Header:
NEW YORK CODES, RULES AND REGULATIONS
TITLE 18. DEPARTMENT OF SOCIAL SERVICES
CHAPTER II. REGULATIONS OF THE DEPARTMENT OF SOCIAL SERVICES
SUBCHAPTER C. SOCIAL SERVICES
ARTICLE 2. FAMILY AND CHILDREN'S SERVICES
PART 415. CHILD CARE SERVICES
Date:
08/31/2009
Document:
ยง 415.4 Social services districts' responsibilities
Each local social services district shall be responsible for compliance with the following requirements:
(a) Initial eligibility.
(1) At the time of application for child care services, the social services district must inform the applicant of:
(i) the various child care services programs available and the requirements of the child care services programs for which the applicant may be eligible including information about the child care guarantee for applicants and recipients of public assistance and for families transitioning from public assistance set forth in section 410-w(3) of the Social Services Law. Such information must describe the actions that the family needs to take in order to be eligible for the child care guarantee.
(ii) the applicant's responsibility for reporting all relevant facts to the social services district in order that a proper determination of the applicant's eligibility for child care services can be made and for providing the documents or other information which the applicant must submit to verify such facts;
(iii) the fact that any investigation needed in order to determine the applicant's eligibility will be undertaken;
(iv) a recipient's responsibility for notifying the social services district immediately of any change in financial circumstances, living arrangements, employment, household composition, child care provider or other circumstances that affect the family's need or eligibility for child care services;
(v) a recipient's responsibility to contribute toward the costs of the child care services by paying a family share, if required, as determined in accordance with subdivision (f) of section 415.3 of this Part;
(vi) the child care providers with which the social services district has arrangements for the provision of child care services to recipients;
(vii) a recipient's option to choose between the eligible providers in section 415.1 (g) of this Part;
(viii) a recipient's responsibility to locate child care. In addition, a public assistance recipient who needs child care in order to comply with his or her work requirements must be notified of the provisions in section 415.8 of this Part regarding the recipient's responsibility to locate child care and to inform the district of the recipient's efforts to locate child care including following up on referrals from the district, the applicable local child care resource and referral agency and/or any other child care agency to which the recipient is referred by the district.
(ix) information to assist a recipient to make an informed choice regarding the provider from which the recipient wishes to receive child care services; and
(x) a recipient's right to have child care services provided without discrimination on the basis of race, religion, national origin, sex, handicapping condition or political belief.
(2) All applications for child care services must be processed promptly. A determination of programmatic and financial eligibility must be completed within the time-frame sat forth in section 404.1(d) of this Title except where the applicant requests additional time, where difficulties in verifying eligibility lead to a delay or where other reasons beyond the social services district's control lead to a delay. The reason for a delay in making such determination must be recorded in the case record and communicated to the applicant.
(3) Initial eligibility for child day care, informal child care and legally-exempt group child care services must be determined pursuant to the requirements of this Part, Part 404 of this Title and, where applicable, 18 NYCRR Part 385. In addition, required documentation and a completed service plan are necessary prerequisites to the determination of eligibility and must be retained in the case folder.
(4) If an application for child care services is approved, the social services district must:
(i) send written notice to the applicant of the determination of eligibility for child care services; the family share to be paid by the applicant, if required, the date(s) such family share is due and the family share payment procedures which must be followed; and the applicant's right to a fair hearing in accordance with Part 358 and section 404.1(f) of this Title; and
(5) If an application for child care services is denied, the social services district must send written notice to the applicant of the determination of ineligibility and of the applicant's right to a fair hearing in accordance with Part 358 and section 404.1(f) of this Title.
(b) Continuing eligibility.
(1) Continuing eligibility for child care services must be redetermined as often as case factors indicate, but no less frequently than every 12 months; provided, however, that a social services district may not require the submission of a new application merely because the applicant is no longer eligible for public assistance or no longer eligible for a child care guarantee. The district must establish procedures to enable families to keep their child care services without interruption as long as the families remain eligible for such services including procedures to transfer families from one unit of the district to another when necessary.
(2) All factors concerning need and eligibility for child care services must be reconsidered, re-evaluated and verified during redeterminations. The periodic redeterminations conducted by the social services district do not eliminate the responsibility of a recipient of child care services to report to such district any change in financial circumstances, living arrangements, child care arrangements, employment, household composition or other circumstances that affect the family's need or eligibility for child care services.
(3) If a recipient is redetermined to be eligible for child care services, the social services district must send written notice to the recipient of the determination of eligibility for child care services; the family share payment procedures which must be followed; and the recipient's right to a fair hearing in accordance with Part 358 and section 404 of this Title.
(4) If a recipient is determined to no longer be eligible for child care services, the social services district must send written notice to the recipient of the determination of ineligibility and of the recipient's right to a fair hearing in accordance with Part 358 and section 404.1(f) of this Title.
(c) Child care services requirements.
