Empire Justice Testimony Regarding New York’s State’s Draft Child Care Development Fund Plan for FFY 2014-2015

Susan Antos, Saima Akhtar, Linda Hassberg May 09, 2013

Prepared by:

Susan C. Antos
Saima Akhtar
Linda Hassberg

This testimony is presented by the Empire Justice Center, a support center for legal aid and legal services organizations across New York State.  We have offices in Rochester, Albany, White Plains and Central Islip.  We provide training, litigation support and policy analysis to 20 civil legal services organizations, from Long Island to Chautauqua County.  In addition, we assist hundreds of community groups that serve low income New Yorkers, and we represent low income clients in a wide array of poverty law areas.  Saima Akhtar and Susan Antos, who drafted most of this testimony, work on issues related to cash public assistance programs and child care.  Michael Hanley, who contributed to this testimony, serves on the Boards of the Coalition to Prevent Lead Poisoning (Rochester) and the Coalition to Eliminate Lead Poisoning in New York State (statewide).  His legal practice focuses on civil rights and housing issues, and he frequently writes on racial disparities related to lead-poisoning.  Barbara Weiner, who also contributed to this testimony, serves on the Boards of the New York Immigration Coalition and the New York Immigrant Action Fund.  Her legal practice focuses on immigration, especially immigrants’ access to benefits as well as the general area of public benefits, especially the Food Stamp Program, now known as SNAP.  Finally, Linda Hassberg, a senior attorney focusing on litigation and benefits, assisted with the section on language access.

Subsidized child care provides multiple vital supports to low income families.  First, child care provides a nurturing and enriching environment in which children may learn and develop.  Children receiving quality child care exhibit a higher degree of language and cognitive development than those who do not receive high quality child care. [1]  Also, children who receive quality child care in their early childhood are less likely to be anxious or develop impulse control problems than children receiving less responsive or erratic care. [2]  Longitudinal studies of at-risk children who received early child care found that, by the age of 40, those who had received high quality early child care experienced fewer arrests, less drug abuse and less public welfare use, along with higher earnings, more home ownership and greater educational achievement than a control group of similarly situated children who did not receive high quality early care. [3]

We applaud many of the efforts and accomplishments of the Office of Children and Family Services (OCFS) to improve the quality of child care and promote ways that parents can identify high quality care.  Particularly we applaud:

  • The commitment to explore the benefits of extending home visiting to child care providers to improve child care quality and safety. (§1.5, p. 45)
  • The commitment to revise the Administrative Directive related to Special Needs. (§2.7.10. pp. 101-102)
  • Efforts to improve the continuity of care (child care during job search, longer eligibility periods, extended eligibility for children enrolled in Early Head Start, Head Start and pre-school). (§2.2.6. pp. 66-67)
  • The Early Learning Guidelines and the increasing focus on professional development. (§3.2, 3.2.8, pp. 133-138.)
  • The leadership that OCFS has provided in the QualitystarsNY program. (§3.3, 3.3.9, pp. 138-149)
  • Although not mentioned in the plan, OCFS has just completed a notices revision project which dramatically improves the notices provided to applicants and recipients when their child care applications have been approved, or when their subsidies are reduced or discontinued.  These revised notices provide a clear and understandable explanation for why the action was taken and how eligibility was calculated.  (See: 13 OCFS LCM -04, available at: http://www.ocfs.state.ny.us/main/policies/external/OCFS_2013/LCMs/13-OCFS-LCM-04%20Revised%20Client%20Notification%20Forms%20for%20Child%20Care%20Subsidy%20(Rev%20%20April%2018%202013).pdf)

Access to subsidies gives children in low income families the opportunity to engage in an early learning experience that their families could not ordinarily afford.  Much of our testimony today will focus on areas where the Office of Children and Family Services (OCFS) can expand access to child care subsidies to two underserved populations: children in immigrant families and children with special needs.  Our largest concern is that eligibility rules are determined by local social services districts, resulting in inequities in access among counties.  Most inequitable is the copayment structure which impairs the ability of families with incomes over 150% of poverty to participate in the child care subsidy program when the district chooses to adopt a formula resulting in child care copayments that are unrealistically high.  We will also address the unique opportunity that OCFS has to play a leadership role in eliminating lead poisoning in small children, a scourge which has a disproportionate impact on children of color.


