N.Y. Comp. Codes R. & Regs. tit. 18 § 442.18

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

Section 442.18 - Personnel; voluntary authorized agencies

(a)General.

Each institution shall provide the staff and services necessary to assure the health and safety and the proper care and treatment of the children under its supervision. Job functions must be performed by persons who meet the qualifications specified. Other administrative structures may exist which provide for alternate staff positions and functions subject to approval by the State Department of Social Services.

(b)Qualifications and functions.

(1) Director of institution:

(i) shall be a college graduate, with appropriate training and experience in the care or education of children;

(ii) shall be responsible for the general management and administration of the institution in accordance with the rules of the State Department of Social Services and all other applicable requirements of law and of the policies of the governing board.

(2) Supervisor of child care:

(i) shall be qualified by appropriate training and have experience with children in a group living facility;

(ii) shall be responsible for the supervision of child care staff.

(3) Child care worker II:

(i) shall have a high school or equivalency diploma and two years' experience in working with children;

(ii) shall have as his primary responsibility the supervision and nurturing of children; in addition to direct work with children, other responsibilities may be assigned to him.

(4) Child care worker I:

(i) shall have at least a high school or equivalency diploma;

(ii) shall have as his primary responsibility the supervision and nurturing of children.

(5) Recreation supervisor:

(i) shall have a bachelor's degree in physical education or recreation and one year's experience in working with children;

(ii) shall be responsible for coordinating the recreational program with other programs of the institution.

(6) Director of social work services:

(i) shall have a master's degree in social work or graduation from an accredited school of social work and a minimum of two years' social work experience in a supervisory capacity supplemented by or including experience in the field of child welfare;

(ii) shall be generally responsible for the direction and administration of a social services program and the coordination of that program unit with the other major areas of the agency.

(7) Supervisor of social work services:

(i) shall have a master's degree in social work or graduation from an accredited school of social work and a minimum of three years' experience, at least one of which shall have been under qualified supervision in the field of child welfare;

(ii) shall be responsible for the supervision of social work staff.

(8) Social worker III:

(i) shall have successfully completed two years of graduate study from an accredited school of social work;

(ii) shall be responsible for the planning and coordination of services to children and their families and, if appropriate, be responsible for the supervision of social work staff.

(9) Social worker II:

(i) shall be a college graduate, with at least one year of graduate study in social work;

(ii) shall do casework or group work with children and their families; may be responsible for the planning and coordination of all those services and resources affecting the children and their families, but shall always function under the direct supervision of a person who has successfully completed two years of graduate study from an accredited school of social work.

(10) Social worker I:

(i) shall be a college graduate, pursuing or intending to pursue within a reason able time, graduate study in social work;

(ii) may carry casework or group work responsibilities with children and their families; may be responsible for the planning and coordination of all those services and resources affecting such children and their families, but shall always function under the direct supervision of a person who has successfully completed two years of graduate study from an accredited school of social work.

(11) Paraprofessional staff aides:

(i) shall be persons of maturity and stability who possess the motivation and skills necessary to fulfill task expectations;

(ii) may provide support and assistance to professional staff in tasks assigned, under their direct supervision and after having completed a formal in-service training program.

(12) Medical directors:

(i) shall be licensed and currently registered to practice medicine in New York State; however, the attending physician or medical director of an institution principally caring for babies and children of preschool age shall also be a diplomate of the American Board of Pediatrics;

(ii) shall be responsible to the director of the institution for the development of the medical policies and procedures of the institution and shall additionally be responsible for the direction of the medical program.

(13) Medical specialist shall be a licensed physician qualified to provide specialized services by the appropriate national specialty board or designated by the county medical society as having a specialty rating under the Workers' Compensation Law.

(14) Dentist shall be licensed to practice dentistry in New York State.

(15) Orthodontist shall be a licensed dentist and certified to practice orthodontia.

