINENT RISK OF, OR SUFFERED SERIOUS PHYSICAL OR EMOTIONAL
 INJURY OR DEATH.
   (II)  EXAMPLES  OF  CRITICAL  VIOLATIONS  MAY  INCLUDE  THE FAILURE TO
 PROVIDE PROPER SUPERVISION OF CHILDREN OR COMPLY WITH HEALTH AND  SAFETY
 REGULATIONS,  INADEQUATE  STAFFING LEVELS, AND CHILD ABUSE AND MALTREAT-
 MENT.
   (I) "SERIOUS PHYSICAL OR EMOTIONAL INJURY" SHALL MEAN AN INJURY  WHICH
 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.
                                                            LBD11238-01-3

 S. 7743                             2
 
 SERIOUS OR PROTRACTED DISFIGUREMENT, PROTRACTED IMPAIRMENT  OF  PHYSICAL
 OR EMOTIONAL HEALTH, OR PROTRACTED LOSS OR IMPAIRMENT OF THE FUNCTION OF
 ANY BODILY MEMBER, ORGAN, OR MENTAL FACULTY.
   (J)  "ABUSED  CHILD"  SHALL  MEAN A CHILD, LESS THAN EIGHTEEN YEARS OF
 AGE, WHOSE PARENT OR OTHER PERSON LEGALLY RESPONSIBLE FOR  SUCH  CHILD'S
 CARE:
   (I)  INFLICTS  OR ALLOWS TO BE INFLICTED UPON SUCH CHILD SERIOUS PHYS-
 ICAL OR EMOTIONAL INJURY BY OTHER THAN ACCIDENTAL MEANS;
   (II) CREATES OR ALLOWS TO BE CREATED A  SUBSTANTIAL  RISK  OF  SERIOUS
 PHYSICAL  OR  EMOTIONAL  INJURY  TO  SUCH CHILD BY OTHER THAN ACCIDENTAL
 MEANS;
   (III) COMMITS, OR ALLOWS TO BE COMMITTED, A SEX OFFENSE, AS DEFINED IN
 ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, AGAINST SUCH CHILD;
   (IV) PERMITS OR ENCOURAGES SUCH CHILD TO ENGAGE IN ANY  ACT  DESCRIBED
 IN ARTICLE TWO HUNDRED THIRTY OF THE PENAL LAW;
   (V)  COMMITS  ANY OF THE ACTS DESCRIBED IN SECTION 255.25 OF THE PENAL
 LAW; OR
   (VI) ALLOWS SUCH CHILD TO ENGAGE IN ACTS OR CONDUCT DESCRIBED IN ARTI-
 CLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW;  PROVIDED,  HOWEVER,  THAT
 THE  CORROBORATION  REQUIREMENTS  CONTAINED IN THE PENAL LAW AND THE AGE
 REQUIREMENT FOR THE APPLICATION OF ARTICLE TWO  HUNDRED  SIXTY-THREE  OF
 THE  PENAL  LAW  SHALL NOT APPLY TO PROCEEDINGS UNDER ARTICLE TEN OF THE
 FAMILY COURT ACT.
