NY Soc Serv L § 390 (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 390 - Child Day Care; License or Registration Required.

§   390.   Child  day  care;  license  or  registration  required.  1. Definitions.  (a) (i) "Child day care" shall mean  child  care  where  a license  or  registration pursuant to this section is required and shall include care for a child on a  regular  basis  provided  away  from  the child's  residence  for  less  than twenty-four hours per day by someone other than: (1) the parent, step-parent, guardian,  or  relative  within the third degree of consanguinity of the parents or step-parents of such child;  or  (2)  an  enrolled  legally-exempt  provider  as such term is defined in paragraph (g) of this subdivision.  (ii) Child day care shall not refer to care provided in:  (A) a day camp, as defined in the state sanitary code;  (B) an after-school program operated  for  the  purpose  of  religious education, sports, or recreation;  (C) a facility:  (1)  providing  day  services under an operating certificate issued by the department;  (2) providing day treatment under an operating certificate  issued  by the  office of mental health or the office for people with developmental disabilities; or  (D) a kindergarten, pre-kindergarten, or nursery school  for  children three  years  of  age  or  older,  or  after-school program for children operated by a public school district or by a private school  or  academy which  is  providing  elementary  or  secondary  education  or  both, in accordance with the compulsory education requirements of  the  education law,  provided  that the kindergarten, pre-kindergarten, nursery school, or after school program is located on the premises or campus  where  the elementary  or  secondary  education  is  provided.  Provided however, a kindergarten or a pre-kindergarten operated by a public school  district shall  not  be  considered  a  child  day  care  if  the kindergarten or pre-kindergarten is not located on the  premises  or  campus  where  the elementary or secondary education is provided.  (b)  "Child day care provider" shall mean any individual, association, corporation, partnership, institution or agency whose activities include providing child day care or operating a home or facility where child day care is provided.  (c) "Child day care center" shall mean any program or facility  caring for  children for more than three hours per day per child in which child day care is provided by a child day care provider except those  programs operating  as  a  group  family day care home as such term is defined in paragraph (d) of this subdivision, a family day care home, as such  term is  defined in paragraph (e) of this subdivision, and a school-age child care program,  as  such  term  is  defined  in  paragraph  (f)  of  this subdivision.  (d)  "Group  family  day  care  home"  shall mean a program caring for children for more than three hours per day per child in which child  day care  is  provided  in a family home for seven to twelve children of all ages, except for those programs operating as a family day care home,  as such  term  is  defined in paragraph (e) of this subdivision, which care for seven or eight children.  A  group  family  day  care  provider  may provide  child  day  care  services  to four additional children if such additional children are of school age and such children receive services only before or after the period such children are ordinarily  in  school or  during  school  lunch  periods,  or school holidays, or during those periods of the year in which school is not in session.  There  shall  be one caregiver for every two children under two years of age in the group family  home.  A  group  family  day  care  home  must have at least one assistant to the operator present when child day care is being  provided to  seven  or more children when none of the children are school age, or  nine or more children when at least two of the children are  school  age and  such children receive services only before or after the period such children are ordinarily in school or during  school  lunch  periods,  or school  holidays, or during those periods of the year in which school is not in session. This assistant shall be selected by the group family day care operator and shall meet the  qualifications  established  for  such position  by  the  regulations  of  the  office  of  children and family services.  (e) "Family day care home" shall mean a program  caring  for  children for  more  than three hours per day per child in which child day care is provided in a family home for three to six children. There shall be  one caregiver  for  every  two children under two years of age in the family day care home. A family day care provider may, however, care  for  seven or  eight  children  at any one time if no more than six of the children are less than school age  and  the  school-aged  children  receive  care primarily  before  or  after  the period such children are ordinarily in school, during school lunch periods, on school holidays, or during those periods of the year in which school is not in session in accordance with the regulations of the office of children and family  services  and  the office  inspects  such  home  to determine whether the provider can care adequately for seven or eight children.  (f) "School age child care" shall mean a program caring for more  than six  school-aged children who are under thirteen years of age or who are incapable of caring for themselves. Such programs shall be in  operation consistent  with  the  local  school  calendar.  