N.Y. Comp. Codes R. & Regs. tit. 18 § 415.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 415.1 - Definitions

For purposes of this Part and instruction of the department pertaining thereto, the following definitions of terms shall apply:

(a)Child care services means care for an eligible child provided on a regular basis either in or away from the child's residence for less than 24 hours per day which is provided by an eligible provider as defined in subdivision (g) of this section. Child care services may occur for 24 consecutive hours or more when such services are provided on a short-term emergency basis or in other cases where the caretaker's approved activity necessitates care for 24 hours or more on a limited basis, if the district has indicated in its Child and Family Services plan that it will provide for such care. Child care services does not refer to programs providing care for children operated solely for the purpose of religious education, sports, recreation, classes, or lessons.

(b)Eligible child means a child who resides with a caretaker who meets the program and financial eligibility requirements for the particular type of child care services and who:

(1) is under 13 years of age at the time of eligibility determination. For child care services provided under the New York State Child Care Block Grant Program, a child who turns 13 years of age remains eligible for assistance through the end of the eligibility period or until the child reaches 14 years of age, unless otherwise eligible under paragraph (2) or (3) of this subdivision. For child care services provided under title XX of the Federal Social Security Act or provided as child protective services or preventive services other than under the New York State Child Care Block Grant Program, a child who turns 13 years of age during a school year may continue to receive child care services through the end of that school year; or

(2) is under 18 years of age at the time of eligibility determination and is a child with special needs, as defined in subdivision (c) of this section, or is a child under court supervision. For child care services provided under the New York State Child Care Block Grant Program, a child who turns 18 years of age remains eligible for assistance through the end of the eligibility period or until the child reaches 19 years of age, unless otherwise eligible under paragraph (3) of this subdivision; or

(3) is under 19 years of age and is a full-time student in a secondary school, or in an equivalent level of vocational or technical training, and is a child with special needs as defined in subdivision (c) of this section, or under court supervision. For child care services provided under the New York State Child Care Block Grant Program, a child who turns 19 years of age remains eligible for assistance through the end of the eligibility period or until the child reaches 20 years of age.

(c)Child with special needs means a child who is incapable of caring for himself or herself and who has been diagnosed by a physician, licensed or certified psychologist or other professional with the appropriate credentials to make such a diagnosis, as having one or more of the following conditions to such a degree that special education or related services are required, in accordance with section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401), part C of the Individuals with Disabilities Education Act (20 U.S.C. 1431et seq.), and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794):

(1) visual impairment;

(2) deafness or other hearing impairment;

(3) orthopedic impairment;

(4) emotional disturbance;

(5) intellectual disability;

(6) learning disability;

(7) speech or language impairment;

(8) health impairment;

(9) autism;

(10) multiple disabilities;

(11) traumatic brain injury;.

(12) deaf-blindness; or

(13) other health impairment.

(d)Caretaker means the child's parent, legal guardian or caretaker relative, or any other person in loco parentis to the child.

(e)Caretaker relative means any person who is a parent or other relative as set forth in section 369.1(b) of this Title who exercises responsibility for the day-to-day care of, and who lives with, a child.

(f)Person in loco parentis to a child means the child's guardian or caretaker relative or any other person with whom a child lives who has assumed responsibility for the day-to-day care and custody of the child.

(g)Eligible provider means a person or entity that may provide child care services to a child receiving child care assistance. Members of the child's or the caretaker's public assistance unit, the child's caretaker, the spouse of the child's caretaker, and other members of the child care services unit are not eligible to provide subsidized child care to that child. An eligible provider is one of the following:

(1) a validly licensed or properly registered day care center or a properly registered school- age child care program operated by a voluntary non-profit corporation or association or an authorized child caring agency; or

(2) a validly licensed or properly registered child day care center or a properly registered school-age child care program operated by a private proprietary corporation or organization or by an individual; provided, however, that for child care services provided under title XX of the Federal Social Security Act or provided as child protective services or preventive services that are funded other than under the New York State Child Care Block Grant Program, such a provider will be an eligible provider only with the prior approval of the commissioner of the Office of Children and Family Services upon the demonstration by the social services district that conveniently accessible non-profit facilities are unavailable or unable to provide the required care; or

