§ 390 — Child day care; license or registration required

New York § 390

• Jurisdiction: New York
• Law SOS: Social Services
• Title 1: Care and Protection of Children
• Art. 6: Children

Text

§ 390. Child day care; license or registration required. 1.\nDefinitions. (a) (i) "Child day care" shall mean child care where a\nlicense or registration pursuant to this section is required and shall\ninclude care for a child on a regular basis provided away from the\nchild's residence for less than twenty-four hours per day by someone\nother than: (1) the parent, step-parent, guardian, or relative within\nthe third degree of consanguinity of the parents or step-parents of such\nchild; or (2) an enrolled legally-exempt provider as such term is\ndefined in paragraph (g) of this subdivision.\n (ii) Child day care shall not refer to care provided in:\n (A) a day camp, as defined in the state sanitary code;\n (B) an after-school program operated for the purpose of religious\neducation, sports, or recreation;\n (C) a facility:\n (1) providing day services under an operating certificate issued by\nthe department;\n (2) providing day treatment under an operating certificate issued by\nthe office of mental health or the office for people with developmental\ndisabilities; or\n (D) a kindergarten, pre-kindergarten, or nursery school for children\nthree years of age or older, or after-school program for children\noperated by a public school district or by a private school or academy\nwhich is providing elementary or secondary education or both, in\naccordance with the compulsory education requirements of the education\nlaw, provided that the kindergarten, pre-kindergarten, nursery school,\nor after school program is located on the premises or campus where the\nelementary or secondary education is provided. Provided however, a\nkindergarten or a pre-kindergarten operated by a public school district\nshall not be considered a child day care if the kindergarten or\npre-kindergarten is not located on the premises or campus where the\nelementary or secondary education is provided.\n (b) "Child day care provider" shall mean any individual, association,\ncorporation, partnership, institution or agency whose activities include\nproviding child day care or operating a home or facility where child day\ncare is provided.\n (c) "Child day care center" shall mean any program or facility caring\nfor children for more than three hours per day per child in which child\nday care is provided by a child day care provider except those programs\noperating as a group family day care home as such term is defined in\nparagraph (d) of this subdivision, a family day care home, as such term\nis defined in paragraph (e) of this subdivision, and a school-age child\ncare program, as such term is defined in paragraph (f) of this\nsubdivision.\n (d) "Group family day care home" shall mean a program caring for\nchildren for more than three hours per day per child in which child day\ncare is provided in a family home for seven to twelve children of all\nages, except for those programs operating as a family day care home, as\nsuch term is defined in paragraph (e) of this subdivision, which care\nfor seven or eight children. A group family day care provider may\nprovide child day care services to four additional children if such\nadditional children are of school age and such children receive services\nonly before or after the period such children are ordinarily in school\nor during school lunch periods, or school holidays, or during those\nperiods of the year in which school is not in session. There shall be\none caregiver for every two children under two years of age in the group\nfamily home. A group family day care home must have at least one\nassistant to the operator present when child day care is being provided\nto seven or more children when none of the children are school age, or\nnine or more children when at least two of the children are school age\nand such children receive services only before or after the period such\nchildren are ordinarily in school or during school lunch periods, or\nschool holidays, or during those periods of the year in which school is\nnot in session. This assistant shall be selected by the group family day\ncare operator and shall meet the qualifications established for such\nposition by the regulations of the office of children and family\nservices.\n (e) "Family day care home" shall mean a program caring for children\nfor more than three hours per day per child in which child day care is\nprovided in a family home for three to six children. There shall be one\ncaregiver for every two children under two years of age in the family\nday care home. A family day care provider may, however, care for seven\nor eight children at any one time if no more than six of the children\nare less than school age and the school-aged children receive care\nprimarily before or after the period such children are ordinarily in\nschool, during school lunch periods, on school holidays, or during those\nperiods of the year in which school is not in session in accordance with\nthe regulations of the office of children and family services and the\noffice inspects such home to determine whether the provider can care\nadequately for seven or eight children.