School  age  child care programs shall offer care during the school year to an enrolled group of children at a  permanent  site  before  or  after  the  period  children enrolled in such program are ordinarily in school or during school lunch periods  and  may  also  provide  such care on school holidays and those periods of the year in which school is not in session.  (g) "Enrolled legally exempt provider" shall mean a person  who  is  a caregiver  or  entity  that is not required to be licensed or registered pursuant to this section and that is enrolled  to  be  a  caregiver  and provide   subsidized   child  care  services  to  eligible  families  in accordance with title five-C of this article and the regulations of  the office of children and family services.   2.  (a)  Child  day care centers caring for seven or more children and group family day care programs, as defined in subdivision  one  of  this section,  shall  obtain a license from the office of children and family services and shall operate in accordance with the terms of such  license and  the  regulations  of  such  office. Initial licenses and subsequent licenses shall be valid for a period of up to four years so long as  the provider  remains  substantially  in  compliance with applicable law and regulations during such period.  (b) Family day care homes, child day care centers caring for at  least three  but fewer than seven children, and school-age child care programs shall register with the department and shall operate in compliance  with the regulations of the department.  (c)  Any  child  day  care  provider  not required to obtain a license pursuant to paragraph (a) of this subdivision or to  register  with  the department  pursuant  to  paragraph (b) of this subdivision may register with the department.  (d) (i) The office of children and family  services  shall  promulgate regulations  for  licensure  and  for  registration  of  child  day care pursuant  to  this  section.  Procedures  for  obtaining  a  license  or registration   or  renewing  a  license  shall  include  a  satisfactory inspection of the facility by the office of children and family services  prior to issuance of the license  or  registration  or  renewal  of  the license.  (ii)  (A)  Initial registrations and subsequent registrations shall be valid for a period of up to four years so long as the  provider  remains substantially  in  compliance with applicable law and regulations during such period.  (B) After initial registration by the child  day  care  provider,  the office  of  children and family services shall not accept any subsequent registration by such provider, unless:  (1) such provider has met  the  training  requirements  set  forth  in section three hundred ninety-a of this title;  (2)  such  provider  has met the requirements of section three hundred ninety-b of this title relating to criminal history screening;  (3) such provider has complied with the requirements of  section  four hundred twenty-four-a of this article; and  (4)  the  office  of  children  and  family  services  has received no complaints about the home, center,  or  program  alleging  statutory  or regulatory  violations,  or, having received such complaints, the office of  children  and  family  services  has  determined,  after  inspection pursuant to paragraph (a) of subdivision three of this section, that the home,  center,  or  program  is  operated  in compliance with applicable statutory and regulatory requirements.  (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 registration,  the  office of children and family services shall inspect the home or program before 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.  (iv) Child day care providers who have been  issued  a  license  shall openly  display  such  license  in  the  facility  or home for which the license is issued. Child day care providers who have registered with the department shall provide proof of registration upon request.  (d-1) (i) The office of children and family services shall  promulgate regulations  for inspections of enrolled legally exempt providers, which shall include  the  completion  of  a  satisfactory  inspection  of  the premises  where  care  is  to be provided, by the office of children and family services.  (ii) Provided however, unless a complaint is made in or  as  otherwise authorized  such  inspections  shall  not  be required when the enrolled legally exempt provider is an individual, age  eighteen  or  older,  and who,  by  virtue  of  blood, marriage or court decree, is, to all of the children that such person is enrolled to provide subsidized  child  care services to in accordance with title five-C of this article:  (A) a grandparent;  (B) a great-grandparent;  (C)  a  sibling,  provided  that  such  sibling  resides in a separate household from the child;  (D) an aunt; or  (E) an uncle.  (e) Notwithstanding any other provision of this section, where a child is cared for by a parent, guardian or relative within the  third  degree of   consanguinity   of  the  parent  of  such  child  and  such  person simultaneously provides child day care  for  other  children,  only  the other  children  shall  be considered in determining whether such person must be registered or licensed, provided that such person is not caring, in total, for more than eight children.   