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
Section 415.13 - Requirements for legally-exempt child care enrollment applicants and providers to be enrolled, maintain enrollment, and be reenrolled to provide child care services

Universal Citation: 18 NY Comp Codes Rules and Regs § 415.13

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Attestation, certification, and the exchange of true and accurate information requirements for legally-exempt child care enrollment applicants and providers.

(1) The child's caretaker and the enrollment applicant must attest and certify in writing that, to the best of their knowledge, the enrollment applicant meets and will continue to meet all health and safety requirements set forth in this section, and all statements made on the enrollment form and its attachments thereto are accurate and complete.

(i) Any false information, certified and attested to by the child's caretaker or the enrollment applicant on the enrollment form or any attachment thereto, may result in: denial or termination of the enrollment, the social services district terminating child care subsidy payments, and/or legal action against the enrollment applicant, provider or caretaker.

(ii) The enrollment applicant or provider must immediately report to the enrollment agency any change to the information in the enrollment package that affects, or which reasonably might be expected to affect, compliance with applicable regulations.

(2) An enrollment applicant must attest and certify in writing whether, to the best of his or her knowledge, he or she 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 revoked, limited or suspended.

(i) If an enrollment applicant indicates that he or she has been denied such a license or registration, or had such a license or registration revoked, limited or suspended, the enrollment applicant must provide true and accurate information to the child's caretaker and the enrollment agency regarding any such denial, revocation, limitation, or suspension, including a description of the reason for denial, revocation, limitation or suspension, the date of the denial, revocation, limitation, or suspension, and any other relevant information, if such information has not already been provided to the child's caretaker and the enrollment agency.

(3) The requirements of this paragraph shall apply to any relative-only in-home child care provider or relative-only family child care provider:

(i) An enrollment applicant must attest and certify in writing whether he or she has ever had his or her parental rights terminated under section 384-b of the Social Services Law or a child removed from his or her care by court order under article 10 of the Family Court Act.

(ii) If an enrollment applicant indicates that he or she has had his or her parental rights terminated under section 384-b of the Social Services Law or a child removed from his or her care by court order under article 10 of the Family Court Act, the enrollment applicant must provide true and accurate information to the child's caretaker and the enrollment agency regarding the reasons underlying the loss of parental or custodial rights.

(iii) The enrollment applicant must attest and certify whether, to the best of his or her knowledge, the enrollment applicant, any employee, volunteer, or family child care household member age 18 or older, has ever been convicted of a misdemeanor or a felony in New York State or any other jurisdiction.

(a) Prior to furnishing the child's caretaker and the enrollment agency with such information, the enrollment applicant 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.

(b) When an enrollment applicant indicates that he or she or such an employee, volunteer or family child care household member age 18 or older has been convicted of a crime, the enrollment applicant must give the child's caretaker and the enrollment agency true and accurate information about the crime which will enable the caretaker and the enrollment agency to evaluate whether the criminal background poses an unreasonable risk to the safety or welfare of the child. 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.

(c) No relative-only in-home child care or relative-only family child care provider convicted of a felony or misdemeanor against children may be enrolled by an enrollment agency as a legally-exempt child care provider.

(d) No relative-only in-home child care or relative-only family child care provider which employs a person or uses a volunteer convicted of a felony or misdemeanor against children may be enrolled by an enrollment agency as a legally-exempt child care provider.

(e) No relative-only family child care provider whose household includes a person convicted of a felony or misdemeanor against children may be enrolled by an enrollment agency as a legally-exempt child care provider.

(f) No relative-only in-home child care or relative-only family child care provider who has been convicted of other felony or misdemeanor offenses may be enrolled unless the enrollment agency finds that the circumstances are consistent with guidelines issued by the office for evaluating applicants with criminal conviction records.

(g) No relative-only in-home child care or relative-only family child care provider which employs a person or uses a volunteer convicted of other felony or misdemeanor offenses may be enrolled unless the enrollment agency finds that the circumstances are consistent with guidelines issued by the office for evaluating applicants with criminal conviction records.

(h) No relative-only family child care provider whose household includes a person who has been convicted of other felony or misdemeanor offenses may be enrolled unless the enrollment agency finds that the circumstances are consistent with guidelines issued by the office for evaluating applicants with criminal conviction records.

(i) No relative-only in-home child care or relative-only family child care provider may be enrolled who knowingly makes a materially false statement in connection with a criminal background history or refuses to cooperate with the criminal history evaluation.

(iv) The enrollment applicant must furnish the child's caretaker with true and accurate information, in writing, indicating whether, to the best of the enrollment applicant's knowledge, such person, any employee, volunteer and/or any family child care household member age 18 or older, has ever been the subject of an indicated report of child abuse or maltreatment in New York State or any other jurisdiction.

(a) Prior to furnishing the child's caretaker with such information, the enrollment applicant shall inquire of each such employee, volunteer and/or any family child care household member age 18 or older regarding whether that person has ever been the subject of an indicated report of child abuse or maltreatment.

(b) The enrollment applicant 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.

(v) The enrollment applicant must provide such information required so as to allow the enrollment agency to conduct a check of each relative-only in-home child care provider and each relative-only family child care provider, any employee, volunteer, and each family child care 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 person is listed on the New York State Sex Offender Registry. When such person is listed on the New York State Sex Offender Registry, the enrollment agency must not enroll the child care provider.