\n (f) "School age child care" shall mean a program caring for more than\nsix school-aged children who are under thirteen years of age or who are\nincapable of caring for themselves. Such programs shall be in operation\nconsistent with the local school calendar. School age child care\nprograms shall offer care during the school year to an enrolled group of\nchildren at a permanent site before or after the period children\nenrolled in such program are ordinarily in school or during school lunch\nperiods and may also provide such care on school holidays and those\nperiods of the year in which school is not in session.\n (g) "Enrolled legally exempt provider" shall mean a person who is a\ncaregiver or entity that is not required to be licensed or registered\npursuant to this section and that is enrolled to be a caregiver and\nprovide subsidized child care services to eligible families in\naccordance with title five-C of this article and the regulations of the\noffice of children and family services.\n 2. (a) Child day care centers caring for seven or more children and\ngroup family day care programs, as defined in subdivision one of this\nsection, shall obtain a license from the office of children and family\nservices and shall operate in accordance with the terms of such license\nand the regulations of such office. Initial licenses and subsequent\nlicenses shall be valid for a period of up to four years so long as the\nprovider remains substantially in compliance with applicable law and\nregulations during such period.\n (b) Family day care homes, child day care centers caring for at least\nthree but fewer than seven children, and school-age child care programs\nshall register with the department and shall operate in compliance with\nthe regulations of the department.\n (c) Any child day care provider not required to obtain a license\npursuant to paragraph (a) of this subdivision or to register with the\ndepartment pursuant to paragraph (b) of this subdivision may register\nwith the department.\n (d) (i) The office of children and family services shall promulgate\nregulations for licensure and for registration of child day care\npursuant to this section. Procedures for obtaining a license or\nregistration or renewing a license shall include a satisfactory\ninspection of the facility by the office of children and family services\nprior to issuance of the license or registration or renewal of the\nlicense.\n (ii) (A) Initial registrations and subsequent registrations shall be\nvalid for a period of up to four years so long as the provider remains\nsubstantially in compliance with applicable law and regulations during\nsuch period.\n (B) After initial registration by the child day care provider, the\noffice of children and family services shall not accept any subsequent\nregistration by such provider, unless:\n (1) such provider has met the training requirements set forth in\nsection three hundred ninety-a of this title;\n (2) such provider has met the requirements of section three hundred\nninety-b of this title relating to criminal history screening;\n (3) such provider has complied with the requirements of section four\nhundred twenty-four-a of this article; and\n (4) the office of children and family services has received no\ncomplaints about the home, center, or program alleging statutory or\nregulatory violations, or, having received such complaints, the office\nof children and family services has determined, after inspection\npursuant to paragraph (a) of subdivision three of this section, that the\nhome, center, or program is operated in compliance with applicable\nstatutory and regulatory requirements.\n (C) Where the office of children and family services has determined\nthat a registration should not be continued because the requirements of\nclause (B) of this subparagraph have not been satisfied, the office of\nchildren and family services may terminate the registration. If the\noffice of children and family services does not terminate the\nregistration, the office of children and family services shall inspect\nthe home or program before acknowledging any subsequent registration.\nWhere the home or program has failed to meet the requirements of this\nsection, the office of children and family services may reject any\nsubsequent registration of a provider. Nothing herein shall prohibit the\noffice of children and family services from terminating or suspending\nregistration pursuant to subdivision ten of this section where the\noffice of children and family services determines that termination or\nsuspension is necessary.\n (iv) Child day care providers who have been issued a license shall\nopenly display such license in the facility or home for which the\nlicense is issued. Child day care providers who have registered with the\ndepartment shall provide proof of registration upon request.\n (d-1) (i) The office of children and family services shall promulgate\nregulations for inspections of enrolled legally exempt providers, which\nshall include the completion of a satisfactory inspection of the\npremises where care is to be provided, by the office of children and\nfamily services.\n (ii) Provided however, unless a complaint is made in or as otherwise\nauthorized such inspections shall not be required when the enrolled\nlegally exempt provider is an individual, age eighteen or older, and\nwho, by virtue of blood, marriage or court decree, is, to all of the\nchildren that such person is enrolled to provide subsidized child care\nservices to in accordance with title five-C of this article:\n (A) a grandparent;\n (B) a great-grandparent;\n (C) a sibling, provided that such sibling resides in a separate\nhousehold from the child;\n (D) an aunt; or\n (E) an uncle.