2-a. (a) The office of children and family services  shall  promulgate regulations  which  establish  minimum  quality program requirements for licensed and registered child day care homes, programs  and  facilities. Such  requirements  shall include but not be limited to (i) the need for age  appropriate  activities,  materials  and   equipment   to   promote cognitive,  educational, social, cultural, physical, emotional, language and recreational development of children in care in a safe, healthy  and caring  environment  (ii)  principles  of  childhood  development  (iii) appropriate staff/child ratios for family day care homes,  group  family day  care  homes,  school  age  day  care programs and day care centers, provided  however  that  such  staff/child  ratios  shall  not  be  less stringent  than  applicable staff/child ratios as set forth in part four hundred fourteen, four hundred sixteen, four hundred seventeen  or  four hundred  eighteen  of  title  eighteen of the New York code of rules and regulations as of January first, two thousand (iv) appropriate levels of supervision of children in care (v) minimum  standards  for  sanitation, health,  infection  control, nutrition, buildings and equipment, safety, security procedures, first aid, fire prevention, fire safety, evacuation plans and drills, prevention of  child  abuse  and  maltreatment,  staff qualifications   and   training,  record  keeping,  and  child  behavior management.  (b) The use of electronic monitors as a sole means of  supervision  of children  in  day  care  shall  be  prohibited,  except  that electronic monitors may be used in family day care homes and group family day  care homes as an indirect means of supervision where the parents of any child to  be  supervised have agreed in advance to the use of such monitors as an indirect means of  supervision  and  the  use  of  such  monitors  is restricted to situations where the children so supervised are sleeping.  (c) No child less than six weeks of age may be cared for by a licensed or  registered  day  care  provider, except in extenuating circumstances where prior approval for care of such children has  been  given  by  the office  of  children  and family services. Extenuating circumstances for the purposes of this section shall include but not  be  limited  to  the medical or health needs of the parent or child, or the economic hardship of the parent.   3.  (a)  The office of children and family services may make announced or unannounced inspections of the records and premises of any child care provider, whether or not  such  provider  has  a  license  from,  or  is registered  with, the office of children and family services. The office of children and family services shall make  unannounced  inspections  of the  records  and premises of any child day care provider within fifteen days after the  office  of  children  and  family  services  receives  a complaint  that,  if  true, would indicate such provider does not comply with the applicable regulations of the office  of  children  and  family services or with statutory requirements. If the complaint indicates that there may be imminent danger to the children, the office of children and family  services  shall investigate the complaint no later than the next day of operation of the provider. The  office  of  children  and  family services may provide for inspections through the purchase of services.  (b)  (i) Where inspections have been made and violations of applicable statutes or regulations have been found,  the  office  of  children  and  family services shall within ten days advise the child day care provider in  writing  of  the violations and require the provider to correct such violations. The office of children and  family  services  may  also  act pursuant to subdivisions ten and eleven of this section.  (ii)  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 enrolled legally-exempt  provider  in  writing  of  the  violations  and require the provider to correct such violations.  (c)  (i)  The office of children and family services shall establish a toll-free statewide telephone number to receive  inquiries  about  child day  care homes, programs and facilities and complaints of violations of the requirements of this section or regulations promulgated  under  this section.  The  office  of  children  and family services shall develop a system for  investigation,  which  shall  include  inspection,  of  such complaints.  The  office of children and family services may provide for such investigations through purchase of services. The office of children and family  services  shall  develop  a  process  for  publicizing  such toll-free  telephone  number  to  the  public  for  making  inquiries or complaints about child day care homes, programs or facilities.  (ii) Information to be maintained and available to the public  through such toll-free telephone number shall include, but not be limited to:  (A)  current  license and registration status of child day care homes, programs and facilities including whether a license or  registration  is in effect or has been revoked or suspended; and  (B)  child  care  resource  and  referral  programs providing services pursuant to title five-B of this article and other  resources  known  to the  office  of  children  and family services which relate to child day care homes, programs and facilities in the state.  (iii) Upon written request identifying a  particular  child  day  care home,  program  or  facility, the office of children and family services shall provide the information set forth below. The  office  of  children and  family  services may charge reasonable fees for copies of documents provided, consistent with the provisions of article six  of  the  public officers  law.  