(1) A recipient must have the option to choose between the eligible providers set forth in section 415.1(h) of this Part; provided, however, that:
(i) a recipient may choose a caregiver of informal child care or a caregiver of legally-exempt group child care only for child care services provided under the New York State Child Care Block Grant program;
(ii) a social services district may disapprove a provider chosen by a recipient in a preventive or child protective case if the district has reason to believe that it would be contrary to the health, safety or welfare of the child to receive child care services from that provider;
(iii) a child care provider chosen by a recipient must be validly licensed, properly registered or enrolled, as appropriate; and
(iv) a child care provider chosen by a recipient must permit a child's caretaker to have: unlimited and on demand access to such child; the right to inspect, on demand and at any time during the hours of operation of the home or facility, all parts of such home or facility used for child care or which could present a hazard to the health or safety of a child; unlimited and on demand access to the provider(s) caring for such child whenever such child is in care and during the normal hours of operation; and, unlimited and on demand access to written records concerning such child except where access to such records is otherwise restricted by law.
(2) A recipient who chooses a caregiver of legally-exempt in-home child care who will be providing such care in a child's own home must be advised of the recipient's responsibility to provide such caregiver with all employment benefits required by State and/or Federal law and the recipient's responsibility to pay the provider at least the minimum wage if required by State and/or federal law.
(3) The child care services provided must be reasonably related to the hours of employment, education or training of a child's caretaker, as applicable, and permit time for delivery and pick-up of the child. Up to eight hours of child care services may be provided, if needed, to enable an employed caretaker who works a second or third shift to sleep if the social services district indicates in its consolidated services plan or integrated county plan that it will provide such services.
(4) When arranging child care services, the needs of the child must be taken into account including: continuity of child care; reasonable proximity of the care either to the child's home and school or to the child's caretaker's place of employment, education or training, as applicable; and, the appropriateness of the child care to the child's age and special needs.
(5) No child may be moved by a social services district from an existing placement with an eligible provider unless the recipient of child care services consents to such move; provided, however, that a social services district may require that a child receiving child care services as part of a preventive case or a child protective case be moved from an existing placement with an eligible provider if the district has reason to believe that it would be contrary to the child's health, safety or welfare to continue receiving child care services from that provider.
(6) A current list of the licensed or registered child day care providers located in the social services district must be maintained and made available to applicants for and recipients of child care services.
(7) Social services districts must inform public assistance recipients that:
(i) the exemption from work requirements for lack of child care, if applicable, will not extend the time limitations on the receipt of family assistance; and
(ii) the recipient will not be sanctioned for failure to comply with work requirements as long as the recipient can demonstrate an inability to find child care in accordance with section 415.8 of this Part. The information provided to the recipient must include the definitions and procedures set forth in such section.
(8) A social services district must notify applicants for and recipients of public assistance of the guarantee for child care services and for transitional child care services available to applicants or recipients that choose child care services in lieu of public assistance. Recipients of public assistance also must be informed of their potential eligibility for the guarantee for transitional child care services when their public assistance benefits are terminated. Such notification must describe the actions an applicant or recipient must take to obtain the guaranteed transitional child care services. A social services district may not require that an applicant or recipient reapply to receive the guaranteed transitional child care services as long as the family remains eligible for child care services.
(9)(i) The social services district shall allow, disallow, or defer a claim for reimbursement, submitted by an eligible provider to the social services district, for the purpose of providing child care services pursuant to this Part within 30 days of receiving such claim.
(ii) The social services district may defer a claim for reimbursement only in the following circumstances:
(a) Upon the recommendation of a federal, state, or local agency, when the agency has informed the social services district that continued payments of such claims place the social services district at risk of making payments for services that were not provided in accordance with the applicable state regulations, or
(b) After an initial review of the claim by the social services district revealed inaccuracies in the claim that warrant a more detailed review, or
(c) Upon notification of the existence of a pending criminal charge involving fraud.
(iii) The social services district may disallow payment for claims for services provided to any and all children receiving a child care subsidy for the time period in which:
(a) an enrolled provider is found by the Office to be operating or have operated a child care program, required to be licensed or registered with the Office, without obtaining such license or registration, or
(b) a licensed or registered provider is found by the Office to be operating or have operated over its licensed or registered capacity, or
(c) an enrolled informal provider is found by the Office to be caring or have cared for more children than the limits defined in section 415.1(h).
(d) Jurisdiction.
(1) When a family which is guaranteed child care services moves from one social services district to another social services district within the State, the new social services district of residence is responsible for paying for the family's child care services beginning with the second full month that the family lives in that district, provided the family continues to be eligible for guaranteed child care services. The former social services district is obligated to continue to pay for the guaranteed child care services during the month the family moves to the other district and the first full month following the month the family moved.
(2) Notwithstanding paragraph (1) of this subdivision, if a social services district continues to have responsibility for providing public assistance benefits for a family which has moved to another district, such as when the parent(s) or caretaker relative(s) is required to attend a substance abuse program located in another district, the district which is responsible for the public assistance benefits remains responsible for all child care services needed for any child(ren) of that parent(s) or caretaker relative(s) who moves to live with, or be near, the parent(s) or caretaker relative(s).
(3) When a child(ren) is placed in foster care in a social services district outside of the district where the child(ren) resided at the time of placement, and the foster family needs child care services for the foster child(ren) and the foster family is eligible to receive such services pursuant to section 415.2(a) of this Part, the district that has financial responsibility for the foster child(ren) will be responsible for providing child care services for the foster child(ren).
(4) For all other families not described in paragraphs (1), (2) or (3) of this subdivision, the social services district where a family resides will be responsible for providing child care services.
(e) Administration.