(4) The requirements of this paragraph shall apply to any non-relative family child care provider:

(i) The enrollment applicant must attest and certify whether, to the best of his or her knowledge, any family child care household member age 18 or older related in any way to all children in care has ever been convicted of a misdemeanor or a felony in New York State or any other jurisdiction.

(a) Prior to furnishing the child's caretaker and the enrollment agency with such information, the enrollment applicant shall inquire of each such household member regarding whether that person has ever been convicted of a misdemeanor or any felony in New York State or any other jurisdiction.

(b) When an enrollment applicant indicates that such a household member has been convicted of a crime, the enrollment applicant must give the child's caretaker and the enrollment agency true and accurate information about the crime which will enable the caretaker and the enrollment agency to evaluate whether the criminal background poses an unreasonable risk to the safety or welfare of the child. 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.

(c) A non-relative family child care provider whose household includes a person convicted of a felony or misdemeanor against children may not be enrolled by an enrollment agency as a legally-exempt child care provider.

(d) A non-relative family child care provider whose household includes a person convicted of other felony or misdemeanor offenses may not be enrolled unless the enrollment agency finds that the circumstances are consistent with guidelines issued by the Office for evaluating applicants with criminal conviction records.

(e) A non-relative family child care provider may not be enrolled who knowingly makes a materially false statement in connection with a criminal background history or refuses to cooperate with the criminal history evaluation.

(ii) The enrollment applicant must furnish the child's caretaker with true and accurate information, in writing, indicating whether, to the best of the enrollment applicant's knowledge, any family child care household member age 18 or older related in any way to all children in care has ever been the subject of an indicated report of child abuse or maltreatment in New York State or any other jurisdiction.

(a) Prior to furnishing the child's caretaker with such information, the enrollment applicant shall inquire of each such household member regarding whether that person has ever been the subject of an indicated report of child abuse or maltreatment.

(iii) The enrollment applicant must provide such information required so as to allow the enrollment agency to conduct a check of each family child care household member age 18 or older related in any way to all children in care 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 person is listed on the New York State Sex Offender Registry. When such person is listed on the New York State Sex Offender Registry, the enrollment agency must not enroll the child care provider.

(b) Basic health and safety requirements for legally-exempt child care providers.

(1) To be enrolled by an enrollment agency, an informal child care provider or a legally-exempt group child care program must meet and continue to meet the basic health and safety requirements of this subdivision.

(2) Building and equipment.

(i) There must be two separate and remote ways to escape in an emergency.

(ii) Rooms for children must be well-lighted and well-ventilated. Heat, ventilating and lighting equipment must be adequate for the protection of the health of the children.

(iii) Adequate and safe water supply and sewage facilities must be provided and comply with State and local laws. Hot and cold running water must be available and accessible at all times.

(iv) Paint and plaster must be in good repair and there must be no danger of children putting paint or plaster chips in their mouths or of it getting into their food.

(v) Stairs, railings, porches, decks, and balconies must be in good repair.

(vi) Buildings, systems, and equipment must be kept in good repair and operate as designed.

(3) Fire protection.

(i) Evacuation drills must be conducted at least monthly with the children during the hours that children are in care. The provider must maintain a written record of the evacuation drills on-site.

(ii) For informal child care providers, there must be a minimum of one operating smoke detector on each floor of the home and a minimum of one operating carbon monoxide detector. Such detectors must be checked regularly to verify proper operation.

(iii) For legally-exempt group child care programs, operating carbon monoxide detectors and smoke alarms must be located and operating in accordance with the New York State Uniform Fire Prevention and Building Code or other applicable fire prevention and building codes when the Uniform Code of New York State is not applicable.

(4) Supervision.

(i) Children must never be left unsupervised or in the care of persons who are not authorized to supervise the children.

(ii) For informal child care, the enrolled provider is the sole person authorized to supervise the children.

(iii) For legally-exempt group child care, a director or person who is knowledgeable about the program's operation and policies and designated to act on behalf of the director must be present on-site at all times during the program's hours of operation.

(iv) Electronic monitoring devices may not be used as a substitute for supervision of children who are awake.

(v) Electronic monitoring devices may be used to transmit images of children in common rooms, hallways, and play areas only.

(vi) Bathrooms and changing areas must remain private and free of electronic monitoring devices.

(vii) The child's caretaker and each employee and volunteer of the provider must be informed if electronic monitoring devices are used.

(viii) For informal child care providers, sleeping and napping arrangements must be made in writing between the parent and the program. Such arrangements shall include: where the child will nap or sleep; whether the child will nap or sleep on a cot, mat, bed or a crib; and how the child will be supervised, including whether electronic monitors can be used, and how often the provider is required to check on the child.

(5) Physical environment and safety.

(i) Suitable precautions must be taken to eliminate all conditions in areas accessible to children which pose a safety or health hazard.

(ii) All potentially hazardous materials, which include, but are not limited to, matches, lighters, medicines, drugs, alcohol, cleaning materials, detergents, aerosol cans, and other poisonous or toxic materials must be:

(a) inaccessible to children in care and stored in their original containers; and

(b) used in a way that they will not contaminate play surfaces, food, or food preparation areas or constitute a hazard to children.

(iii) Barriers must be used to restrict children from unsafe areas. Such areas include, but are not limited to, swimming pools, bodies of water, open drainage ditches, wells, holes, wood and coal burning stoves, fireplaces, and permanently installed gas space heaters.

(iv) Where child care is provided on floors above the first floor, windows on floors above the first floor must be protected by barriers or locking devices to prevent children from falling out of the windows.

(v) Protective caps, covers, or permanently installed obstructive devices must be used on all electrical outlets that are accessible to young children.

