N.Y. Comp. Codes R. & Regs. tit. 18 § 447.2

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

Section 447.2 - Requirements for each agency boarding home

(a)Personnel.

(1) Adequate supervision must be provided for the children in the home. At a minimum, all the following criteria must be met:

(i) The number of adults employed in the home must be sufficient to provide adequate supervision for each child residing in the home and must be proportional to the total number of such children. At least two adults must be responsible for the care of the children in the home and at least one adult must be present in the home at all times when a child is in the home.

(ii) Relief persons must be available on a regular basis.

(iii) Adequate staff coverage must be provided in the case of any emergency.

(iv) Persons caring for the children must be in good physical and mental health, and free from communicable disease. Physical fitness must be shown by a certificate from a physician at the time of initial employment and annually thereafter.

(2) In order to ensure that persons caring for the children in the home will be of good moral character with an interest in and ability to care for children, each agency or social services official operating an agency boarding home must establish a procedure to review and evaluate the backgrounds of and information supplied by all applicants for employee, volunteer or consultant positions in the agency boarding home program. This procedure must take into account any appropriate collective bargaining agreement(s) and, in the case of a home operated by a social services official, must also comply with applicable provisions of the Civil Service Law. As part of this procedure, each employee, volunteer or consultant applicant must submit all of the following information:

(i) a statement or summary of the applicant's employment history, including but not limited to any relevant child-caring experience;

(ii) the names, addresses and, where available, telephone numbers of references who can verify the applicant's employment history, work record and qualifications;

(iii) the names, addresses and telephone numbers of at least three personal references, other than relatives, who can attest to the applicant's character, habits, reputation and personal qualifications; and

(iv) a sworn statement by the applicant indicating whether, to the best of such applicant's knowledge, the applicant has ever been convicted of a crime in New York State or any other jurisdiction.

(3) If an applicant discloses in the sworn statement furnished in accordance with subparagraph (2)(iv) of this subdivision that he/she has been convicted of a crime, the agency or social services official operating the home must determine, in accordance with guidelines developed and disseminated by the department, whether to hire the applicant or to use the volunteer; except that any home operated by a social services district which had guidelines for the review of persons with conviction records in use prior to January 1, 1986 may continue to use the district guidelines in making the required determination. If the agency determines it will hire the applicant or use the applicant as a volunteer or consultant, the agency must maintain a written record, as part of the application file or employment or other personnel record of such person, of the reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer or consultant.

(4) At the commencement of employment, and annually thereafter, the home must provide each staff employee a copy of the applicable Justice Center created or approved code of conduct required to read and to acknowledge that he or she has read and understands such code of conduct. Failure on the part of staff to acknowledge the code of conduct can result in disciplinary action including termination, consistent with appropriate collective bargaining agreements.

(b)Physical facility.

(1) The agency boarding home shall be in an appropriate neighborhood and so located that it is readily accessible to schools, recreational facilities, and churches.

(2) The home shall be of sufficient size to provide adequate living accommodations for persons caring for the children as well as proper accommodations for the children placed.

(3) The home shall be kept in clean and sanitary condition and in good repair, and shall provide for the reasonable comfort and well-being of the occupants.

(4)

(i) An agency boarding home must be protected by carbon monoxide detectors as defined in section 441.2 of this Title, and a fire detection system or a sprinkler system. Such system must be designed, installed and maintained in accordance with all applicable laws, ordinances, rules, regulations and codes and shown on a diagram of the floor plan approved by the Office of Children and Family Services. A fire detection system must include the following:

(a) smoke detectors located at the top of each stairway, in each hallway, in each room leading to a means of egress, in the laundry room, and in each bedroom; and

(b) heat detectors in the kitchen and in rooms enclosing heating equipment. A sprinkler system must include a complete system of valves and piping, with sprinkler heads in all accessible rooms and spaces, including closets, throughout the building. Either a fire detection system or a sprinkler system must include interconnection to alarm devices audible throughout a home and must be provided with a back-up power supply sufficient to operate the entire system or systems.