(3) a public school district operating a child care program which meets State and Federal requirements and is enrolled by an enrollment agency; or

(4) a family day care home properly registered with the department to provide child care services to children; or

(5) a group family day care home issued a valid license by the department to provide child care services to children; or

(6) a provider of informal child care as defined in subdivision (h) of this section who is enrolled with an enrollment agency in accordance with section 415.4(f) of this Part; provided that such a provider is not an eligible provider for child care services provided under title XX of the Federal Social Security Act or provided as child protective services or preventive services that are funded other than under the New York State Child Care Block Grant Program; or

(7) a legally-exempt group child care program as defined in subdivision (i) of this section which is enrolled with an enrollment agency in accordance with section 415.4(f) of this Part; provided, however, that such a program is not an eligible provider for child care services provided under title XX of the Federal Social Security Act or provided as child protective services or preventive services that are funded other than under the New York State Child Care Block Grant Program except as provided in paragraph (3) of this subdivision; or

(8) a child care provider who is licensed, registered, or otherwise permitted to operate a child care program by another Child Care and Development Fund grantee; or

(9) a child care provider certified to operate by the United States Department of Defense.

(h)Informal child care refers to child care provided in a residence, which is not required to be licensed or registered pursuant to section 390 of the Social Services Law. Informal child care means in-home child care and family child care.

(1)In-home child care means child care provided in the child's own home by a person who is at least 18 years of age, and who is chosen and whose services are monitored by the child's caretaker; provided, however, that the child's caretaker must furnish the child care provider with all employment benefits required by State and/or Federal law, and must pay the child care provider at least the minimum wage, if required.

(i)Relative-only in-home child care means in-home child care provided by a person, who is at least 18 years of age, and who is, by virtue of blood, marriage or court decree, related to all of the children in care receiving child care services as a grandparent, great-grandparent, sibling provided that such sibling lives in a separate residence from the child, aunt, or uncle.

(2)Family child care means child care provided in a residence in which one or more of the children in care receiving child care services do not reside, by a person who is at least 18 years of age, and who is chosen and whose services are monitored by the child's caretaker.

(i)Relative-only family child care means family child care provided by a person, who is at least 18 years of age, and who is, by virtue of blood, marriage or court decree, related to all of the children in care receiving child care services as a grandparent, great-grandparent, sibling provided that such sibling lives in a separate residence from the child, aunt, or uncle.

(i)Legally-exempt group child care means a program in a facility, other than a residence, in which child care is provided on a regular basis and is not required to be licensed by or registered with the office or licensed by the City of New York but which meet all applicable State or local requirements for such child care programs. Legally-exempt group child care includes, but is not limited to:

(1) pre-kindergarten and nursery school programs for children three years of age or older, and programs for school-age children conducted during non-school hours, operated by public school districts or by private schools or academies which provide elementary or secondary education or both in accordance with the compulsory education requirements of the Education Law, provided that such pre-kindergarten, nursery school or school-age programs are located on the premises or campus where the elementary or secondary education is provided. Provided, however, a kindergarten or a pre-kindergarten operated by a public school district shall not be required to be located on the premises or campus where the elementary or secondary education is provided;

(2) nursery schools and programs for pre-school-aged children operated by non-profit agencies or organizations or private proprietary agencies which provide services for three or less hours per day;

(3) summer day camps operated by non-profit agencies or organizations or private proprietary agencies in accordance with Subpart 7-2 of the State Sanitary Code;

(4) center-based child care programs located on Federal property which are not certified to operate by the United States Department of Defense when such programs are operated in compliance with the applicable Federal laws and regulations for such child care programs;

(5) center-based child care programs located on tribal property which are legally operating under the auspices of a tribal authority that is not a Child Care and Development Fund grantee, and are operated in compliance with the applicable tribal laws and regulations for such child care programs; and

(6) child care programs caring for not more than six school-age children during non-school hours.

(j)Family share means the weekly amount paid by the child's caretaker toward the costs of the child care services determined in accordance with section 415.3(e) of this Part.

(k)State income standard means the most recent Federal income official poverty line, as defined and annually revised by the United States Department of Health and Human Services under the authority of 42 U.S.C. 9902(2), updated by the department for a family size of four and adjusted by the department for family size.