A. PARENT FEES (§§2.4; 2.7.9 pages 83-85, and attachment 2.4.1)

In New York State, parent fees are determined by the local social services district despite the fact that more than 83% of child care funding in this state comes from the federal government with OCFS as the designated lead agency. [4]  This results in an inequitable system where parents in one county may receive more than double the child care subsidy benefits of a parent in a nearby county even though both families are the same size, have the same income, children of the same age and use the same type of child care.  The difference results from one county arbitrarily choosing a higher copayment multiplier than the other.

At this time, New York has a convoluted method for calculating the parent share of subsidized child care costs.  To determine the parent share of child care costs, the local district subtracts the State Income Standard [5] from the parent’s annual income, and multiplies the difference by a percentage of the district’s choice, between 10%-35%. [6]  The remaining number is then divided by 52 to determine the amount of the weekly parent share of child care costs.

Because OCFS gives each district the right to choose its own multiplier between 10%-35%, parent fees vary dramatically across the state.  Counties that are immediately adjacent to each other can opt to issue child care benefits that are less than half of what the same family would receive in the neighboring county.  For example, a family of three with a household income of $32,427 per year (175% of the federal poverty level) and a weekly child care cost of $140 will receive a subsidy of $113.27 per week in Steuben County where the copayment multiplier is 10%, but would only receive a subsidy of $46.46 per week in neighboring Chemung County where the multiplier is 35%.

Market Rate Group 3: Weekly Fulltime Preschool

County  Child Care Subsidy Benefit  Total (Market Rate)
 10% Copayment  Steuben  $113.27  $140.00
 35% Copayment  Chemung  $93.54  $140.00

Only two other states – Texas and Colorado – have rules which allow parent copayments to be locally determined.  The Empire Justice Center strongly urges New York to join the majority of states to develop a uniform statewide policy regarding copayments to assure that all of the children in the state are treated fairly.  No parent under the poverty level should be required to pay a copayment, and for parents over the poverty level, the assessed copayment should not exceed more than 10% of household income.

Federal regulations require that copayments be set at an affordable level that assures “equal access” to child care services comparable to those used by families who are not subsidy eligible. [7]  The Administration for Children and Families has stated that “copayment scales that require a low income family to pay no more than 10% of its income for child care, no matter how many children are in care, will help ensure equal access,” and that “a fee that is no more than 10% of a family’s income would generally be considered to be an affordable copayment.” [8]  As indicated by the chart attached to this testimony, social services districts with copayment multipliers of 35% charge families with incomes at 200% of poverty parent fees that equal 17.5% of their annual gross income.  These families cannot afford to pay such a high percentage of their income for child care.

Added to the already confusing mix, counties can change their multiplier by simply amending their child care plan with OCFS at any time.  This means that parents are not able to budget and plan for changes or increases in their child care costs.  From year to year, their copayment may change at any time, or simply be taken away.  Rather than contributing stability to families who are often living and working paycheck to paycheck, these policies create chaos and a disincentive to work for families who must choose between losing a child care subsidy altogether or reduce their hours of work (and their income level) to keep any child care subsidy at all.

Moreover, there is precedent for asserting a moderate approach to what families can afford.  In 2001, the New York State Insurance Department Commissioned a study that revealed that where individuals were required to pay more than 5% of their income for health insurance, most families were unable to afford it. [9]  In 2009, in determining what was an “affordable” contribution to a health insurance policy when determining a child support order, the legislature amended the Family Court Act to define health care as “reasonable in cost” when a premium and deductible is less than 5% of the parties’ combined gross income. [10]  When a health care policy is not reasonable in cost, it is not considered “available,” in most cases allowing the child to be funded by a public health insurance program.

High copayments and unaffordable child care jeopardize the financial stability of low income families.  In 2010, a detailed county by county analysis of how much income a family must earn to meet their basic needs found child care subsidies to provide the greatest single form of financial relief of any single work support program for low to moderate income working families. [11]  Because child care poses the largest single expense for many low income families, particularly if there is more than one child, the child care benefit is a powerful tool for supporting the family budget and stabilizing the workers in the household.

Further, even when variation in household costs and expenditures is examined, the county by county variation in child care subsidy benefits is not justified in relation to the places where there is a higher housing or other cost burden.  Correlation analysis conducted by the Fiscal Policy Institute in conjunction with the work of the Empire Justice Center found no association between the cost of child care, per capita personal income, median monthly housing costs and variations in the consumer price index and family copayments. [12]  The data clearly indicates that the local districts are not selecting copayments based upon concern for the family budget or increasing household expenses.