\n (e) Notwithstanding any other provision of this section, where a child\nis cared for by a parent, guardian or relative within the third degree\nof consanguinity of the parent of such child and such person\nsimultaneously provides child day care for other children, only the\nother children shall be considered in determining whether such person\nmust be registered or licensed, provided that such person is not caring,\nin total, for more than eight children.\n 2-a. (a) The office of children and family services shall promulgate\nregulations which establish minimum quality program requirements for\nlicensed and registered child day care homes, programs and facilities.\nSuch requirements shall include but not be limited to (i) the need for\nage appropriate activities, materials and equipment to promote\ncognitive, educational, social, cultural, physical, emotional, language\nand recreational development of children in care in a safe, healthy and\ncaring environment (ii) principles of childhood development (iii)\nappropriate staff/child ratios for family day care homes, group family\nday care homes, school age day care programs and day care centers (iv)\nappropriate levels of supervision of children in care (v) minimum\nstandards for sanitation, health, infection control, nutrition,\nbuildings and equipment, safety, security procedures, first aid, fire\nprevention, fire safety, evacuation plans and drills, prevention of\nchild abuse and maltreatment, staff qualifications and training, record\nkeeping, and child behavior management.\n (b) The use of electronic monitors as a sole means of supervision of\nchildren in day care shall be prohibited, except that electronic\nmonitors may be used in family day care homes and group family day care\nhomes as an indirect means of supervision where the parents of any child\nto be supervised have agreed in advance to the use of such monitors as\nan indirect means of supervision and the use of such monitors is\nrestricted to situations where the children so supervised are sleeping.\n (c) No child less than six weeks of age may be cared for by a licensed\nor registered day care provider, except in extenuating circumstances\nwhere prior approval for care of such children has been given by the\noffice of children and family services. Extenuating circumstances for\nthe purposes of this section shall include but not be limited to the\nmedical or health needs of the parent or child, or the economic hardship\nof the parent.\n 3. (a) The office of children and family services may make announced\nor unannounced inspections of the records and premises of any child care\nprovider, whether or not such provider has a license from, or is\nregistered with, the office of children and family services. The office\nof children and family services shall make unannounced inspections of\nthe records and premises of any child day care provider within fifteen\ndays after the office of children and family services receives a\ncomplaint that, if true, would indicate such provider does not comply\nwith the applicable regulations of the office of children and family\nservices or with statutory requirements. If the complaint indicates that\nthere may be imminent danger to the children, the office of children and\nfamily services shall investigate the complaint no later than the next\nday of operation of the provider. The office of children and family\nservices may provide for inspections through the purchase of services.\n (b) (i) Where inspections have been made and violations of applicable\nstatutes or regulations have been found, the office of children and\nfamily services shall within ten days advise the child day care provider\nin writing of the violations and require the provider to correct such\nviolations. The office of children and family services may also act\npursuant to subdivisions ten and eleven of this section.\n (ii) Where inspections have been made and violations of applicable\nstatutes or regulations have been found, the office of children and\nfamily services or its designee shall, within ten days, advise the\nenrolled legally-exempt provider in writing of the violations and\nrequire the provider to correct such violations.\n (c) (i) The office of children and family services shall establish a\ntoll-free statewide telephone number to receive inquiries about child\nday care homes, programs and facilities and complaints of violations of\nthe requirements of this section or regulations promulgated under this\nsection. The office of children and family services shall develop a\nsystem for investigation, which shall include inspection, of such\ncomplaints. The office of children and family services may provide for\nsuch investigations through purchase of services. The office of children\nand family services shall develop a process for publicizing such\ntoll-free telephone number to the public for making inquiries or\ncomplaints about child day care homes, programs or facilities.\n (ii) Information to be maintained and available to the public through\nsuch toll-free telephone number shall include, but not be limited to:\n (A) current license and registration status of child day care homes,\nprograms and facilities including whether a license or registration is\nin effect or has been revoked or suspended; and\n (B) child care resource and referral programs providing services\npursuant to title five-B of this article and other resources known to\nthe office of children and family services which relate to child day\ncare homes, programs and facilities in the state.