(l)Child care services unit means those adults and/or children residing in the same household who will be considered for the purposes of determining a family's eligibility for child care services. For the purposes of this Part, an adult means any person 18 years of age or older unless the individual meets the definition of a child with special needs or the district has elected to include 18-,19- or 20-year old individuals in the same child care services unit as their parent by indicating such option in its consolidated services plan or integrated county plan. Districts have the option to include all 18-, 19- or 20-year olds in the child care services unit or to include only those 18-, 19- or 20-year olds whose inclusion in the child care services unit would benefit the family. The district's approved consolidated services plan or integrated county plan must specify the criteria it will use to determine whether or not an 18-,19- or 20-year old is included in the child care services unit.

(1) For families where the child's caretaker is receiving public assistance, the child care services unit will be comprised of the caretaker, his or her children and any other member of the public assistance unit. For families where no adult family member is in receipt of public assistance, the child care service unit will be comprised as follows:

(i) when adults, other than spouses, reside together and do not have a child in common, each adult along with his or her child(ren) will be considered a separate child care services unit;

(ii) when adults, other than spouses, reside together and have at least one child in common, the child care services unit will be comprised of the adults who have child(ren) in common, the child(ren) those adults have in common, and the other child(ren) of each such adult;

(iii) when a custodial parent who is under the age of 21 years is residing with his or her parent(s), or has established his or her own household, or resides with an individual other than his or her parent(s), the child care services unit will be comprised of the custodial parent who is under 21 years of age, his or her child(ren), and any other individual in the household with legal responsibility for the custodial parent's child(ren);

(iv) when an eligible child(ren) resides only with individuals who are not the child(ren)'s parent, step-parent, adoptive parent or legal guardian with financial responsibility for the child(ren), the child care services unit will be comprised of the eligible child(ren) only; and

(v) individuals who would otherwise be included in the child care services unit but who are temporarily absent from a household who meet the following criteria will be considered part of the child care services unit:

(a) individuals whose needs are partially or fully being met by members of the household, such as children or minors attending school away from home; provided, however, that a child away from home due to a foster care placement will not be considered part of the child care services unit; and

(b) individuals who are required to contribute to the needs of the household.

(m)Actual cost of care means the rate usually charged by the child care provider for non-subsidized child care services. When child care services are provided in accordance with the terms of a contract between a social services district and the child care provider, the negotiated contract rate is the actual cost of care for such services even if such rate is less than the rate usually charged by the child care provider for non-subsidized child care services.

(n)Child care certificate means a certificate that is issued directly to a child's caretaker which verifies that the caretaker is eligible for subsidized child care services which the caretaker arranges.

(o)Engaged in work.

(1) For an individual who is not receiving public assistance, engaged in work means that the individual:

(i) is working, on average, at least the minimum number of hours per week as specified by the Office, provided there is no physical or mental incapacity that limits the person to working less than the specified amount, and earning wages at a level equal to or greater than the minimum amount required under Federal and State Labor Law for the type of employment; or

(ii) is self-employed and is able to demonstrate that the hours worked are, on average, at least the minimum number of hours per week as specified by the Office and such self-employment produces personal income equal to or greater than the minimum wage or has the potential for growth in earnings to produce such an income within one year.

(2) For an individual receiving public assistance, engaged in work means the individual is engaged in work as defined by the social services district in the district's employment plan submitted to and approved by the New York State Office of Temporary and Disability Assistance.

(3) For an individual who is a certified or approved foster parent and seeking child care services for a foster child, engaged in work means that the individual is working or self-employed, without regard to hours worked and/or the amount of income earned or produced.

(p)Seeking employment.

For an individual who is not receiving public assistance, seeking employment means making in-person job applications, going on job interviews, registering with a New York State Department of Labor's Division of Employment Services Office to obtain job listings, and participating in such other job seeking activities as are approved by the social services district.

(q)Family resources means the value of:

(1) cash on hand;

(2) money in checking and savings accounts;

(3) stocks, bonds, mutual funds, mortgages (held), mortgage certificates, and other securities;

(4) lump sum payments;

(5) individual retirement accounts and deferred compensation accounts and plans, including but not limited to IRAs, 401(k) and 457(b) plans, life insurance policies, trust funds, and annuities; and

(6) real and personal property including licensed and unlicensed vehicles, homes, buildings, land, recreational properties, other real estate property, non-essential household furnishings, art, and jewelry.