We recommend the following steps to deal with inequitable copayments:

  1. Immediately begin work to revise the parent fee schedule so that it is affordable, based on a family’s ability to pay, and has statewide applicability. This schedule need not be uniform – like food stamps, it could have adjustments for persons who pay high rents, or pay child support.  Geographic variations would be justifiable where economic indicators justify such a distinction.
  2. Immediately update the OCFS data system to track critical information about child care subsidy participation by income level.
  3. Until the adoption of a parent fee schedule that is based on an analysis that  assures affordability and equal access, OCFS should take two steps:
  • amend the state copayment regulation to cap child care copayments at 12% of gross household income, regardless of the multiplier used by the social services district, and until a statewide standard is developed, reduce the percentage annually by one percentage point;
  • require social services districts to affirmatively set forth how they have complied with the public comment requirements of 18 NYCRR 407.10 before OCFS approves a change in copayment for any social services district.

B. FAIR AND CONSISTENT RULES FOR BUDGETING TEEN INCOME (Income Eligibility Criteria, §2.3.5. pp. 76-79)

Another barrier to access is that the presence of a working teenager in the household increases the household income, resulting in an increased parent copayment or household ineligibility.  In determining eligibility for a child care subsidy, the income of children between the ages of 14 and 17 is counted.  This policy creates a strong disincentive for teens to work in families where the parents are low income wage earners, and this rule is inconsistent with rules for other benefits programs such as cash public assistance or food stamps, where the income of dependent children under the age of 19 is disregarded so long as they are attending school. [13]

Although income of younger teens is always counted, local districts are provided the option of whether to count the income of 18, 19 or 20 year olds when determining a parent’s financial eligibility, and again, policy varies dramatically across the state. [14]  Twenty-three districts never count 18, 19 or 20 year olds when calculating household size or household income.  The majority of districts opt to count an 18, 19, or 20 year old child residing at home as part of the child care household only when it benefits the family.  This would happen when the adult child is not earning income and counting that child would increase the household size, respectively decreasing the family’s copayment.

Budgeting rules should be consistent across the state, not a choice which can be changed whenever the social services district amends its consolidated services plan. [15]  New York needs to set a consistent policy that makes sense for families.

Recommendation:  OCFS should promulgate a regulation which makes the budgeting of teen income consistent with public assistance and the food stamp programs, a rule which encourages teen employment. The regulation should provide that all income of children below the age of 18 be disregarded in the same manner as it would for cash public assistance and food stamps, and that the income of older teens only be included if doing so would benefit the family.  


Parents and caretakers who work nights often need child care so that they can sleep during the day when their children are young and not in school.  State regulations give districts the option of providing child care for parents who work the second or third shift, and who need child care to sleep. [16]  Forty-five out of 58 districts currently provide subsidized daytime child care for parents who need to sleep.  However, as with other local district options, the rules regarding utilization of this benefit vary widely among districts.  Currently, three districts (Broome, Steuben and Suffolk) provide sleep care for less than six hours.  An additional 12 districts pay for six hours of sleep care.  Westchester County alone provides a child care subsidy for seven hours of sleep care.  The majority of the districts, 27 in total, will fund 8 hours of subsidized child care for a parent who works second or third shift and needs to sleep during the day.

The fact that most districts already provide some child care for parents needing to sleep is a significant step toward having uniform eligibility rules, but is no comfort to parents in the 13 districts that do not provide this benefit.  New York’s policy on providing care to parents who work second and third shifts should not be based on the luck of geography.  All parents in New York State, regardless of where they live, should be able to take advantage of this type of care.

Recommendation:  OCFS should promulgate a regulation which requires social services districts to provide child care assistance to parents with young children when the parents work the night shift and need child care in order to work.