   (K) "MALTREATED CHILD" SHALL MEAN A CHILD, LESS THAN EIGHTEEN YEARS OF
 AGE:
   (I) WHOSE PHYSICAL, MENTAL, OR EMOTIONAL CONDITION HAS  BEEN  IMPAIRED
 OR IS IN IMMINENT DANGER OF BECOMING IMPAIRED AS A RESULT OF THE FAILURE
 OF  SUCH  CHILD'S  PARENT  OR  OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH
 CHILD'S CARE TO EXERCISE A MINIMUM DEGREE OF CARE IN:
   (A) SUPPLYING SUCH CHILD WITH ADEQUATE  FOOD,  CLOTHING,  SHELTER,  OR
 EDUCATION  PURSUANT  TO  PART ONE OF ARTICLE SIXTY-FIVE OF THE EDUCATION
 LAW; OR MEDICAL, DENTAL, OPTOMETRICAL, OR SURGICAL CARE, IF SUCH  PARENT
 OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD'S CARE IS FINANCIALLY
 ABLE  TO  DO SO OR OFFERED FINANCIAL OR OTHER REASONABLE MEANS TO DO SO;
 OR
   (B) PROVIDING SUCH CHILD WITH PROPER SUPERVISION OR  GUARDIANSHIP,  BY
 UNREASONABLY  INFLICTING OR ALLOWING TO BE INFLICTED HARM, OR A SUBSTAN-
 TIAL RISK  THEREOF,  INCLUDING  THE  INFLICTION  OF  EXCESSIVE  CORPORAL
 PUNISHMENT;  MISUSING  A  DRUG OR DRUGS; MISUSING ALCOHOLIC BEVERAGES TO
 THE EXTENT THAT SUCH PARENT OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH
 CHILD'S CARE LOSES SELF-CONTROL OF THEIR ACTIONS; OR ANY OTHER ACTS OF A
 SIMILARLY SERIOUS NATURE REQUIRING  THE  AID  OF  THE  COURT;  PROVIDED,
 HOWEVER,  THAT WHERE SUCH PARENT OR OTHER PERSON LEGALLY RESPONSIBLE FOR
 SUCH CHILD'S CARE IS VOLUNTARILY AND REGULARLY PARTICIPATING IN A  REHA-
 BILITATIVE  PROGRAM,  EVIDENCE  THAT SUCH PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE HAS REPEATEDLY MISUSED A DRUG OR DRUGS OR ALCOHOLIC BEVERAG-
 ES TO THE EXTENT THAT SUCH PARENT OR OTHER  PERSON  LEGALLY  RESPONSIBLE
 LOSES  SELF-CONTROL  OF THEIR ACTIONS SHALL NOT ALONE ESTABLISH THAT THE
 CHILD IS A NEGLECTED OR MALTREATED CHILD  IN  THE  ABSENCE  OF  EVIDENCE
 ESTABLISHING  THAT SUCH CHILD'S PHYSICAL, MENTAL, OR EMOTIONAL CONDITION
 HAS BEEN IMPAIRED OR IS IN IMMINENT DANGER OF BECOMING IMPAIRED PURSUANT
 TO THIS SUBPARAGRAPH;
   (II) WHO HAS BEEN ABANDONED BY SUCH CHILD'S  PARENT  OR  OTHER  PERSON
 LEGALLY RESPONSIBLE FOR SUCH CHILD'S CARE; OR
   (III)  WHO HAS HAD SERIOUS PHYSICAL OR EMOTIONAL INJURY INFLICTED UPON
 SUCH CHILD BY OTHER THAN ACCIDENTAL MEANS.
 S. 7743                             3
 
   § 2. Clause (C) of subparagraph (ii) of paragraph (d) of subdivision 2
 of section 390 of the social services law, as amended by chapter 416  of
 the laws of 2000, is amended to read as follows:
   (C)  Where  the  office of children and family services has determined
 that a registration should not be continued because the requirements  of
 clause  (B)  of this subparagraph have not been satisfied, the office of
 children and family services may terminate  the  registration.  [If  the
 office  of children and family services does not terminate the registra-
 tion, the] THE office of children and family services shall inspect  the
 home or program before TERMINATING THE REGISTRATION OR acknowledging any
 subsequent  registration.   Where the home or program has failed to meet
 the requirements of this section, the  office  of  children  and  family
 services  may  reject any subsequent registration of a provider. Nothing
 herein shall prohibit the office of children and  family  services  from
 terminating  or  suspending  registration pursuant to subdivision ten of
 this section where the office of children and family services determines
 that termination or suspension is necessary.
   § 3. Paragraph (b) of subdivision 3  of  section  390  of  the  social
 services  law,  as  amended  by section 5 of part H of chapter 56 of the
 laws of 2019, is amended to read as follows:
   (b) (i) Where inspections have been made and violations of  applicable
 statutes  or  regulations  have  been  found, the office of children and
 family services OR ITS DESIGNEE shall, within ten days, advise the child
 day care provider OR ENROLLED LEGALLY-EXEMPT PROVIDER in writing of  the
 violations and require the provider to correct such violations AS SPECI-
 FIED  IN  A  CORRECTIVE ACTION PLAN.  [The office of children and family
 services may also act pursuant to subdivisions ten and  eleven  of  this
 section.]