(r)Office means the New York State Office of Children and Family Services.

(s) The enrollment agency, also known as the legally-exempt caregiver enrollment agency means the agency under contract with the office to enroll legally-exempt child care providers, including informal child care and legally-exempt group child care to provide subsidized child care services funded under the New York State Child Care Block Grant Program. For each social services district in New York State except for the City of New York, the enrollment agency will be the applicable child care resource and referral agency under contract with the office to serve that district. For the City of New York, the enrollment agency will be an entity or entities identified by the office in consultation with the New York City Human Resources Administration and the New York City Administration for Children's Services.

(t)Child care provider means a person or entity that is responsible for all matters related to the operation, oversight and direction of any child day care program or enrolled legally-exempt child care provider. Child care provider includes a person providing care in a residence where the provider has responsibility for the supervision and care of the children, and any person, association, corporation, partnership, institution, organization, or agency that oversees a child care program in a facility that is not a residence.

(u)Legally-exempt child care provider means a person or entity that provides child care and is not required to be licensed or registered pursuant to section 390 of the Social Services Law.

(v)Director means the person or persons who have responsibility for the development and supervision of the daily activity programs for children in care and/or the administrative authority and responsibility for the daily operations of a legally-exempt group child care program. Director may include:

(1) an administrative director, who is the person(s) responsible for all matters related to the operation, oversight, and direction of the child care program;

(2) an on-site director, who is the person(s) present at the child care program during the hours of operation and responsible for the supervision of children and staff.

(w)Employee is used interchangeably with the term staff, and means all personnel including directors, temporary personnel, teachers, aides, para-professionals, cooks, custodians, administrative staff and any other person(s) employed by a legally-exempt child care provider.

(x)Enrollment applicant means a person submitting an application for enrollment or re-enrollment as an informal child care provider, or the director designated to submit such an application to be a legally-exempt group child care program on behalf of an entity, including, but not limited to, a person, association, corporation, partnership, institution, organization, or agency.

(y)Family child care household member means a person living in the residence where family child care or relative-only family child care is provided.

(z)Medication administrant is a person licensed in New York State as a physician, physician assistant, registered nurse, nurse practitioner, licensed practical nurse, or advanced emergency medical technician; or a legally-exempt child care provider or his or her employee, who is trained in medication administration, cardiopulmonary resuscitation, and first aid. The medication administrant must be designated in a health care plan which meets the specifications of section 415.13 of this Part and be authorized by the office or its designees to administer medications.

(aa)Volunteer means any unpaid person present for the purpose of assisting with care of children or the operation of the child care program, and who has the potential for either unsupervised contact or regular and substantial contact with children in care.

(ab)Visitor means any person other than a child in care, employee, caretaker, volunteer, or household member.

(ac)Child care assistance, also known as child care subsidy, is administered by the office, in accordance with the Social Services Law, to help eligible families in meeting the cost of child care services.

(ad) Non-school hours shall mean any time a specific child is not physically required to be present in school as part of the regular school day, including during virtual and/or remote learning.

(ae) State median income means the most recent state median income data published by the Bureau of the Census, for a family of the same size, updated by the department for a family size of four and adjusted by the department for family size.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 415.1

Amended, New York State Register March 1, 2017/Volume XXXIX, Issue 09, eff. 3/1/2017

Amended New York State Register June 3, 2020/Volume XLII, Issue 22, eff. 6/3/2020

Amended New York State Register December 30, 2020/Volume XLII, Issue 52, eff. 12/30/2020

Amended New York State Register November 24, 2021/Volume XLIII, Issue 47, eff. 11/24/2021

Amended New York State Register September 7, 2022/Volume XLIV, Issue 36, eff. 9/7/2022

Amended New York State Register July 12, 2023/Volume XLV, Issue 28, eff. 6/26/2023, exp. 8/24/2023 (Emergency)

Amended New York State Register July 12, 2023/Volume XLV, Issue 28, eff. 7/12/2023

Amended New York State Register June 12, 2024/Volume XLVI, Issue 24, eff. 6/12/2024