(1) In the case of providers from whom or from which the social services district purchases child care services, contracts, when required by section 405.3 of this Title, will be negotiated in accordance with the purchase of service requirements set forth in such section; provider budgets may be reviewed and attendance and payment records will be monitored.
(2) Required reports and claims for reimbursement must be prepared and submitted in the form and manner and at the times required by the Office.
(3) Records required to be maintained by State and federal law and by instructions of the Office must be retained as appropriate. Under this subdivision, local districts must keep and retain adequate claiming records, retain appropriate documentation in the recipient's case file, and make appropriate records available for audit by appropriate State and Federal agencies.
(4) 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 that the total participation of an individual district in all activities related to the provision of subsidized child day care must be no less than the participation level engaged in by such individual district on the effective date of this section, to be determined based on a review of expenditures for the calendar year January 1, 1990 through December 31, 1990.
(5) The social services district is responsible for reporting to the Office, in the form and manner and at the times required by the Office, specific information regarding child care services, including, but not limited to, the number of children receiving each specific child care services, the costs of such services separated by the type of child care providers used, and any additional information required for the State to meet federal reporting requirements.
(6) Each social services district must submit a child care services plan to the Office for approval as part of the district's multi-year consolidated services plan or integrated county plan and any annual implementation reports, in the form and manner and at the times required by the Office. A social services district must implement its child care services programs in accordance with the child care services plan approved by the Office.
(f) Enrollment of caregivers of informal and legally-exempt group child care. A social services district may only make payments for child care provided by caregivers of informal or legally-exempt group child care if the caregiver has been enrolled by a legally-exempt caregiver enrollment agency on either a temporary or final basis in accordance with this subdivision. Each social services district must provide a child's caretaker that has applied for or is receiving child care subsidies under the New York State Child Care Block Grant and who is interested in using a caregiver of legally-exempt child care with an enrollment package and notify the caretaker that the completed package must be submitted to the applicable legal-exempt caregiver enrollment agency.
(1) Each legally-exempt caregiver enrollment agency must establish procedures for enrolling, for payment purposes, a caregiver of informal child care or a caregiver of legally-exempt group child care, as defined in section 415.1 of this Part, who or which chooses to provide child care services under the New York State Child Care Block Grant Program. Such enrollment procedures must:
(i) collect only such information about the caregiver as determined by the office of children and family services to be necessary to make payments and to furnish information to the caregiver or to a recipient;
(ii) facilitate appropriate and prompt payments; and
(iii) permit the caregiver to enroll with the legally-exempt caregiver enrollment agency after selection by a recipient.
(2) Each legally-exempt caregiver enrollment agency must distribute health and safety information as specified by the office to all newly enrolled caregivers of informal child care and caregivers of legally-exempt group child care.
(3)(i) Prior to enrolling or re-enrolling a caregiver of informal child care or a caregiver of legally-exempt group child care, the legally-exempt caregiver enrollment agency must review the enrollment package obtained from the caregiver and determine, within ten days of receiving the enrollment package, whether the enrollment package is complete and the caregiver is exempt from the State's child day care licensing and registration requirements.
(ii) If the caregiver is exempt from the State's child day care licensing and registration requirements, and the completed checklist and attestations in the enrollment package do not raise any immediate concerns, the legally-exempt caregiver enrollment agency must enroll the caregiver on a temporary basis until the legally-exempt caregiver enrollment agency must notify the applicable social services district of the enrollment of the legally-exempt caregiver on a temporary basis.
(iii) The legally-exempt caregiver enrollment agency must complete a full review of the enrollment package within 40 days of receiving the completed enrollment package to determine whether the caregiver meets the enrollment requirements including the basic health and safety requirements set forth in paragraph (7) of this subdivision and the additional requirements for informal child care caregivers set forth in paragraph (8) of this subdivision, if applicable. The legally-exempt caregiver enrollment agency must notify the applicable social services district of its final determination regarding the enrollment of the legally-exempt caregiver.
(iv) Caregivers enrolled with a social services district on or before the effective date of these regulations, must document compliance with the requirements set forth in paragraph (7) of this subdivision and the additional requirements for informal child care caregivers in paragraph (8) of this subdivision, if applicable, before or as part of the next redetermination of eligibility for child care services for a child in the caregiver's care.
(v) Enrollment information must be updated and reviewed at least annually and at any other time when a change in circumstances warrants such a review including but not limited to when the caregiver seeks to serve another child. The legally-exempt caregiver enrollment agency only must verify any changes that have occurred to the caregiver's enrollment information since the last enrollment package was submitted.
(4) If the caregiver is exempt from the licensing and registration requirements and the caregiver otherwise meets the qualifications set forth in section 415.1(h) or (i) of this Part and meets the basic health and safety requirements set forth in paragraph (7) of this subdivision and the additional requirements for informal child care set forth in paragraph (8) of this subdivision, if applicable, or integrated county plan, then the legally-exempt caregiver enrollment agency must enroll the caregiver for the purpose of providing child care services to eligible families under the New York State Child Care Block Grant Program unless the applicable social services district informs the legally-exempt caregiver enrollment agency that the caregiver does not meet a locally-defined additional requirement set forth in the social services district's consolidated services plan or integrated county plan in accordance with subdivision (h) of this section.
(5) A caregiver of informal child care or a caregiver of legally-exempt group child care must be enrolled with the legally-exempt caregiver enrollment agency before payment is made to such caregiver by a district for providing child care services under the New York State Child Care Block Grant Program.