The  information available pursuant to this clause shall be:  (A) the results  of  the  most  recent  inspection  for  licensure  or registration  and  any  subsequent inspections by the office of children and family services;  (B) complaints  filed  against  child  day  care  homes,  programs  or facilities  which  describes  the nature of the complaint and states how the complaint was resolved,  including  the  status  of  the  office  of children  and  family services investigation, the steps taken to rectify the complaint, and the penalty, if any, imposed; and  (C) child day care homes, programs or facilities which have  requested or  received  a  waiver  from any applicable rule or regulation, and the regulatory requirement which was waived.  (iv) Nothing in this paragraph shall be construed to require or permit the disclosure either orally or in writing of any  information  that  is confidential pursuant to law.  (d)  Where  investigation  or inspection reveals that a child day care provider which must be licensed or registered  is  not,  the  office  of children and family services shall advise the child day care provider in writing   that  the  provider  is  in  violation  of  the  licensing  or registration requirements and shall  take  such  further  action  as  is necessary  to  cause  the  provider  to  comply  with the law, including directing an unlicensed or unregistered provider to cease operation.  In addition,  the  office of children and family services shall require the  provider to notify the parents or guardians of children  receiving  care from  the provider that the provider is in violation of the licensing or registration requirements and shall require the provider to  notify  the office  of  children  and family services that the provider has done so. Any provider who is  directed  to  cease  operations  pursuant  to  this paragraph  shall  be entitled to a hearing before the office of children and family services. If the provider requests a hearing to  contest  the directive  to  cease  operations,  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. The provider may not operate the center, home or program after being directed to cease operations, regardless of whether a  hearing  is requested.  If  the  provider  does  not cease operations, the office of children and family services may impose  a  civil  penalty  pursuant  to subdivision  eleven  of  this  section,  seek  an injunction pursuant to section three hundred ninety-one of this title, or both.  (e) (i) Where an authorized  agency  is  subsidizing  child  day  care pursuant  to  any  provision  of this chapter, the authorized agency may submit to the department justification for a need to  impose  additional requirements  upon  child  day  care  providers  and  a  plan to monitor compliance  with  such  additional  requirements.  No  such   additional requirements  or  monitoring may be imposed without the written approval of the department.  (ii) An authorized agency  may  refuse  to  allow  a  child  day  care provider  who  is  not  in  compliance with this section and regulations issued  hereunder  or  any  approved  additional  requirements  of   the authorized  agency to provide child day care to the child. In accordance with the plan approved by the department,  an  authorized  agency  shall have  the  right  to  make  announced  or unannounced inspections of the records and  premises  of  any  provider  who  provides  care  for  such children,  including  the  right to make inspections prior to subsidized children receiving care in a  home  where  the  inspection  is  for  the purpose  of  determining  whether  the  child  day  care  provider is in compliance with  applicable  law  and  regulations  and  any  additional requirements  imposed upon such provider by the authorized agency. Where an authorized agency makes such inspections, the authorized agency shall notify the department immediately of any violations of this  section  or regulations promulgated hereunder, and shall provide the department with an  inspection  report whether or not violations were found, documenting the results of such inspection.  (iii) Nothing contained in this paragraph shall diminish the authority of the department to conduct  inspections  or  provide  for  inspections through  purchase of services as otherwise provided for in this section. Nothing contained in this paragraph shall  obligate  the  department  to take  any action to enforce any additional requirements imposed on child day care providers by an authorized agency.  (f)  Individual  local  social  services  districts  may  alter  their participation  in  activities  related  to  arranging  for, subsidizing, delivering and monitoring the provision of  subsidized  child  day  care provided,  however,  that  the  total  participation  of  an  individual district in all activities related to the provision of subsidized  child day  care  shall  be  no less than the participation level engaged in by such individual district on the effective date of this section.   4. (a) The office of children and family services on an  annual  basis shall   inspect   all   child   day   care  programs  and  all  enrolled legally-exempt providers except when such provider is determined  to  be exempt  in  accordance  with  subparagraph  (ii) of paragraph (d-one) of  subdivision two of this section.  The  office  of  children  and  family services may provide for such inspections through purchase of services.  (b)  Any  family  day  care  home  or  school-age  child  care program licensed,  registered,  or  certified  by  the  department  or  by   any authorized  agency on the effective date of this section shall be deemed registered  until  the  expiration  of  its  then-current   license   or certificate  unless  such license or certificate is suspended or revoked pursuant to subdivision ten of this section. Family day care  homes  and school-age child care programs not licensed, registered, or certified on the   effective   date  of  this  section  shall  register  pursuant  to subdivision two of this section.   