Day Care Enforcement FAQ

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Frequently Asked Questions Regarding Fair Hearings Pursuant to SSL § 390 and 18 NYCRR § 413 Day Care Enforcement

Acronyms and Abbreviations

• ALJ - Administrative Law Judge
• BSH - Bureau of Special Hearings
• OCFS - Office of Children and Family Services
• OTDA - Office of Temporary and Disability Assistance

Questions

What is a day care enforcement hearing and how is it initiated?

Whenever the Office of Child and Family Services, Division of Child Care Services (the Office) proposes to deny, limit, suspend, revoke, or terminate a license or registration or to impose a civil penalty (fine) the holder of said license or registration (the Provider) is entitled to appeal that determination to the New York State Office of Children and Family Services, Special Hearings Bureau (BSH). An individual alleged to be operating a day care program illegally (without a license or registration) is also entitled to request a hearing to contest an action taken by the Office. These hearings are called Fair Hearings or Administrative Hearings and are scheduled before an independent Administrative Law Judge (ALJ) designated by the Commissioner of the New York State Office of Children and Family Services.

What kind of notice do I receive if an enforcement action is taken against me?

Any enforcement action taken by the Office must be on notice to the Provider or holder of the registration or license affected or the individual deemed to be operating illegally. This notice must be in writing hand delivered to the Provider or sent by Certified or U.S. Mail to the address on file with the Office. The notice letter must inform the Provider of the enforcement determination, the regulatory violations that are cited as the basis for the enforcement action, a description of the facts or circumstances that the violations are based on and information regarding how to request a fair hearing to challenge the action taken by the Office. The notice letter is also referred to as the “charging” letter.

What are the most common reasons for a day care enforcement action?

Pursuant to SSL § 390 and the applicable regulations governing day care (§§ 413, 414, 415, 416, 417 and 418 (18 NYCRR) any violation of applicable statutes or regulations shall be a basis to deny, limit, suspend, revoke, or terminate a license or registration. There are various reasons why the Office will make an enforcement determination regarding a registered or licensed day care provider or someone deemed to be operating a day care program without a license or registration. Some common reasons are as follows:

• A serious incident or condition leading to the suspension of a license or registration.
• Health and/or Safety concerns regarding the day care program.
• Any serious statutory or regulatory violations.
• Repeated or uncorrected violations of applicable statutes and regulations.
• Abuse or maltreatment of a child in care.
• Failure to provide adequate supervision to children.
• Failure of the Provider, assistants and staff to complete all training requirements.
• Failure to operate in compliance with applicable statues and regulations.
• Failure to fully cooperate with Office staff during all inspections and complaint investigations.
• Threats of harm against Office staff or authorized Agency staff.

What is the appellant’s right to appeal a day care enforcement action?

Pursuant to SSL § 390 and 18 NYCRR § 413, (3) Before a day care license or registration is revoked, terminated or limited, when a license or registration has been suspended, or when an application for a license or registration is denied or rejected, the applicant for or holder of such license or registration is entitled to a hearing to appeal the enforcement action. The request for a hearing regarding a revocation, termination, limitation, denial or rejection of a license or registration must be made in writing within 30 days of the receipt of written notice of the revocation, termination, denial or rejection. Any request for a hearing to contest the suspension of a registration or license must be made within 10 days of the receipt of the suspension notice.

See the Special Hearings section of the Child Care Information for Professionals page for more detailed information.

How do I request a day care enforcement hearing?

When requesting a hearing, the letter to the Bureau of Special Hearings (BSH) should contain the following:

• Provider’s name, address, daytime phone number and requestor’s email address.
• The name and address of the day care program or facility at issue.
• The license or registration number assigned to the day care program or facility.
• A copy of the Enforcement Notice the Provider received from the Office.

See General FAQ for more information.

Will I be able to find out what evidence will be presented at the hearing?

Our hearings are not bound by the same rules and procedures that apply in court trials. There is no provision for “discovery” in our hearings to demand documents or testimony in advance from the Office, nor may the Office demand such evidence from you in advance. However, we do ask that both sides provide to the other side well before the hearing any documents they intend to offer into evidence and a witness list. This gives you the opportunity to prepare for defending yourself at the hearing.

How will my hearing be conducted?

Some hearings are started with a conference between the hearing officer (also called the Administrative Law Judge), the Office and the Day Care provider along with their attorneys. The purpose of the conference is to discuss what evidence will be presented, whether the hearing will be held with everyone present in one room or be held using virtual technology where some or all participants appear by telephone or video, and to set a time and date for the actual hearing. You do not need to bring your witnesses if the notice you receive says your case is scheduled for a conference.

See General FAQ for more information.

Who has the burden of proof at the hearing?

The Office has the burden of proving the charges stated in the charging letter and further that it did not act arbitrarily, capriciously or beyond the scope of its authority in taking the enforcement action in question. The enforcement action brought by the Office against your day care may be sustained if it is determined after the hearing that Office has proven by a fair preponderance of evidence any of the alleged violations of applicable statutes or regulations stated in the charging letter.

What issues are decided at the hearing?

The issues to be addressed at the hearing are only those alleged violations cited in the notice or charging letter. The purpose of the hearing is to determine whether or not the Office’s enforcement action is a proper exercise of the Office’s supervisory and enforcement powers. The standard of review is whether the enforcement determination was “arbitrary and capricious.” Under SSL § 400 “arbitrary and capricious” means lacking in substantial evidence. In addition, under N.Y. CPLR § 7083, the arbitrary action is “action without sound basis in reason and is generally taken without regard to the facts.

How will the agency present its evidence?

In day care hearings the evidence presented is generally limited to that which is relevant to the current or appropriate license or registration period.

See General FAQ for more information.

When can I review the evidence that will be offered into evidence by the investigating agency?

Pursuant to OCFS regulations regarding your hearing, you are entitled to one copy of any documentary evidence the Office intends to introduce as exhibits at the hearing. These documents will be provided to you before your hearing or at the start of your hearing.