(vi) Firearms and ammunition must be securely stored and inaccessible to children while care is being provided.

(vii) There must be 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 must be posted conspicuously or are readily accessible.

(viii) The use of, or being under the influence of, alcohol or drugs is prohibited while children are in care. Children must not be exposed to persons using drugs or alcohol while in care. The use of, or being under the influence of, a controlled substance is prohibited while children are in care, unless the controlled substance is prescribed by a health care provider, is being taken as directed, and does not interfere with the person's ability to provide child care services.

(ix) Smoking and vaping are prohibited in indoor areas while children are in care or in vehicles while children are being transported. Children must not be exposed to smoke or vapors from vaping in outdoor areas.

(x) The child care site must be free of vermin.

(xi) Exposure or access to any materials that are developmentally inappropriate for the age of the children in care is prohibited. Such materials include, but are not limited to, sexually and illicitly graphic materials, drug paraphernalia, and other printed or digital materials or content.

(xii) Sleeping arrangements for infants through 12 months of age require that the infant be placed flat on his or her back to sleep, unless medical information from the child's health care provider is presented to the program by the caretaker that shows that arrangement is inappropriate for that child.

(xiii) Cribs, bassinets and other sleeping areas for infants through 12 months of age must include an appropriately sized fitted sheet, and must not have bumper pads, toys, stuffed animals, blankets, pillows, wedges or infant positioners. Wedges or infant positioners will be permitted with medical documentation from the child's health care provider.

(xiv) Providers and staff must take steps to prevent a child's exposure to the foods to which the child is allergic.

(6) Transportation.

(i) A child must never be left unattended in any motor vehicle or other form of transportation.

(ii) Each child must board or leave a vehicle from the curb side of the street.

(iii) All children must be secured in child safety seats properly installed per manufacturer's recommendations, or with safety belts, as appropriate for the age of the child in accordance with the requirements of the New York State Vehicle and Traffic Law.

(iv) Drivers transporting children must be 18 years of age or older and hold a current valid license to drive the class of vehicle they are operating.

(v) Any motor vehicle, other than a public form of transportation, used to transport children must have a valid registration and inspection sticker.

(vi) Children in care may not be transported in a vehicle built to hold more than 10 passengers, including the driver, unless the vehicle: meets the National Highway Traffic Safety Administration definition of a school bus or a multifunction school activity bus; complies with the National Highway Traffic Safety Administration Federal Motor Vehicle Safety Standards applicable to a school bus or multifunction school activity bus; and is inspected per New York State Department of Transportation rules and regulations.

(7) Behavior management.

(i) Safe, suitable care to children that is supportive of the children's physical, intellectual, emotional, and social well-being must be provided.

(ii) Acceptable techniques and approaches must be used to discipline children and to manage children's behavior.

(a) The use of corporal punishment is prohibited. The term corporal punishment means punishment inflicted directly on the body including, but not limited to, physical restraint, spanking, biting, shaking, slapping, twisting or squeezing; demanding excessive physical exercise, prolonged lack of movement or motion, or strenuous or bizarre postures; and compelling a child to eat or have in the child's mouth soap, hot spices, irritants or the like.

(b) Methods of discipline, interaction, or toilet training that frighten, demean, or humiliate children are prohibited.

(8) Health and infection control.

(i) The following health requirements must be met:

(a) An informal child care provider, director of a legally-exempt group child care program, employees, and volunteers must be physically fit to provide child care and free of any psychiatric and emotional disorder that would preclude such person from providing care.

(b) An informal child care provider, director of a legally-exempt group child care program, employees and volunteers, and each family child care household member must be free of any communicable disease unless the applicable person'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.

(c) For an informal child care provider and employees or volunteers of the informal child care provider, a medical statement may be requested by the enrollment agency when an event or condition reasonably calls into question the ability of such person to provide safe and/or suitable child care and/or if there is reasonable cause to suspect the information provided is inaccurate.

(d) For legally-exempt group child care programs, the director must provide for themselves, and also must obtain a medical statement from each employee and volunteer on forms furnished by the office. Such statement must be completed before the person begins providing care to children, must demonstrate that the person meets the requirements in clauses (a) and (b) of this subparagraph, and must be dated within 12 months preceding the date of application or hiring date.

(1) An updated medical statement may be required when an event or condition reasonably calls into question the person's ability to provide safe and/or suitable child care and/or if there is reasonable cause to suspect the information provided is inaccurate.

(i) With the exception of children enrolled in kindergarten or a higher grade in a public or private school, child care shall not be provided to any child unless the provider has been furnished with a statement signed by a physician or other authorized individual who specifies that the child has received age appropriate immunizations in accordance with the requirements of New York Public Health Law. A provider may provide child care to any child not yet immunized provided the child's immunizations are in process and the caretaker gives the program specific appointment dates for required immunizations in accordance with the requirements of New York Public Health Law. Any child who is missing one or more of the required immunizations may be provided care if a physician, licensed to practice medicine in New York State furnishes the program with a signed, completed medical exemption form issued by the New York State Department of Health or New York City Department of Education. The medical exemption must be reissued annually.

(ii) A portable first aid kit must be accessible for emergency treatment. The first aid kit must be stocked to treat a broad range of injuries and situations and restocked as necessary. The first aid kit and any other first aid supplies must be kept in a clean container or cabinet not accessible to children.

(iii) Safety precautions relating to blood and other bodily fluids must be observed.