5. Child day care providers  required  to  have  a  license  from  the department  or  to  be  registered  with the department pursuant to this section shall not be exempt from such requirement  through  registration with  another state agency, or certification, registration, or licensure by any local governmental agency or any authorized agency.   5-a. The office of children and family services  shall  provide,  upon request,  all  applications  and forms necessary to become a licensed or registered child day care provider in English, French, Polish, or any of the ten most common non-English languages  spoken  by  individuals  with limited-English  proficiency  in  the state of New York, based on United States census data.   6. Unless otherwise limited by law, a parent with legal custody  or  a legal  guardian  of  any  child  in  a child day care program shall have unlimited and on demand access to such child or  ward.  Such  parent  or guardian  unless  otherwise limited by law, also shall have the right to inspect on demand during its hours of operation any area of a child  day care  center, group family day care home, school-age child care program, or family day care home to which the child or ward  of  such  parent  or guardian  has  access  or which could present a hazard to the health and safety of the child or ward.   7. (a) The department shall implement on a statewide basis programs to educate parents and other potential consumers of child day care programs about their selection and use.  The  department  may  provide  for  such implementation  through  the  purchase of services. Such education shall include, but not be limited to, the following topics:  (i) types of child day care programs;  (ii) factors to be considered in selecting and  evaluating  child  day care programs;  (iii)  regulations  of  the  department  governing  the  operation  of different types of programs;  (iv) rights of parents or guardians in relation to access to  children and inspection of child day care programs;  (v)   information  concerning  the  availability  of  child  day  care subsidies;  (vi) information about licensing and registration requirements;  (vii) prevention of child abuse and maltreatment  in  child  day  care programs, including screening of child day care providers and employees;  (viii) tax information; and  (ix)  factors  to  be considered in selecting and evaluating child day care programs when a child needs administration  of  medications  during the time enrolled.  (b) The department shall implement a statewide campaign to educate the public  as to the legal requirements for registration of family day care and school-age child care, and the benefits of  such  registration.  The department  may  provide for such implementation through the purchase of services. The campaign shall:  (i) use various types of media;  (ii) include the  development  of  public  educational  materials  for families, family day care providers, employers and community agencies;  (iii)  explain  the  role  and  functions  of  child care resource and referral programs, as such term is used in title five-B of this article;  (iv) explain the role and functions of the  department  in  regard  to registered programs; and  (v)  publicize  the department's toll-free telephone number for making complaints of violations of  child  day  care  requirements  related  to programs which are required to be licensed or registered.   * (c)  The  office  of  children and family services shall implement a statewide campaign to educate parents and other consumers of  child  day care  programs  about  adverse  childhood experiences, the importance of protective factors, and the availability of  services  for  children  at risk  for  or  experiencing  adverse childhood experiences as defined in paragraph (c) of subdivision one of section twenty-d  of  this  chapter. Such  statewide campaign, shall include but is not limited to, providing all  licensed,  registered  and  enrolled  child  care  providers   with educational  materials  developed pursuant to subdivision two of section three hundred seventy-c of this chapter. The educational  materials  may be  made  available  electronically  and shall be offered to parents and other consumers at the time of enrollment.   * NB Effective April 1, 2022   8. The department shall establish and maintain a list of  all  current registered  and  licensed  child  day  care  programs  and a list of all programs whose license  or  registration  has  been  revoked,  rejected, terminated,  or  suspended.  Such  information shall be available to the public, pursuant to procedures developed by the department.   8-a. The office  of  children  and  family  services  shall  not  make available to the public online any group family day care home provider's or  family  day  care  provider's home street address or map showing the location of such provider's home where such provider  has  requested  to opt out of the online availability of this information. The office shall provide a written form informing a provider of their right to opt out of providing  information  online,  and  shall  also  permit  a provider to request to opt out through the office's website.   9. The department shall make available, directly or  through  purchase of   services,  to  registered  child  day  care  providers  information concerning:  (a) liability insurance;  (b) start-up grants;  (c) United States department of agriculture food programs;  (d) subsidies available for child day care;  (e) tax information; and  (f) support services required to be provided by  child  care  resource and  referral programs as set forth in subdivision three of section four hundred ten-r of this article.   