   (ii) THE CORRECTIVE ACTION PLAN SHALL:
   (A) INCLUDE A STATEMENT OF OBSERVATIONS OF THE VIOLATIONS;
   (B)  INDICATE WHICH STATUTES OR REGULATIONS THE HOLDER OF A LICENSE OR
 CHILD CARE PROVIDER HAS VIOLATED;
   (C) PRESCRIBE THE METHOD OR METHODS OF COMPLIANCE WITH THE STATUTES OR
 REGULATIONS; AND
   (D)  PRESCRIBE  A  REASONABLE  TIME  PERIOD  FOR  CORRECTION  OF   THE
 VIOLATIONS,  DEPENDING  ON  THE  NATURE  OF SUCH VIOLATIONS AND THE TIME
 REQUIRED FOR CORRECTION.
   (III) Where inspections have been  made  and  CRITICAL  violations  of
 applicable  statutes or regulations have been found, the office of chil-
 dren and family services or its designee [shall, within ten days, advise
 the enrolled legally-exempt provider] MAY,  in  [writing]  A  NOTICE  OF
 SANCTION,  IMPOSE ONE OR MORE SANCTIONS, WHICH MAY INCLUDE BUT SHALL NOT
 BE LIMITED TO:
   (A) CEASING THE ENROLLMENT of NEW CHILDREN;
   (B) REDUCING the [violations] NUMBER OF CHILDREN  THAT  A  PROGRAM  OR
 COMPONENT OF A PROGRAM IS LICENSED TO SERVE;
   (C)  HIRING  ONE  OR  MORE CONSULTANTS TO PROVIDE TECHNICAL ASSISTANCE
 AND/OR TRAINING;
   (D) HIRING ADDITIONAL STAFF ON A TEMPORARY OR PERMANENT BASIS;
   (E) HIRING A MONITOR SELECTED BY  and  [require]  ACCOUNTABLE  TO  the
 [provider] OFFICE OF CHILDREN AND FAMILY SERVICES; AND
   (F)  RESTRICTING  AN  ADMINISTRATOR  AND/OR  STAFF  PERSON'S ACCESS to
 [correct such violations] CHILDREN.
   § 4. Section 390 of the social services law is amended by adding a new
 subdivision 3-a to read as follows:
 S. 7743                             4
 
   3-A. (A) (I) CHILD CARE PROVIDERS LICENSED OR REGISTERED  PURSUANT  TO
 SUBDIVISION  TWO OF THIS SECTION SHALL NOTIFY THE OFFICE OF CHILDREN AND
 FAMILY SERVICES WITHIN FORTY-EIGHT HOURS UPON LEARNING  OF  AN  INCIDENT
 INVOLVING A CRITICAL VIOLATION.
   (II)  THE  OFFICE  OF  CHILDREN  AND  FAMILY SERVICES SHALL DEVELOP AN
 ONLINE PORTAL FOR LICENSED OR REGISTERED CHILD CARE PROVIDERS  TO  SELF-
 REPORT  CRITICAL VIOLATIONS AND RECEIVE INFORMATION REGARDING NEXT STEPS
 IN THE LICENSING, REGISTRATION, INVESTIGATION, OR DISCIPLINARY  PROCESS,
 INCLUDING BUT NOT LIMITED TO:
   (A)  A  LIST  OF VIOLATIONS OF APPLICABLE STATUTES OR REGULATIONS THAT
 CONSTITUTE CRITICAL VIOLATIONS;
   (B) POSSIBLE SANCTIONS OR OTHER ACTIONS  THAT  MAY  BE  TAKEN  BY  THE
 OFFICE  OF  CHILDREN AND FAMILY SERVICES IN RESPONSE TO REPORTS OF CRIT-
 ICAL VIOLATIONS; AND
   (C) APPROPRIATE CORRECTIVE ACTIONS THAT MAY BE TAKEN BY THE CHILD CARE
 PROVIDER TO COME INTO COMPLIANCE WITH APPLICABLE STATUTES OR REGULATIONS
 AND AVOID FURTHER VIOLATIONS.
