S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    76
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced  by M. of A. HEVESI, CLARK, LAVINE, LUNSFORD -- read once and
   referred to the Committee on Children and Families
 
 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00044-01-5
              

 A. 76                               2
 
   (I) "SERIOUS PHYSICAL OR EMOTIONAL INJURY" SHALL MEAN AN INJURY  WHICH
 CAUSES  OR  CREATES  A SUBSTANTIAL RISK OF DEATH, EXTREME PHYSICAL PAIN,
 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
 A. 76                               3
 
   (III)  WHO HAS HAD SERIOUS PHYSICAL OR EMOTIONAL INJURY INFLICTED UPON
 SUCH CHILD BY OTHER THAN ACCIDENTAL MEANS.
   § 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.
 A. 76                               4
 
   § 4. Section 390 of the social services law is amended by adding a new
 subdivision 3-a to read as follows:
   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
 A. 76                               5
 
   (VI) FAILED TO OBTAIN A LICENSE PRIOR TO OPENING A PROGRAM OR FACILITY
 OR CHANGING THE LOCATION OF A PROGRAM OR FACILITY.
   (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-
 A. 76                               6

 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
 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]   THEIR
 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
 A. 76                               7
 
 with  the  requirements of paragraph (c) of this subdivision, no penalty
 shall be imposed except as provided in paragraph (c)  of  this  subdivi-
 sion.
   §  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
 A. 76                               8
 
 TO SUBDIVISION ELEVEN OF THIS SECTION, MAY REQUEST A HEARING PURSUANT TO
 SECTION TWENTY-TWO OF THIS CHAPTER.
   (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
 A. 76                               9
 
 this act on its effective date are authorized to be made  and  completed
 on or before such effective date.