(6) Each legally-exempt caregiver enrollment agency must maintain an automated roster, in the New York State Child Care Facilities System, of the caregivers of informal child care and caregivers of legally-exempt group child care enrolled with such legally-exempt caregiver enrollment agency including the name and address of each such caregiver and information about the caregiver's compliance with the enrollment requirements at such time and in manner and form required by the Office.
(7) Basic health and safety requirements for caregivers of informal or legally-exempt group child care.
(i) At the time of applying for enrollment and for re-enrollment, the caregiver must furnish a sworn statement indicating whether, to the best of his or her knowledge, such caregiver, any employee of the caregiver, and any volunteer who has the potential for regular and substantial contact with children in care, and, for caregivers of legally-exempt family child care, each household member age eighteen or older, has ever been convicted of a misdemeanor or a felony in New York State or any other jurisdiction. Prior to furnishing the caretaker and the legally-exempt caregiver enrollment agency with such information, the caregiver shall inquire of each such employee, volunteer and household member regarding whether that person has ever been convicted of a misdemeanor or any felony in New York State or any other jurisdiction.
(a) When a caregiver, indicates that he or she or such an employee, volunteer or household member has been convicted of a crime, the caregiver must give the caretaker and the legally-exempt caregiver enrollment agency true and accurate information about the crime which will enable the caretaker and the legally-exempt caregiver enrollment agency to evaluate whether the criminal background poses an unreasonable risk to the safety or welfare of the child(ren). Such information must include, but is not limited to, the nature of the crime, the penalties imposed as a result of the conviction, and the length of time which has elapsed since the conviction.
(b) No person convicted of a felony or misdemeanor against children or, for caregivers of legally-exempt family child care, whose household includes an individual convicted of such a crime may be enrolled by legally-exempt caregiver enrollment agency as a child care caregiver.
(c) No legally-exempt informal child care program or legally-exempt group child care program which employs an individual or uses a volunteer convicted of a felony or misdemeanor against children may be enrolled by a legally-exempt caregiver enrollment agency as a child care caregiver.
(d) A legally-exempt caregiver enrollment agency may enroll a caregiver who has been convicted or whose employee, volunteer or household member has been convicted of other felony or misdemeanor offenses, consistent with guidelines issued by the office for evaluating applicants with criminal conviction records.
(ii) The caregiver must furnish the child's caretaker with true and accurate information, in writing, indicating whether, to the best of the caregiver's knowledge, such caregiver, any employee of the caregiver, any volunteer who has the potential for regular and substantial contact with children and, for caregivers of legally-exempt family child, any household member age eighteen or older, has ever been the subject of an indicated report of child abuse or maltreatment in New York State or any other jurisdiction. Prior to furnishing the caretaker with such information, the caregiver shall inquire of each such employee, volunteer and household member regarding whether that person has ever been the subject of an indicated report of child abuse or maltreatment. The caregiver must furnish the child's caretaker with information regarding any such indicated report including a description of the incident, the date of the indication and any other relevant information.
(iii) To be enrolled by a legally-exempt caregiver enrollment agency to provide child care services under the New York State Child Care Block Grant Program, a caregiver of informal child care or a caregiver of legally-exempt group child care which is not required to be operated under the auspices of another Federal, State or local government agency must attest and certify in writing:
(a) whether, to the best of his or her knowledge, the caregiver has ever been denied a license or registration to operate a school-age child care program, day care center, family day care home or group family day care home, or had such a license or registration suspended or revoked. If a caregiver indicates that he or she has been denied such a license or registration or had such a license or registration suspended or revoked, the caregiver must provide true and accurate information to the child's caretaker and the legally-exempt caregiver enrollment agency about the reasons for the denial, suspension or revocation. A legally-exempt caregiver enrollment agency must determine whether to enroll a caregiver who has had such a license or registration denied, suspended or revoked, based on guidelines issued by the Office; and
(b) whether the caregiver has ever had his or her parental rights terminated, or had a child(ren) removed from his or her care by court order under Article 10 of the Family Court Act. If a caregiver indicates that he or she has had his or her parental rights terminated or has had a child(ren) removed from his or her care by court order under Article 10 of the Family Court Act, the caregiver must provide true and accurate information regarding the reasons underlying the loss of parental or custodial rights. A legally-exempt caregiver enrollment agency must determine whether to enroll a caregiver who has had his or her parental rights terminated or has lost custody of a child(ren) by court order under Article 10 of the Family Court Act, based on guidelines issued by the Office.
(iv) To be enrolled with a legally-exempt caregiver enrollment agency to provide child care services under the New York State Child Care Block Grant Program, a caregiver of legally-exempt group child care must attest and certify in writing either that:
(a) the caregiver is legally operating under the auspices of another Federal, State or local government agency; or
(b) if the caregiver of legally-except group child care is not required to operate under the auspices of another Federal, State or local governmental agency, then the caregiver must meet the additional health and safety requirements set forth in subparagraph (iv) and (v) of this paragraph.