Generally, the payment rate to the child care provider for a child receiving subsidized care is the price of care charged to private pay parents up to a ceiling established in regulation called the “market rate.” [17]  Federal regulations require the state to conduct a local market survey biennially. [18]  As lead agency, OCFS conducts this survey biennially and, except for legally exempt providers, has set each district’s market rate at the 75th% percentile, as recommended in the preamble to the final federal rule. [19]

For child care providers who have a national accreditation, the district may opt to set a rate that is of up to 15% more than the market rate. [20]  Moreover, the local districts also have a separate option to pay a higher child care rate for care that is provided to children while their parents work non-traditional hours, such as overnights and weekends. [21]  These two payment differentials may supplement each other, but the total payment differential is limited to 15% above market rate unless a waiver is granted to the local district by the state. [22]

Out of 58 social services districts, only nine pay regulated child care providers a higher rate if they have been accredited by a nationally recognized child care organization and only eleven districts pay a higher rate for care provided during non-traditional hours.  Even among these districts, there is variation.  Albany County pays a 10% differential for either accredited care or care that is provided during non-traditional hours, but as noted above, is prohibited by regulation from providing a total differential of more than 15%.  Monroe, Montgomery and Orange Counties pay a 15% differential only for an accredited care provider.  Chemung, Clinton, Cortland and Oswego pay a 15% differential only for care during non-traditional hours.  Seneca pays a 10% differential for care during non-traditional hours.  Tompkins County, Putnam County, Washington County and New York City will pay a 15% differential for either an accredited child care provider or care provided during non-traditional hours.  However, in these counties there is no additional benefit to an accredited child care provider who provides care during non-traditional hours because the total of the two supplemental payments is capped at 15% above the market rate ceiling. [23] 

Given OCFS initiatives to establish a quality rating and improvement system in recent years, [24] it seems inapposite to this goal to make enhanced rates for accredited providers a county option.  Similarly, where providers charge more for caring for children on evenings and weekends, policies that do not adjust the market rates accordingly deny parents equal access to such care and functionally fail as a work support to low income parents.

Recommendation:  We urge OCFS to further support high quality child care for low-income working families by ensuring that a suitable rate differential is available throughout New York State.

E. CHILDREN WITH SPECIAL NEEDS (pp. 86-87, p. 102; § 2.5.1; 2.7.10)

Federal law requires states to give priority to children with special needs.  This plan recites this requirement but does not tell us how local districts assess whether children receiving child care services have special needs, how parents are advised that they are to be given priority over other eligible families or when necessary, how they are eligible for a special enhanced payment rate.  The standard application for child care assistance does not afford the parent the opportunity to make the child’s particular special needs known, and many parents and providers are not aware that such a benefit is available.  More needs to be done to make parents and providers aware that the special needs of children can be met.

  • Lack of data

Thirty-eight social services districts responded to a survey conducted by the Empire Justice Center 11 years ago [25]and in all of those districts, a total of only 52 children received the enhanced market rate for special needs children.  That year, the number of 3-5 year olds receiving special educational services was 34,492.  Today, we do not know how many children in New York State receive priority or an enhanced rate because of their special needs status.

Recommendation:  We urge OCFS to require districts to report on the number of children who receive priority or who are provided care with an enhanced rate due to special needs.  

  • Parents need to know the rules

Additionally, parents and providers need clearer guidance on how to obtain the special needs rate for child care.  Most parents do not even know that enhanced rates exist.  The only guidance that exists is 18 years old and in a short Administrative Directive, 91 ADM-34.  The ADM needs to be rewritten in clear and understandable language with easy instructions and forms for parents and providers.  It needs to define and address the interplay between early intervention programs and special needs child care.  We are thrilled that OCFS has identified this as a goal for the coming biennium.

Recommendation: Make the rewriting of the Administrative Directive (ADM) on Special needs a top priority and include the advocacy community in its development.  The ADM should provide clear and understandable guidance including a handout for parents which sets forth the priority rules and the process for obtaining an enhanced rate.

  • Expanding the definition of “special needs”

The plan-preprint makes clear that states have the option to consider children of teen parents and homeless children as children with special needs, deserving of priority over other eligible families.  With New York’s current funding crisis, the expansion of priority populations cannot be accomplished without additional funding.

Recommendation: As funding for child care increases, OCFS should develop a plan to include these groups as priority populations on a statewide basis.


The Department of Health and Human Services, directly after the enactment of the Personal Responsibility and Work Opportunity Act (PRWORA), clarified that with respect to child care services, it is the immigration status of the child, not the parent that counts. [26]  This makes it clear that U.S. citizen children or children whose parents are working but undocumented, are entitled to child care services regardless of the lack of status of the parent.

