2023 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.
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.
14. The office of children and family services,  in  conjunction  with
the  department  of  health,  shall  be  required to annually distribute
informational materials related to the occurrence,  transmission,  birth
defects, methods of diagnosis and preventive measures of Cytomegalovirus
established pursuant to subdivision six of section two hundred sixty-six
of the public health law to every licensed, registered or enrolled child
care provider and their staff.