Licensing Standards for DayCare Centers

Section 418.18
Enforcement of Regulations and Hearings

(a) Enforcement actions undertaken by the department include, but are not limited to:

(1) issuance of written inspection reports which include corrective action plans and notices of intention to initiate enforcement through the imposition of a fine or the limitation, suspension, termination or revocation of a license or registration;

(2) meetings or telephone conversations between a provider and the department to discuss corrective action plans;

(3) the holding of hearings to determine if a provider has failed to comply with applicable law and regulation;

(4) determinations, after hearings, that civil penalties should be imposed;

(5) determinations to reject, revoke, terminate, suspend or limit a license or registration;

(6) issuance of commissioner's orders, or orders approved by a justice of the Supreme Court, requiring a provider to immediately remedy conditions dangerous to children receiving child day care;

(7) temporary suspension or limitation of registration upon finding that the public health or a child's safety or welfare are in imminent danger;

(8) requests to the Attorney General to seek injunctive relief against providers for violations or threatened violations of law or regulation;

(9) requests to the Attorney General to take such action as is necessary to collect civil penalties, seek criminal prosecution, or to bring about compliance with any outstanding hearing decision or order; or

(10) publication in local newspapers of the names and addresses of child day care providers whose registrations or applications for registration have been rejected, limited, suspended, terminated or revoked or against whom a fine has been assessed after an administrative hearing.

(c) Any violation of applicable statutes or regulations will be a basis to deny, reject, limit, suspend, revoke or terminate the registration. Consistent with articles 23 and 23-A of the Correction Law, if the department is made aware of the existence of a criminal conviction of a child day care provider or any employee or volunteer in a family day care home, such conviction may be a basis to reject, limit, suspend, revoke or terminate the registration of the home. If the department is made aware that a child day care provider or any employee or volunteer in a family day care home has been convicted of a violent felony offense against a child, such conviction will be a basis to reject, limit, suspend, revoke or terminate the registration of the home. Before registration is terminated or revoked, or when an application for registration is rejected, the applicant for or holder of such registration is entitled to a hearing before the department. The request for such hearing must be made in writing within 30 days of the receipt of written notice of the termination, revocation or rejection. The termination, revocation or rejection will become final if the applicant or holder fails to request a hearing within the 30 day period. Thereafter, the holder or applicant may reapply pursuant to section 418.2 of this Part. The department may require the provider to post the notice of revocation or termination of registration on the premises of the center.

(d) A license or registration will be temporarily suspended or limited in its terms without a hearing upon written notification to the holder of license or registration by the department of a finding that the public health or a child's safety or welfare is in imminent danger. In such event, the holder will have 10 days from the date of the written notice of the suspension or limitation of the registration to request in writing a hearing before the department. Failure to make such a request will be prima facie evidence that the finding of imminent danger is valid, and the temporary suspension or limitation will continue in effect until the condition requiring such suspension or limitation is corrected or the license or registration is permanently revoked or terminated pursuant to subdivision (c) of this section. If the holder requests a hearing, the temporary suspension or limitation will continue in effect until the condition requiring such suspension or limitation is corrected, the registration is permanently revoked or terminated pursuant to subdivision (c) of this section or a hearing decision orders the lifting of the suspension or limitation. The department may require the provider to post the notice of suspension or limitation of licensure or registration on the premises of the center.

(e) In addition to the rejection, termination, revocation, limitation or suspension of a registration, a fine of up to $250 per day may be assessed against any day care center for the provision of child day care without a registration. Such fine will not be imposed until a hearing has been conducted and a decision has been issued. It is the department's responsibility to request and schedule such hearings. fines will be determined according to the following classifications:

(1) Class I violations are subject to a maximum fine of $250 a day. A Class I violation is defined as:

(i) the operation of a day care center without a license or registration;

(ii) any violation of a regulatory requirement contained in this Part which harms a child or places a child at risk of death, serious, or protracted disfigurement, or protracted impairment of physical ill or emotional health, including but not limited to:

(a) the existence of any condition which constitutes or creates a serious fire, safety or health risk, including but not limited to a substantial failure of the facility's fire detection or prevention system or conditions which would prevent or impede emergency evacuation procedures:

(b) the use of corporal punishment or of frightening or humiliating methods of control or discipline;

(c) inadequate or incompetent supervision;

(d) inadequate light, ventilation, sanitation, food, water or heating; and

(e) repeated findings that the facility has exceeded its maximum permitted capacity;

(iii) the abuse of a child, as defined in section 1012(e) of the fill Family Court Act, who is receiving care at the facility by the owner, operator or director of the facility;

(iv) the intentional failure to report instances of alleged child abuse or maltreatment to the State Central Register of Child Abuse and Maltreatment and/or to take appropriate action to protect children when an allegation of such abuse or maltreatment is reported to the day care center; and

(v) the refusal or failure to provide access to the day care center facility to a representative from the department for the purpose of inspecting the facility for compliance with the requirements of this Part.

