OCFS Proposes Health and Safety Safeguards

Informal Child Care Providers

January 5, 2005

Author: Susan C. Antos

The Office of Children and Family Services (OCFS) has proposed regulations which would establish new health and safety standards for informal child care providers. The notice of proposed rulemaking, but not the actual text, appeared in the New York State Register on January 5, 2005: http://www.dos.state.ny.us/info/register/2005/jan5/toc.htm The regulations are available on the OCFS website which is at http://www.ocfs.state.ny.us Public comment on these regulations extends until February 22, 2005.

Informal child care includes legally exempt family child care providers who care for fewer than three children in their own home, and legally exempt in-home child care which is child care furnished in the child’s own home [18 NYCRR 415.1(h)(1),(2)][1].   Legally exempt providers are not subject to the same oversight as regulated and licensed providers. Thirty-nine percent of all children (68,000) receiving child care subsidies are in legally exempt care.[2] 

These regulations were proposed in large part to address the report of the New York State Comptroller, “Life Safety and Fiscal Issues related to Legally Exempt Child Care,” which was issued in the summer of 2004. The report raised serious concerns about the safety of children in informal care and about fraud.

The regulations responded to the concerns in the report by making a number of significant changes to informal care:

• Districts must inspect 20% of all informal providers in their district who do not participate in the Child and Adult Care Food Project (CACFP) to assure that providers comply with health and safety standards. Any district with a non-compliance rate of more than 10% will be required to increase the inspection rate to 30% in the following year. 

• Market rates for legally exempt family and in-home providers are reduced by about $7-12 per week, but are enhanced above the current market rate if the providers have 10 or more hours of training annually.

• To supplement the self-certification process, informal providers will be subject to a check of the county’s criminal records, the district’s child welfare data base, the OCFS Child Care Facilities system database (to check on license or registration denial, suspension or revocation), and the New York State Sex Offender Registry.

The Comptroller’s Report

In July of 2004, the New York State Comptroller issued a report, “Life Safety and Fiscal Issues related to Legally Exempt Child Care,” report # 2002-S-38 (7/1/04).  The Comptroller conducted an audit of program and fiscal issues based on visits to Albany, Monroe and Nassau Counties. The findings were startling: 

• a random visit of 31 providers to check health and safety revealed three that did not appear to be providing care to children and the remainder revealed significant safety shortcomings in all but 2 homes: 22 providers did not have electrical caps covered; 14 providers did not have a first aid kit; 20 providers had harmful materials/objects that were not safely stored away (alcohol, syringes, butcher knife, medicine, cleaning supplies).

• in a visit of 70 randomly selected providers, the comptroller’s staff could not confirm that care was being provided in 31 cases (44%), although subsidies were being paid; 

• a random selection of 162 providers revealed 15 who had records showing conviction of a crime (including Sodomy and Assault I) and 14 providers who had indicated reports of child abuse.

Currently, informal providers simply certify that they meet health and safety standards. This information is provided upon enrollment and must be updated and reviewed annually. 18 NYCRR 415.4 (f)(3). The Comptroller was critical of the effect that this “self-certification process” had upon the quality of informal child care and recommended that OCFS study the existing process of self-certification and revise it where necessary. The Comptroller also noted that there is no requirement that districts independently verify that subsidized child care services are actually provided. Only Livingston, Onondaga, Lewis and Monroe Counties conduct random inspections of informal providers.[3] 

The proposed regulations attempt to address some of the short coming revealed in the Comptroller’s report by making a number of changes in the requirements that apply to informal care givers.
Certification
 
Existing regulations: The self certification regulations that currently exist in the regulations at 18 NYCRR 415.4 (f)(7) require a that legally exempt child care provider

• provide a “sworn statement” as to whether a household member has been convicted of a misdemeanor or felony “in New York State or any other jurisdiction,” to the child’s caretaker and the social services district; 

• provide “true and accurate information in writing” to the child’s caretaker as to whether any household member has been the subject of an indicated report of child abuse or maltreatment in New York State or elsewhere (currently this information does not have to be provided to the social services district); 

• “attest and certify in writing” as to whether they have ever had their license or registration to provide child care suspended or revoked, or their parental rights have been terminated;

• “attest and certify in writing” that they are operating under the auspices of another state local of federal agency or alternatively that they meet a long list of health and safety requirements.