   (B) CHILD CARE PROVIDERS LICENSED OR REGISTERED PURSUANT  TO  SUBDIVI-
 SION  TWO OF THIS SECTION SHALL NOTIFY THE PARENT OR GUARDIAN AS SOON AS
 POSSIBLE UPON LEARNING OF THE FOLLOWING EVENTS INVOLVING A  CHILD  WHICH
 OCCURRED WHILE SUCH CHILD WAS UNDER THE CARE OF SUCH CHILD CARE PROVIDER
 AT THE PROGRAM OR FACILITY OR WAS BEING TRANSPORTED BY SUCH PROGRAM:
   (I) DEATH;
   (II) SERIOUS INCIDENT;
   (III) SERIOUS INJURY;
   (IV) SERIOUS CONDITION;
   (V) COMMUNICABLE DISEASE;
   (VI) TRANSPORTATION TO A HOSPITAL; OR
   (VII) ANY OTHER INCIDENT INVOLVING A CRITICAL VIOLATION.
   §  5.  Subdivision  10  of  section 390 of the social services law, as
 amended by chapter 416 of the laws  of  2000,  is  amended  to  read  as
 follows:
   10.  (A)  Any home or facility providing child day care shall be oper-
 ated in accordance with applicable statutes and regulations.  Any  CRIT-
 ICAL violation of applicable statutes or regulations shall be a basis to
 deny, limit, suspend, revoke, or terminate a license or registration.
   (B)  ADDITIONAL  BASES TO DENY, LIMIT, SUSPEND, REVOKE, OR TERMINATE A
 LICENSE OR REGISTRATION SHALL INCLUDE A FINDING THAT THE HOLDER OF  SUCH
 LICENSE OR REGISTRATION:
   (I) FAILED TO COMPLY WITH ANY APPLICABLE STATUTE OR REGULATION, OR ANY
 CORRECTIVE  ACTION  PLAN,  NOTICE  OF  SANCTION, SUSPENSION, OR TERMS OF
 PROBATION;
   (II) FAILED TO PAY A FINE AFTER EITHER FAILING TO APPEAL  THE  ASSESS-
 MENT  OF A FINE WITHIN THE PRESCRIBED TIME OR A HEARING WHERE ASSESSMENT
 OF A FINE WAS UPHELD;
   (III) SUBMITTED ANY MISLEADING OR FALSE STATEMENT OR  REPORT  REQUIRED
 UNDER APPLICABLE STATUTES OR REGULATIONS;
   (IV)  REFUSED  TO  SUBMIT  ANY  REPORT  OR  MAKE AVAILABLE ANY RECORDS
 REQUIRED UNDER APPLICABLE STATUTES OR REGULATIONS;
   (V) REFUSED TO ADMIT, AT A REASONABLE TIME, ANY EMPLOYEE OF THE OFFICE
 OF CHILDREN AND FAMILY SERVICES AUTHORIZED BY THE COMMISSIONER  OF  SUCH
 OFFICE TO INVESTIGATE OR INSPECT A PROGRAM OR FACILITY PURSUANT TO PARA-
 GRAPH (A) OF SUBDIVISION THREE OF THIS SECTION; OR
   (VI) FAILED TO OBTAIN A LICENSE PRIOR TO OPENING A PROGRAM OR FACILITY
 OR CHANGING THE LOCATION OF A PROGRAM OR FACILITY.
 S. 7743                             5

   (C)  Consistent  with  articles twenty-three and twenty-three-A of the
 correction law, and guidelines referenced in subdivision two of  section
 four  hundred twenty-five of this article, if the office of children and
 family services is made aware of the existence of a criminal  conviction
 or  pending  criminal charge concerning an operator of a family day care
 home, group family day care home,  school-age  child  care  program,  or
 child day care center or concerning any assistant, employee or volunteer
 in  such homes, programs or centers, or any persons age eighteen or over
 who reside in such homes, such conviction or charge may be  a  basis  to
 deny,  limit,  suspend, revoke, reject, or terminate a license or regis-
 tration.
   (D) Before any license [issued] OR REGISTRATION  IS  DENIED,  LIMITED,
 SUSPENDED, REVOKED, REJECTED, OR TERMINATED pursuant to [the provisions]
 PARAGRAPH  (A),  (B)  OR  (C)  of this [section is suspended or revoked,
 before registration pursuant to this section is suspended or terminated]
 SUBDIVISION, THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL CONDUCT AN
 INVESTIGATION OF ANY CRITICAL VIOLATIONS, INCLUDING AN INSPECTION OF THE
 PROGRAM OR FACILITY PURSUANT TO PARAGRAPH (A) OF  SUBDIVISION  THREE  OF
 THIS SECTION.