(iv) All legally-exempt providers must have procedures in place to reduce the risk of infection.

(9) Nutrition.

(i) Each child must receive meals and snacks in accordance with the plan developed jointly by the child care provider and the child's caretaker.

(ii) Perishable food, milk and formula must be kept refrigerated.

(iii) Heating infant formula, breast milk and other food items for infants in a microwave oven is prohibited.

(10) Management and administration.

(i) The child care provider 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.

(ii) The indoor and outdoor areas of the home or the facility where children are in care must not be used for any other business or social purpose when the children are present, such that attention is diverted from the care of the children.

(iii) Informal child care providers, directors of a legally-exempt group child care program, employees and volunteers must be of good character and habits.

(iv) The provider or program must take suitable precautions to prevent the following:

(a) serious injury of a child while in care at the program or being transported by the program; and

(b) death of a child while in care at the program or being transported by the program.

(v) The provider or program must immediately notify the enrollment agency and the caretakers of children in care upon learning of the following events involving a child which occurred while the child was in care at the program or was being transported by the program:

(a) death;

(b) serious incident;

(d) serious condition;

(e) communicable disease; or

(f) transportation to a hospital.

(vi) The enrollment agency must be notified by a family child care provider or a relative-only family child care provider of any proposed new family child care household member.

(vii) The provider or program must immediately call 911 for children who require emergency medical care and notify the caretaker.

(viii) The provider or program must submit to the enrollment agency a written attestation and certification stating whether the program is operating under the auspices of another Federal, State, tribal, or local government agency which includes the name of the agency.

(11) Emergency preparedness.

(i) With the exception of in-home child care, each legally-exempt child care provider must have on site a variety of supplies including food, water, first aid and other safety equipment to allow for the protection of the health and safety of children in the event caretakers are unable to pick up their children due to a local disaster.

(ii) Each legally-exempt child care provider must have a written emergency plan that places primary emphasis on the safe and timely evacuation and relocation of children. The plan must account for the variety of needs of children, including those with disabilities, and contain the following components:

(a) how children and adults will be made aware of an emergency;

(b) a designation of primary and secondary evacuation routes;

(c) methods of evacuation, including where children and adults will meet after evacuating the building, and how attendance will be taken;

(d) a plan for the safe evacuation of children from the premises for each shift of care provided (day, evening, night);

(e) the designation of primary and secondary emergency relocation sites to be used in the case of an emergency that prohibits re-entry to the child care site, and how the health, safety and emotional needs of children will be met in the event it becomes necessary to evacuate to another location;

(f) a strategy for sheltering in place, and how the health, safety, and emotional needs of children will be met in the event it becomes necessary to shelter-in-place;

(g) methods of notifying authorities and the children's caretakers;

(h) roles of providers, employees and volunteers during an emergency;

(i) procedures related to the reunification of children and caretakers.

(iii) Two shelter-in-place drills must be conducted annually during which procedures and supplies are reviewed. The children's caretakers must be made aware of the drills in advance.

(iv) A record of each shelter-in-place and evacuation drill conducted, using forms provided by the office or equivalents, must be maintained on site.

(v) The children's caretakers must be notified of the primary and secondary relocation sites and any changes to the plan in advance. In the case that a provider is directed to a different location by emergency services, the provider must notify the caretakers and the enrollment agency as soon as possible. In the event that relocation is required, a written notice must be placed on the main entry to the child care space unless an immediate threat precludes the provider from doing so.

(1) Medication may not be administered to any child in care except to the extent that a person is authorized under the Education Law to administer medications or has met the requirements for the administration of medications in this subdivision, including approval of a completed health care plan, except when care is provided in the child's own home or the person administering the medication is related to a child's parent or step-parent within the third degree of consanguinity.

(i) Legally-exempt child care providers and staff may administer medication only in accordance with the following:

(a) All providers that choose to administer medications other than epinephrine auto injectors, Diphenhydramine in combination with the auto injector, asthma inhalers and nebulizers, topical ointments, lotions, creams and sprays to children must have a health care consultant of record and must address the administration of medications in the health care plan in accordance with the requirements of this subdivision.

(b) The provider must confer with a health care consultant regarding the policies and procedures related to the administration of medications. This consultation must include a review of the documentation that all staff authorized to administer medications have the necessary professional license or have completed the necessary training.

(c) Policies regarding the administration of medications must be explained to the caretaker at the time of enrollment of the child in care and when substantive changes are made thereafter. Caretakers must be made familiar with the policies of the child care program relevant to the administration of medications.

(d) Nothing in this subdivision shall be deemed to require any provider to administer any medication, treatment, or other remedy except to the extent that such medication, treatment or remedy is required under the provisions of the Americans with Disabilities Act.

(e) Nothing in this subdivision shall be deemed to prevent a caretaker, or relative within the third degree of consanguinity of the parents or step-parents of a child, even if such a person is a staff person or volunteer, from administering medications to a child while the child is in care even if the provider has chosen not to administer medications or if the staff designated to administer medications is not present when the child receives the medication.

(ii) If the legally-exempt child care provider elects not to administer medications, the provider or staff must still document the dosages and time that the medications were given to the child by the child's caretaker, or relative within the third degree of consanguinity of the parents or step-parents of the child while the child was in care.

(a) Relatives within the third degree of consanguinity administering medications to the child in care must be at least 18 years of age, unless that relative is the caretaker of the child.

(b) If the only administration of medication in a child care program is done by a caretaker, or relative within the third degree of consanguinity of the parents or step-parents of a child, the staff of the program do not have to complete the administration of medication training requirements pursuant to this subdivision.