(v) To be enrolled by a legally-exempt caregiver enrollment agency to provide child care services under the New York State Child Care Block Grant Program, a caregiver of informal child care or a caregiver of legally-exempt group child care which is not required to be operated under the auspices of another Federal, State or local governmental agency also must attest and certify in writing, and the child's caretaker must attest and certify in writing, that the caregiver meets and has agreed to continue to meet the following basic health and safety requirements:
(a) The caregiver and all children have two separate and remote ways to escape in an emergency.
(b) Rooms for children are well-lighted and well-ventilated. Heat, ventilating and lighting equipment are adequate for the protection of the health of the children.
(c) The caregiver will use barriers to restrict children from unsafe areas. Such areas include, but not limited to, swimming pools, open drainage ditches, wells, holes, wood and coal burning stoves, fireplaces and permanently installed gas space heaters.
(d) Where child care is provided on floors above the first floor, windows on floors above the first floor are protected by barriers or locking devices to prevent children from falling out of the windows.
(e) Adequate and safe water supply and sewage facilities are provided and comply with state and local laws. Hot and cold running water is available and accessible at all times.
(f) The caregiver certifies that the caregiver and each employee and each volunteer with the potential for regular and substantial contact with children in care is physically fit to provide child care and are free of any communicable disease and, for caregivers of legally-exempt family child care, that all persons residing in the home are free of any communicable disease unless the caregiver's or household member's health care provider has indicated that the presence of a communicable disease does not pose a risk to the health and safety of the children in care. If the legally-exempt caregiver enrollment agency has reasonable cause to suspect that the information provided by the caregiver is incorrect, the legally-exempt caregiver enrollment agency may require that the caregiver submit a statement from a physician, physician's assistant or nurse practitioner verifying the information.
(g) Suitable precautions will be taken to eliminate any conditions in areas accessible to children that pose a safety hazard.
(h)(1) A social services district may refuse to allow a child care provider that is not in compliance with this section and regulations promulgated by the Office, or any approved additional requirements of the social services district, to provide subsidized child care services to a child.
(2)(i) A social services district may disqualify a provider from receiving payment for child care services provided under the child care subsidy program if a provider:
(a) is criminally convicted of fraud;
(b) is found to be civilly liable for fraud;
(c) has voluntarily admitted to filing a false claim for reimbursement for child care services;
(d) has been disqualified from the Child and Adult Care Food Program, by the New York State Department of Health and/or its sponsoring agency, for submission of false information on the application, submission of a false claim for reimbursement or failure to keep required records;
(e) has failed to comply with the terms of a repayment plan with the social services district; or
(f) has a conviction of any activity that occurred in the past seven (7) years that indicated a lack of business integrity; or
(g) has been found by a social services district, after the social services district has conducted an administrative review in accordance with clause (ii) of this subparagraph, to have submitted a false claim(s) to a social services district for reimbursement.
(ii) An administrative review by a social services district must include the following:
(a) A review of the claims submitted to the social services district and any other information or documentation obtained by the social services district to determine the accuracy of the information contained in the claims; and if a social services district determines after such a review that a provider submitted inaccurate information in the claims, then a preliminary review report must be prepared by a social services district and sent to the child care provider that is the subject of the review for a response.
(b) A child care provider must be given 20 days, from the date the district sent the preliminary review report to respond to the report. A child care provider may respond in writing presenting evidence and arguments that the provider believes refute the findings of the preliminary review report, or may request a formal review by a social services district, which allows a provider, in person, to prevent evidence and arguments in support of his/her position.
(c) If no response from a provider is received by a social services district within 20 days from the date of the postmark of the preliminary review report, the report may be finalized by a social services district. A final report, issued under this subclause, may be the basis for a social services district to disqualify a provider from providing subsidized child care.
(d) If a response from a provider is received by a social services district within 20 days from the date of the postmark of the preliminary report, the social services district must review and evaluate the response and may make appropriate changes based on the response from the provider, before issuing a final review report. Upon completion of the review, the social services district shall issue a final review report, such report must be sent to the child care provider that is the subject of the review.
(e) A child care provider, upon receipt of a final review report, must be given 10 days from the date of the postmark of the final review report to respond, and to request a formal review by the social services district. A final review report issued under this subclause, where a provider does not request a formal review within the 10-day specified timeframe, or does not provide a response that disproves the findings of said report, may be the basis for a social services district to disqualify a provider from providing subsidized child care.
(f) A social services district, upon receipt of a request for a formal review by a provider found in a final review report to have submitted inaccurate claims, must conduct such a review within 30 days of receipt of the request.
(g) A social services district at a formal review must allow a provider, in person, to present evidence and arguments in support of the provider's position.
(h) A social services district, after a formal review and after reviewing the evidence and arguments supplied by a provider at a formal review must make a final determination of whether a provider submitted false claims. A final determination that a provider submitted false claims may be the basis for a social services district to disqualify a provider from providing subsidized child care.
(iii) A provider who has been disqualified from receiving payment for child care services provided under the child care subsidy program by a social services district under clause (i) of this subparagraph is ineligible to receive such payments through any social services district for five years from the date of the disqualification, if such a provider made full restitution of any and all falsely obtained funds to the social services district. If such a provider did not make full restitution to a social services district, then the provider will remain ineligible to provide subsidized child care.
(iv) A social services district that disqualifies a provider from receiving a payment for child care services provided under the child care subsidy program must provide appropriate information concerning the disqualification to the appropriate regional office of the Office's Division of Child Care Services if the provider is a licensed or registered day care provider, or to the appropriate legally-exempt caregiver enrollment agency if the provider is a legally-exempt child care provider.
