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Licensing

1. Can my center obtain a waiver from the statutes and regulations governing child care centers?

The OCFS has the authority to grant waivers from non-statutory requirements under certain conditions. Thus, if a requirement is mandated by statute (e.g. fingerprinting and background checks of employees of a day care center) the OCFS may not waive this requirement. As to non-statutory requirements (those found in the DSS Regulations Parts 413, 416, 417 or 418) the OCFS may waive one or more of those requirements only when: 1) the proposed waiver will not adversely affect the health, safety or well-being of children; and 2) the purpose of the regulation will still be met if the waiver is granted. In seeking a waiver, the center must describe what will be done to achieve or maintain the intended purpose of the regulation and to protect the health, safety and well-being of children. Since the OCFS generally considers the regulations to contain minimum requirements, waivers should only be sought in exceptional circumstances and the center needs to articulate clearly why compliance cannot be met and a waiver is needed. The Regulation governing waivers is 413.6. See http://www.ocfs.state.ny.us/main/childcare/regs/413Definitions.asp#s6

The OCFS has published a form to be used when requesting a waiver (form OCFS-4887) http://www.ocfs.state.ny.us/main/Forms/Day_Care/LRP/OCFS-LDSS-4887%20Request%20for%20Waiver.doc  

2. If I receive a waiver, how long is it in effect?

When the Request for Waiver (Form OCFS 4887) is filled out, the center is required to state the period of time for which it seeks a waiver, but it cannot be for longer than 2 years (the period by which the license must be renewed). Waivers may be limited in time, at the discretion of the OCFS. A limited waiver would be appropriate, for example, if the center needs to make repairs to a door to make it comply with the local fire code (if the OCFS determined there was no compromise to the safety of the children in granting the waiver) but the center could not complete the repair work prior to the termination of its existing license because, for example, the required door was on order and had not yet been delivered. If a center needs a "perpetual" waiver (which should indeed be rare) it needs to request the waiver at the time it renews its license every two years. There is no guarantee that the OCFS will continue to grant the waiver even though it has done so in the past.

3. My center has complied with all obligations regarding background checks of prospective employees yet the OCFS criticized me for not having documentation to prove this. I do not always have time to document everything - - am I required to do this?

The OCFS regulations specifically require documentation of some items (more). For other matters, the regulations may not specifically require that the center keep documentation, but it is always a good idea to do so. Documentation is the "best evidence" for the OCFS to determine that a center has indeed met all statutory and regulatory requirements - - contemporaneous documentation is more credible than a verbal confirmation from the center director. Moreover, a center that is conscientious in its documentation is a sign that the center is being run in a professional and prudent manner. And, from a purely legal standpoint (beyond the OCFS licensing requirements), contemporaneous documentation can be critical in the defense of a lawsuit.

For example, the regulations (418-1.13) require that a center obtain references from three people prior to hiring an employee (at least one of whom can verify employment history, work record and qualifications, and at least one of whom can attest to the applicant’s character, habits and personal qualifications). If the center calls three references who give positive feedback on the applicant but does not document the calls adequately, how is the center going to show the OCFS that it complied with this regulation? Nor is it enough that the center write down three names and "OK" or "good" next to the name. While some documentation is better than none, this documentation lacks the specificity to demonstrate to the OCFS that the center explored with the reference those qualities of the applicant that it is required to do so. (see "Reference Worksheet" that helps guide a center through a meaningful reference check). Furthermore, if the applicant is hired and later injures a child, and the parents sue claiming that the center was negligent in hiring the person, without some meaningful level of detail in the reference-check documentation it may be more difficult for the center to defend itself against a claim for negligent hiring.

Taking the time to create meaningful documentation at the time of the event is less time consuming than dealing with later questions from the OCFS asking the center to verify compliance, from the CPS if investigating claims of an injured/abused child, or when asked detailed questions in a lawsuit about events that likely occurred years earlier.

4. The OCFS recently conducted an inspection of my center and advised me that the center was not in compliance with the requirement to adequately supervise children. But my center is in compliance with the staff/children ratios set forth in the regulations. Was it proper for the OCFS to state that I was out of compliance?

Regulation 418-1.8(d) states that children cannot be left without competent supervision at any time. This regulation also provides for, among other things, minimum staff to children ratios based on age of the children. In order for a center to be in meaningful compliance with the regulation, staff must not only be physically present, but must be actually paying attention to the children. Staff that are chatting with each other, talking or texting on a phone, reading a book or are otherwise distracted are not supervising children. Additionally, from a legal risk standpoint, if a center allows employees to engage in distracting activities when the employees should be devoting their full attention to the children, and a child is hurt, there is a risk that a parent will claim that the center was negligent. A center’s personnel policies should specifically provide that engaging in any behavior that causes the employee to devote less than full attention to the children is in violation of the policies and can subject the employee to appropriate disciplinary action, up to and including termination. 

