number of inspections with a serious violation as the highest level of violation declined from 9,130 in 2006 to 8,237 in 2007 to 6,972 in 2008. Non-emergency violations (or Class 3) are defined in 18 NYCRR section 413.3(f)(3)(iii) as any violations of regulatory requirements beyond the scope of imminent danger or serious violations. Approximately 20% of inspections resulted in only non-emergency violations being cited
from 2006 through 2008.
Programs that fail to maintain substantial compliance or endanger the health and safety of children may face enforcement actions taken against their license or registration in the form of a denial of renewal, revocation, suspension, limitation of license or registration, or fine. When an enforcement action is taken, the operators are informed of their due process rights and, unless the program is temporarily closed (suspended), the program may continue to operate. The total number of enforcement actions declined from 2006 to 2008 as shown in Table 5.
Cease and Desist Orders
Table 5. Enforcement actions taken. Source: OCFS Division of Legal Affairs, Bureau of Day Care Enforcement files.
Monitoring of the programs in an enforcement status continues until due process is exhausted or any settlement conditions are met. Every enforcement action undertaken by OCFS may be subject to an administrative hearing, at the provider’s request, which is held to find whether the proposed action is supported by a "preponderance of the evidence." Actions for which administrative hearings are held include denials of initial and renewal applications, suspensions, revocations, illegal operations, limitations of existing registrations/licenses, and the imposition of fines against providers.
The number of fair hearing decisions that were subject to court review pursuant to Article 78 of Civil Practice Law and Rules increased from 2006 to 2007, and remained above 200 in 2008 as shown in Table 6. The majority of appeals is withdrawn, settled, or found in favor of OCFS.
Table 6. Regulatory appeals process. Source: OCFS Division of Legal Affairs, Bureau of Day Care Enforcement files.
Appeal Found in Favor of OCFS
Appeal Found in Favor of Provider