(16) Nurse:

(i) shall be a New York State-registered professional nurse or licensed practical nurse;

(ii) shall be responsible for the delivery of medical services to the children in care in accordance with the medical practices and policies of the institution.

(17) Psychiatrist:

(i) shall be a New York State-licensed physician with a specialized rating in psychiatry;

(ii) shall render diagnostic, treatment, consultation or training services to the program, in whole or in part.

(18) Psychologist:

(i) shall be certified as a psychologist in New York State;

(ii) shall render diagnostic, treatment, consultation or training services to the program, in whole or in part.

(19) School principal shall be so certified by the State Education Department.

(20) Special educator shall have a specialty certificate from the State Education Department for teaching children with special needs due to mental retardation, physical handicap, learning disability, deafness or blindness; or have a specialty certificate in rehabilitation.

(21) Teacher shall be so certified by the State Education Department.

(22) Teacher aide may perform teaching support functions under the supervision of a certified teacher.

(23) Dietitian or consulting dietitian shall have a bachelor's degree with major studies in food and nutrition and be so registered or eligible for registration with the American Dietetic Association.

(24) Dietetic service director shall be a dietitian; or have a bachelor's degree with major studies in food and nutrition, dietetics or food service management, and one year's supervisory experience in the dietetic services of an institution; or shall be a graduate of a dietetic technician training program approved by the American Dietetic Association.

(25) Building maintenance supervisor shall be experienced in management, maintenance and repair of buildings, and capable of implementing an acceptable maintenance program, commensurate with the size and complexity of the building or buildings in the institution.

(26) Safety officer shall obtain any available local training as may be appropriate in order to develop and implement an acceptable safety program; may be a part-time function of an employee who has other functions; provided, however, that such employee is allotted sufficient time to fulfill his responsibilities as safety officer.

(c) The qualifications imposed under subdivision (b) of this section shall not be applicable to personnel employed by an institution in any of the specified categories on or before April 1, 1976, so long as any such personnel remain in such positions with such institutions; provided, however, that they meet necessary licensing or certification requirements.

(d)Staffing.

(1) There shall be at least one social worker for every 20 children in care.

(2) During waking hours when children are under the care of child care staff there shall be sufficient number of child care workers to provide supervision appropriate to the needs of the children in care. At a minimum, the following child care staff-to-children ratios will apply:

(i) units serving nine or fewer children must be staffed by at least one child care worker;

(ii) units of 10 to 19 children must be staffed by at least two child care workers; and

(iii)

(a) child care institutions which, on October 1, 1986, operated units with 20 or more children must be staffed by child care staff at ratios approved by the department; and

(b) child care institutions which did not, by October 1, 1986, operate units with 20 or more children, may not establish such units until the department has approved the chld care staff-to-children ratios proposed for such units.

(3) Qualified substitute child care employees must be used to meet the child care staffing ratios set forth in paragraph (2) of this subdivision when child care staff are not available due to vacation, illness or training.

(4)

(i) When deployment of child care staff within a unit requires that a child care worker be responsible for the supervision of 10 or more children as a result of the activities planned for children of the unit, a plan of supervision must be implemented by the agency to ensure the health and safety interests of the children in its care. Such plan should include, but not be limited to, the identification of qualified backup staff for day, evening and weekend periods. The plan must be included as part of the child care agency manual required to be maintained by the agency and residential facilities which it operates by section 441.4 of this Title and must be provided to each child care worker.

(ii) The plan of supervision required by subparagraph (i) of this paragraph should also include, but not be limited to, the following:

(a) a process for requiring child care staff to notify supervisors that the child care staff-to-children ratios contained in paragraph (2) of this subdivision are being exceeded;

(b) procedures for the evaluation of each situation where ratios are being exceeded, including utilization of agency backup staff. The director of the facility or the director's designee will be responsible for establishing adequate procedures to protect the health and safety of children when child care staff-to-children ratios are being exceeded. These procedures should include:

(1) increasing the child care monitoring and supervision of children during the period when such ratios may be exceeded;

(2) establishing a system of communications that will enable child care workers to request that backup services be utilized; and

(3) arranging for qualified backup staff to be immediately available on campus during periods when child care staff-to-children ratios may be exceeded.