   (E)  (I)  BEFORE  ANY  LICENSE  OR  REGISTRATION  IS  DENIED, LIMITED,
 SUSPENDED, REVOKED, REJECTED, OR TERMINATED PURSUANT TO  PARAGRAPH  (A),
 (B)  OR (C) OF THIS SUBDIVISION, or when an application for such license
 is denied or registration rejected, the applicant for or holder of  such
 registration  or  license is entitled, pursuant to section twenty-two of
 this chapter and the regulations of the office of  children  and  family
 services,  to  a  hearing  before  the  office  of  children  and family
 services. However,  a  license  or  registration  shall  be  temporarily
 suspended or limited without a hearing upon written notice to the opera-
 tor  of  the  facility following a finding that the public health, or an
 individual's safety or welfare, are in  imminent  danger.  SUCH  WRITTEN
 NOTICE  SHALL BE HAND DELIVERED, MAILED TO SUCH HOLDER OF A REGISTRATION
 OR LICENSE VIA FIRST CLASS MAIL, CERTIFIED OR REGISTERED, RETURN RECEIPT
 REQUESTED, OR DELIVERED BY COURIER REQUIRING A SIGNED RECEIPT.
   (II) UPON TEMPORARY SUSPENSION OR LIMITATION OF A LICENSE OR REGISTRA-
 TION PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE HOLDER OF  SUCH
 LICENSE OR REGISTRANT SHALL IMMEDIATELY RETURN SUCH LICENSE OR REGISTRA-
 TION  TO  THE OFFICE OF CHILDREN AND FAMILY SERVICES AND CEASE PROVIDING
 SERVICES. THE LICENSEE OR REGISTRANT SHALL NOTIFY THE PARENTS OR GUARDI-
 ANS OF ALL CHILDREN ENROLLED IN THE PROGRAM  OR  FACILITY  OF  ANY  SUCH
 SUSPENSION  OR LIMITATION WITHIN TWO BUSINESS DAYS OF RECEIPT OF WRITTEN
 NOTICE FROM THE OFFICE OF CHILDREN AND FAMILY SERVICES.
   (III) (A) The holder of a license or registrant is entitled to a hear-
 ing before the office of children and family  services  to  contest  the
 temporary suspension or limitation. If the holder of a license or regis-
 trant  requests a hearing to contest the temporary suspension or limita-
 tion, such hearing must be scheduled to commence as soon as possible but
 in no event later than thirty days after the receipt of the  request  by
 the  office of children and family services. [Suspension] THE SUSPENSION
 OR LIMITATION shall continue until the condition requiring suspension or
 limitation is corrected or until a hearing decision has been issued.
   (B) THE SOLE ISSUE AT A HEARING HELD PURSUANT TO CLAUSE  (A)  OF  THIS
 SUBPARAGRAPH SHALL BE WHETHER THE OFFICE OF CHILDREN AND FAMILY SERVICES
 HAS  REASON  TO  BELIEVE  THAT THE LICENSEE'S OR REGISTRANT'S FAILURE TO
 COMPLY WITH ANY APPLICABLE STATUTES OR REGULATIONS RESULTED IN AN  EMER-
 GENCY SITUATION IN WHICH THE PUBLIC HEALTH, OR AN INDIVIDUAL'S SAFETY OR
 WELFARE,  WAS  IN  IMMINENT  DANGER. A FINDING THAT ANY ABUSE OR NEGLECT
 S. 7743                             6
 
 OCCURRED AT THE PROGRAM OR FACILITY SHALL BE PRIMA FACIE  EVIDENCE  THAT
 SUCH EMERGENCY SITUATION EXISTS.
   (C)  If  the office of children and family services determines after a
 hearing HELD PURSUANT TO CLAUSE (A) OF THIS SUBPARAGRAPH that the tempo-
 rary suspension or limitation was proper, such suspension or  limitation
 shall be extended until the condition requiring suspension or limitation
 has  been  corrected  or  until  the  license  or  registration has been
 revoked.
   (IV) ANY PARTY AGGRIEVED BY A FINAL DECISION OF THE OFFICE OF CHILDREN
 AND FAMILY SERVICES IN ANY ADJUDICATORY PROCEEDING UNDER THIS  PARAGRAPH
 MAY  PETITION FOR JUDICIAL REVIEW PURSUANT TO SECTION TWENTY-TWO OF THIS
 CHAPTER.