(2) Class II violations are subject to a maximum fine of $100 a day. A Class II violation is defined as any violation of a regulatory requirement contained in this Part which places a child at risk of physical, mental or emotional harm, including but not limited to:

(i) the use of corporal punishment or of frightening methods of control or discipline;

(ii) inadequate or inappropriate supervision;

(iii) inadequate light, ventilation, sanitation, food, water or heating; and

(iv) providing care for more than the maximum number of children permitted by its license or registration.

(3) Class III violations are subject to a maximum fine of $25 a day. A Class III violation is defined as any violation of a regulatory requirement contained in this Part other than those included under Class I or II violations.

(4) The term repeated as used in this section includes any violation noted in more than one written inspection report prepared by the department and sent to the day care center so that corrective action could be taken.

(5) Where a day care center demonstrates that corrective action has been taken a fine will not be imposed, except in cases where the department:

(i) establishes at a hearing that a particular violation, although corrected, endangered or resulted in harm to any child in care as the result of:

(a) the total or substantial failure of the facility's fire detection or prevention systems or emergency evacuation procedures prescribed by section 418.8 of this Part;

(b) the failure to provide competent supervision as prescribed by section 418.15 of this Part; or

(c) the failure of the center to provide adequate sanitation as required by section 418.13 of this Part and by State and local departments of health; or

(ii) determines, after a hearing, that a provider has refused to obtain a license or registration or continued to operate a day care center after denial of an application, revocation of a license or termination of a registration. Such a determination will be made without regard to any finding of harm to or endangerment of a child in care.

(1) For a hearing held to review the revocation, termination, suspension, limitation, rejection or denial of a license or registration, the notice must specify the date, time and place of the hearing, the manner in which the hearing will be conducted, the proposed action and the charges which are the basis for the proposed action. The charges must specify the statutes, rules and regulations with which the center failed to comply and must include a brief statement of the facts pertaining to each violation.

(2) For a hearing held to assess a fine against a provider, the notice of hearing must specify the date, time and place of the hearing, the manner in which the hearing will be conducted, and must include a statement of charges.

(i) The statement of charges must specify:

(a) the statute(s) or regulation(s) with which the provider failed to comply;

(b) the maximum daily fine which may be imposed and the date upon which initial notice of potential liability for payment of such a fine was given;

(c) the corrective action which must be taken to rectify the violation; and

(d) if applicable, a statement that the department will seek imposition of a fine regardless of rectification.

(ii) The notice of hearing sent pursuant to this paragraph must be delivered in person or by certified mail at least 30 days prior to the date of the hearing. The notice must be sent to:

(a) the day care center; and

(b) the provider, who includes any person known to the department who, by reason of direct or indirect ownership of the center, has the ability to direct the center to take corrective action.

(3) The notice of hearing sent pursuant to paragraph (1) or (2) of this subdivision must also inform the applicant or provider:

(i) of his or her opportunity to present evidence and arguments on issues of fact and law at the hearing;

(ii) of his or her right to be represented by an attorney or other representative of his or her choice;

(iii) of his or her right to cross-examine witnesses and to examine any document or item offered into evidence;

(iv) that all witnesses will be sworn; and

(v) that the hearing will be recorded verbatim.

(1) The holder of the license or registration or the applicant for initial licensure or registration who has requested a hearing regarding the denial, rejection, termination, revocation, limitation or suspension of a license or registration may file an answer to the allegations contained in a notice of the hearing. The answer must be in writing and must be filed with the department not less than 10 business days prior to the date of hearing.

(2) Any child day care provider who is advised of the imposition of a potential fine pursuant to this section must respond in writing to the charges set forth in the notice of hearing. Such response must include a description of any corrective action taken by the provider and copies of any written information in the possession of the provider or maintained by the provider which is relevant to the charges and may be unknown to the department. Such response must be filed with the department not less than 10 business days prior to the date of hearing.

(1) The pleadings in an enforcement action will consist of the notice of hearing and answer.

(2) Neither formal discovery procedures nor formal procedures for bills of particulars will apply. However, upon application by the applicant or provider operating or seeking to operate the day care center, a more definite and detailed statement will be furnished whenever the hearing officer finds that the statement of charges does not adequately describe such charges. Any statement furnished will be deemed, in all respects, to be part of the original notice of hearing. The hearing officer may grant additional time to respond to the notice Of hearing when a motion for a more definite and detailed statement has been granted.