  • Income verification

It is critical that these young American citizens receive safe, affordable and appropriate child care while their parents are working.  However, a substantial barrier to the access of such children to childcare is that local districts do not readily accept the income verification evidence that is available to such households.  Since the parents do not have work authorization, it is unlikely that they are receiving regular pay stubs or, if they are, that they have a valid social security number (SSN) attached to them.  In other programs, for example the Food Stamp Program and the Child Health Plus program, guidance to the local districts clarifies that if no other evidence is available, a sworn affidavit by the working household member as to his or her income must be accepted. [27]

A number of other states have policies that expressly allow child care applicants to provide statements or attestations regarding their income when the applicant has been unable to obtain verification and/or the employer refuses to provide verification when sought by the applicant applying for child care assistance.  These states are Connecticut, Minnesota, Nebraska, New Hampshire, Nevada and Wisconsin.” [28]

Recommendation:  OCFS should establish of guidelines in regulation permitting attestations of income in certain limited circumstances.  This is critical because for certain citizen children and immigrant children, the failure to permit attestation results in denial of child care services. 

  • Social Security Numbers

We commend OCFS for promulgating 05-OCFS-ADM-03 which reminds districts that for child care assistance, the provision of a social security number is voluntary and child care benefits must not be denied or withheld for the failure to furnish a SSN.  The ADM also states that federal law does not require families who are receiving child care assistance through Title XX or the NYSCCBG to disclose social security numbers for the receipt of child care assistance.  This does not restrict the ability of a district to request that applicants disclose the SSN of the person who will receive the service.  If such a request is made, the applicant must be informed that the disclosure is voluntary, by what statutory or other authority such number is solicited and the uses which will be made of the Social Security Number. (See: http://ocfs.ny.gov/main/policies/external/OCFS_2005/ADMs/05-OCFS-ADM-03%20Child%20Care%20Subsidy%20Program.pdf, pages 13-14)

Recommendation:  Since this guidance was issued 8 years ago, OCFS should remind districts of this guidance.


Although the OCFS plan says that the lead agency promotes access to the CCDF subsidy program by providing information multilingually, OCFS needs to take a more aggressive role in this area by reminding districts that applications are available in other languages ( see  http://otda.ny.gov/programs/applications) and instructing districts on their responsibility to translate other notices. OCFS should promulgate a directive to local social services districts describing the obligations of local districts under the law.  It is our experience that local agencies fail to use the applications in other languages even though they are available on line in seven languages: http://otda.ny.gov/programs/applications.

Local districts often fail provide notices in Spanish even though OCFS makes them available.  We have seen the use of Spanish notices with the critical individualized information in the notice in English.

OCFS’s sister agency, the Office of Temporary and Disability Assistance, has directed local districts of their obligations to obtain interpreters and to make language posters available in all client areas in http://otda.ny.gov/policy/directives/2006/ADM/06-ADM-05.pdf.

Although the “Language Identification Tool” appears on the OCFS website at http://www.ocfs.state.ny.us/main/publications/LETTER%20LEP.pdf, OCFS has provided no directives to local districts requiring that it be posted.

Recommendation: OCFS should issue an Administrative Directive reminding all social services districts of their obligation to provide interpreters and translators and to post the language access poster prominently in all applicant and recipient waiting areas.

LEAD POISONING (§1.5.4, p. 54)

Lead is the leading environmental poison of young children in New York State and has been linked to serious and lifelong adverse health, developmental and cognitive outcomes that are completely preventable. [29]  When lead is absorbed into the body, it causes damage to the central nervous system and vital organs, including the brain, kidneys, nerves and blood cells. [30]  Even at low levels, lead poisoning in children causes intelligence deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity and behavioral problems. [31]  Childhood lead poisoning levels have even been associated with increased levels of delinquent and criminal behaviors later in life. [32]

We know that young children are at the highest risk of damage because it affects their developing brains.  Accordingly, targeting lead poisoning prevention efforts at day care centers and family providers serving subsidized children, and finding lead hazards in children’s homes should be high priority.