(5) In emergency situations involving the health, safety or welfare of children which require child care staff to be unexpectedly absent from their usual work stations and when qualified backup staff are not available, nonchild care agency staff must be utilized to provide necessary child care until qualified staff become available.

(6) During sleeping hours, there will be sufficient number of child care workers to provide supervision appropriate to the needs of the children in care.

(7) During sleeping hours, there will be sufficient number of child care workers to provide supervision appropriate to the needs of the children in care.

(e)Personnel practices.

(1)

(i) Each agency must establish, subject to and consistent with any applicable collective bargaining agreement(s) and, where applicable, the Civil Service Law, a procedure to review and evaluate the backgrounds of and information supplied by all applicants for employee, volunteer or consultant positions. As part of this procedure, the agency must require such applicants to submit all of the following information:

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

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

(c) 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

(d) 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.

(ii) If an applicant discloses in the sworn statement furnished in accordance with clause (i)(d) of this paragraph that he/she has been convicted of a crime, the agency must determine, in accordance with guidelines developed and disseminated by the department, whether to hire the person as an employee or volunteer, except that any social services district which had guidelines developed and disseminated by the department, whether to hire or use the person as an employee, volunteer or consultant, except that any 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 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.

(2) A report of physical examination conducted no later than twelve months from the date of application by a physician, physician assistant, nurse practitioner or other licensed and qualified health care practitioner, as appropriate, regarding the individual's general health, that indicates the absence of communicable disease, infection, or illness or any physical or mental condition(s) which might affect the proper care of children, or that presence of any identified affliction does not pose a risk to the health and safety of children, shall be required of all staff as a condition of employment . The medical director may, at their discretion, require blood tests and such other tests as medically indicated. Food handlers and staff having direct contact with children shall be reexamined annually in a similar manner. The results of the health examination shall be reviewed by the medical director, who shall certify in writing fitness for employment. Such certification shall be retained by the agency and kept available for inspection.

(3) Review of applicants.

(i) 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 the Justice Center for the Protection of Persons with Special Needs pursuant to 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.

(a) 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.

(b) 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.

(ii) 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.

(iii) 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.

(a) 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.

(b) 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 and/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.

(iv) Consistent with any applicable collective bargaining agreements, 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 on the staff exclusion list.

(4) Statewide Central Register of Child Abuse and Maltreatment Review shall be as follows: If after an applicant or volunteer is determined to not be listed on the Staff Exclusion List maintained by the VPCR as required in paragraph (3) of this subdivision, then 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 who has or will have the potential for regular and substantial contact with children being cared for by the agency, the agency 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 may inquire whether any current employee or any person who is being considered for use as a volunteer or for a position 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 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.

(i) Prior to making an inquiry pursuant to this paragraph the agency must notify, in the form prescribed by the department, each 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.

(ii)

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

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

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

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

(iii)

(a) When the person who is the subject of the inquiry is an applicant for employment, the department will charge a $25 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.

(b) The required fee must either accompany the inquiry form submitted to the office 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.

(c) 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 Office of Children and Family 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.

(iv) If an applicant, employee or other person about whom the agency has made an inquiry is found to be the subject of an indicated report of child abuse or maltreatment, the agency 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 permit the person to have access to children being cared for by the agency, except that any local social services district which had guidelines for the review of persons who are subjects of indicated reports of child abuse or maltreatment operationally 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 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.

(5) Each institution shall establish, as a permanent program, a plan for staff orientation and continuing education through in-service training.

(6) At the commencement of employment, each staff employee shall be apprised of the institution's personnel practices and policies and shall thereafter be apprised of any changes in such practices and policies.

(7) At the commencement of employment, and annually thereafter, the institution 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.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 442.18

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

Amended New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020