(3) In accordance with a plan approved by the Office, a social services district will have the right to make announced or unannounced inspections of the records and premises of any provider that provides care for subsidized 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 care provider is in compliance with applicable laws and regulations and any additional requirements imposed on such a provider by the social services district. A social services district must notify the Office immediately of any violation of regulations and must provide the Office with an inspection report documenting the results of such inspection.
(4) Nothing contained in this Part will diminish the authority of the local social services district from referring a matter to the appropriate district attorney or law enforcement agency.
(i) The caregiver will ensure that each child receives meals and snacks in accordance with the plan developed jointly by the caregiver and the child's caretaker.
(j) Perishable food, milk and formula will be kept refrigerated.
(k) When the caregiver cares for infants, formula, breast milk and other food items for infants will not be heated in a microwave oven.
(l) The custodial parent or caretaker relative of a child will have unlimited access to the child, and to the premises when the child is in care and to written records regarding the child.
(m) Evacuation drills will be conducted at least monthly with the children during the hours that children are in care.
(n) The caregiver will never use corporal punishment or allow others to use corporal punishment while children are in care.
(o) The caregiver will never use or be under the influence of alcohol or drugs while children are in care and will make sure that children are not exposed to individuals using drugs or alcohol while in care.
(p) The caregiver will not smoke or allow smoking in indoor areas while children are in care or in vehicles while children are being transported.
(q) The caregiver will never leave children unsupervised or in the care of individuals who are not authorized to supervise the children.
(r) The caregiver has either a working telephone or immediate access to one. Emergency telephone numbers for the fire department, local or state police or sheriff's department, poison control center and ambulance service are posted conspicuously on or adjacent to the telephone.
(s) Protective caps, covers or permanently installed obstructive devices are used on all electrical outlets that are accessible to young children.
(t) Paint and plaster are in good repair so that there is no danger of children putting paint or plaster chips in their mouths or of it getting into their food.
(u) There is one operating smoke detector on each floor of the home or facility. Such detectors will be checked regularly to insure proper operation.
(v) The home or facility is equipped with a portable first aid kit that is accessible for emergency treatment. The first aid kit is stocked to treat a broad range of injuries and situations and will be restocked as necessary. The first aid kit and any other first aid supplies are kept in a clean container or cabinet not accessible to children.
(w) The caregiver will not give child care to any child unless the caregiver has been furnished with a statement signed by a physician or other authorized individual who specifies that the child has received age appropriate immunizations; or a statement signed by a physician or other authorized individual who indicates that one or more of the immunizations would be detrimental to the child's health, or the child's caretaker provides a statement indicating that the child has not been immunized due to the caretaker's religious beliefs.
(x) Stairs, railings, porches and balconies are in good repair.
(y) The caretaker and the caregiver certified in writing that to the best of their knowledge, all statements made on the enrollment or re-enrollment form and any attachments thereto are accurate and true. Any false information, certified and attested to by the caregiver or the caretaker on either the enrollment or re-enrollment form or any attachment thereto, may result in the caregiver being denied enrollment or the termination of the caregiver's enrollment by the legally-exempt caregiver enrollment agency and/or the social services district terminating child care subsidy payments and/or taking legal action against the caregiver or caretaker.
(z) The caregiver may not administer medication to any child in his or her care except to the extent that the caregiver is authorized under the Education Law to administer medications or has met the requirements for the administration of medications as defined in section 418-1.11 of this Title.
(8) Additional health and safety requirements for caregivers of informal child care.
(i) A legally-exempt caregiver enrollment agency must refer a caregiver of informal child care to the child and adult care food program (42 USC 1758, 1759(a), 1762(a), 1765, and 1766) at initial enrollment of any caregiver not currently enrolled, or at the annual re-enrollment of any currently enrolled caregiver. If the caregiver is or becomes a participant in the child and adult care food program, the caregiver must provide the legally-exempt caregiver enrollment agency with a copy of documentation of participation in the program. A legally-exempt caregiver enrollment agency must verify the caregiver's documentation to determine whether the caregiver is a participant in the child and adult care food program.
(ii) Upon applying for enrollment, and as part of the annual re-enrollment process, a legally-exempt caregiver enrollment agency must verify the information in the attestation of each caregiver of informal child care to determine if the caregiver's parental rights have been terminated, or if a child(ren) was removed from his or her care by court order under Article 10 of the Family Court Act.
(a) The legally-exempt caregiver enrollment agency will request that the applicable social services district conduct a child welfare database check of the caregiver and provide the applicable social services district with such available information about the caregiver as is necessary to complete the database check to determine whether the caregiver has had his or her parental rights terminated or had a child removed from his or her care by court order under Article 10 of the Family Court Act. The district must provide the legally-exempt caregiver enrollment agency with the results of the child welfare database check within 15 days of receiving the request.
(1) When the check of the district's child welfare data base reveals that the caregivers has had his or her parental rights terminated or had a child removed from his or her care by court order under Article 10 of the Family Court Act, the district shall provide the specific Office mandated information on the foster care and/or court records concerning the caregiver's termination of parental rights and the removal of the child from the caregiver's home to the legally-exempt caregiver enrollment agency for the purposes of determining whether to enroll the caregiver.
