Quality child day care options serve one of the most basic needs faced by parents and guardians searching for trusted, safe, and affordable programs to provide care for infants, toddlers, children, and youth.
In 2022, there were more than 17,000 licensed and registered childcare providers in New York State, with the ability to serve nearly 800,000 children. This includes nearly 7,000 center-based child care programs with a capacity of about 650,000 children and just over 10,000 home-based child care providers serving approximately 140,000 children.
However, available options are becoming increasingly limited and inaccessible for New York families, as the state, like many, faces a critical shortage of childcare providers, making the need for economical and credible options that much more urgent.
The role child care providers play in a child's formative years cannot be understated, as they help set the stage for a child's social, emotional, and academic development. Understandably, many feel called to this important role, stepping up to serve as caretakers, role models, mentors, and tutors for children in need of care, especially in the wake of the COVID-19 pandemic, which left parents scrambling for child care options in order to continue working and provide for their families (even with the designation of many state-licensed providers as essential, given staffing shortages and social distancing mandates).
If you operate a child day care center or program, you know that the licensing process for Child Day Care Providers in New York is complex and that the permits you need to operate are based on a number of details and scenarios, such as the number of children that will be in your care, their age, and for what length of time in a day you will care for them.
For example, a Group Child Care permit is issued to New York State providers operating in a non-residential space and caring for at least three children under age 6 for at least 5 per week for more than 30 days per year.
A special license is required for daycare services with children under 2 years of age, to give another example.
A New York State Department of Health (DOH) permit to operate a daycare is necessary for all programs with more than six children up to 6 years of age.
The Lento Law Firm's Professional License Defense Team understands these complexities and varying license types. We work with Licensed and Registered Child Day Care Centers and other Child Care Providers nationwide. If there is ever an issue or dispute over your center's adherence to policies or regulations, putting any of your licenses or permits at risk, we will help you work with the government to resolve your case. If your license is in jeopardy, call us today at 888-535-3686 or submit your details online, and we will reach out.
We Serve Child Care Centers from All New York State Regions
For child care professionals affiliated with center-based care especially, opening and operating as a licensed provider involves a heavy lift in terms of how strictly center-based child care businesses are regulated. These businesses know how vital it is to employ only the most upstanding and dependable professionals. It might be surprising to learn that most center-based providers in the state have fewer than 20 employees, with only one in five having 20 or more. Looking at all provider types, half of the child care providers in New York have fewer than five employees.
Each region of the state is unique in terms of child care needs and trends, from New York City, Hudson Valley, and Long Island downstate to upstate's Capital, Central, Western, North Country, and Southern Tier regions, as well as Finger Lakes and Mohawk Valley. Notably, the number of children under 6 years of age has been on the rise in New York City alone since 2012, with numbers on the decline in other areas of the state, although that's not to indicate the need for high-quality child care in New York is any less dire.
We serve licensed businesses and professionals in all areas of New York, especially in more heavily populated cities and metropolitan areas like New York City, Albany, Rochester, Syracuse, and Buffalo.
Working with New York's Children and Family Services Office
This shortage makes it all the more difficult when a licensed provider whose credentials, operations, or employees are under security with the New York State Office of Children and Family Services (OCFS). Child day care centers could be flagged for a number of reasons as potentially having violated a rule or regulation governing child care providers. If and when this happens to your center, we know you'll want to get things straightened out and be in the clear as quickly as possible so you can continue meeting the crucial needs you do for families and continue caring for the children at your center.
The New York State Office of Children and Family Services (OCFS) is the regulatory agency for Family Child Care, Group Family Child Care, Child Care Centers, and School Age Child Care programs, licensing, monitoring, and inspecting these businesses. The OCFS Division of Child Care Services offers a multitude of resources for current and prospective child care providers, including libraries of policies and regulations that are relevant to such businesses.
The information presented here generally applies to center-based businesses, although much of it applies to family-run or home-based child care programs as well. Child Day Care Provider refers to both. Specifically, a provider is “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,” and the term Child Day Care Center refers specifically to those programs caring for children for more than three hours per day outside of a family home.
If you arrived at this page because your center is being investigated or sanctioned, remember, license defense is a legal matter. Your child day care license is a legal agreement with the state of New York, promising that you will comply with certain regulations as you care for other people's children. Any alleged violation is seen as a breach of that contract. When you are dealing with legal matters, it makes sense to hire a legal team to help you.
Policies Governing New York Child Care Providers
Policies include topics like staff training, procedures around medical emergencies including anaphylaxis, day care director qualifications, operating in school buildings, inactive status as a licensed and registered program, using basements as primary child care spaces, enrolling prekindergarten students in school-aged child care programs, multiple programs in a single dwelling, supervision, combustible materials, egress issues, rooftop playgrounds, and responding to public inquiries.