(ii) Buildings used in whole or in part as an agency boarding home must comply with all applicable laws, ordinances, rules, regulations and codes relating to buildings, fire protection, health and safety.

(iii) All areas of fire hazard must be protected by a sprinkler or fire detection system. Areas of fire hazard must be separated from other areas by construction having a fire resistance rating of at least one hour. An area of fire hazard means a heating equipment room; a woodworking shop; a paint shop; a storeroom for mattresses, furniture, paints and/or other combustible or flammable materials or liquids; and any other space or room exceeding 100 square feet in floor area where other combustible or flammable materials are regularly stored. Other than quantities of flammable materials necessary for the operation and maintenance of the home, which must be kept in closed containers in storage cabinets, and fuel oil, which must be kept in oil storage tanks, flammable materials must not be stored in the home.

(iv) An agency boarding home must be free from all conditions which constitute a hazard to the life, health or safety of any person. The following are prohibited:

(a) portable electric space heaters or self-contained fuel-burning space heaters;

(b) solid-fuel-burning, free-standing stoves, except where approved in writing by the department;

(c) use of fuel-burning or electric "hot plates";

(d) rubber tubing used as connections for gas burners;

(e) combustible or flammable containers for ashes;

(f) the accumulation of combustible or flammable materials in any part of any building, except in storerooms approved by the department in writing for such purpose;

(g) non-secure areas used for bulk storage of cleaning agents, bleaches, insecticides or any other poisonous, dangerous, combustible or flammable materials;

(h) damaged equipment, furnishings or physical plant, when their condition makes them unsafe for normal use;

(i) broken plumbing or stopped sewers that are not promptly repaired;

(j) exposed steam pipes, heating pipes and radiators and unenclosed heating plants and equipment with which children may come in contact;

(k) use of materials containing asbestos in any construction, renovation or repair of any agency boarding home where such construction, renovation or repair occurs on or after July 1, 1993;

(l) any furniture or toys containing lead-based paint and the use of lead-based paint in any construction, renovation or repair of any building or part of a building used by children;

(m) any lead paint hazard or paint condition conducive to lead poisoning, as such term is defined in 10 NYCRR 67.1. Any building used in whole or in part as an agency boarding home occupied by children six years of age or younger must be inspected to determine if it presents such hazard. An agency boarding home must request the local health department to perform such inspection and is responsible for correcting any hazard called to its attention as a result of such inspection. In the event that such request for inspection is rejected by the local health department, the agency boarding home must notify the department immediately;

(n) extension cords, unless approved in writing by the department; and

(o) any other condition deemed hazardous by the department.

(v) Fire extinguishers must be provided and maintained in accordance with the New York State Uniform Fire Prevention and Building Code. Fire extinguishers must be wall-hung between two feet and four-and-one-half feet above the floor. All staff members must be instructed in the proper operation of extinguishers. There must be a minimum of one fire extinguisher on each floor, and, additionally, one in the kitchen, one in the laundry room and one outside any heating equipment room.

(vi) All floors used by children including children of parenting youth must be separated from each other by a smoke stop separation and have alternate means of egress remotely located from each other and readily accessible to the children. An agency boarding home must have a minimum of two means of egress from each floor. For a window opening to qualify as a means of egress, it must be at least 30 inches in its smallest dimension with the bottom of the window no higher than three feet six inches above the floor unless acceptable access is provided by steps or furniture fixed in place. An upper level window, to qualify as a means of egress, must also have a platform outside the window and a stair, permanently affixed to the building, leading to ground level.

(vii) Children are not permitted above the second story in a building of type 5, wood frame construction (that type of construction in which the walls, partitions, floors and roof are wholly or partly of wood or other combustible materials). Children of limited mobility are not permitted above the first story in a building of wood frame construction unless attended by a member of the staff, or in the case of a parenting youth and child of a parenting youth unit as defined in section 427.2 of this Title, unless the child of a parenting youth is attended by the parenting youth or is otherwise appropriately supervised. A building of wood frame construction occupied by children of limited mobility must be protected by a sprinkler system and the first story must be accessible to children of limited mobility and accommodate the needs of such children.