(2) When the check of the district's child welfare data base reveals that the caregiver has had his or her parental right terminated or had a child removed from his or her care by court order under Article 10 of the Family Court Act, the caregiver must provide the caretaker and the legally-exempt caregiver enrollment agency true and accurate information regarding the reasons underlying the loss of parental or custodial rights, if such information has not already been provided to the caretaker and the legally-exempt caregiver enrollment agency. A legally-exempt caregiver enrollment agency must determine, based on guidelines issued by the Office, whether to enroll a caregiver who has had such a loss of parental or custodial rights.
(iii) Upon applying for enrollment, and as part of the annual re-enrollment process, a legally-exempt caregiver enrollment agency will:
(a) check each caregiver against the Office's Child Care Facility System to determine whether the caregiver has ever been denied a child day care license or registration or had a child care license or registration suspended or revoked. When the check of the Office's Child Care Facility System reveals that the caregiver has been denied a child day care license or registration or had a child day care license or registration revoked or suspended, the caregiver must provide the caretaker and the legally-exempt caregiver enrollment agency true and accurate information regarding any such denial, revocation or suspension, including a description of the reason for denial, revocation or suspension, the date of the denial, revocation or suspension, and any other relevant information, if such information has not already been provided to the caretaker and the legally-exempt caregiver enrollment agency. A legally-exempt caregiver enrollment agency must determine whether to enroll a caregiver who has had such a license or registration denied, suspended or revoked based on guidelines issued by the Office.
(b) check each caregiver of informal child care, any employee of the caregiver, any volunteer who has the potential for regular and substantial contact with children in care, and for caregivers of legally-exempt family child care, each household member age 18 or older against the New York State Sex Offender Registry maintained by the New York State Division of Criminal Justice Services, via the Registry's toll free telephone number to determine if such caregiver, any employee of the caregiver, any volunteer who has the potential for regular and substantial contact with children in care, and for caregivers of legally-exempt family child care, each household member age 18 or older is listed on the New York State Sex Offender registry. When the New York State Sex Offender Registry reveals that a caregiver, any employee of the caregiver, any volunteer who has the potential for regular and substantial contact with children in care, or for caregivers of legally-exempt family child care, a household member is listed on the Sex Offender Registry for committing a sex offense, the legally-exempt caregiver enrollment agency may not enroll such a caregiver.
(iv) On an annual basis, the applicable legally-exempt caregiver enrollment agency must conduct on-site inspections including reviewing the immunization records of at least twenty-percent of the currently enrolled legally-exempt family child care caregivers, as defined in this part, in the applicable district who do not participate in the child and adult care food program to determine whether such caregivers are in compliance with the health and safety standards set forth in this section.
(a) The Office will provide by January 31st of each year to the legally-exempt caregiver enrollment agency instructions for compiling a list of the caregivers that must be inspected and a minimum unduplicated number of providers that must be inspected. The legally-exempt caregiver enrollment agency must complete the inspections and report the results of the inspections in a manner and format as specified by the Office by December 31st of each year.
(b) If the legally-exempt caregiver enrollment agency finds that a caregiver is non-compliant with any requirements of this section, the legally-exempt caregiver enrollment agency will assist the caregiver in working towards compliance, in the manner and according to the timeframes established by the Office. If the caregiver does not come into compliance with the requirements within the required timeframes, the legally-exempt caregiver enrollment agency will terminate the enrollment of the caregiver and notify the appropriate district of that the caregiver's enrollment has been terminated.
(g)(1) Where a social services district is subsidizing child care services pursuant to any of the provisions of this Part, the district may submit to the Office justification for a need to impose additional requirements on child care providers providing subsidized child care services and a plan to monitor compliance with such additional requirements. A social services district may make participation in the child and adult care food program a condition of enrollment for each caregiver of informal child care who will be providing an average in excess of thirty hours of care per week to one or more subsidized children provided the district sets forth this requirement in the district's consolidated services plan or integrated county plan. No such additional requirements or monitoring may be imposed without the written approval of the Office.
(2) To the extent that a social services district has established any additional standards for caregivers of legally-exempt child care, the district's monitoring process must include procedures for notifying the applicable legally-exempt caregiver enrollment agency if the district determines that such a caregiver is not in compliance with an additional standard. Any such procedures established by the social services district may not extend the timeframes set forth in subdivision (f) of this section for a legally-exempt caregiver enrollment agency to review an enrollment package.
(h) A social services district may refuse to allow a child care provider that is not in compliance with this section and regulations promulgated by the Office, or any approved additional requirements of the social services district, to provide subsidized child care services to a child. In accordance with a plan approved by the Office, a district will have the right to make announced or unannounced inspections of the records and premises of any provider that provides care for subsidized 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 care provider is in compliance with applicable laws and regulations and any additional requirements imposed on such a provider by the district. A social services district must notify the Office immediately of any violations of regulations and must provide the Office with an inspection report documenting the results of such inspection.
(i) Overpayments.
(1) The social services district must take all reasonable steps to correct promptly any overpayments for child care services to a child's caretaker or a child care provider.