(iii) No child in care will be allowed to independently administer medications, except for those medications administered pursuant to subparagraph (6)(ii) of this subdivision, without the assistance and direct supervision of staff that are authorized to administer medications pursuant to this subdivision. Any program that elects to offer the administration of medication to children when children who attend the program independently administer medications or when children assist in the administration of their own medications must comply with all the provisions of this subdivision.

(iv) A legally-exempt child care provider and staff may administer prescription and non-prescription (over-the-counter) medications for eyes or ears, oral medications, topical ointments, creams, lotions, sprays and medication patches and inhaled medications in accordance with this subdivision.

(v) A legally-exempt child care provider and staff may not administer medications by injection, vaginally or rectally except as follows:

(a) where the provider and/or staff have been certified to administer medications in a child care setting and the caretaker and the child's health care provider have indicated such treatment is appropriate and received instruction on the administration of the medication; or

(b) for a child with special health care needs, where the caretaker, the provider and the child's health care provider have agreed on a plan pursuant to which the staff may administer medications by injection, vaginally or rectally; or

(c) where the provider and/or staff have a valid license as a physician, physician's assistant, registered nurse, nurse practitioner, licensed practical nurse or advanced emergency medical technician.

(vi) A legally-exempt child care provider and staff authorized to administer medication who agree to administer medications to a child must do so, unless they observe the circumstances, if any, specified by the health care provider or the medication label, under which the medication must not be administered. In such instances, the provider or staff must contact the caretaker immediately.

(vii) Permissions needed from caretaker and/or health care provider in order to administer medications.

(a) Over-the-counter products, including but not limited to over-the-counter topical ointments, lotions, creams, sprays, including sunscreen products and topically applied insect repellant can be administered by the provider for one day only, with verbal permission of the caretaker. If an over-the-counter product is to be administered on a subsequent day or an ongoing basis, written permission from the caretaker must have been provided to the provider.

(b) For children less than 18 months of age, prescription medications, oral over-the-counter medications, medicated patches, and eye, ear, or nasal drops or sprays, can be administered by the provider for one day only, with verbal permission of the caretaker and verbal instructions directly from the health care provider or licensed authorized prescriber. If prescription medications, oral over-the-counter medications, medicated patches, and eye, ear, or nasal drops or sprays are to be administered on a subsequent day or an ongoing basis, written permission from the caretaker and written instructions from the health care provider must have been provided to the provider prior to such administration.

(c) For children 18 months of age and older, prescription medications, oral over-the-counter medications, medicated patches, and eye, ear, or nasal drops or sprays, can be administered by the provider for one day only, with the oral approval of the caretaker. If prescription medications, oral over-the-counter medications, medicated patches, and eye, ear, or nasal drops or sprays are to be administered on a subsequent day or an ongoing basis, written permission from the caretaker and written instructions from the health care provider must have been provided to the provider prior to such administration.

(d) Provider and staff cannot administer medication to any child in care, if the caretaker's instructions differ from the instructions on the medication's packaging, until the provider receives permission from a health care provider or licensed authorized prescriber on how to administer the medication.

(e) The provider must immediately notify the caretaker if the provider will not administer medication due to differing instructions related to the administration of medication.

(viii) A legally-exempt child care provider and staff who are authorized to administer medications must administer medication as follows:

(a) to the right child;

(b) at the right dose;

(d) with the right medication; and

(e) through the right route.

(ix) Documentation of medication administration.

(a) At the time of administration, the staff must document the dosages and time that the medications are given to the child.

(b) All observable side effects must be documented and communicated to the caretaker, and when appropriate, the child's health care provider.

(x) The caretaker must be notified immediately and the office must be notified within 24 hours of any medication administration errors. Notification to the office must be reported on a form provided by the office or on an approved equivalent.

(xi) For all children for whom the legally-exempt child care provider administers over-the-counter medications pursuant to this subdivision, the provider must document that the caretaker or guardian gave verbal instructions and approval.

(xii) The legally-exempt child care provider and staff authorized to administer medications must be literate in the language for which the permissions and instructions for use are written.

(xiii) Medication must be returned to the caretaker or guardian when it is no longer required by the child or, with the permission of the caretaker or guardian, be properly disposed of by the legally-exempt child care provider.

(xiv) Where the legally exempt child care provider has received written permission of the caretaker and written instructions from the health care provider authorizing administration of a specified medication if the staff observes some specified condition or change of condition in the child while the child is in care, the staff person may administer the specified medication, without obtaining additional authorization from the caretaker or health care provider.

(xv) Prescription and over-the-counter medications must be kept in their original bottles or containers.

(xvi) Prescription medication labels must include the following information or be available through the licensed authorized prescriber on the form provided by the office or equivalent form:

(a) child's first and last name;

(b) licensed authorized prescriber's name, telephone number, and signature;

(d) name of medication and dosage;

(e) frequency the medication is to be administered;

(f) method of administration;

(g) reason for medication (unless this information must remain confidential pursuant to law);

(h) most common side effects or reactions; and

(i) special instructions or considerations, including but not limited to possible interactions with other medications the child is receiving, or concerns regarding the use of the medication as it relates to a child's age, allergies, or any pre-existing conditions.

(xvii) Medications must be kept in a clean area that is inaccessible to children.

(xviii) If refrigeration is required, the medication must be stored in either a separate refrigerator or a leak-proof container in a designated area of a food storage refrigerator, separated from food and inaccessible to children.