(viii) All exit doors and means of egress, halls and stairs must be well lighted and kept clean, free of obstruction and ready at all times for immediate use. Battery-operated or generator-powered emergency lighting units or systems must be provided and maintained in accordance with the New York State Uniform Fire Prevention and Building Code. Doors used as smoke stop separations must be equipped with self-closing devices and magnetic hold-open devices.

(ix) Staff must be provided with emergency lights, such as flashlights or battery-operated lanterns, in good working order.

(x) An agency boarding home must have a plan for evacuation of the home, posted in a conspicuous place on each floor level in the home.

(xi) Children and staff must be instructed in how to evacuate the building. Newly admitted children and newly hired staff must be instructed in evacuation procedures as part of their orientation to the agency boarding home. Fire drills must take place at least every 30 days and must be held at different times of the day and night. A written record of all fire drills must be kept on file at the agency boarding home for a period of one year.

(xii) Electrical wiring and equipment must comply with the New York State Uniform Fire Prevention and Building Code and any other applicable laws, ordinances, rules, regulations and codes. Certification of such compliance is required for all new agency boarding homes prior to opening and a record of such certification of compliance must be kept on file in the agency boarding home and a copy forwarded to the department. The department may require recertification of the safety of an electrical system in any facility where the electrical system appears to be unsafe or inadequate, or if new electrical work has been done.

(xiii) Heating, ventilating and other mechanical systems must comply with the New York State Uniform Fire Prevention and Building Code and any other applicable laws, ordinances, rules, regulations and codes and must be designed, installed, located and maintained so that under normal conditions of use such equipment and systems are not a danger to the health or welfare of children or staff in the home. Heating plants and equipment must be protected from tampering by children.

(xiv) All shop, maintenance, grounds and farm equipment must be equipped with approved safety devices and must be maintained in safe working condition. Children must not operate such equipment except under the close supervision of responsible staff members.

(xv) Combustible or flammable materials or liquids must not be used by children except under the direct personal supervision of responsible staff members. Such materials must be stored in a fire resistive receptacle or room or in a separate building.

(xvi) A minimum of one operable telephone must be provided and must be accessible at all times, including accessible by any parenting youth, in each building occupied by children. Emergency telephone numbers for fire, police and medical assistance must be posted conspicuously within the agency operated boarding home.

(xvii) Each agency boarding home must request in writing an annual safety inspection of the buildings and all fire protection equipment by local fire authorities and/or the agency boarding home's fire and casualty insurance carrier who must be requested to give the agency boarding home a written report of their findings. An agency boarding home is responsible for correcting any hazards called to its attention as a result of such inspection and for keeping a copy of the report and a written record of the action taken, with date, on file. An agency boarding home must keep a copy of the written request for inspection and the response on file and must notify the department immediately in the event that such request for inspection is rejected by the local fire authorities or the agency boarding home's fire and casualty insurance carriers.

(xviii) A child care agency must report promptly by telephone to the department the occurrence of any fire in any agency boarding home operated by such agency, which report must be made as soon as possible and in no event later than 24 hours after the fire, and must then confirm the occurrence of the fire by a written report to the department within 10 working days after the date of the fire. The written report must include:

(a) the date and time of the fire;

(b) the extent of personal injuries;

(c) the extent of property damage;

(d) the probable cause of the fire, if known;

(e) which fire department responded;

(f) whether children were relocated, and, if so, where;

(g) whether fire and smoke detection and alarm devices or systems operated properly;

(h) whether fire drill and evacuation procedures were followed;

(i) the location of the fire;

(j) a description of the progress of the fire, the manner in which the fire spread and what efforts were made and methods were used to combat the fire; and

(k) any problems encountered with evacuation procedures, response by the fire department and ability of the fire department to combat the fire effectively.