Regulations Governing New York Child Care Providers
The primary statutory authority for New York State day care regulations is located in section 390 of the New York Social Services Law. In large part, its regulations govern Child Day Care Centers, as described above. These include New York State laws pertaining to:
● Applying for and renewing a license
● Building and equipment (lighting, ventilation, heating, cribs, cots, paints and finishes, flooring, finishes, toilet facilities, safe water supply, layout, staff area, quiet area, etc.)
● Fire protection (evacuation drills, fire detection and alarm, fire extinguishers, staff training, trash storage, boiler rooms, etc.)
● Safety (written emergency plans, shelter-in-place drills, relocation sites, parent communication, first aid equipment, evacuation cribs, railings, swimming pools, field trips, animals, play equipment, windows and other fall hazards, etc.)
● Transportation (vendor change communication, vehicle boarding, child safety seats, contractors, use of cell phones while driving, etc.)
● Program requirements (written daily schedule, developmentally appropriate instruction, freedom of movement, activity variety, media, supervised outdoor play, crib time, sleeping in swings and strollers, clean bed coverings, etc.)
● Supervision of children (director designee, long-term teacher absences, staff-to-child ratios, visitor procedures)
● Behavior management (behavior management plans, isolation, physical restraint, separation, discipline, etc.)
● Child abuse and maltreatment (defined as an abused child or maltreated child pursuant to Section 412 of the Social Services Law)
● Health and infection control (child immunization and lead-screening records, staff and volunteer health requirements, medication administration, etc.)
● Nutrition (meal program, self-feeding, eating time, portion sizes, using food as rewards or punishments, etc.)
● Staff qualifications (degrees held by staff, background checks, etc.)
● Training (training on required topics such as safety and security procedures, identifying child abuse, child nutrition needs, etc.)
● Management and administration (licensing requirements and license and permit display, etc.)
Each municipality also has its own set of regulations. For example, in New York City, center-based group child care programs must comply with Article 47 and other sections of the New York City Health Code.
These programs must have a permit from the NYC Health Department to operate, which they must renew at least every two years. Any license or permit suspensions that a center has been issued must be posted publicly at the entrance of the child care facility. Every program is inspected at least one time per year by the Health Department, and if a program is cited as a public health hazard, the operator must attend a hearing with the OATH Hearings Division, New York City's central independent administrative law court.
Possible Sanctions Against Child Day Care Providers
A Child Day Care Center could come under investigation for alleged violations of regulations under these categories. Depending on the outcome of any investigation, a center's license could be denied, limited, suspended, revoked, or terminated altogether. Alternatively, a civil fine could be issued. Fines for registered and licensed programs are calculated based on the class of violation. Class I violations warrant a fine of up to $100 per day; Class I, up to $450 for the first offense; Class III, up to $400 per day for the first offense.
Also, a center without a license could be brought to the attention of the Office of Children and Family Services' Special Hearings Bureau (BSH). If you are in this position, you could be fined up to $500 per day for operating without a license. You will also be required to notify all parents and guardians of children in your care that you are violating licensing requirements and to confirm that you have completed this with the OCFS. We highly recommend coming into compliance immediately to avoid further action.
The OCFS exists to protect the public, which means that when there is an issue, or an inspector files a negative report, your center is considered a potential threat to the public trust until you prove otherwise. In other words, you don't have the same rights to “due process” or “presumed innocence” as you would even in criminal court. Therefore, anything you say or do during the investigation or hearing could be used against you. A Lento Law Firm attorney can help shield you from hurting your own defense.
Some Common License Sanctions Defined
A center may have its application to renew its license or registration denied for letting the renewal period expire. When this is denied, it is final.
When a license or registration is revoked by OCFS, this means the program may no longer operate.
If a license or registration is suspended, that means OCFS has closed the program because there is evidence that a child's safety or welfare is in danger or that the program poses a risk to public health. In this case, the program must stop operations immediately. It will not be permitted to reopen until OCFS confirms that the violation has been remedied.
If a child day care provider is notified that OCFS is taking enforcement action, its license status switches to pending. This status will remain until a judgment has been issued by an administrative law judge or a court, or until it is otherwise resolved. Programs may continue operating in pending status.
Any of the above enforcement actions can be combined.