Current regulations also state that to maintain their enrollment, providers must comply with the self-certification requirements. 18 NYCRR 415.4 (f)(7)(vi). A social services district may refuse to allow a provider who is not in compliance with the self-certification to provide subsidized child care services. 18 NYCRR 415.4 (h).The regulations also state that “the Social Services District may terminate child care subsidy payments and take legal action if the caregiver or care taker provides false information.” 18 NYCRR 415.4(f)(7)(y).

Proposed regulations: The proposed regulations add a section to the regulation that says a caregiver must certify in writing that “all statements made on the enrollment form are true and accurate and that any false information may result in the termination of the caregiver’s enrollment, cessation of child care subsidy payments and the taking of any “appropriately legal action” by the Social Services District ” proposed 18 NYCRR 415.4 (f)(7)(iv). The new regulation thus requires that the sanctions which already exist in regulation be made express on the certification form so that the provider is aware of them.

Child and Adult Care Food Program(CACFP)

Existing regulations: None.
 
Proposed regulations: The proposed regulations require Social Services Districts to refer each informal child care provider to the child and adult care food program at initial enrollment and re-enrollment. At district option, the districts may require participation in the child and adult care food program as a condition of enrollment for each informal provider who provides more than 30 hours per week of care to one or more subsidized children. 18 NYCRR 415.4(f)(8).

Criminal records check

Existing regulations: Legally exempt providers must provide a sworn statement as to whether a household member has been convicted of a misdemeanor or felony “in New York State or any other jurisdiction,” to the child’s caretaker and the social services district. 18 NYCRR 415.4(f)(7)(i).
 
Proposed regulations: The proposed regulations require Social Services Districts to check the criminal records of the county in which the informal provider is located to determine whether the provider, employee or volunteer, or any household member age 18 or over, has been convicted of a felony or misdemeanor in the county. The child care provider will be informed of any indicated convictions and will be required to provide the child’s caretaker and the social services district “true and accurate information about the crime,” which will enable the child’s caretaker and the social services district to determine whether there is an “unreasonable risk to the safety and welfare” of the children in care. There is nothing in the regulations which indicates how the district will verify that the child’s care taker was informed of this conviction. If any person was convicted of a felony or misdemeanor “against children,” the provider may not be enrolled as an informal child care provider. The district may enroll a provider if the conviction was not “against children,” based upon guidelines issued by OCFS. 18 NYCRR 415.4(f)(8)(ii).

Concerns: This is a narrow check, requiring a review of only the criminal records in the county where the provider resides. It will not reveal convictions in other counties of New York State or other jurisdictions outside the state. What additional resources would be necessary to run a check through the records of the DOCs database, which is already done by Monroe County, according to its 2004-06 consolidated services plan (on file at GULP).

Child abuse and neglect checks

Existing regulations: Legally exempt providers must provide “true and accurate information in writing” to the child’s caretaker as to whether any household member has been the subject of an indicated report of child abuse or maltreatment in New York State or elsewhere (currently this information does not have to be provided to the social services district), and “attest and certify in writing” as to whether they have ever had their parental rights terminated. 18 NYCRR 415.4(f)(7)(ii). 

Proposed regulations: The proposed regulations require Social Services Districts to check the district’s child welfare data base to determine whether an informal provider has had his or parental rights terminated or a child removed from his or her care by Court Order under Article 10 of the Family Court Act. Where such a termination or removal is discovered, the child care provider will be required to provide the child’s caretaker and the social services district “true and accurate information regarding the reasons underlying the loss of parental or custodial rights.” The district will then determine, based upon guidelines issued by OCFS, whether to enroll the caregiver. 18 NYCRR 415.4(f)(8)(iii).
 
Concerns: What is the scope of the district’s child welfare data base? Will it reveal whether a persons parental rights were terminated or if removals were made under Article 10 of the Family Court Act in other counties of New York State or other jurisdictions outside the state?

Previous revocation of registration or license

Existing regulations: Legally exempt providers must “attest and certify in writing” as to whether they have ever been denied a day care license or registration of had such a license or registration suspended or revoked, and provide true and accurate information to the child’s caretaker and the district about the reasons for the denial suspension or revocation. The Social Services District must then determine whether to enroll the provider. 18 NYCRR 415.4(f)(7)(iii)(a).
 
Proposed regulations: The proposed regulations require Social Services Districts to check the New York State Office of Children and Family Services Child Care Facilities System (CCFS) within 30 days of an informal provider’s application for enrollment to determine if the applicant has been denied a day care license or registration of had such a license or registration suspended or revoked. If an indication of such adverse action is revealed by CCFS, the applicant must provide true and accurate information to the child’s caretaker and the district about the reasons for the denial suspension or revocation. The Social Services District must then determine whether to enroll the provider. 18 NYCRR 415.4(f)(8)(iv).