(xix) A legally-exempt child care provider must comply with all Federal and State requirements for the storage and disposal of all types of medications, including controlled substances.

(xx) In the case of medication that needs to be given on an ongoing, long-term basis, the authorization and consent forms for children five years of age or older must be reauthorized at least once every 12 months. Any changes in the medication authorization related to dosage, time or frequency of administration shall require a legally-exempt child care provider to obtain new instructions written by the licensed authorized prescriber. All other changes to the original medication authorization require a change in the prescription.

(xxi) In the case of medication that needs to be given on an ongoing, long-term basis, the authorization and consent forms for children under the age of five years of age must be reauthorized at least once every six months. Any changes in the medication authorization related to dosage, time or frequency of administration shall require a legally-exempt child care provider to obtain new instructions written by the licensed authorized prescriber. All other changes to the original medication authorization require a change in the prescription.

(2) The Health Care Plan.

(i) Any legally exempt group or legally exempt non-relative family child care provider who elects to administer medication must prepare a health care plan on forms furnished by the Office. Such plan must protect and promote the health of children. The health care plan must be on site, followed by all staff and available upon demand by a caretaker or the Office. The health care plan must also be approved by the provider's health care consultant unless the only medications to be administered are:

(a) over-the-counter topical ointments, lotions and creams, sprays, including sunscreen products and topically applied insect repellant; and/or

(b) epinephrine auto injectors, Diphenhydramine in combination with the auto injector, asthma inhalers and nebulizers.

(ii) The health care plan must describe the following:

(a) how a daily health check of each child for any indication of illness, injury, abuse or maltreatment will be conducted and documented;

(b) how a record of each child's illnesses, injuries and signs of suspected abuse or maltreatment will be maintained;

(d) the advance arrangements for the care of any child who has or develops symptoms of illness or is injured, including notifying the child's caretaker;

(e) which designated staff will be administering medication; The plan must state that only a trained, designated staff person may administer medications to children, except when the only administration of medications offered will be the administration of over-the-counter topical ointments, lotions, creams, and sprays including sunscreen products and topically applied insect repellant;

(f) the contents of the first aid kit;

(g) that the trained designated staff may only administer medications to children if the designated staff is:

(1) at least 18 years of age;

(2) possesses a current certification in first aid and cardio-pulmonary resuscitation (CPR) appropriate to the ages of the children in care; and

(3) has completed the Medication Administration Training (MAT) pursuant to paragraph (4) of this subdivision or in the case of administering epinephrine auto injectors, Diphenhydramine in combination with the auto injector, asthma inhalers and nebulizers has received training on its use from the caretaker, health care provider or a health care consultant;

(h) the designation of the health care consultant of record for programs, as indicated in subparagraph (i) of this paragraph; and

(i) when a health care consultant is required to approve a health care plan, the schedule of visits by a health care consultant to providers administering medications must occur at least once every two years and must include a review of the health care policies and procedures and a review of the documentation.

(3) Health care consultant.

(i) Legally-exempt child care providers must demonstrate to the health care consultant how medications are administered in the program. A provider is not required to schedule a visit with a health care consultant or include a schedule of visits by a health care consultant in the health care plan when:

(a) only over-the-counter topical ointments, lotions, creams and sprays, including sunscreen products and topically applied insect repellant are administered; and/or

(b) epinephrine auto injectors, Diphenhydramine in combination with the auto injector, and asthma inhalers and nebulizers are the only medications administered in the program.

(ii) Should the health care consultant determine, after a visit to the legally-exempt child care provider, that the approved health care plan is not being reasonably followed by the provider, the health care consultant may revoke his or her approval of the plan. If the health care consultant revokes his or her approval of the health care plan, the health care consultant must immediately notify the provider, no longer than 24 hours later. In that instance, the health care consultant may also notify the enrollment agency directly if he or she so desires. Should the health care consultant revoke his or her approval of the plan, the provider must notify the enrollment agency within 24 hours.

(iii) A legally-exempt child care provider authorized to administer medications, which has had the authorization to administer medications revoked, or otherwise loses the ability to administer medications, must advise the caretaker of every child in care before the next day the program operates that the provider no longer has the ability to administer medications.

(iv) A legally-exempt child care provider, whose health care consultant terminates his or her relationship with the provider, will be granted a 60-day grace period to hire another health care consultant, obtain approval of a health care plan from the new health care consultant and submit the plan to the enrollment agency without the provider losing the ability to administer medications as long as:

(a) the former health care consultant did not revoke his or her approval prior to terminating the relationship with the provider;

(b) staff who have been trained in medication administration are available to continue administration of medications as per the health care plan;

(d) the provider notifies the enrollment agency, within 24 hours, of the termination of the relationship with the health care consultant; and

(e) the provider has the newly hired health care consultant review and approve the health care plan and sends the signed approved health care plan to the enrollment agency before the 60-day window expires.

(v) Once the 60-day period has expired if no health care plan approval is issued, the legally-exempt child care program will no longer able to administer medications other than over-the-counter topical medications and emergency medications.

(4) Training for the administration of medications.

(i) All legally-exempt child care providers and staff except those excluded pursuant to this subdivision who have agreed to administer medication must complete the office-approved medication administration training or an office-approved equivalent before administering medications to children in child care. The certification of training in the administration of medications to children in child care shall be effective for a period of three-years from the date of issuance. The staff must complete a recertification training approved by the office in order to extend the certification for each additional three-year period. Where a certification lapses, the staff may not be recertified unless the staff completes the initial medication administration training or the recertification training, as required by the office.