Training

1. Which employees of my center need to fulfill the training requirements in the regulations (30 hours every 2 years on a defined set of topics)?

Section 390 of the Social Services Law provides that the OCFS shall promulgate regulations requiring program directors, employees and assistants of child day care centers to receive 30 hours of training every two years (fifteen of which must be received within the first six months after employment begins). The regulations (418 NYCRR 1.14) provide that each employee of a center must receive this training (emphasis added) and sets forth the topics that must be covered. Thus, even cooks, janitors, administrative staff and persons who are employed by the center, but not primarily in a job supervising children, must receive the required training. When one considers that many centers utilize these employees to help watch children before or after regular business hours, filling in during employee breaks, etc. the training requirement is not without justification. A center should make sure that all of its employees receive the required training and that adequate records are kept of the training (see OCFS Form 4879 (Day Care Program Training Tracking Chart) and OCFS Form 4880 (Individual Training Tracking Form for Child Care Personnel). Note that part-time employees are not required to receive the full 30 hours of training; rather, it may be calculated on a pro-rated basis. See OCFS Policy Statement 08-02 "Child Care Training Requirements."

2. Do I need to pay my employees to attend training classes?

Yes, for all nonexempt employees (those paid on an hourly basis). The wage and hour laws of New York provide that nonexempt employees shall be compensated for all hours worked. Training is likely to be considered compensable time, since the employees are required to attend the training and the training is directly related to the employee’s job. Also remember that if attending a training course causes the employee to work in excess of 40 hours a week, the employee must be compensated at time and a half for any hours worked over 40. Thus, if possible, a center may want to arrange its schedule such that that any employees attending training work fewer hours in that week, so that the total hours worked in a week does not exceed 40.

3. Am I required to prove to the OCFS that the persons who provide training to my employees are qualified to do so?

The OCFS has stated that there is no requirement that the trainer have a degree in the specific subject on which they train. However, the trainer must possess the skills to conduct the training. Acceptable trainers include employees within the center that have the qualifications to conduct the training, as well as outside experts. Licensors will consider the following questions when evaluating if the trainer/training is acceptable:

• Is the course curriculum specifically related to one or more of the required training topics?
• Is the material presented accurate and relevant?
• Is the trainer skilled in the topic?
• What is the trainer’s experience and/or education on the topic?
• What is the trainer’s training experience?
• What are the trainer’s credentials?
• Does the trainer have professional references?

 

In-house training may be provided by the center director, since the director is required to meet certain educational requirements. Other qualified staff may also provide in-house training, so long as the staff member meets equivalent qualifications and competencies. The center should keep adequate documentation of the training and trainer. For all outside trainers, the center should ask the trainer to provide a curriculum and personal biography. For internal trainers, similar documentation should be kept. For example, if a staff member is providing training on the topic Business Record Management and Maintenance, it may be sufficient that the staff member has herself received formal training and has been employed in the center for several years in a capacity that requires her to maintain the center’s records. A notation in the training file stating the qualifications of the staff member providing the training is advisable. For further guidance on training requirements see OCFS Policy Statement 08-02 "Child Care Training Requirements."

Employee Absences /Leaves

1. What are my obligations to an employee when she goes on maternity leave?

Unless your center has 50 or more employees and is covered by the Family Medical Leave Act the center has no obligation to provide pregnancy leave or parental leave to employees. However, the center may not discriminate against the employee because she is pregnant. This means that if the employee has medical issues associated with her pregnancy that necessitate time off, the request for leave should be treated the same as leave requested for medical conditions unrelated to pregnancy. You may require pregnant employees who are taking leave under your benefits policy to follow all of the same procedures required by employees who are using the leave for other reasons. This includes, among other things: providing adequate notice within a specified period of time, supplying supporting paperwork from a physician, and scheduling the leave with supervisors before it begins. As to short-term disability leave, the Department of Labor requires the center to provide disability leave for those who are pregnant, have recently given birth, or who face related medical conditions in the same manner that it is provided for any other medical condition. Additionally, the center must allow employees to use any vacation and personal time they have accrued. Not allowing them to do so may result in a claim of discrimination by the employee. Similarly, if the center has leave policies that may or may not be related to medical conditions, such as allowing an employee to take unpaid leave under certain circumstances, the center must treat the pregnant employee the same as other employees seeking unpaid leave due to reasons other than pregnancy. Note also that while the employee is on leave, the center must accrue benefits to the same extent that it does for employees on leave due to reasons other than pregnancy.