(xix) All chimneys and fireplaces must be inspected annually by a qualified person and must be cleaned annually.

(xx) Inspection of fire protection systems and equipment. All fire protection systems and equipment must be designed, installed, and maintained in accordance with the New York State Uniform Fire Prevention and Building Code and must be tested monthly. All fire protection systems and equipment must be inspected annually by a person qualified to install and service such systems and equipment who is not a staff member of the sponsoring agency. A written report of such inspection must be kept on file by the agency boarding home. All identified defects in systems or equipment must be corrected and reinspected immediately.

(5) There shall be adequate and accessible supply of hot and cold water of safe quality.

(6) The home shall be effectively screened against flies and other insects where this is appropriate to the locality.

(7) Temperature in the home shall be maintained at a comfortable level.

(8) Appropriate bathing and toileting equipment specific to the age and developmental stages of the children, including any child of a parenting youth served in the program, shall be provided, and shall be kept in safe and sanitary condition.

(9) Each child and child of a parenting youth cared for shall have a separate bed or crib, as applicable. Sleeping rooms shall provide at least 30 square feet of floor space for each bed, and two feet of space between beds or cribs, as applicable. No more than three children shall occupy any bedroom unless such children are part of a parenting youth and child of a parenting youth unit, as such term is defined in section 427.2 of this Title and it has been determined to be in the best interests of the parenting youth and the child of the parenting youth. Provided however, that in order for a parenting youth and a child of the parenting youth to share a sleeping room, safe sleep protocols must be followed and the sharing of a room by the parenting youth and child of a parenting youth unit must not create a danger to the health and safety of any of the occupants of the agency operated boarding home.

(10) Every sleeping room occupied by children and/or children of parenting youth shall have good natural light and ventilation, and every sleeping room occupied by children shall have one or more windows opening directly to the outside.

(11) No bed shall be located in any unfinished attic, basement, stair hall, closet or room commonly used for other than bedroom purposes.

(12) Children of different genders above the age of four shall not sleep in the same room unless:

(i) Such occupants of the room are siblings or would constitute a parenting youth and a child of a parenting youth unit, as such term is defined in section 427.2 of this Title; and

(ii) It has been determined to be in the best interest of all children to share a sleeping room age-appropriate safe sleep protocols are followed, and the sharing of the same sleeping room does not create a danger to the health or safety of the occupants of the agency boarding home.

(13) Separate and accessible drawer space for personal belongings, and sufficient closet space for indoor and outdoor clothing, shall be available for individual children.

(14) There shall be out-of-door play space other than in a street, accessible or readily available either on the premises or elsewhere.

(c)Inquiries to the Statewide Central Register of Child Abuse and Maltreatment.

(1) With regard to any person who is actively being considered for employment, or to any individual or any person who is employed by an individual, corporation, partnership or association which provides goods or services to the agency boarding home, and who has or will have the potential for regular and substantial contact with children being cared for by the agency boarding home, the agency or social services official operating the boarding home must inquire of the department whether any such person is the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment. In addition, the agency or social services official may inquire whether any current employee or any person who is being considered for use as a volunteer or for hiring as a consultant and who has or will have the potential for regular and substantial contact with children who are being cared for by the agency boarding home is the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment. An inquiry regarding any current employee may be made only once in any six-month period.

(2) Prior to making an inquiry pursuant to paragraph (1) of this subdivision, the agency or social services official must notify, in the form prescribed by the department, the person who will be the subject of an inquiry that the inquiry will be made to determine whether such person is the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment.

(3)

(i) Except as set forth in subparagraph (ii) of this paragraph, an agency or social services official may not permit a person hired by the agency or social services official or a person who is employed by an individual, corporation, partnership or association which provides goods or services to the agency boarding home to have contact with children in the care of the agency boarding home prior to obtaining the result of the inquiry required by this subdivision.