New York State Sex Offender Registry:

Existing Regulations: None.

Proposed regulations: The proposed regulations require Social Services Districts to check the New York State Sex Offender Registry maintained by the New York State Division of Criminal Justice via the Registry’s toll free telephone number to determine if the applicant , any employee or volunteer or any household member age 18 or over is listed on such registry. If any person is so listed, the Social Services District must not enroll the informal caregiver. 18 NYCRR 415.4(f)(8)(v).

Inspections

Existing Regulations: Local social services districts are permitted to make announced or unannounced inspections of the records and premises of informal child care providers in accordance with a plan filed with OCFS. Districts may require inspections prior to the enrollment of a provider. If a District makes inspections they must notify OCFS of any violations and provide the OCFS with an inspection report. 18 NYCRR 415.4(h). As pointed out previously, only Livingston, Onondaga, Lewis and Monroe Counties conduct random inspections of informal providers
 
Proposed Regulations: The proposed regulations require that each Social Services District inspect on an annual basis, at least 20% of the currently enrolled informal child care providers who do not participate in the child and adult care food program (CACFP), to determine if they are in compliance with health and safety standards. Any district that has a non-compliance rate in excess of 10% will be required to increase the inspection rate to 30% in the following year. The 30% compliance rate will be required until the compliance rate drops below 10%. 18 NYCRR 415.(h)(2).
 
The child and adult care food program is a federally funded food program that provides financial assistance to child care providers who enroll in the program and serve nutritious meals to the children in their care. Providers who are enrolled in CACFP are inspected three times a year by their sponsoring organization. At least two of the three inspections must be unannounced and at least one review must be made within the provider’s first four weeks of operation. Not more than 6 months can elapse between reviews. If a sponsoring organization conducts two unannounced reviews and no serious deficiencies are found, the sponsoring organization may choose not to make the third inspection so long as it conducts an average of three reviews of all of its facilities that year. 7 CFR 226.16(d)(4)(iii),(iv). Serious deficiencies consist of fraudulent activities such as submission of false information on the application, conditions that threaten the health or safety of a child in care or the public health or safety, and failure to participate in training. 7 CFR 226.16(l)(2). Upon finding conditions that threaten health and safety, the sponsoring agency must immediately notify the state licensing agency and take action consistent with the recommendations and requirements of that agency.

Providers who participate in CACFP must attend one training before enrollment and must receive training on CACFP program content at least annually thereafter. 7 CFR 226.18(b)(2). This training is generally two hours long and focuses on nutrition, food and kitchen safety. It will assist providers in meeting the 10 hour requirement.

Fraud and Abuse Controls

Existing Regulations: There are no requirements that districts have a plan to control fraud or abuse. However, some counties, such as Monroe, have such a plan in their consolidated services plan.
 
Proposed Regulations: Social Services Districts will be required to include new information in their consolidated services plan or indicated County plan on their Fraud and Abuse Control Activities including:

• the criteria the district will use to determine which application suggest a high risk of fraud or error;

• procedures for referring such applications to the front end detection system;

• sampling methodology determine in which cases the Social Services District will seek verification of employment, education or other required activities; bullet a sampling methodology to determine which providers of subsidized care;

• the district will review for the purpose of comparing attendance and child an adult care program inspection forms to verify that child care was actually provided on the days listed on the attendance form. 18 NYCRR 415.4(i).

Revision of Market Rate

Perhaps the most dramatic proposed change in the regulations from the provider stand point is the change in market rates for informal providers. Although the description of the regulations indicate that the rates are being increased for providers who complete 10 or more hours of training annually, the regulations actually reduce the rates for legally exempt care family and in-home providers who do not have training, by about $7 -$12 per child per week below the current market rates. The enhanced rates are about $10 -12 per child per week higher than the current market rates for these providers.

Concerns: The proposed regulations give no hint on how these new rates will be implemented and are in fact confusing because the effective date of the market rate provision is October 1, 2003. Does this mean that informal providers will be owing Social Services Districts money? If informal providers had training in 2004, will they be eligible for retroactive increases at the enhanced rate?

End Notes

[1]   Legally exempt group care, which includes, nursery schools, pre-kindergarten, and summer day camps does not fall under the category of informal care.  18 NYCRR 415.1(i)

[2]  “Life Safety and Fiscal Issues related to Legally Exempt Child Care,” report #2002-S-38 (7/1/04) at 3.

[3]  Id. at 25.