(3) Disclosure of evidence by deposition of a party to the hearing or any officer, director, member, agent or employee of a party prior to the hearing will not be permitted, except where the hearing officer determines that special circumstances, as set forth in section 3101(a)(3) of the Civil Practice Law and Rules, require the taking of testimony by deposition.

(1) The applicant or provider, his or her representative or representatives, counsel or other representatives of the department, witnesses of both parties and any person who may be called by the hearing officer, may be present at the hearing, together with such other persons as may be admitted by the hearing officer in his or her discretion. Upon his or her own motion, or upon the motion of either party, the hearing officer may exclude potential witnesses and those who have given prior testimony from the hearing during the testimony of other witnesses.

(2) An individual, other than an attorney, representing the applicant or provider must have an appropriate written authorization for representation signed by the applicant or provider or by an officer, member or director of a corporation, partnership or other organization when the applicant or provider is not a natural person.

(k) Conduct of hearing; rights of parties.

(1) The hearing officer will preside and will make all procedural rulings. He or she will make an opening statement describing the nature of the proceedings, the issues and the manner in which the hearing will be conducted.

(2) The rules of evidence as applied in a court of law will not apply, except that privileges recognized by law will be given effect. The hearing officer may exclude testimony or other evidence which is irrelevant or unduly repetitious.

(3) All testimony will be given under oath or affirmation.

(4) The provider will be entitled to be represented by an attorney or other representative of the provider's choice, to have witnesses give testimony and to otherwise present relevant and material evidence on the provider's behalf, to cross-examine witnesses and to examine any document or item offered into evidence.

(m) The hearing may be adjourned only for good cause by the hearing officer on his or her own motion or at the request of either party.

(n) The record.

(1) The record will include:

(i) all notices, pleadings and intermediate rulings;

(ii) exhibits received into evidence;

(iii) exhibits received into evidence;

(iv) matters officially noticed;

(v) questions and offers of proof, objections thereto and rulings thereon;

(vi) proposed findings and exceptions, if any;

(vii) any report rendered by the hearing officer; and

(viii) any request for disqualification of a hearing officer.

(2) After the hearing has been concluded, the hearing officer will submit a report containing findings of fact, conclusions of law and a recommended decision. Findings of fact will based exclusively on the record of the hearing.

(p) Decision after a hearing.

(1) The hearing decision will be made and issued by the commissioner or by a member of his or her staff designated by him or her to consider and make such decisions and must be based exclusively on the record of the hearing. The decision will be in writing and will describe the issues, recite the relevant facts and pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination and, when appropriate, direct specific action.

(2) A copy of such decision will be mailed to the applicant or provider and to the applicant's or provider's attorney or other designated hearing representative, together with a notice of the right to judicial review in accordance with article 78 of the Civil Practice Law and Rules.

(3) If the hearing before the department determines that an application for renewal of a license or registration should have been granted, the renewed license or registration will be dated retroactively to the date of the expiration of the prior license or registration.

(4) In the event the decision is adverse to the applicant or provider, the applicant or provider must forthwith comply with the specific action ordered in the decision.

(1) The department, through duly authorized representatives or agents of the department, may make announced or unannounced inspection of the records and premises of any child day care provider, whether or not such provider is licensed by or registered with the department. To the maximum extent possible, the department will make unannounced it inspections of the records and premises of any child day care provider after the department receives a complaint that, if true, would indicate such provider does not comply with the regulations of the department or with statutory requirements.

(2) The department may require the day care center to post a copy of any written inspection reports issued to the center by the department in a prominent place at the center.

(1) Upon receipt of a written request from an applicant or provider at the time of application or subsequent to the issuance of a license or registration, the department may issue a written waiver of one or more non-statutory requirements of this Part. Providers who have been issued a license or registration must operate in full compliance with the regulations at all times prior to the issuance of a written waiver. An application for a waiver of a requirement of this Part must be submitted in writing to the' department and must include:

(i) the specific regulation for which a waiver is sought;

(ii) the reason the waiver is necessary; and

(iii) a description of what will be done to achieve or maintain the intended purpose of the regulation and to protect the health, safety and well-being of children.

(2) The department may require the provider to make physical plant modifications or adopt special methods or procedures to protect the health, safety and well-being of children before a waiver is granted pursuant to this subdivision.

(3) Written approval for a waiver will be granted only upon a determination by the department that the proposed waiver will not adversely affect the health, safety or well-being of children and that the purpose of the regulation which is waived will be met. Waivers may be time limited, at the discretion of the department.

(4) Failure to adhere to the terms of the waiver will result in recision of the waiver and may constitute sufficient cause for the department to deny, reject, revoke, terminate, suspend or limit a license or registration or to seek the imposition of a fine.

(5) The department will maintain a record of any waiver issued pursuant to this subdivision, a list of any regulations waived, and the reason why each such waiver was issued.

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