\n (iii) Upon written request identifying a particular child day care\nhome, program or facility, the office of children and family services\nshall provide the information set forth below. The office of children\nand family services may charge reasonable fees for copies of documents\nprovided, consistent with the provisions of article six of the public\nofficers law. The information available pursuant to this clause shall\nbe:\n (A) the results of the most recent inspection for licensure or\nregistration and any subsequent inspections by the office of children\nand family services;\n (B) complaints filed against child day care homes, programs or\nfacilities which describes the nature of the complaint and states how\nthe complaint was resolved, including the status of the office of\nchildren and family services investigation, the steps taken to rectify\nthe complaint, and the penalty, if any, imposed; and\n (C) child day care homes, programs or facilities which have requested\nor received a waiver from any applicable rule or regulation, and the\nregulatory requirement which was waived.\n (iv) Nothing in this paragraph shall be construed to require or permit\nthe disclosure either orally or in writing of any information that is\nconfidential pursuant to law.\n (d) Where investigation or inspection reveals that a child day care\nprovider which must be licensed or registered is not, the office of\nchildren and family services shall advise the child day care provider in\nwriting that the provider is in violation of the licensing or\nregistration requirements and shall take such further action as is\nnecessary to cause the provider to comply with the law, including\ndirecting an unlicensed or unregistered provider to cease operation. In\naddition, the office of children and family services shall require the\nprovider to notify the parents or guardians of children receiving care\nfrom the provider that the provider is in violation of the licensing or\nregistration requirements and shall require the provider to notify the\noffice of children and family services that the provider has done so.\nAny provider who is directed to cease operations pursuant to this\nparagraph shall be entitled to a hearing before the office of children\nand family services. If the provider requests a hearing to contest the\ndirective to cease operations, such hearing must be scheduled to\ncommence as soon as possible but in no event later than thirty days\nafter the receipt of the request by the office of children and family\nservices. The provider may not operate the center, home or program after\nbeing directed to cease operations, regardless of whether a hearing is\nrequested. If the provider does not cease operations, the office of\nchildren and family services may impose a civil penalty pursuant to\nsubdivision eleven of this section, seek an injunction pursuant to\nsection three hundred ninety-one of this title, or both.\n (e) (i) Where an authorized agency is subsidizing child day care\npursuant to any provision of this chapter, the authorized agency may\nsubmit to the department justification for a need to impose additional\nrequirements upon child day care providers and a plan to monitor\ncompliance with such additional requirements. No such additional\nrequirements or monitoring may be imposed without the written approval\nof the department.\n (ii) An authorized agency may refuse to allow a child day care\nprovider who is not in compliance with this section and regulations\nissued hereunder or any approved additional requirements of the\nauthorized agency to provide child day care to the child. In accordance\nwith the plan approved by the department, an authorized agency shall\nhave the right to make announced or unannounced inspections of the\nrecords and premises of any provider who provides care for such\nchildren, including the right to make inspections prior to subsidized\nchildren receiving care in a home where the inspection is for the\npurpose of determining whether the child day care provider is in\ncompliance with applicable law and regulations and any additional\nrequirements imposed upon such provider by the authorized agency. Where\nan authorized agency makes such inspections, the authorized agency shall\nnotify the department immediately of any violations of this section or\nregulations promulgated hereunder, and shall provide the department with\nan inspection report whether or not violations were found, documenting\nthe results of such inspection.\n (iii) Nothing contained in this paragraph shall diminish the authority\nof the department to conduct inspections or provide for inspections\nthrough purchase of services as otherwise provided for in this section.\nNothing contained in this paragraph shall obligate the department to\ntake any action to enforce any additional requirements imposed on child\nday care providers by an authorized agency.\n (f) Individual local social services districts may alter their\nparticipation in activities related to arranging for, subsidizing,\ndelivering and monitoring the provision of subsidized child day care\nprovided, however, that the total participation of an individual\ndistrict in all activities related to the provision of subsidized child\nday care shall be no less than the participation level engaged in by\nsuch individual district on the effective date of this section.