   § 6. Subparagraphs (i), (iii) and (iv) of paragraph (a) of subdivision
 11 of section 390 of the social services law, as amended by chapter  416
 of the laws of 2000, are amended to read as follows:
   (i) The office of children and family services shall adopt regulations
 establishing  civil  penalties  of no more than five hundred dollars per
 day to be assessed against child day care centers, school age child care
 programs, group family day care homes or family day care homes for CRIT-
 ICAL violations of this section, sections  three  hundred  ninety-a  and
 three  hundred  ninety-b  of  this title and any regulations promulgated
 thereunder. The regulations establishing civil penalties  shall  specify
 the violations subject to penalty.
   (iii)  In  addition to any other civil or criminal penalty provided by
 law, the office of children and family services shall have the power  to
 assess civil penalties in accordance with its regulations adopted pursu-
 ant  to  this  subdivision  after a hearing conducted in accordance with
 procedures established by regulations of  the  office  of  children  and
 family  services.  Such procedures shall require that notice of the time
 and place of the hearing,  together  with  a  statement  of  charges  of
 violations,  shall be served in person or by certified mail addressed to
 the school age child care program, group family day  care  home,  family
 day  care  home,  or child day care center at least thirty days prior to
 the date of the hearing. The statement of charges shall  set  forth  the
 existence of the CRITICAL violation or violations, the amount of penalty
 for  which  the program may become liable, the steps which must be taken
 to rectify [the] SUCH violation OR VIOLATIONS, and where  applicable,  a
 statement  that  a penalty may be imposed regardless of rectification. A
 written answer to the charges of CRITICAL violations shall be filed with
 the office of children and family services not less than ten days  prior
 to  the  date  of  hearing with respect to each of the charges and shall
 include all material and relevant matters which, if not disclosed in the
 answer, would not likely be known to the office of children  and  family
 services.
   (iv)  The  hearing  shall be held by the commissioner of the office of
 children and family services or the commissioner's designee. The  burden
 of  proof  at such hearing shall be on the office of children and family
 services to show that the charges are supported by  a  preponderance  of
 the  evidence.  The  commissioner  of  the office of children and family
 services or the commissioner's designee, in his or her  discretion,  may
 allow the child day care center operator or provider to attempt to prove
 by  a  preponderance  of  the  evidence  any  matter not included in the
 answer. Where the child day care  provider  satisfactorily  demonstrates
 that  it  has  rectified  the CRITICAL violations in accordance with the
 requirements of paragraph (c) of this subdivision, no penalty  shall  be
 imposed except as provided in paragraph (c) of this subdivision.
 S. 7743                             7
 
   §  7.  Subparagraph  (i) of paragraph (b) of subdivision 11 of section
 390 of the social services law, as amended by chapter 416 of the laws of
 2000, is amended to read as follows:
   (i) In assessing penalties pursuant to this subdivision, the office of
 children and family services may consider the completeness of any recti-
 fication  OF  CRITICAL VIOLATIONS made and the specific circumstances of
 such CRITICAL violations as mitigating factors.
   § 8. Subparagraph (i) of paragraph (c) of subdivision  11  of  section
 390 of the social services law, as amended by chapter 117 of the laws of
 2010, is amended to read as follows:
   (i) Except as provided for in this paragraph, a child day care provid-
 er shall avoid payment of a penalty imposed pursuant to this subdivision
 where  the  provider  has  rectified the condition which resulted in the
 imposition of the penalty within thirty  days  of  notification  of  the
 existence of the CRITICAL violation of statute or regulation.