OCFS is uniquely situated to use its programs and resources to eliminate lead poisoning.  The draft plan states that the goal of the Lead Poisoning Advisory Council, of which OCFS is a part, is to eliminate lead poisoning in children in New York State.  While the statewide lead poisoning rate has dropped dramatically – down to nearly only 1% of the children tested – tragically, that reduction has not been true for many low income children.  Minority children in New York State are at far greater risk of being exposed to lead paint hazards.  In fact, a Black child under age five in New York State is 8.5 times more likely than a White, non-Latino child to live in an area identified by the New York State Department of Health as a “high risk” area. [33]  In many low income neighborhoods the lead poisoning rate still exceeds 10% to 15%. [34] Consequently, children participating in OCFS child care programs make up a large proportion, probably the majority, of the 10,000 or more children in the state who continue to be poisoned by lead paint each year.  Although there has been little public discussion of this matter, these high-risk areas are home to a stunningly large portion of the state’s minority children. [35]  Over a half century ago the housing in those neighborhoods was, quite literally, painted with hundreds of pounds of pure lead.  That housing, much of it now severely deteriorated, is the very housing where thousands of children are cared for with Child Care Block Grant subsidies in family and informal child care settings.

Thus, OCFS may well be the state agency best positioned to take the steps needed to finally eliminate lead poisoning in New York.  OCFS has the ability to help make the initial identification of the housing units that contain lead paint hazards and, most importantly, to reach the children who are at risk in that housing before they are poisoned.  Put simply, we know who these children are, we know where they live, and we know what needs to be done to protect them.

RECOMMENDATION: OCFS should develop a plan in conjunction lead poisoning prevention advocates and child care resource and referral agencies in the specific communities affected, to reach the children at risk before they are poisoned.  Individuals who make OCFS mandated inspection visits can act as the “eyes and ears” needed to spot lead hazards and make appropriate referrals so that dangerous housing gets inspected by local health officials whenever deteriorated or peeling paint is observed.  For decades the State Department of Health only inspected housing for lead paint hazards once a child had already been poisoned, and by then it was too late for that child.  Although efforts are now underway to change that approach, the Department of Health cannot do it alone.  Much more inter-agency planning is needed.  The OCFS state plan would be a great place to start to identify the steps needed to make that happen.

RECOMMENDATION: Require visual inspections and dust wipe sampling for lead paint hazards in all regulated day care homes or centers, and the homes of all legally exempt providers receiving subsidy funds where the home or facility was built before 1978.  When that dust wipe and visual inspection indicates a risk, we recommend that public funds be used for a formal “risk assessment” (a detailed inspection that is conducted under established EPA procedures by EPA certified assessors).  If the unit does not obtain an appropriate EPA “clearance” within a reasonable time, consideration should be given to suspending the child care provider’s license or registration.  Additionally, we would ask OCFS to support legislation that would allow tax credits and low interest loans so that the necessary lead hazard abatement action can be taken when a risk is indicated.

Finally, we encourage OCFS, in recognition of its unique advocacy role in protecting children, to assert leadership with respect to coordination of state agencies whose mutual cooperation is needed, but currently absent, in efforts to protect children from lead poisoning.  In 2009, the Governor’s office, by Executive Order, created an inter-agency “Task Force on the Prevention of Childhood Lead Poisoning.”  That body was charged with the role of exploring ways to facilitate communication between state agencies, each of which had independent responsibilities in some form relating to programs or actions that could help protect children from lead poisoning.  That Task Force had a limited two year mission.  It carried out its work, prepared its report, and then expired.  Its recommendations, for all intents and purposes, now sit on shelves or in file drawers with no current plan for implementation or even for further discussion.  A summary of its recommendations is available at http://www.governor.ny.gov/archive/paterson/press/103010-FinalReport32TaskForce.html.  Although the NYS Department of Health carries out essential activities with regard to prevention of lead poisoning, it has not emerged as an effective body to address the need for ongoing meaningful inter-agency planning and coordination.

Not covered in the Task Force report, but an additional example of an inter-agency issue currently meriting an effective response, is the need for school districts to be given access to the state’s Electronic Immunization Registry.   That electronic database includes information on the elevated blood-lead levels of individual students that would enable schools and teachers to know when a child has had a history of an elevated blood-lead level, thus meriting consideration of special educational and neurological intervention services.  Such interventions have recently been shown to be effective in reducing disparities in educational performance.  Additionally, access to such information would help schools and districts in evaluating the extent of the additional burden placed on the schools themselves, particularly urban schools. Empire Justice Center has estimated, based on the cumulative total numbers of children identified annually by the county health department with elevated blood lead levels between the 1990s to 2006, the City of Rochester School District may now have a population of nearly 20% of its students whose intellectual performance, attention abilities and proclivities for aggressive behaviors have been adversely impacted by lead poisoning.

