Kindergarten and pre-kindergarten programs in elementary schools located in New York City will soon be exempt from the requirements of Article 47 of the New York City Health Code (“Day Care Services”). Article 47 imposes requirements upon programs for children ages 3 through 5 including, inter alia, a permit requirement, certain teaching staff qualifications, requirements regarding screening for prospective personnel and various health requirements.

On March 6, 2008, the New York City Board of Health adopted a final resolution to repeal and reenact Article 47. The resolution exempts from the provisions of Article 47 programs for children ages 3 through 5 who are enrolled in any elementary school, public or non-public, by removing the programs from within the definition of “child care service.” The amended definition of “child care service” excludes all pre-kindergarten and kindergarten programs that are a part of, or located within, any public or non-public elementary school. A program will be considered “a part of” or “located within” a public or non-public elementary school if it is “under identical ownership, operation, management and control.”

The resolution was adopted in an effort to update and harmonize the Health Code with comparable provisions in the New York State Social Services Law and the regulations of the State Office for Children and Family Services. These programs will now be subject only to Article 45 (“General Provisions Governing Schools and Children’s Institutions”), which will ultimately be amended to include the most compelling health and safety requirements affecting pre-kindergarten and kindergarten school children. Article 47 will continue to apply to any program providing services for children younger than 3 years of age, regardless of whether the program is located within or is part of an elementary school.

This new legislation will take effect on Sept. 1, 2008. We will update you on any relevant changes to Article 45 when they are issued