(ii) Legally-exempt child care providers and staff who will be responsible for administering medications must receive training in the methods of administering medications prior to administering any medications in a child care setting. Upon completion of the training, the staff must receive a written certificate from the trainer that indicates that the trainee has successfully completed this training, as required, and demonstrated competency in the administration of medications in a child care setting.

(a) In order to be trained in the administration of medications in a child care setting, providers and staff must be literate in the language or languages in which health care instructions from caretakers and health care providers will be received.

(b) Persons who receive training in the administration of medications in child care settings pursuant to this subdivision may not otherwise administer medications or represent themselves as being able to administer medications except to the extent such persons may be able to do so in accordance with the relevant provisions of the Education Law.

(iii) The training in the administration of medications must be provided by a health care provider or registered nurse who has been certified by the office to administer the office-approved curriculum.

(iv) The training must be documented and must include, but need not be limited to the following:

(a) training objectives;

(b) a description of the methods of administration including principles and techniques of application and dispensation of oral, topical, medication patches and inhalant medication, including the use of nebulizers, and the use of epinephrine auto injector devices when necessary to prevent anaphylaxis in emergency situations with respect to the various age groups of children;

(d) an evaluation of whether the trainee demonstrates competency in:

(1) understanding orders from the health care professional or licensed authorized prescriber;

(2) the ability to correctly carry out the orders given by the health care provider or licensed authorized prescriber;

(3) recognition of common side effects of medications and ability to follow written directions regarding appropriate follow-up action;

(4) avoidance of medication errors and what action to take if an error occurs;

(5) understanding relevant commonly used abbreviations;

(6) maintaining required documentation including the caretaker's permission, written orders from health care professionals and licensed authorized prescribers, and the record of administration of medications;

(7) safe handling of medications, including receiving medications from a caretaker;

(8) proper storage of medications, including controlled substances; and

(9) safe disposal of medications.

(v) A person who can produce a valid New York State license as a physician, physician's assistant, registered nurse, nurse practitioner, licensed practical nurse or advanced emergency medical technician will not be required to attend the training required by this paragraph in order to administer medications in a child care setting. Documentation establishing the person's credentials in one of the above fields will be required and a copy of the documentation must be provided to the office.

(5) Stocking medications.

(i) A legally-exempt child care provider may keep a supply of over-the-counter medications at a program site to be used in the event that a child develops symptoms while in care that indicate the need for over-the-counter medication.

(ii) Legally-exempt child care providers that store and administer medication that is not labeled for a specific child must have an over-the-counter stock medication policy in place before beginning to store any over-the-counter medications. The over-the-counter stock medication's policy must address the safe storage and proper administration of the stored over-the-counter medication and must address the need for strict infection control practices as they pertain to stock medication.

(iii) Stock medication must be kept in a clean area that is inaccessible to children and any stock medication must be stored separate from child-specific medication.

(iv) Stock medications must be kept in the original container and have the following information on the label or in the package insert:

(a) name of the medication;

(b) reasons for use;

(d) dosage instructions;

(e) possible side effects and/or adverse reactions;

(f) warnings or conditions under which it is inadvisable to administer the medication; and

(g) expiration date.

(v) Legally-exempt child care providers that stock supplies of over-the-counter medication, which are not in single dose packaging, must provide a separate mechanism to administer the medication for each child that may need the medication. Once a device has been used for a specific child in care, that specific device must be disposed of or reused only for that specific child and must be labeled with the child's first and last name. The program must include the procedure in the over-the-counter stock medication policy for dispensing the stock medication from the container to the device, or directly administering to the child, without contaminating the stock medication.

(vi) All stock medication must be administered using best practice techniques in accordance with the directions for use on the medication package.

(vii) Unless otherwise permitted by law, prescription medication cannot be kept as stock medication.

(6) Administration of Epinephrine, Diphenhydramine in combination with the auto injector, asthma inhalers and nebulizers.

(i) When a legally-exempt child care provider has not been authorized to administer medications in a child care setting in accordance with the requirements of this subdivision, a designated staff person may administer emergency care through the use of epinephrine auto injector devices, Diphenhydramine, when prescribed in combination with the auto injector, asthma inhaler and asthma nebulizer when necessary to prevent anaphylaxis or breathing difficulty for a child but only when the caretaker and the child's health care provider have indicated such treatment is appropriate. In addition:

(a) a written individual health care plan must be developed for the child;

(b) the child's health care provider must issue a standing order and prescription for the medication;

(c) the caretaker must approve, in writing, the administration of the medication as prescribed by the health care provider and keep medications current;

(d) providers or staff administering an emergency medication pursuant to this paragraph, must be instructed on its use, and the instruction must be provided by the caretaker, the child's health care provider or a health care consultant;

(e) the provider or a staff who has been instructed on the use of the auto injector, Diphenhydramine, inhaler or nebulizer must be present during all hours the child with the potential emergency condition is in care;

(f) the provider or staff administering the auto injector, Diphenhydramine, asthma medication or nebulizer must be at least 18 years old;

(g) the provider or staff must immediately contact 911 after administration of Epinephrine;

(h) if an inhaler or nebulizer for asthma is administered, the provider or staff must call 911 if the child's breathing does not return to its normal functioning after its use; and

(i) storage, documentation of the administration of medication and labeling of the auto injector, asthma inhaler and asthma nebulizer must be in compliance with this subdivision.