(2) Overpayments must be recovered through:
(i) repayment by the child's caretaker or child care provider; or
(ii) by recovery through a reduction in the amount of the payment to the child's caretaker or child care provider; provided, however, that no recovery of overpayments may be made from a child care provider where a contract for such child care services obligates the social services district to make full payment. When no recovery may be made from a child care provider because a contract requires full payment, and repayment is not made from the child's parent or caretaker, federal financial participation (FFP) and State reimbursement cannot be claimed for such overpayment.
(3) In recovering overpayments for child care services from child care recipients, social services districts must ensure that the child care recipients retain, for any month, a reasonable amount of funds.
(4) Recoupment of such overpayment can be made only from child care benefits unless the child care recipient voluntarily requests that such recovery be made from his or her available income.
(5) Overpayments must be recovered from the caretaker(s) on whose behalf the payments were made or the provider(s) who received payment for such services, so long as caretaker(s) or provider(s) are deemed responsible for such overpayments whether by acts of omission or commission.
(6) Overpayments to child care providers or former recipients of child care services who refuse to repay may be recovered in accordance with the legal remedies available under State law.
(7) When an overpayment occurs as a result of a district's failure to act promptly on information provided by a parent or caretaker regarding circumstances affecting child care benefits, no recovery shall be made from the party who provided such information. When a recovery cannot be made under this subdivision, federal financial participation (FFP) and State reimbursement cannot be claimed for such overpayment.
(8) Underpayments and overpayments may be offset against each other.
(9) In all cases involving current child care services recipients, in all cases of fraud, and in all cases where the overpayment amount would equal or exceed the costs of recovery of the overpayment, the recovery of an overpayment must be attempted.
(10) Each social services district must collect and maintain information on the collection of overpayments and make appropriate adjustments when claiming FFP and State reimbursement, and when satisfying the district's maintenance of effort requirement under the New York State Child Care Block Grant program as set forth in section 415.7 of this Part.
(11) An applicant for child care services who has not re-paid past overpayments for previous child care services that resulted from:
(i) the failure of the applicant, or member(s) of the applicant's family unit, to promptly notify the social services district of a change in circumstances; or
(ii) from child care services fraud by the applicant or member(s) of the applicant's family unit must agree to, and comply with, a plan to make full payment of such overpayments as a condition of being eligible for the new child care services.
(12) With the exception of child care services authorized as a child protective or preventive service, a recipient of child care services who fails to agree to a reasonable plan for repayment or recovery of an overpayment, or who fails to comply with an agreed upon plan, must have their child care benefits suspended or terminated until such time as the recipient comes into compliance with such a plan.
(13) With the exception of child care services authorized as a child protective or preventive service, a recipient or former recipient of child care services who has been convicted of, or has voluntarily admitted to, fraudulently receiving child care services must have their child care services, if any suspended or terminated and will not be eligible for subsequent child care services for a period of time determined in accordance with the time periods established for Intentional Program Violations set forth in 18 NYCRR 359.9(a). If such recipient or former recipient is a recipient of temporary assistance and needs child care in order to participate in an activity required by the social services district, the disqualification of eligibility for child care services based on the former fraud conviction or voluntary admission will be suspended during the recipient's or former recipient's participation in the required activity. However, the disqualification period will begin or resume once the recipient or former recipient is no longer participating in a required activity.
(14) Overpayments for child care services made as a result of payment for aid continuing for a caretaker who loses a fair hearing must be recovered as prescribed in this subdivision.
(j) Due process requirements.
(1) Written notice of determination of eligibility, the family share to be paid by the applicant, or ineligibility for child care services, as well as any modifications thereto, must be sent to the applicant or recipient in accordance with section 404.1(f) of this Title. Recipients of child care services must receive timely and adequate notice of any change in child care services, except that changes in the manner of payment for child care services by a social services district may be made with only adequate notice pursuant to section 358-3.3 of this Title, unless those changes result in a discontinuation, suspension, reduction or termination of such benefits, or force a change in child care arrangements.
(2) An applicant for or recipient of child care services must be notified of the right to a fair hearing in accordance with Part 358 of this Title wherever there is a determination affecting his or her family's eligibility for child care services.
(k) Nothing contained in this Part will diminish the authority of the Office to conduct inspections of licensed or registered child care providers or to provide for such inspections through purchase of services in accordance with section 390 of the Social Services Law. Nothing contained in this subdivision will obligate the Office to take any action to enforce any additional requirements imposed by a social services district on child care providers providing care to children receiving child care subsidies.
(l) Social services districts must describe how they will examine and verify the accuracy of information contained in the enrollment forms completed by legally-exempt providers. This information must be described in the district's consolidated services plan or integrated county plan.
(m) Each social services district must establish comprehensive fraud and abuse control activities for the district's child care subsidy program. A social services district must provide details on its comprehensive fraud and abuse control activities in the district's consolidated services plan or integrated county plan, which must include, but not be limited to:
(1) identification of the criteria the social services district will use to determine which child care subsidy applications suggest a higher than acceptable risk for fraudulent or erroneous child care subsidy payments and procedures for referring such applications to the district's front end detection system;
(2) a sampling methodology to determine which cases the social services district will seek verification of an applicant or recipient's continued need for child care including, as applicable, verification of participation in employment, education or other required activities; and
(3) a sampling methodology to determine which caregivers of subsidized child care services the social services district will review for the purpose of comparing the caregivers' attendance forms for children receiving subsidized child care services and any child and adult care food program inspection forms to verify that child care was actually provided on the days listed on the attendance forms.
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