Currently schools only have access to information through the electronic immunization registry indicating simply whether a child has been tested for lead.  They do not have access to information about which or how many students have experienced elevated blood-lead levels or the amounts of the elevations.  OCFS should determine the steps that can be taken to provide access administratively through regulatory changes, or addressed in legislative amendments.

Thank you for the opportunity to comment.

End Notes:
 [1] Griffin, James A.  National Institute of Child Health and Human Development Study of Early Child Care and Youth Development, Phases 1 and 2 (1999).  Available at http://www.nichd.nih.gov/research/supported/seccyd.cfm.
 [2] Don Brower, “What Child Care Can Do” Better Brains for Babies, University of Georgia (1998), available at http://www.fcs.uga.edu/ext/pubs/chfd/FACS01-5.pdf
 [3] L.J. Schweinhart,, J. Montie, Z. Xiang, W.S. Barnett, C.R. Belfield, & M. Nores, Lifetime Effects: The High/Scope Perry Preschool Study Through Age 40, High/Scope Press: 2005.  General information available at http://www.highscope.org/Content.asp?ContentId=219
 [4] Empire Justice Center analysis of the 2013-14 New York State budget available at http://www.empirejustice.org/assets/pdf/issue-areas/child-care/child-care-budgets-2013.pdf 
 [5] Currently this figure is identical to the federal poverty level.  See 10 OCFS INF-3, available at http://www.ocfs.state.ny.us/main/policies/external/ 
 [6] 18 NYCRR 415.3(f).
 [7] 45 CFR 98.43.
 [8] 63 FR 39936, 39960-61 (7/24/98).
 [9] K. Schwartz, Healthy New York: Making Insurance More Affordable for Low-Income Workers, Commonwealth Fund Report 484, November 2001, p.14.
 [10] N.Y.Family Court Act §416(d); N.Y.+Domestic Relations Law §240(1)(b)(3). Additionally, no payment towards health insurance is required if to do so would bring the parent’s income below the self-support reserve of 135% of poverty for a single individual.
 [11] D. Pierce, The Self-Sufficiency Standard for New York State 2010, p. 20, available at http://www.nyscommunityaction.org/self_sufficiency_standard.cfm
 [12] S. Akhtar and S. Antos, Mending the Patchwork: A Report Examining County-by-County Disparities in Child Care Subsidy Administration in New York State, pp. 5-10, Empire Justice Center (2010), available at http://www.empirejustice.org/assets/pdf/publications/reports/mending-the-patchwork-1.pdf
 [13] N.Y. Social Services Law §§ 131-a(8)(a)(i); SNAP Source Book, sec.13, p.276, available at http://otda.ny.gov/programs/snap/SNAPSB.pdf
 [14] 18 NYCRR 415.1(l).
 [15] See 09 OCFS LCM-13.
 [16] 18 NYCRR § 415.4(c)(3).
 [17] NY Soc. Serv. Law § 410-x(4).
 [18] 45 CFR §98.43(b)(2).
 [19] The most recent market rate survey (2013) is referenced in the draft materials for the CCDF Plan at Attachment 2.7.3.  The market rate for legally exempt care is set at 65% of the market rate or 70% if the provider has completed 10 hours of approved training.  18 NYCRR 415.9(j)(2)
 [20] 18 NYCRR § 415.9(h).
 [21] Id.
 [22] Id.
 [23] Id.
 [24] See http://earlychildhood.org/QSNY/index.cfm
 [25] The Greater Upstate Law Project (now the Empire Justice Center), Child Care in New York State, A Patchwork Of Policies, November, 2002 at page 40. The executive summary of this report is available at http://www.empirejustice.org/assets/pdf/publications/reports/a-patchwork-of-policies.pdf
 [26] Program Instruction from James A. Harrell, U.S. Dept. of Health and Human Services, Deputy Commissioner, Administration for Children, Youth and Families to Lead Agencies Administering Child Care Programs Under the Child Care and Development Block Grant (CCDBG) Act of 1990 as amended, and other interested parties, Log. No. ACYFPI- CC-98-08, Re: Clarification of Interpretation of “Federal Public Benefit” Regarding Child Care and Development Fund (CCDF) Services, (Nov. 25, 1998).
 [27] See e.g., Food Stamp Sourcebook, Section 5, page 114: http://otda.ny.gov/programs/food-stamps/FSSB.pdf