(ii) When a legally-exempt child care provider is approved to administer an inhaler to a child with asthma or other diagnosed respiratory condition, or an epinephrine auto injector for anaphylaxis, a school-aged child may carry and use these devices during child care hours if the provider secures written permission of such use of a duly authorized health care provider, consent from the caretaker, and completes a written individual health care plan for the child.

(iii) The written individual health care plan, consent from the caretaker and health care provider consent documenting permission for a school-age child to carry an inhaler or auto injector must be maintained on file by the legally-exempt child care provider.

(d) Training requirements for legally-exempt child care providers.

(1) To be enrolled by or maintain enrollment with an enrollment agency, every child care provider, director, employee and volunteer, except for a relative-only in-home child care provider or relative-only family child care provider, must complete office-approved training that complies with the Federal minimum health and safety pre-service training requirements. Such training must be completed prior to enrollment for a provider, or prior to a director, employee or volunteer's start date.

(2) To maintain enrollment with an enrollment agency, every child care provider, director, employee and volunteer, except for relative-only in-home child care providers and relative-only family child care providers, must annually complete a minimum of five additional hours of office-approved training that complies with the Federal training requirements.

(e) Inspection requirements for legally-exempt child care providers.

(1) To be enrolled by or maintain enrollment with an enrollment agency, a child care provider must admit and cooperate with inspectors and other representatives of the enrollment agency, social services district, and the office in accordance with section 415.12(a)(5) of this Part.

(f) An enrollment is not transferable to any other person, entity or location.

(g) Capacity limitations for legally-exempt family child care.

(1) The maximum capacity is no more than eight children.

(2) No more than two children may be in care for more than three hours simultaneously per day, except when the provider is a relative within the third degree of consanguinity of the parents or stepparents of all children in care.

(h) Additional health and safety requirements for legally-exempt group child care programs.

(1) Each enrolled legally-exempt group child care program must meet and maintain the following minimum staff-to-child supervision ratios and maximum group size requirements, unless a more stringent standard is required by law:

(i) for three-year-old children:

(a) there must be one employee with a caregiving role for every 20 children when engaged in activities where children will be seated while working on a particular activity or skill;

(b) there must be one employee with a caregiving role for every 10 children when children are not engaged in seated activities or skills; and

(ii) for four-year-old children:

(a) there must be one employee with a caregiving role for every 20 children when engaged in activities where children will be seated while working on a particular activity or skill;

(b) there must be one employee with a caregiving role for every 12 children when children are not engaged in seated activities or skills; and

(iii) for children ages five through 12 years of age:

(a) there must be one employee with a caregiving role for every 25 children; and

(b) the maximum group size is 50 children.

(iv) When children younger than five years of age are cared for in mixed age groups, the staff-to-child supervision ratio and maximum group size applicable to the youngest child in the group must be followed.

(2) Group size refers to the number of children cared for together as a unit. Group size is used to determine the minimum staff-to-child supervision ratio based upon the age of the children in the group.

(3) The office and its designees, applicable social services district and its designees, and the applicable enrollment agency are authorized to inspect any legally-exempt group child care program that is enrolled or applying for enrollment.

(4) A child under three years of age who is receiving child care assistance cannot be cared for in a legally-exempt group child care program, except for:

(i) child care programs located on tribal property which are operated in compliance with the applicable tribal laws and regulations for such child care programs; or

(ii) a child who is at least two years of age at the beginning of the school year but will turn three years of age on or before the applicable calendar date for which a child must be at least five years of age to be eligible for admission to school; such a child shall be considered three years of age for the purposes of staff-to-child ratio and maximum group size.

(5) Prior to being enrolled, the legally-exempt group child care program must submit to the enrollment agency the following:

(i) a certificate of occupancy or other documentation from the authority having jurisdiction for such matters that shows the facility has been approved for use as a child care program. Updated documentation of compliance may be required when an event or condition reasonably calls into question whether the provider is in compliance with this requirement;

(ii) documentation from the authority having jurisdiction for determining compliance with the New York State Uniform Fire Prevention and Building Code or other applicable fire prevention and building codes when the Uniform Code of New York State is not applicable, that shows the facility has been inspected and found to be in compliance with the applicable codes within the past 12 months;

(a) the building and premises must remain in compliance with the New York State Uniform Fire Prevention and Building Code or other applicable fire prevention and building codes when the Uniform Code of New York State is not applicable. Updated documentation of compliance may be required when an event or condition reasonably calls into question whether the provider is in compliance with these requirements;

(iii) a diagram of the portion of the building to be occupied by the child care program, all adjacent areas of such building, and the grounds to be used by the child care program.

(6) No legally-exempt group child care program may re-enroll with an enrollment agency on or after September 1, 2020 unless they document compliance with the requirements set forth in subparagraphs (5)(i)-(iii) of this subdivision.

(7) Individual children's food allergies must be posted in a discreet location visible only to directors, employees and volunteers.

(i) Additional requirements for enrollment.

(1) An application for enrollment will only be accepted by the Office when the applicant submits the minimum threshold of information as required by Office policy. An application sent to the Office that does not meet the minimum threshold will not be accepted and will be returned to the applicant. Once an application has been accepted, all additional required information must be submitted no later than 30 days. Failure to submit all required information within the required timeframes shall be considered a withdrawal of the application.

(2) An email address for the provider or other person designated to receive communications from the Office is required on all enrollment applications. If the applicant is unable to provide at least one valid email address, the applicant must provide a valid mailing address for the provider or other person designated to receive written communications from the Office.

Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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