(ii) An employee of an agency or social services official or an employee of a provider of goods and services to the agency boarding home may have contact with children cared for by the agency boarding home prior to the receipt by the agency or social services official of the result of the inquiry required by this subdivision only where such employee is visually observed or audibly monitored by an existing staff member of the agency or social services district. Such employee must be in the physical presence of an existing staff member for whom:

(a) the result of an inquiry required by section 424-a of the Social Services Law has been received by the agency or social services official and the agency or social services official hired the existing staff member with knowledge of the result of the inquiry; or

(b) an inquiry was not made because such staff member was hired before the effective date of section 424-a of the Social Services Law.

(4)

(i) When the person who is the subject of the inquiry is an applicant for employment, the department will charge a five dollar fee when it conducts a search of its records within the Statewide Central Register of Child Abuse and Maltreatment to determine whether such applicant is the subject of an indicated report.

(ii) The required fee must either accompany the inquiry form submitted to the department or, for an inquiry submitted by a social services district, the district may elect to have the fee subtracted from its claims for reimbursement submitted pursuant to section 601.1 of this Title.

(iii) Fees must be paid by agency business check, certified check, postal or bank money order, teller's check or cashier's check made payable to "New York State Department of Social Services". For social services districts electing to have the fees subtracted from their claims for reimbursement submitted pursuant to section 601.1 of this Title, the fees will be subtracted quarterly to match the number of inquiries made. Personal checks and cash are not acceptable forms of payment.

(5) If the applicant, employee or other person about whom the agency or social services official has made an inquiry is found to be the subject of an indicated report of child abuse or maltreatment, the agency or social services official must determine, on the basis of information it has available and in accordance with guidelines developed and disseminated by the department, whether to hire, retain or use the person as an employee, volunteer or consultant, or to permit the person providing goods or services to have access to children being cared for by the agency boarding home, except that any home operated by a local social services district which had guidelines for the review of persons who are subjects of indicated reports of child abuse or maltreatment in use prior to January 1, 1986 may continue to use the district guidelines in making the required determination. Whenever such person is hired, retained, used or given access to children, the agency or social services official must maintain a written record, as part of the application file or employment or other personnel record of such person, of the specific reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer, consultant, or provider of goods or services with access to children being cared for by the agency boarding home.

(6) If the agency or social services official denies employment or makes a decision not to retain an employee, not to use a volunteer, not to hire a consultant, or not to permit a person providing goods or services to have access to children being cared for by the agency boarding home, the agency or social services official must provide a written statement to the applicant, employee, volunteer or consultant or other person indicating whether the denial or decision was based in whole or in part on the existence of the indicated report and, if so, reasons for the denial or decision. If the denial or decision was based in whole or in part on such indicated report, the statement must also include written notification, in the form prescribed by the department, to the applicant, employee, volunteer, consultant or other person that:

(i) he/she has the right, pursuant to section 424-a of the Social Services Law, to request a hearing before the department regarding the record maintained by the Statewide Central Register of Child Abuse and Maltreatment;

(ii) the request for such a hearing must be made within 90 days of the receipt of the written notice indicating that the denial or decision was based on the existence of the indicated report; and

(iii) the sole issue at any such hearing will be whether the applicant, employee, volunteer, consultant or other person has been shown by a fair preponderance of the evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report.

(7) If in a hearing held pursuant to a request made in accordance with paragraph (4) of this subdivision and section 424-a of the Social Services Law the department fails to show by a fair preponderance of the evidence that the applicant, employee, volunteer, consultant or other person committed the act or acts upon which the indicated report is based, the department will notify the agency or the social services official which made the inquiry that, pursuant to the hearing decision, the agency's or the social services official's decision to deny the application, discharge the employee, not to use the volunteer or consultant, or not to permit the person providing goods or services to have access to children being cared for by the agency should be reconsidered. Upon receiving such notification from the department, the agency or the social services official should review its denial or other decision without considering the indicated report.

(d)Other conditions to be observed.

(1) No more than two children under 2 years of age shall be cared for in any agency boarding home unless such children are children of parenting youth.