\n 4. (a) The office of children and family services on an annual basis\nshall inspect all child day care programs and all enrolled\nlegally-exempt providers except when such provider is determined to be\nexempt in accordance with subparagraph (ii) of paragraph (d-one) of\nsubdivision two of this section. The office of children and family\nservices may provide for such inspections through purchase of services.\n (b) Any family day care home or school-age child care program\nlicensed, registered, or certified by the department or by any\nauthorized agency on the effective date of this section shall be deemed\nregistered until the expiration of its then-current license or\ncertificate unless such license or certificate is suspended or revoked\npursuant to subdivision ten of this section. Family day care homes and\nschool-age child care programs not licensed, registered, or certified on\nthe effective date of this section shall register pursuant to\nsubdivision two of this section.\n 5. Child day care providers required to have a license from the\ndepartment or to be registered with the department pursuant to this\nsection shall not be exempt from such requirement through registration\nwith another state agency, or certification, registration, or licensure\nby any local governmental agency or any authorized agency.\n 5-a. The office of children and family services shall provide, upon\nrequest, all applications and forms necessary to become a licensed or\nregistered child day care provider in English, French, Polish, or any of\nthe ten most common non-English languages spoken by individuals with\nlimited-English proficiency in the state of New York, based on United\nStates census data.\n 6. Unless otherwise limited by law, a parent with legal custody or a\nlegal guardian of any child in a child day care program shall have\nunlimited and on demand access to such child or ward. Such parent or\nguardian unless otherwise limited by law, also shall have the right to\ninspect on demand during its hours of operation any area of a child day\ncare center, group family day care home, school-age child care program,\nor family day care home to which the child or ward of such parent or\nguardian has access or which could present a hazard to the health and\nsafety of the child or ward.\n 7. (a) The department shall implement on a statewide basis programs to\neducate parents and other potential consumers of child day care programs\nabout their selection and use. The department may provide for such\nimplementation through the purchase of services. Such education shall\ninclude, but not be limited to, the following topics:\n (i) types of child day care programs;\n (ii) factors to be considered in selecting and evaluating child day\ncare programs;\n (iii) regulations of the department governing the operation of\ndifferent types of programs;\n (iv) rights of parents or guardians in relation to access to children\nand inspection of child day care programs;\n (v) information concerning the availability of child day care\nsubsidies;\n (vi) information about licensing and registration requirements;\n (vii) prevention of child abuse and maltreatment in child day care\nprograms, including screening of child day care providers and employees;\n (viii) tax information; and\n (ix) factors to be considered in selecting and evaluating child day\ncare programs when a child needs administration of medications during\nthe time enrolled.\n (b) The department shall implement a statewide campaign to educate the\npublic as to the legal requirements for registration of family day care\nand school-age child care, and the benefits of such registration. The\ndepartment may provide for such implementation through the purchase of\nservices. The campaign shall:\n (i) use various types of media;\n (ii) include the development of public educational materials for\nfamilies, family day care providers, employers and community agencies;\n (iii) explain the role and functions of child care resource and\nreferral programs, as such term is used in title five-B of this article;\n (iv) explain the role and functions of the department in regard to\nregistered programs; and\n (v) publicize the department's toll-free telephone number for making\ncomplaints of violations of child day care requirements related to\nprograms which are required to be licensed or registered.\n (c) The office of children and family services shall implement a\nstatewide campaign to educate parents and other consumers of child day\ncare programs about adverse childhood experiences, the importance of\nprotective factors, and the availability of services for children at\nrisk for or experiencing adverse childhood experiences as defined in\nparagraph (c) of subdivision one of section twenty-d of this chapter.\nSuch statewide campaign, shall include but is not limited to, providing\nall licensed, registered and enrolled child care providers with\neducational materials developed pursuant to subdivision two of section\nthree hundred seventy-c of this chapter. The educational materials may\nbe made available electronically and shall be offered to parents and\nother consumers at the time of enrollment.\n 8. The department shall establish and maintain a list of all current\nregistered and licensed child day care programs and a list of all\nprograms whose license or registration has been revoked, rejected,\nterminated, or suspended. Such information shall be available to the\npublic, pursuant to procedures developed by the department.