A proposal by the New York City Department of Health and Mental Hygiene to add a new Article 43 (School-Based Programs for Children Ages 3-5) to the New York City Health Code was the subject of a public hearing held in Lower Manhattan.

The hearing marks the latest development in a saga that began in March 2007, when the Health Department presented the Board of Health with a proposed new version of the Article 47 regulations that govern the operation of day care programs in New York City. The proposed version would have done away with the No Permit Required (NPR) designation that had until then exempted religious school pre-school programs from the full brunt of Article 47’s extensive regulations.  Compliance with these regulations would have placed a tremendous financial and administrative burden on yeshiva pre-school programs and would, in certain respects, have interfered with a yeshiva’s right to run its pre-school in accordance with its religious principles and educational objectives.

Following a series of meetings between top staff of the New York City Health Department, headed by Commissioner Dr. Thomas Frieden, and a broad coalition of nonpublic school representatives – including Agudath Israel of America, the Board of Jewish Education of Greater New York, United Jewish Organizations of Williamsburg, and the Sephardic Community Federation — the Health Department agreed to exclude nonpublic school pre-K programs from Article 47 altogether.

Instead, under the Health Department’s new proposal, nonpublic school pre-K programs, like their public school-based counterparts, would be governed by a newly promulgated Article 43.  Unlike Article 47, which would have imposed far more restrictive regulatory mandates, Article 43 would limit its regulation over pre-K programs to core health and safety requirements.

Among those who presented testimony at the hearing on the proposed new Article 43 was Agudath Israel executive vice president for government and public affairs Chaim Dovid Zwiebel.  The main focus of Rabbi Zwiebel’s comments regarding the Article 43 regulations related to the issue of staff-child ratio. Expressing unequivocal support for the “line of sight supervision by adult teaching staff” required by Article 43, the Agudah leader took issue with a second component of the regulation, which establishes certain minimum ratios of staff to children that many Jewish schools — particularly those that service children from a lower socioeconomic rung of the community – would not be able to meet.

Recounting discussions with a number of pre-school programs, Rabbi Zwiebel shared their view that strict enforcement of these ratios would require schools to raise their tuitions by some 20-40%.

“As it is most of the parents who send their children to these programs struggle mightily to pay their tuition bills,” he declared.  “To impose such a steep price increase would make it impossible for many of these parents to afford this type of programing for their children.”  Acknowledging that “the role of the Board of Health in this area is to ensure that children who attend such programs are in safe, healthy environments,” and that issues of cost are not technically the Board’s concerns, Rabbi Zwiebel asserted that, nonetheless, “in the real world, the cause of health and safety is hindered, not advanced, when regulations are developed without due consideration of their economic impact.”

Rabbi Zwiebel made the further point that, as proposed, the staff-child ratios of Article 43 are identical to the ratios of Article 47. But the reason that school-based pre-school programs were excluded from Article 47, he argued, was that “the Department and the Board recognized that pre-school programs attached to elementary schools are part and parcel of the elementary school’s educational program …It was in recognition of this essential distinction between school-based pre-school programs and free-standing day care programs that the Board and the Department decided to regulate these different types of programs differently.” Why then, he asked, are the proposed staff-child ratios identical?

While, Rabbi Zwiebel agreed, it might make sense to talk about specified adults to children ratios at those times that children are outside the classroom – in the yard, say,  or on class trips – “with respect to the bulk of the school day, which is spent in a classroom setting even at the pre-school level, we respectfully submit that there is no need for the ratios set forth” in Article 43.

Rabbi Zwiebel went on to make a number of suggestions for ensuring the welfare and safety of the children without imposing the major cost of compliance with the required staff-children ratios.

Other issues addressed by the Agudah leader included the need to establish objective standards for determining a child’s age (for the purposes of the program) based on when his or her birthday falls during the school year and the importance of establishing guidelines for defining an “elementary school.” 

Other Jewish advocates offering testimony at the hearing were Rabbi Moshe Dovid Niederman of the United Jewish Organizations of Williamsburg; Rabbi Asher Sebo of Yeshiva Torah Vodaath; and Mrs. Esther Boylan of Yeshiva Kehilath Yaakov-Pupa.  In addition, representatives of other faith-based school communities offered testimony as well.

The Board of Health is expected to vote on the proposed new Article 43 next month.  In the interim, the nonpublic school advocates will continue their work with Board members and Department officials to try to modify the proposal as necessary to protect the yeshiva community’s interests.