(2) No home shall care for more than six children or minors, except that such home may provide for more than six brothers and sisters of the same family. The six children or minors referred to does include any children under 13 years of age of the supervisory personnel.

(3) Food supplied to the children shall be of good quality, properly prepared, and served at regular hours, and sufficient in quantity. Pasteurized milk shall be provided.

(4) Individual toilet articles and requisites for personal grooming and hygiene, suitable to age and needs of child, shall be provided.

(5) Appropriate seasonal clothing shall be supplied to each child. Clothing shall be kept clean and in good repair.

(6) Health supervision, medical and dental care must be provided to each child in accordance with section 441.22 of this Title.

(7) Provision shall be made to meet the educational and recreational needs of children in care.

(8) There shall be in every agency boarding home a record of each child received for care, showing the name, date of birth, and religious faith of the child; and other information pertinent for identification and supervision of the child in the home.

(9)

(i) Room isolation is prohibited.

(ii) No child shall be confined to a locked room for any reason.

(e)Review of applicants.

(1) Each program under this section is required to check applicants for employment and volunteer positions as well as contractors and consultants, with the Register of Substantiated Category One Cases of Abuse or Neglect (staff exclusion list) maintained by Vulnerable Persons' Central Register (VPCR), as required by section 495 of the Social Services Law, before determining whether to hire or otherwise allow any person to be an employee, administrator, consultant, intern, volunteer or contractor who will have the potential for regular and substantial contact with a service recipient; or before approving an applicant for a license, certificate, permit or other approval to provide care to a service recipient.

(i) If an applicant is listed on the staff exclusion list, a facility or provider agency as defined in section 488 of the Social Services Law shall not hire such a person for a position in which the person would have the potential for regular and substantial contact with a service recipient in any such facility or program or otherwise permit such person to have a position in which the person would have the potential for regular and substantial contact with a service recipient in any such facility or program. Other providers or licensing agencies as defined in subdivision (3) or (4) of section 424-a of the Social Services Law shall determine whether to hire or allow such a person to have regular or substantial contact with a service recipient in accordance with the provisions of subdivision (5) of section 424-a of the Social Services Law.

(ii) Any program that is required to conduct an inquiry pursuant to section 495 of the Social Services Law shall first conduct the inquiry required under such section. If the result of the inquiry under section 495 of the Social Services Law is that the person about whom the inquiry is made is on the staff exclusion list and the program is required to deny the application in accordance with article 11 of the Social Services Law, the facility or provider agency shall not be required to make an inquiry of the office under section 424-a of the Social Services Law.

(2) If an applicant is not listed on the staff exclusion list, then a database check must be completed in accordance with section 424-a of the Social Services Law and this section.

(3) Each program under this section is required by section 553 of the Executive Law, and subdivision 1 of section 378-a of the Social Services Law, to obtain criminal history background checks for certain prospective employees, or volunteers who will have the potential for substantial, unsupervised or unrestricted physical contact with children or vulnerable persons through the Justice Center as authorized by article 20 of the Executive Law.

(i) The Justice Center will review and evaluate the criminal history information for any person applying to be an operator, employee, or volunteer for whom a criminal background check is required by law at any facilities or provider agencies as defined in subdivision four of section 488 of the Social Services Law that are operated, licensed or certified by the Office of Children and Family Services.

(ii) If an applicant has been convicted of a crime, the agency must determine, in accordance with guidelines or regulations developed and disseminated by the Office of Children and Family Services or the Justice Center, whether to hire or use the person as an employee, or volunteer. If the agency determines it will hire or use the person, the agency must maintain a written record, as part of the application file or employment or other personnel record of such person, of the reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer or consultant.

(4) A custodian, as defined in section 488 of the Social Services Law, shall be subject to immediate termination if he or she is convicted of any felony or misdemeanor as defined in the Penal Law, that relates directly to the abuse or neglect of a vulnerable person, or is placed staff exclusion list.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 447.2

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Amended New York State Register March 9, 2022/Volume XLIV, Issue 10, eff. 3/9/2022