\n 8-a. The office of children and family services shall not make\navailable to the public online any group family day care home provider's\nor family day care provider's home street address or map showing the\nlocation of such provider's home where such provider has requested to\nopt out of the online availability of this information. The office shall\nprovide a written form informing a provider of their right to opt out of\nproviding information online, and shall also permit a provider to\nrequest to opt out through the office's website.\n 9. The department shall make available, directly or through purchase\nof services, to registered child day care providers information\nconcerning:\n (a) liability insurance;\n (b) start-up grants;\n (c) United States department of agriculture food programs;\n (d) subsidies available for child day care;\n (e) tax information; and\n (f) support services required to be provided by child care resource\nand referral programs as set forth in subdivision three of section four\nhundred ten-r of this article.\n 10. Any home or facility providing child day care shall be operated in\naccordance with applicable statutes and regulations. Any violation of\napplicable statutes or regulations shall be a basis to deny, limit,\nsuspend, revoke, or terminate a license or registration. Consistent with\narticles twenty-three and twenty-three-A of the correction law, and\nguidelines referenced in subdivision two of section four hundred\ntwenty-five of this article, if the office of children and family\nservices is made aware of the existence of a criminal conviction or\npending criminal charge concerning an operator of a family day care\nhome, group family day care home, school-age child care program, or\nchild day care center or concerning any assistant, employee or volunteer\nin such homes, programs or centers, or any persons age eighteen or over\nwho reside in such homes, such conviction or charge may be a basis to\ndeny, limit, suspend, revoke, reject, or terminate a license or\nregistration. Before any license issued pursuant to the provisions of\nthis section is suspended or revoked, before registration pursuant to\nthis section is suspended or terminated, or when an application for such\nlicense is denied or registration rejected, the applicant for or holder\nof such registration or license is entitled, pursuant to section\ntwenty-two of this chapter and the regulations of the office of children\nand family services, to a hearing before the office of children and\nfamily services. However, a license or registration shall be temporarily\nsuspended or limited without a hearing upon written notice to the\noperator of the facility following a finding that the public health, or\nan individual's safety or welfare, are in imminent danger. The holder of\na license or registrant is entitled to a hearing before the office of\nchildren and family services to contest the temporary suspension or\nlimitation. If the holder of a license or registrant requests a hearing\nto contest the temporary suspension or limitation, such hearing must be\nscheduled to commence as soon as possible but in no event later than\nthirty days after the receipt of the request by the office of children\nand family services. Suspension shall continue until the condition\nrequiring suspension or limitation is corrected or until a hearing\ndecision has been issued. If the office of children and family services\ndetermines after a hearing that the temporary suspension or limitation\nwas proper, such suspension or limitation shall be extended until the\ncondition requiring suspension or limitation has been corrected or until\nthe license or registration has been revoked.\n 11. (a) (i) The office of children and family services shall adopt\nregulations establishing civil penalties of no more than five hundred\ndollars per day to be assessed against child day care centers, school\nage child care programs, group family day care homes or family day care\nhomes for violations of this section, sections three hundred ninety-a\nand three hundred ninety-b of this title and any regulations promulgated\nthereunder. The regulations establishing civil penalties shall specify\nthe violations subject to penalty.\n (ii) The office of children and family services shall adopt\nregulations establishing civil penalties of no more than five hundred\ndollars per day to be assessed against child day care providers who\noperate child day care centers or group family day care homes without a\nlicense or who operate family day care homes, school-age child care\nprograms, or child day care centers required to be registered without\nobtaining such registration.\n (iii) In addition to any other civil or criminal penalty provided by\nlaw, the office of children and family services shall have the power to\nassess civil penalties in accordance with its regulations adopted\npursuant to this subdivision after a hearing conducted in accordance\nwith procedures established by regulations of the office of children and\nfamily services. Such procedures shall require that notice of the time\nand place of the hearing, together with a statement of charges of\nviolations, shall be served in person or by certified mail addressed to\nthe school age child care program, group family day care home, family\nday care home, or child day care center at least thirty days prior to\nthe date of the hearing. The statement of charges shall set forth the\nexistence of the violation or violations, the amount of penalty for\nwhich the program may become liable, the steps which must be taken to\nrectify the violation, and where applicable, a statement that a penalty\nmay be imposed regardless of rectification. A written answer to the\ncharges of violations shall be filed with the office of children and\nfamily services not less than ten days prior to the date of hearing with\nrespect to each of the charges and shall include all material and\nrelevant matters which, if not disclosed in the answer, would not likely\nbe known to the office of children and family services.