 [28] For Connecticut’s policy see: Care4Kids, 17b-749-06, http://www.ct.gov/dss/cwp/view.asp?a=2353&q=305180#_Toc519328198.  Minnesota’s policy can be found at Verification,” Child Care Assistance Program Policy Manual, http://www.dhs.state.mn.us/main/groups/county_access/documents/pub/dhs16_145270.pdf, p.146. Nebraska’s policy can be found at: Child Care Subsidy Program, http://www.sos.state.ne.us/rules-and-regs/regsearch/Rules/Health_and_Human_Services_System/Title-392/Chapter-3.pdf, 12.  New Hampshire’s policy can be found in its Family Assistance Manual, 933.03, http://www.dhhs.state.nh.us/FAM_HTM/NEWFAM.HTM.  The policy is identified as a “Previous Policy” but there is not a newer or different policy provided on the website. Nevada’s policy can be found at “Income,” http://dwss.nv.gov/index.php?option=com_docman&task=cat_view&gid=42&Itemid=287, p. 6-7.  Wisconsin’s policy can be found at: Wisconsin Shares Child Care Assistance Manual Chapter 1: Program Information and Eligibility, http://dcf.wisconsin.gov/childcare/wishares/pdf/chapter1.pdf, 54.
 [29] “Reducing Lead Exposure in Children, Lead Testing and Lead Poisoning Among New York State Children, 2008 Report.,  New York State Department of Health, at p. 7, available at: http://www.health.ny.gov/environmental/lead/exposure/childhood/surveillance_report/docs/2008_reducing_lead_exposure_children.pdf
 [30] See U. S. Department of Housing and Urban Development (HUD), Office of Healthy Homes and Lead Hazard Control, Fact Sheet on Lead Poisoning, available at http://www.nchh.org/Portals/0/Contents/Lead_Factsheet.pdf
 [31] Findings of Congress, 42 USC 4851(2).
 [32] Nevin, 2000. “How Lead Exposure Relates to Temporal Changes in IQ, Violent Crime, and Unwed Pregnancy;”  Environmental Research, 83(1).  See also, “Research Links Lead Exposure, Criminal Activity”, Washington Post, July 8, 2007, Page A02; and “Lead’s Societal Toll May Be High: Exposure Linked to Intelligence Loss, Violent Behavior in Our Area,” Rochester Democrat & Chronicle, June 26, 2006, available at http://www.leadsafeby2010.org/LinkClick.aspx?link=News%2fLeads+societal+toll+may+be+high.pdf&tabid=71
 [33] See, “A Matter of Racial Justice: The Alarming Disparities of Lead-Poisoning Rates in New York State,” by Empire Justice Center attorney Michael L. Hanley; Vol. 17: Issue No. 1, Poverty and Race, (Jan/Feb 2008), a publication of the Poverty and Race Research Action Council, available at http://prrac.org.
 [34] A May 2002 report by the Center for Governmental Research entitled “Lead Poisoning Among Young Children In Monroe County, A Needs Assessment, Projection Model, and Next Steps,” showed that of the thirty-one neighborhoods defined by the city for its planning purposes (areas which are smaller than zip codes), eighteen neighborhoods had rates of lead poisoning greater than 15%, including three neighborhoods with poisoning rates in excess of 30%. See page 26 of the report, available at: http://www.cgr.org/reports/02_R-1342_MonroeLeadPoisoning.pdf. More recent neighborhood level data is not available, but the NYS DOH’s most recent zip code level data identifies several zip codes with incidents rates around 10% which indicates that neighborhoods within those areas have even higher poisoning levels as had previously been documented in Rochester.
 [35] Based on the  2001 Department of Health data, one of every three African-American children under  age five living outside of New York City lived in one of the 36 (out of over 1600) zip  codes identified by the state as a “high risk” zip code.  Those zip codes accounted for over 41% of all new incidences of child lead poisoning at that time. In fact, based on the 2001 data, an African American or Latino child under age 5 was up to nine times more likely to be exposed to lead paint hazards than a non-minority child.   More recent data provided by DOH shows that the concentration of lead poisoning cases in a small number of geographic areas is a persistent pattern.  In 2005, nearly 40% of the new incidences of lead poisoning outside of New York City came from only 22 zip codes.