Reasons OCFS Investigates Child Day Care Centers
New York State's Division of Child Care Services maintains an online public list of providers whose licenses are currently subject to enforcement action. The most common reasons that the OCFS would investigate and take action against a licensed child day care provider include the following:
● Having a serious incident occur, such as a grave physical injury or death of a child
● Health or safety concerns, such as overcapacity, failing to obtain medical treatment for a child, blocked exits, inadequate food or water, or failing to maintain proper sanitation, ventilation, or temperatures
● Abuse or mistreatment of children in care, including corporal punishment or using frightening or humiliating methods of control or discipline
● Inadequate or incompetent supervision, including insufficient staff-to-child ratios
● Incomplete staff training
● Not complying with inspections, including threatening government staff verbally, in writing, or through the use of force
How Will My Center Be Notified of a Complaint or Problem?
If your child day care center has been brought to the attention of OCFS for possible violations, you will be notified in writing via U.S. mail or in person in what is referred to as a “charging” letter. This letter will list the regulatory violations in question, a description of the circumstances they are based on, what enforcement actions are being issued, and instructions for requesting a hearing if you wish to challenge the findings.
The Lento Law Firm's Professional License Defense Team is here to help you through this process, taking the load off of you and taking on the myriad tasks involved in answering and defending a complaint.
Requesting a Hearing to Contest Enforcement Action
Once you receive the charging letter, you have 30 days to request a hearing if you would like to contest your license or if registration is denied, rejected, revoked, or terminated. You have only 10 days to request a hearing if your license or registration is being suspended. To do so, you will need to write to the Bureau of Special Hearings (BSH) with:
● Your center's name, address, email, and phone number
● Your license or registration number
● A copy of the charging letter you received
Preparing for Your Hearing
You'll want to begin gathering any evidence you have to argue your case at your hearing and make a list of any relevant witnesses. You may receive a list of witnesses and supporting documentation from the OCFS as well in order for you to prepare to defend yourself. Per OCFS regulations, you have a right to a copy of evidence the OCFS plans to introduce at the hearing. This is the time you need to be preparing your testimony. Your Lento Law Firm attorney will ensure you are prepared for anything at the hearing.
It's possible that you may first attend a conference in front of the Administrative Law Judge, at which you and the Lento Law Firm attorney representing you will learn what evidence will be presented at the hearing, whether it will take place virtually or in person, and what the date and time of the hearing will be. Do not miss this. If you do, you will be in default, and the enforcement action will be sustained.
At the Hearing
In your hearing, the OCFS will attempt to prove that there was sufficient evidence to take enforcement action against your center. While you are permitted to represent yourself at the hearing (known as Pro se), your defense will be significantly stronger in the capable hands of the Lento Law Firm. Your attorney will take the lead when you are given an opportunity to interview any witnesses and when the OCFS is given an opportunity to cross-examine any of your witnesses. You will also have the opportunity to object to any documents that are introduced.
The Lento Law Firm's Professional License Defense Team can attend the hearing to advocate on your behalf, present evidence, and cross-examine any witnesses testifying under oath. The hearing will be recorded for transcription, which we will use in the event we decide to pursue an appeal, as described below.
After the Hearing
Once your hearing has taken place, you will receive written notice of the decision in the mail. Your attorney will receive this as well and will review it with you. The decision will review the issues explored and policies or regulations in question, state the finding and explain the reasoning behind it, and if necessary, direct you to take action.
Appealing a Judgment
Importantly, the judge's decision will also explain that you have the right to judicial review, per Article 78 of the Civil Practice Law and Rules. This means that if you disagree with the determination, you can bring a lawsuit under Article 78.
In an appeal hearing, the only questions that can be raised pertain to whether the OCFS failed their duty or exceeded the scope of their jurisdiction, whether an error was made in determining the decision (including whether it was arbitrary, capricious, or an abuse of discretion), and whether the decision was entirely on the record and based on substantial evidence.
If, up to this point, you have not hired legal representation, you really can't afford to continue your fight without experienced legal counsel in your corner. If an appeal is necessary, our team will work tenaciously to defend you.
We are a nationwide legal team experienced in negotiating with government agencies overseeing child day care licensing, inspection, regulation, and enforcement. Taking into account each center's unique circumstances, our firm always presses for the win.
Call the Lento Law Firm's Professional License Defense Team Today to Discuss How We Will Fight for Your Child Day Care License in New York State
We're ready to start work on your case today. We will use every minute you give us to prep your case prior to any interviews, hearings, appeals, or legal processes so you can get back to nurturing, mentoring, and shaping New York's future citizens so they can grow and thrive.
The Lento Law Firm's Professional License Defense Team has the experience needed to address licensing enforcement action in New York or any other part of the country.
Call the Lento Law Firm at 888-535-3686 today for a consultation about how we will defend your Child Day Care license. You can also contact us online with your case details, and a member of our team will reach out as soon as possible.
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