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Empire Justice Comments on Proposed Changes to Health & Safety Standards for Child Care Providers

February 17, 2005

 

Public Information Office

Office of Children and Family Services

52 Washington Street

Rensselaer, NY 12144

Re: Health and Safety Standards for Legally Exempt Informal Child Care Providers - 18 NYCRR 415.4 and 415.9

 

Dear Sir or Madam:

 

Thank you for this opportunity to comment on the proposed changes to 18 NYCRR 415.4 and 415.9 regarding health and safety standards for legally exempt informal child care providers.  These comments are from both the Greater Upstate Law Project and the New York State Child Care Coordinating Council.  The Greater Upstate Law Project is a support center for legal aid and legal services offices across the state.  Many of the clients served by the offices that we support utilize child care subsidies or are low income child care providers.

 

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]

 

We applaud the Office of Children and Family Services for addressing many of the concerns raised in 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. [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.

 

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]

 

Children who receive subsidized child care in New York State should be assured that only quality child care is purchased with public dollars. We strongly support the adoption of these proposed regulations, which will make a number of significant changes to informal care. The concerns we have are outlined in the text of our analysis. These regulations will help assure the safety of children in informal care by making the following changes:

 

1.  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.

2.  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.

3.  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.

 

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 reenrollment.

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).

 

Concerns/Recommendations: Enrolling a provider in CACFP involves a significant amount of up front work for the sponsoring agency including processing the application and training the provider.  7 C.F.R. 226.18 However, sponsors are nor paid until the provider submits a menu.  If counties choose to mandate enrollment, sponsoring agencies are liable to incur considerable costs for providers who do not follow through, resulting in an untenable financial situation for the sponsoring agency.  Further, the high turnover rate among informal providers means that mandating enrollment will result in a significant amount of work for little return.  We recommend that if a county chooses to mandate enrollment of informal providers, that a funding mechanism be established to compensate those sponsors who train providers who do not follow through.

 

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/Recommendation: 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.  We recommend that the check be run through the records of the DOCs database, which is already done by Monroe County, according to its 2004-06 consolidated services plan.

 

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.  See http://www.fns.usda.gov/cnd/Care/CACFP/aboutcacfp.htm 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.

 

Comment: This proposed rate structure sets an important new precedent, which we support, for differential subsidy reimbursement based on quality measures, a precedent that should be extended to all providers to provides financial incentives that differentiate and support quality care.

 

Very truly yours,

 

Susan C. Antos

Staff attorney



[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) [3] Id. At 25.

For more information, please contact:


Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 


(518) 462-6831
(518) 935-2852
santos@empirejustice.org