Erin Cassidy from the OCFS sent an e-mail update February 27th to provide a more detailed follow up of the January 29th meeting: 

She stated that NYC day care centers are “carved out” of most of the provisions in Social Services Law, which allows those programs to have different standards from OCFS programs though the NYC health code closely aligns with the vast majority of the OCFS regulations. One consideration that should be noted, is that the NYC health code requires a separate permit be issued to programs that care for infants and toddlers, separate and in addition to programs serving preschool age children. 

She said that OCFS currently does not have the technology available to similarly display programmatic compliance like the NYC performance summary report card and that the performance summary cards are currently being redesigned and are no longer being displayed until potentially later this spring.

She said the compliance reports on program profiles on the OCFS website is dictated by the consumer education requirements established by the federal Child Care and Development Block Grant (CCDBG).   This includes the requirement that the results of all inspections be publicly available, as a result of substantiated and unsubstantiated complaints, for at least 3 years.

She mentioned it would be difficult to reflect the classification of violations on the website based on the existing regulation categories because violations are contextual in nature and can vary in classification based on what the actual observation/violation was.  OCFS has previously posted the severity levels of violations (non-emergency, serious, imminent danger) on the website and ceased this practice after receiving extensive feedback from the provider community and advocacy groups, due to the very contextual nature mentioned prior and concerns regarding potential subjectivity.  

She said OCFS is exploring some additional enhancements and clarifications to the information that is displayed on their webpage as a result of our meeting.  She said "You raised a number of items during our meeting and we are assessing ways to address your comments/feedback further." They are consulting with their Legal Division on some of the laws cited during the meeting and will circle back on those responses as well.

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We spent a few days conducting additional research and responded with the below:

Thank you for a thorough response and taking the time to review additional items with your legal division.

In August 2023, the Office of Child Care, Administration for Children and Families, and the Department of Health and Human Services submitted a Notice of Proposed Rulemaking to amend the language of the CCDBG and it was very recently adopted as a final rule and is effective April 30th, 2024. Full Rule Text Here

On Page 18 in Section 98.33—Consumer and Provider Education, it states:

“This final rule adds §98.33(a)(4)(ii) to clarify what information Lead Agencies must post on consumer education websites. Section 658E(c)(2)(D) of the Act (42 U.S.C. 9858c(c)(2)(D)) requires monitoring and inspection reports of child care providers be made available electronically to the public. Previous regulations at § 98.33(a)(4) require Lead Agencies to post ‘‘full monitoring and inspection reports, either in plain language or with a plain language summary,’’ but the regulation did not define a ‘‘full monitoring and inspection report.’’ This lack of clarity has led to varied implementation, with many Lead Agencies only posting violations. While it is critical for parents to be aware of how a provider did not meet a health and safety requirement, it is also useful for parents to understand the full scope of a monitoring inspection, so they have the information needed to make informed child care decisions.”

Based on this change, the CCDBG requirements now support our request for additional context to be added to compliance reports and we look forward to that adjustment.

We cannot find where the CCDBG requires results of both unsubstantiated and substantiated complaint investigations be made publicly available.  We did find Consumer Law 98.32 (attached) under “Parental Complaints” that explains:

“The State shall: 

(a)           Maintain a record of substantiated parental complaints; 

(b)           Make information regarding such parental complaints available to the public on request; and 

(c)           The Lead Agency shall provide a detailed description of how such record is maintained and is made available.”

We also found the “Child Care and Development Block Grant Act” where it describes on page 3 under section 2 Policies and Procedures subpart D; Monitoring and Inspection Reports:

“[…] will make public by electronic means, in a consumer-friendly and easily accessible format, organized by provider, the results of monitoring and inspection reports, including those due to major substantiated complaints about failure to comply with this subchapter and State child care policies, as well as the number of deaths, serious injuries, and instances of substantiated child abuse that occurred in child care settings each year, for eligible child care providers within the State. The results shall also include information on the date of such an inspection, and, where applicable, information on corrective action taken.”

Based on the above verbiage, it does not appear the CCDBG intends for self-reports and non-parental, unsubstantiated complaint investigations to be included on compliance reports.  Also, as previously stated, Childcare Policy 96-08 specifically mentions “once the Office has made a determination, if substantiated, it will be reflected on the profile page associated with the program in question” and families that are “simply researching child care programs for placement purposes shall not be given unsubstantiated complaint information” on pages 2 and 3 respectively.  

In addition, OCFS policy document number 20-01 states on page 4 in the last paragraph: 

“When a serious incident and/or injury is reported to the Office that contains allegations of a regulatory violation(s), an investigation will be initiated. A regulator will conduct an onsite inspection, provide technical assistance, and follow agency protocols if areas of regulatory non-compliance are identified.”  There have been self-reports that did not contain allegations of regulatory violations, still resulted in onsite inspections, concluded without violations found, and are still reported (see sample inspection report attached).

Again, we respect and understand that regulations exist for the protection and health and safety of children.  You are correct that we all share the same goals of having high-quality, safe, and healthy child care options available to the children and families in New York State.  We are all doing our best to operate compliant, safe, healthy, enriching programs for children and families and while this may seem like semantics, it is the reputations of the businesses we were passionate and ambitious enough to create and are trying to uphold with some dignity.  We pride ourselves on creating and managing quality programs and are requesting that our compliance reports accurately reflect our efforts by removing unsubstantiated complaints and self-reports without violations that, according to policy statement 20-01, should not have triggered an inspection anyway.

We look forward to feedback and additional responses from the legal department and improvements to the current regulatory system and practices.  Thank you.

NYS Childcare Owners