\n (iv) The hearing shall be held by the commissioner of the office of\nchildren and family services or the commissioner's designee. The burden\nof proof at such hearing shall be on the office of children and family\nservices to show that the charges are supported by a preponderance of\nthe evidence. The commissioner of the office of children and family\nservices or the commissioner's designee, in his or her discretion, may\nallow the child day care center operator or provider to attempt to prove\nby a preponderance of the evidence any matter not included in the\nanswer. Where the child day care provider satisfactorily demonstrates\nthat it has rectified the violations in accordance with the requirements\nof paragraph (c) of this subdivision, no penalty shall be imposed except\nas provided in paragraph (c) of this subdivision.\n (b)(i) In assessing penalties pursuant to this subdivision, the office\nof children and family services may consider the completeness of any\nrectification made and the specific circumstances of such violations as\nmitigating factors.\n (ii) Upon the request of the office of children and family services,\nthe attorney general shall commence an action in any court of competent\njurisdiction against any child day care program subject to the\nprovisions of this subdivision and against any person, entity or\ncorporation operating such center or school age child care program,\ngroup family day care home or family day care home for the recovery of\nany penalty assessed by the office of children and family services in\naccordance with the provisions of this subdivision.\n (iii) Any such penalty assessed by the office of children and family\nservices may be released or compromised by the office of children and\nfamily services before the matter has been referred to the attorney\ngeneral; when such matter has been referred to the attorney general,\nsuch penalty may be released or compromised and any action commenced to\nrecover the same may be settled and discontinued by the attorney general\nwith the consent of the office of children and family services.\n (c)(i) Except as provided for in this paragraph, a child day care\nprovider shall avoid payment of a penalty imposed pursuant to this\nsubdivision where the provider has rectified the condition which\nresulted in the imposition of the penalty within thirty days of\nnotification of the existence of the violation of statute or regulation.\n (ii) Clause (i) of this paragraph notwithstanding, rectification shall\nnot preclude the imposition of a penalty pursuant to this subdivision\nwhere:\n (A) the child day care provider has operated a child day care center\nor group family day care home without a license, has refused to seek a\nlicense for the operation of such a center or home, or has continued to\noperate such a center or home after denial of a license application,\nrevocation of an existing license or suspension of an existing license;\n (B) the child day care provider has operated a family day care home,\nschool-age child care program or child day care center required to be\nregistered without being registered, has refused to seek registration\nfor the operation of such home, program or center or has continued to\noperate such a home, program or center after denial of a registration\napplication, revocation of an existing registration or suspension of an\nexisting registration;\n (C) there has been a total or substantial failure of the facility's\nfire detection or prevention systems or emergency evacuation procedures;\n (D) the child day care provider or an assistant, employee or volunteer\nhas failed to provide adequate and competent supervision;\n (E) the child day care provider or an assistant, employee or volunteer\nhas failed to provide adequate sanitation;\n (F) the child day care provider or an assistant, employee, volunteer\nor, for a family day care home or group family day care home, a member\nof the provider's household, has injured a child in care, unreasonably\nfailed to obtain medical attention for a child in care requiring such\nattention, used corporal punishment against a child in care or abused or\nmaltreated a child in care;\n (G) the child day care provider has violated the same statutory or\nregulatory standard more than once within a six month period;\n (H) the child day care provider or an assistant, employee or volunteer\nhas failed to make a report of suspected child abuse or maltreatment\nwhen required to do so pursuant to section four hundred thirteen of this\narticle; or\n (I) the child day care provider or an assistant, employee or volunteer\nhas submitted to the office of children and family services a forged\ndocument as defined in section 170.00 of the penal law.\n (d) Any civil penalty received by the office of children and family\nservices pursuant to this subdivision shall be deposited to the credit\nof the "quality child care and protection fund" established pursuant to\nsection ninety-seven-www of the state finance law.