Licensing Standards for DayCare Centers

Section 418.6
Child Abuse

(a) Any abuse or maltreatment of a child, either as an incident of discipline or otherwise, is prohibited. An abused child or maltreated child means a child defined as an abused child or maltreated child pursuant to section 412 of the Social Services Law.

(b) All child day care providers operating day care centers must prohibit the abuse or maltreatment of children while the children are in their care and must not tolerate or in any manner condone an act of abuse or maltreatment by an employee, volunteer or any other person under the provider's control.

(c) Screening requirements for day care centers licensed by or registered with the department are as follows:

(1) Day care centers must inquire of the department whether any person who is actively being considered for employment and any individual or any person who is employed by an individual, corporation, partnership or association which provides goods or services to the center, and who will have the potential for regular and substantial contact with the children who are cared for by the center, is the subject of an indicated report of child abuse or maltreatment on file with the State Central Register of Child Abuse and Maltreatment. Each such center may inquire of the department whether any current employee or any person who is being considered for use as a volunteer or for hiring as a consultant and who has or will have the potential for substantial contact with children being cared for by the center is the subject of an indicated report of child abuse or maltreatment on file with the State Central Register of Child Abuse and Maltreatment. An inquiry regarding any current employee may be made only once in any six month period.

(2) Prior to making any inquiry to the department pursuant to paragraph (1) of this subdivision, the day care center must notify, in the form prescribed by the department, the person who will be the subject of the inquiry that an inquiry will be made to determine whether such person is the subject of an indicated report of child abuse or maltreatment on file with the State Central Register of Child Abuse and Maltreatment.

(3)

(i) Except as set forth in subparagraph (ii) of this paragraph, a day care center may not permit a person hired by the center or a person who is employed by an individual, corporation, partnership or association which provides goods or services to the center to have contact with children in the care of the center prior to obtaining the result of the inquiry required by this subdivision.

(ii) An employee of a day care center or an employee of a provider of goods and services to the day care center may have contact with children cared for by the center prior to the receipt by the center of the result of the inquiry required by this subdivision only where such employee is visually observed or audibly monitored by an existing staff member of the center. Such employee must be in the physical presence of an existing staff member for whom:

(a) the result of an inquiry required by Section 424-a of the Social Services Law has been received by the day care center and the center hired the existing staff member with knowledge of the result of the inquiry; or

(b) an inquiry was not made because such staff member was hired before the effective date of Section 424-a of the Social Services Law.

(4) If an applicant, employee or other person about whom the day -care center has made an inquiry is found to be the subject of an indicated report of child abuse or maltreatment, such center must determine, on the basis of information it has available and in accordance with guidelines developed and disseminated by the department, whether to hire, retain or use the person as an employee, volunteer or consultant or to permit the person providing goods or services to have access to children being cared for by the day care center. Whenever such person is hired, retained, used or given access to children, such center must maintain a written record, as part of the application file or employment or other personnel record of such person, of the specific reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer, consultant or provider of goods or services with access to children being cared for by the center.

(5) If the day care center denies employment or makes a decision not to retain an employee, not to use a volunteer or consultant, or not to permit a person providing goods or services to the center to have access to children who are being cared for by the center, such center must provide a written statement to the applicant, employee, volunteer, consultant or other such person, indicating whether the denial or decision was based in whole or in part on the existence of the indicated report, and, if so, the reasons for such denial or decision. If the denial or other decision is based in whole or in part on the existence of an indicated report of child abuse or maltreatment, the notice of denial or decision must also include, in the form prescribed by the department, written notification to the applicant, employee, volunteer, consultant or other person that:

(i) he or she has a right, pursuant to section 424-a of the Social Services Law, to request a hearing before the department regarding the record maintained by the State Central Register of Child Abuse and

Maltreatment;

(ii) a request for such a hearing must be made within 90 days of the receipt of the notice indicating that the denial or decision was based on the existence of the indicated report; and

(iii) at any such hearing, the sole issue will be whether the applicant, employee, volunteer, consultant or other person who is the subject of the indicated report has been shown by a fair preponderance of the evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report.

(6) If in a hearing held pursuant to a request made in accordance with paragraph (4) of this subdivision and section 424-a of the Social Services Law, the department fails to show by a fair preponderance of the evidence that the applicant, employee, volunteer, consultant or other person committed the act or acts upon which the indicated report is based, the department must notify the center which made the inquiry that, pursuant to the hearing decision, the center's decision to deny the application, discharge the employee, not to use the volunteer or consultant or not to permit the person to have access to children being cared for by the center should be reconsidered. Upon receiving such notification from the department, such center should review its denial or other decision without considering the indicated report.

(1) Day care center staff must report such information to the director of the program or his or her designee; and

(2) The director of the day care center or his or her designee is responsible for making or causing to be made an immediate report to the State Central Register of Child Abuse and Maltreatment by telephone, followed by a written report within 48 hours, in the form and manner prescribed by the department, to the child protective service of the social services district in the county in which the child resides.

(3) If the director is the person allegedly responsible for the alleged abuse or maltreatment, staff must report the alleged abuse or maltreatment directly to the State Central Register of Child Abuse and Maltreatment.

(f) In meeting his or her responsibilities under subdivision (e) of this section, the director or operator of the day care center may, consistent with any appropriate collective bargaining agreements or applicable provisions of law, take one or more of the following actions with regard to staff of the center relevant to a report of child abuse or maltreatment involving a child while in attendance at the center:

(1) dismissal, suspension or transfer of any employee, volunteer or other person who is the subject of a child abuse or maltreatment report;

(2) increased supervision over a person who is the subject of a report;

(3) provision of instruction and/or remedial counseling to a person who is the subject of a report;

(4) initiation of appropriate disciplinary action where applicable; and/or

(5) provision of appropriate training to and/or increased supervision of staff and/or volunteers pertinent to the prevention and remediation of child abuse and maltreatment.

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