2. What are my obligations to an employee who becomes pregnant and is restricted in her activities, including lifting children?

Under New York State law, an employer may not require a pregnant employee to take a leave of absence, unless the pregnancy prevents the employee from performing the activities involved in the job in reasonable manner. Thus, if it is an essential element of the job that an employee must be able to lift and carry children and if the employee is unable to do this, you can require that the employee take a leave. Any leave for this reason should be treated in the same way as any non-pregnancy related leave associated with a temporary medical disability that restricts an employee’s ability to lift. Thus, if in non-pregnancy related circumstances the center attempts to find the employee an alternative job where lifting is not required, the center needs to do the same if the lifting restriction is due to pregnancy. See above question for details on what may constitute pregnancy discrimination. If lifting is an essential element of the job, this should be stated in the job description.

After-Hours Babysitting

1. Should I permit staff members or volunteers to babysit after hours for the children with whom they work?

The safest route is to prohibit such staff members or volunteers from babysitting after hours in such circumstances. At a minimum, the center should inform staff/ volunteers and parents that if such babysitting occurs, it is not sanctioned by or under the supervision of the center. The center may also want to require parents to sign a statement/waiver to the effect that if the parents use the staff or volunteers for babysitting, they do so at their own risk and expressly waive the right to hold the center responsible for any accidents or wrongdoing. For your convenience, a sample babysitting policy is provided.

Children with Special Needs

1. Is my center required to admit a child with a disability that needs specialized care?

The answer is "it depends." All child care centers, even those privately run, must comply with the "public accommodations" provisions of the Americans with Disabilities Act ("ADA"). This means that centers cannot discriminate against children with disabilities and must make a ‘reasonable accommodation" to enable children with disabilities to attend the program. The center does not need to admit a disabled child if the presence of the child would: 1) pose a direct threat to the health or safety of others; or 2) require a fundamental alteration in the nature of the program. There is no bright line as to whether an accommodation is "reasonable" or whether it is one that would "require a fundamental alteration" of the program. The primary directive is that the center must make an individualized assessment of each disabled child that seeks to enter or is in the program. The center cannot have a policy that states it will not take children with disabilities or with certain disabilities (e.g. autism). Rather, in discussion with the parent, the center must determine the nature and severity of the disability and whether accommodations can be made to allow the child in the program without fundamentally altering the program or endangering other children. An interactive dialogue with the child’s parents, exploring possible accommodations in good faith, is key to the center meeting its obligations under the ADA. Two excellent publications can help guide a center through the process of determining if a disabled child can be reasonably accommodated: OCFS Policy Statement 06-3 "Compliance Issues as they Relate to the American with Disabilities Act" and the U.S. Department of Justice publication "Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act."

2. Is my center required to obtain MAT certification?

While there is generally no requirement that a center obtain MAT certification, there may be circumstances where compliance with the ADA (see above) may require the center to administer medications to a child with a disability. Under these circumstances, the center must take steps in a timely manner to obtain MAT certification. If the center does not have staff that is MAT trained, the center cannot delay enrollment of the child with a disability on this basis alone. The center must enroll a child with a disability as soon as a place for the child is open. If this results in the center accepting the child without being legally able to administer the child’s medication, the center and parent must meet and prepare a written plan for how the child’s medication will be provided until the provider becomes authorized to administer medications. The OCFS has provided further guidance on this issue in OCFS Policy Statement 06-3 "Compliance Issues as they Relate to the American with Disabilities Act."

Reporting Child Abuse and Maltreatment

1. I have heard that there were changes to the reporting procedures for suspected child abuse and maltreatment. What are these changes?

In 2007, Social Security Law Section 413, addressing the obligations of child care staff to report suspected child abuse or maltreatment, was amended. The primary change is that a center can no longer require the staff member to report the suspected abuse to the director prior to calling the Statewide Central Register of Child Abuse and Maltreatment (SCR). Instead, a staff member who has personal knowledge of suspected abuse or maltreatment has a legal obligation to first personally call the SCR and make a report before notifying the director. This law means that the procedures set forth in regulation 414.10 (c) are no longer operative and reporting to the director or his/her designee does not absolve the staff person of potential liability for failure to report. The OCFS, by letter date March 26, 2009 , requires that all staff sign a "Mandatory Reporter Attestation" form acknowledging that he/she has been advised of this change in the law and the form should be kept in each employee’s personnel file. Further information on this change in the law can be found in the March 26, 2009 letter referenced above and 08-OCFS-INF-01. For your convenience, a sample policy for reporting abuse and maltreatment is provided.