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Empire Justice Comments on the Emergency Reduction of the Enhanced Market Rate for Legally Exempt Child Care Providers

July 21, 2009


Public Information Office
Office of Children and Family Services
52 Washington Avenue
Rensselaer, NY 12144

Re: Comments on the Emergency Rule Amending 18 NYCRR 415.9 (NYS Register 6/3/09)

Dear Sir or Madam:

This letter is regarding the emergency rulemaking amendment to 18 NYCRR 415.9 that reduces the reimbursement rate for legally-exempt in home and family child care providers.


After years of making strides to improve the quality of all types of child care, the Office of Children and Family Services has taken the puzzling step of reducing the payment rate to legally exempt providers who enhance their skills by engaging in ten hours of professional development per year. Empire Justice Center is concerned with the adverse effect this reduction will have on families if this emergency rule is adopted as a permanent rule.  Not only does this seem like bad policy, the action is of questionable legality.

Legally exempt or informal child care providers are not subject to the intense oversight afforded licensed child care such as child care centers and family child care providers.   Legally-exempt family providers care for either one to two children or more than two children for less than three hours per day in a residence outside the child’s own home.  Legally-exempt in-home providers care for the child within the child’s own home.  18 NYCRR § 415.1.

In 2005 and earlier, there existed only a standard market rate for legally-exempt family child care and in-home child care providers.  The established market rates for legally-exempt child care providers were set at 70% of the rate for registered family day care providers. 05-OCFS-LCM-17, p. 2.  An enhanced reimbursement rate was created in 2007 for legally exempt family and in-home child care providers who participated in a minimum of ten hours of approved training annually.  30 N.Y. Reg. 2 (Oct. 24, 2007).  The newly established enhanced rate was set at 75% of the applicable registered family day care market rate. 

OCFS stated these enhanced rates were intended to keep subsidized families from losing their child care arrangements or being unable to find appropriate child care. 30 N.Y. Reg. 5 (Oct. 24, 2007).  “Avoiding such results is important because it can be detrimental to a child’s development to experience disruption in care or to receive substandard or no care at all.” Id.

The enhanced rates had been in effect for no more than two years when OCFS enacted an emergency rule effective May 15, 2009 reducing the enhanced market rate from 75% of the rate for registered family day care providers to 70%.  31 N.Y. Reg 3 (June 3, 2009).  An enhanced rate provider in Albany County will now receive nine dollars less per week.  As a result of this enhanced rate reduction, the 2009 differential for legally-exempt providers operating under the enhanced rate is now in fact the same as the 2005 differential for providers operating under the standard rate.  

Is emergency rulemaking necessary?

In order to procedurally comply with an emergency adoption, an agency must include a statement fully describing the specific reasons for finding that such an emergency rule is necessary and the facts and circumstances on which such findings are based.  “Such statement shall include, at a minimum, a description of the nature and, if applicable, location of the public health, safety or general welfare need requiring adoption of the rule on an emergency basis; a description of the cause, consequences, and expected duration of such need; an explanation of why compliance with the requirements of subdivision one of this section would be contrary to the public interest; and an explanation of why the current circumstances necessitates that the public and interested parties be given less than minimum period for notice and comment provided for in subdivision one of this section.” SAPA § 202 (6)(d)(iv).

When OCFS reduced the legally-exempt enhanced rate by emergency rulemaking, the only statement the agency provided regarding the necessity behind its immediate adoption was to “protect the public health, safety and general welfare by allowing social services districts to address the expanded need for child care services by families affected by the extensive loss of jobs and employment opportunities as a result in the economic downturn of the State and national economy.”  31 N.Y. Reg. 1 (June 3, 2009).  This statement does not describe any emergency or threat to health, safety or welfare which would justify the circumvention of the usual rule making process which would give the public notice of the amendment and an opportunity to comment.  Finally, OCFS emergency rule promulgation is devoid of any explanation of the process used to attain the reduced enhanced rate.

The adoption of an emergency rule should be limited to those occasions when there is an actual emergency.  Empire State Ass’n of Adult Homes v. Novello, 193 Misc. 2d 543, 751 N.Y.S.2d 694 (Sup. Ct. Albany Co. 2002).  SAPA § 202(6)(d)(iv) requires an agency seeking the promulgation of an emergency rule to fully articulate the circumstances which give rise to the adoption on an emergency basis in order to limit this method of rulemaking to genuine emergencies (see Law Enforcement Officers Union Dist. Council 82 v. State of New York, 168 Misc.2d 781, 784 [Sup.Ct. Albany Co.1995]). 

Further, an agency must provide specific reasons for the emergency promulgation.  Restating the language of the statute alone is inadequate, “The mere parroting of the statutory phrase ‘the public health, safety, or general welfare’…with no specific facts, demonstrates the total absence of justification for such action.” Brodsky v. Zagata, 165 Misc.2d 510, 629 N.Y.S.2d 373 (Sup.Ct. Albany Co. 1995) 

The notice of emergency rule making must give an explanation as to why normal rule making procedure would be contrary to the public interest and why a situation must be dealt with prior to the period of public notice and comment.  Gill v. N.Y.S. Racing and Wagering Bd., 11 Misc.3d 1068(A), 2006 WL 756073 (Sup. Ct. New York Co. 2006).  Where a state agency fails to demonstrate any specific facts or circumstances tending to show that immediate adoption of the rule is necessary or that compliance with regular rule making procedure would be contrary to public interest, emergency rulemaking is not appropriate. Law Enforcement Officers Union, 168 Misc.2d at 784.

After less than two years since OCFS declared it important to provide enhanced rates so families could obtain quality childcare and not be forced into placing their children in an unsafe environment or leaving their children unsupervised, OCFS now claims that a rate reduction is important to protect the public health, safety and general welfare.  These two notions are directly contradictory.  Moreover, OCFS does not provide any data that supports the suggestion that reducing payments to trained providers will help meet an expanded need for child care services. 

There is no justification for the reduction of the enhanced rate

There is no evidence that the utilization of the enhanced rate imposes any significant adverse fiscal impact on parents or local social services districts that provide subsidies.  As of June 15, 2009, the number of legally exempt providers that had completed ten hours of training totaled 325, with 243 of those providers currently eligible, having completed their training in the last year. This constitutes only 1.2% of the legally exempt providers. OCFS Report, on file at (June 15, 2009).

OCFS’s adoption of this emergency rule is a step backward from New York’s efforts to increase the quality of all levels of care and was promulgated by an improper use of emergency. This rule is a huge setback to children of New York in legally exempt care and to those legally exempt child care providers who are trying to improve their skills as providers.

This emergency rule is to expire August 12, 2009. We urge OCFS to allow this emergency rule to expire and that the agency take no further steps to issue this rule as  a proposed regulation. 

Thank you for taking the time to consider our comments.

Very truly Yours,

Susan C. Antos
Senior Staff Attorney

For more information, please contact:

Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 

(518) 462-6831
(518) 935-2852