   §  9.  The  opening  paragraph of subparagraph (i) of paragraph (e) of
 subdivision 11 of section 390 of the social services law,  as  added  by
 chapter 117 of the laws of 2010, is amended to read as follows:
   The  office  of children and family services shall deny a new applica-
 tion for licensure or registration made by a  day  care  provider  whose
 license  or registration was previously revoked or terminated based on a
 CRITICAL violation of statute or regulation for a period  of  two  years
 from  the  date  that  the  revocation  or termination of the license or
 registration became finally effective, unless such office determines, in
 its discretion, that approval of the application will  not  in  any  way
 jeopardize  the  health,  safety  or  welfare of children in the center,
 program or home. For the purposes of this paragraph, the date  that  the
 revocation or termination became finally effective shall be, as applica-
 ble:
   §  10.  Section  390 of the social services law is amended by adding a
 new subdivision 11-a to read as follows:
   11-A. (A) (I) WITHIN SEVEN DAYS OF RECEIPT OF A CORRECTIVE ACTION PLAN
 OR NOTICE OF SANCTION PURSUANT TO PARAGRAPH (B) OF SUBDIVISION THREE  OF
 THIS  SECTION,  A CHILD CARE PROVIDER LICENSED OR REGISTERED PURSUANT TO
 SUBDIVISION TWO OF THIS SECTION MAY FILE WITH THE  COMMISSIONER  OF  THE
 OFFICE OF CHILDREN AND FAMILY SERVICES A WRITTEN REQUEST FOR ADMINISTRA-
 TIVE  RECONSIDERATION.    SUCH  REQUEST  SHALL  BE LIMITED TO DIRECT AND
 SPECIFIC REASONS WHY SUCH NOTICE OF SANCTION OR ANY ITEM IN SUCH CORREC-
 TIVE ACTION PLAN OR ANY PORTION THEREOF SHOULD BE RESCINDED OR MODIFIED,
 AND THE APPROXIMATE TIMES REQUESTED BY SUCH CHILD CARE PROVIDER TO  TAKE
 CORRECTIVE MEASURE, IF ANY.
   (II)  WITHIN  FIFTEEN  BUSINESS DAYS AFTER RECEIPT OF SUCH REQUEST FOR
 ADMINISTRATIVE RECONSIDERATION, THE COMMISSIONER OF THE OFFICE OF  CHIL-
 DREN  AND  FAMILY  SERVICES  SHALL GRANT, DENY, OR OTHERWISE ACT ON SUCH
 REQUEST.
   (III) FILING SUCH REQUEST FOR ADMINISTRATIVE RECONSIDERATION SHALL NOT
 ALTER THE TIME REQUIRED FOR COMPLIANCE WITH SUCH NOTICE OF  SANCTION  OR
 CORRECTIVE ACTION PLAN.
   (B)  (I)  AN  APPLICANT  FOR  OR A HOLDER OF A LICENSE OR REGISTRATION
 WHOSE LICENSE OR REGISTRATION THE OFFICE OF CHILDREN AND FAMILY SERVICES
 INTENDS TO DENY, LIMIT, REFUSE TO  RENEW,  MAKE  PROBATIONARY,  SUSPEND,
 REVOKE,  OR  TERMINATE  PURSUANT  TO SUBDIVISION TEN OF THIS SECTION, OR
 WHOM THE OFFICE OF CHILDREN AND FAMILY SERVICES INTENDS TO FINE PURSUANT
 TO SUBDIVISION ELEVEN OF THIS SECTION, MAY REQUEST A HEARING PURSUANT TO
 SECTION TWENTY-TWO OF THIS CHAPTER.
 S. 7743                             8
 
   (II) THE HEARING OFFICER SHALL ENTER A RECOMMENDED DECISION  REGARDING
 THE  INTENTION  OF  THE  OFFICE OF CHILDREN AND FAMILY SERVICES TO DENY,
 LIMIT, REFUSE TO RENEW, MAKE PROBATIONARY, SUSPEND, REVOKE, OR TERMINATE
 A LICENSE OR REGISTRATION PURSUANT TO SUBDIVISION TEN OF THIS SECTION OR
 FINE  AN APPLICANT FOR OR A HOLDER OF A LICENSE OR REGISTRATION PURSUANT
 TO SUBDIVISION ELEVEN OF THIS SECTION. A FINAL DECISION SHALL BE  ISSUED
 BY  THE  COMMISSIONER  OF  THE  OFFICE  OF CHILDREN AND FAMILY SERVICES.
 HEARINGS SHALL BE HELD PURSUANT TO REGULATIONS TO BE DETERMINED  BY  THE
 COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES.
   (III)  FAILURE  OF AN APPLICANT FOR OR A HOLDER OF A LICENSE OR REGIS-
 TRATION TO REQUEST A HEARING AND FILE TIMELY ANSWERS  MAY  BE  DEEMED  A
 WAIVER OF SUCH RIGHT AND A FINAL DECISION MAY BE ENTERED WITHOUT FURTHER
 NOTICE.