10. Any home or facility providing child day care shall be operated in accordance with applicable statutes and regulations.  Any  violation  of applicable  statutes  or  regulations  shall  be a basis to deny, limit, suspend, revoke, or terminate a license or registration. 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 registration.  Before  any  license issued pursuant to the provisions of this  section  is  suspended or revoked, before registration pursuant to this section is suspended or terminated, 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 operator of the facility following a finding that the public health,  or an individual's safety or welfare, are in imminent danger. The holder of a  license  or  registrant is entitled to a hearing before the office of children and family services to  contest  the  temporary  suspension  or limitation.  If the holder of a license or registrant requests a hearing to contest the temporary suspension or limitation, 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  shall  continue  until the condition requiring suspension or limitation  is  corrected  or  until  a  hearing decision  has been issued. If the office of children and family services determines after a hearing that the temporary 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.   11. (a) (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 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.  (ii)  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  providers  who operate  child day care centers or group family day care homes without a license or who operate family day  care  homes,  school-age  child  care programs,  or  child  day care centers required to be registered without obtaining such registration.  (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 pursuant  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 violation or violations,  the  amount  of  penalty  for which  the  program  may become liable, the steps which must be taken to rectify the violation, and where applicable, a statement that a  penalty may  be  imposed  regardless  of  rectification. A written answer to the charges of 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  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 violations in accordance with the requirements of paragraph (c) of this subdivision, no penalty shall be imposed except as provided in paragraph (c) of this subdivision.  (b)(i) In assessing penalties pursuant to this subdivision, the office of  children  and  family  services may consider the completeness of any rectification made and the specific circumstances of such violations  as mitigating factors.  (ii)  Upon  the request of the office of children and family services, the attorney general shall commence an action in any court of  competent jurisdiction   against  any  child  day  care  program  subject  to  the provisions of  this  subdivision  and  against  any  person,  entity  or corporation  operating  such  center  or  school age child care program, group family day care home or family day care home for the  recovery  of any  penalty  assessed  by the office of children and family services in accordance with the provisions of this subdivision.  (iii) Any such penalty assessed by the office of children  and  family services  may  be  released or compromised by the office of children and family services before the matter has  been  referred  to  the  attorney general;  when  such  matter  has been referred to the attorney general, such penalty may be released or compromised and any action commenced  to recover the same may be settled and discontinued by the attorney general with the consent of the office of children and family services.  (c)(i)  Except  as  provided  for  in this paragraph, a child day care provider 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 violation of statute or regulation.  (ii) Clause (i) of this paragraph notwithstanding, rectification shall not  preclude  the  imposition of a penalty pursuant to this subdivision where:  (A) the child day care provider has operated a child day  care  center or  group  family day care home without a license, has refused to seek a license for the operation of such a center or home, or has continued  to operate  such  a  center  or home after denial of a license application, revocation of an existing license or suspension of an existing license;  (B) the child day care provider has operated a family day  care  home, school-age  child  care  program or child day care center required to be registered without being registered, has refused  to  seek  registration for  the  operation  of such home, program or center or has continued to operate such a home, program or center after denial  of  a  registration application,  revocation of an existing registration or suspension of an existing registration;  (C) there has been a total or substantial failure  of  the  facility's fire detection or prevention systems or emergency evacuation procedures;  (D) the child day care provider or an assistant, employee or volunteer has failed to provide adequate and competent supervision;  (E) the child day care provider or an assistant, employee or volunteer has failed to provide adequate sanitation;  (F)  the  child day care provider or an assistant, employee, volunteer or, for a family day care home or group family day care home,  a  member of  the  provider's household, has injured a child in care, unreasonably failed to obtain medical attention for a child in  care  requiring  such attention, used corporal punishment against a child in care or abused or maltreated a child in care;  (G)  the  child  day  care provider has violated the same statutory or regulatory standard more than once within a six month period;  (H) the child day care provider or an assistant, employee or volunteer has failed to make a report of suspected  child  abuse  or  maltreatment when required to do so pursuant to section four hundred thirteen of this article; or  (I) the child day care provider or an assistant, employee or volunteer has  submitted  to  the  office of children and family services a forged document as defined in section 170.00 of the penal law.  (d) Any civil penalty received by the office of  children  and  family services  pursuant  to this subdivision shall be deposited to the credit of the "quality child care and protection fund" established pursuant  to section ninety-seven-www of the state finance law.  (e)(i)  The  office  of  children and family services shall deny a new application for licensure or registration made by a  day  care  provider whose license or registration was previously revoked or terminated based on  a  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 applicable:  (A) the date that the revocation or termination became effective based on the notice of revocation or termination;  (B)  the  date  that  the  hearing  decision  was issued upholding the revocation or termination;  (C) the date  of  issuance  of  a  final  court  order  affirming  the revocation  or  termination  or affirming a hearing decision that upheld the revocation or termination; or  (D) another date mutually agreed upon by the office  of  children  and family services and the provider.  (ii)(A)  Such  office  shall  deny  a new application for licensure or registration made by a day care provider who is  enjoined  or  otherwise prohibited  by  a court order from operation of a day care center, group family day care home, family day care  home  or  school-age  child  care program without a license or registration for a period of two years from the  date of the court order unless the court order specifically enjoins the provider from providing day care for a period longer than two years, in which case the office shall deny any  new  application  made  by  the provider while the provider is so enjoined.  (B)  Such  office  shall  deny  a  new  application  for  licensure or registration made by a day care provider who is assessed a second  civil penalty  by  such  office  for  having operated a day care center, group family day care home, family day care  home  or  school-age  child  care program without a license or registration for a period of two years from the  date  of  the  second fine. For the purposes of this paragraph, the date of the second fine shall be either the date upon which the day care provider signs a stipulation agreement to pay the  second  fine  or  the  date upon which a hearing decision is issued affirming the determination of such office to impose the second fine, as applicable.  (iii)  A  day  care  provider who surrenders the provider's license or registration  while  such  office  is  engaged  in  enforcement  seeking suspension,  revocation  or  termination  of  such provider's license or registration pursuant to the regulations of such office, shall be deemed to have had their license or  registration  revoked  or  terminated  and shall  be  subject to the prohibitions against licensing or registration pursuant to subparagraph (i) of this paragraph for a period of two years from the date of surrender of the license or registration.   12.  (a) Notwithstanding any other provision of law, except as may  be required  as  a  condition  of  licensure or registration by regulations promulgated pursuant to this section, no village, town (outside the area of any incorporated village), city or county shall adopt  or  enact  any law,  ordinance,  rule  or  regulation  which  would  impose, mandate or otherwise enforce standards  for  sanitation,  health,  fire  safety  or building  construction  on  a  one  or  two  family dwelling or multiple dwelling used to provide group family day care or family day  care  than would  be  applicable  were  such  child  day  care  not provided on the premises. No  village,  town  (outside  the  area  of  any  incorporated village),  city or county shall prohibit or restrict use of a one or two family dwelling, or multiple dwelling for family  or  group  family  day care  where  a  license  or registration for such use has been issued in accordance with regulations issued pursuant to this section. Nothing  in this   paragraph  shall  preclude  local  authorities  with  enforcement jurisdiction of  the  applicable  sanitation,  health,  fire  safety  or building construction code from making appropriate inspections to assure compliance with such standards.  (b)  Notwithstanding  any  other  provision  of  law,  but pursuant to section five hundred eighty-one-b of  the  real  property  tax  law,  no assessing unit, as defined in subdivision one of section one hundred two of  the  real  property  tax  law, in the assessment of the value of any parcel used for residential purposes and registered as a family day care home pursuant to this section, shall consider the use or registration of such parcel as a family day care home.   13. Notwithstanding any other provision of law, this  section,  except for  paragraph  (a-1)  of  subdivision  two-a of this section, shall not apply to child day care centers in the city of New York.