\n (e)(i) The office of children and family services shall deny a new\napplication for licensure or registration made by a day care provider\nwhose license or registration was previously revoked or terminated based\non a violation of statute or regulation for a period of two years from\nthe date that the revocation or termination of the license or\nregistration became finally effective, unless such office determines, in\nits discretion, that approval of the application will not in any way\njeopardize the health, safety or welfare of children in the center,\nprogram or home. For the purposes of this paragraph, the date that the\nrevocation or termination became finally effective shall be, as\napplicable:\n (A) the date that the revocation or termination became effective based\non the notice of revocation or termination;\n (B) the date that the hearing decision was issued upholding the\nrevocation or termination;\n (C) the date of issuance of a final court order affirming the\nrevocation or termination or affirming a hearing decision that upheld\nthe revocation or termination; or\n (D) another date mutually agreed upon by the office of children and\nfamily services and the provider.\n (ii)(A) Such office shall deny a new application for licensure or\nregistration made by a day care provider who is enjoined or otherwise\nprohibited by a court order from operation of a day care center, group\nfamily day care home, family day care home or school-age child care\nprogram without a license or registration for a period of two years from\nthe date of the court order unless the court order specifically enjoins\nthe provider from providing day care for a period longer than two years,\nin which case the office shall deny any new application made by the\nprovider while the provider is so enjoined.\n (B) Such office shall deny a new application for licensure or\nregistration made by a day care provider who is assessed a second civil\npenalty by such office for having operated a day care center, group\nfamily day care home, family day care home or school-age child care\nprogram without a license or registration for a period of two years from\nthe date of the second fine. For the purposes of this paragraph, the\ndate of the second fine shall be either the date upon which the day care\nprovider signs a stipulation agreement to pay the second fine or the\ndate upon which a hearing decision is issued affirming the determination\nof such office to impose the second fine, as applicable.\n (iii) A day care provider who surrenders the provider's license or\nregistration while such office is engaged in enforcement seeking\nsuspension, revocation or termination of such provider's license or\nregistration pursuant to the regulations of such office, shall be deemed\nto have had their license or registration revoked or terminated and\nshall be subject to the prohibitions against licensing or registration\npursuant to subparagraph (i) of this paragraph for a period of two years\nfrom the date of surrender of the license or registration.\n 12. (a) Notwithstanding any other provision of law, except as may be\nrequired as a condition of licensure or registration by regulations\npromulgated pursuant to this section, no village, town (outside the area\nof any incorporated village), city or county shall adopt or enact any\nlaw, ordinance, rule or regulation which would impose, mandate or\notherwise enforce standards for sanitation, health, fire safety or\nbuilding construction on a one or two family dwelling or multiple\ndwelling used to provide group family day care or family day care than\nwould be applicable were such child day care not provided on the\npremises. No village, town (outside the area of any incorporated\nvillage), city or county shall prohibit or restrict use of a one or two\nfamily dwelling, or multiple dwelling for family or group family day\ncare where a license or registration for such use has been issued in\naccordance with regulations issued pursuant to this section. Nothing in\nthis paragraph shall preclude local authorities with enforcement\njurisdiction of the applicable sanitation, health, fire safety or\nbuilding construction code from making appropriate inspections to assure\ncompliance with such standards.\n (b) Notwithstanding any other provision of law, but pursuant to\nsection five hundred eighty-one-b of the real property tax law, no\nassessing unit, as defined in subdivision one of section one hundred two\nof the real property tax law, in the assessment of the value of any\nparcel used for residential purposes and registered as a family day care\nhome pursuant to this section, shall consider the use or registration of\nsuch parcel as a family day care home.\n 13. Notwithstanding any other provision of law, this section, except\nfor paragraph (a-1) of subdivision two-a of this section, shall not\napply to child day care centers in the city of New York.\n 14. The office of children and family services, in conjunction with\nthe department of health, shall be required to annually distribute\ninformational materials related to the occurrence, transmission, birth\ndefects, methods of diagnosis and preventive measures of Cytomegalovirus\nestablished pursuant to subdivision six of section two hundred sixty-six\nof the public health law to every licensed, registered or enrolled child\ncare provider and their staff.\n