   (IV) ANY PARTY AGGRIEVED BY A FINAL DECISION OF THE OFFICE OF CHILDREN
 AND  FAMILY SERVICES IN ANY ADJUDICATORY PROCEEDING UNDER THIS PARAGRAPH
 MAY PETITION FOR JUDICIAL REVIEW PURSUANT TO SECTION TWENTY-TWO OF  THIS
 CHAPTER.
   (C)  (I)  UPON  THE  EXPIRATION  OF  THE  TIME PERIODS PRESCRIBED IN A
 CORRECTIVE ACTION PLAN OR NOTICE OF SANCTION ISSUED  PURSUANT  TO  PARA-
 GRAPH  (B)  OF  SUBDIVISION  THREE  OF  THIS  SECTION, A DULY AUTHORIZED
 EMPLOYEE OF THE OFFICE OF CHILDREN AND FAMILY SERVICES  SHALL  DETERMINE
 COMPLIANCE WITH SUCH PLAN OR NOTICE BY VISITING THE FACILITY OR PROGRAM,
 REVIEWING  DOCUMENTS, AND/OR VERIFYING COMPLIANCE THROUGH WHATEVER OTHER
 MEANS THE OFFICE OF CHILDREN AND FAMILY SERVICES DEEMS  SUITABLE.  IF  A
 DETERMINATION  OF  NON-COMPLIANCE  WITH SUCH PLAN OR NOTICE IS MADE, THE
 OFFICE OF CHILDREN AND FAMILY SERVICES MAY ISSUE AN  ADDITIONAL  CORREC-
 TIVE  ACTION  PLAN OR TAKE ANY OTHER ACTION PURSUANT TO SUBDIVISIONS TEN
 AND ELEVEN OF THIS SECTION.
   (II) FOLLOWING THE SUSPENSION, REVOCATION, REJECTION,  OR  TERMINATION
 OF  A  LICENSE OR REGISTRATION PURSUANT TO PARAGRAPH (A), (B), OR (C) OF
 SUBDIVISION TEN OF THIS SECTION,  A  DULY  AUTHORIZED  EMPLOYEE  OF  THE
 OFFICE  OF  CHILDREN AND FAMILY SERVICES SHALL DETERMINE COMPLIANCE WITH
 APPLICABLE STATUTES OR REGULATIONS BY VISITING THE FACILITY OR  PROGRAM,
 REVIEWING DOCUMENTS, AND/OR VERIFYING COMPLIANCE THROUGH ANY OTHER MEANS
 THE OFFICE OF CHILDREN AND FAMILY SERVICES DEEMS SUITABLE.
   (D)  FACTORS  WHICH  THE  OFFICE OF CHILDREN AND FAMILY SERVICES SHALL
 CONSIDER BEFORE IMPOSING ANY  SANCTION  OR  FINE  OR  ANY  OTHER  ACTION
 AUTHORIZED  PURSUANT  TO PARAGRAPH (B) OF SUBDIVISION THREE AND SUBDIVI-
 SIONS TEN AND ELEVEN OF THIS SECTION SHALL INCLUDE,  BUT  SHALL  NOT  BE
 LIMITED TO, THE FOLLOWING:
   (I) ANY VIOLATIONS OF APPLICABLE STATUTES OR REGULATIONS AT THE FACIL-
 ITY OR PROGRAM;
   (II)  THE  RISK  THE  VIOLATIONS  PRESENT  TO  THE HEALTH, SAFETY, AND
 WELFARE OF CHILDREN, INCLUDING  WHETHER  SUCH  VIOLATIONS  ARE  CRITICAL
 VIOLATIONS;
   (III)  THE  NATURE,  SCOPE, SEVERITY, DEGREE, NUMBER, AND FREQUENCY OF
 THE VIOLATIONS;
   (IV) THE FAILURE OF A HOLDER OF A LICENSE OR REGISTRANT TO CORRECT THE
 VIOLATIONS;
   (V) ANY PREVIOUS VIOLATIONS; AND
   (VI) ANY PREVIOUS ENFORCEMENT ACTIONS.
   § 11. This act shall take effect on the ninetieth day after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  and  completed
 on or before such effective date.

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Senate Bill S7743

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