We recently alerted you to the repeal and reenactment of Article 47 (“Day Care Services”) of the New York City Health Code, whereby kindergarten and pre-kindergarten programs in elementary schools located in New York City will be exempt from Article 47’s requirements as of Sept. 1, 2008, it's effective date. As we also mentioned, Articles 45 and 49 of the Health Code, which together regulate schools in New York City, are scheduled for substantive revision within the next two years. Until those revisions are adopted by the New York City Board of Health, a gap in regulations covering the health and safety of school children ages 3 through 5 would exist beginning on Sept. 1, 2008. To bridge the gap, the Board of Health has adopted a new article, Article 43 (“School-Based Programs for Children Ages Three through Five”).1

Article 43 contains many of the same provisions for health and safety that are applicable to child care services regulated under the repealed and reenacted Article 47. The provisions of Article 43 apply to pre-kindergarten and kindergarten programs of instruction provided for children ages 3 through 5 that are located within a school, or that are part of a school. Note that “school” includes non-public schools. All education or other programs that are intended for, and attended by, children younger than 3 years of age are deemed Day Care Services and require a permit under Article 47.

Article 43 does not include a permit requirement, as Article 47 did, but it does require the person in charge of a school that provides classes for children ages 3 through 5 to file a notice with the Department of Health and Mental Hygiene, on a form provided by or approved by the Department. The notice shall provide the names, addresses and contact information for the person or entity that owns and operates the school.

Article 43 also requires schools to establish an annual written safety plan that provides policies and procedures for the safe operation of the school, including: teaching and other staff duties; facility operation and maintenance; fire safety; general and activity-specific safety; emergency management, including evacuation plans; staff and child health and medical requirements; staff training; and parent-child orientation. The safety plan must be used in training staff and volunteers, provided to parents on request and kept in an accessible location within the school.

Additionally, Article 43 establishes staff/child supervision ratios ranging from 1:10 to 1:25, depending on the age of the students and the type of activity. In determining the ratios, parents, aides, other adult staff and volunteers may be counted as staff.

Article 43 also establishes staff health requirements, including certificates of bi-annual physical examinations and staff immunizations. Such requirements apply to administrators, teachers, substitutes, volunteers, kitchen workers, maintenance workers and other staff members who regularly associate with children. Similarly, Article 43 institutes child health requirements, including a thorough age-appropriate medical examination and specified immunizations. Health care providers examining children pursuant to these requirements shall furnish the person in charge of a school with a signed statement, in a form provided or approved by the Department of Health, containing a summary of the results of the examination, the child’s past medical history and limitations, and recommendations.

Article 43 further requires schools to screen current and prospective personnel, including any person who has or will have the potential for unsupervised contact with children. Such persons include educational, administration and maintenance employees; school bus drivers; volunteers, including parent volunteers, student teachers, trainees and observers; consultants; and employees of independent contractors that provide maintenance, construction, food or other services to a school. Unscreened personnel shall be prohibited from working in any area or facility occupied by the school unless they are working under the direct supervision, and within the line of sight, of a screened employee of the school.

To satisfy screening requirements, schools must arrange for pre-employment verification, fingerprinting, review of records of criminal convictions and pending criminal actions, and inquiry of the Statewide Central Register of Child Abuse and Maltreatment (“SCR”) for all prospective employees and other persons listed above who will work with children ages 3 through 5. The person in charge of a school must obtain from the individual being screened written consent for fingerprinting and criminal-record review, and must provide such persons with written notice that there will be an inquiry submitted to the SCR.

The new regulations include other requirements, such as with respect to daily attendance records, daily health inspections, a written health plan, first aid procedures, annual lead-based paint surveys, etc.

Article 47 will continue to apply to any program providing services for children younger than 3 years of age.

To view Article 43, which will take effect on Sept. 1, 2008, go to http://www.nyc.gov/html/doh/downloads/pdf/notice/article-43-adoption.pdf.