N.Y. Comp. Codes R. & Regs. tit. 18 § 413.5

Current through Register Vol. 46, No. 25, June 18, 2024

Section 413.5 - Enforcement hearings

(a) Before any child care license or registration is suspended or revoked, or when an application for such license or registration is denied, or before civil penalties can be imposed the applicant, licensee or registrant for such registration or license is entitled to a hearing before the office, pursuant to Social Services Law section 22 and these regulations. However, a license or registration shall be temporarily suspended or limited without a hearing upon written notice to the licensee or registrant following a finding that the public health, or an individual's safety or welfare, are in imminent danger based on a finding, in accordance with the regulations of the office, that:

(1) serious physical injury or death of a child has occurred;

(2) a condition occurred or exists that places a child at risk of serious physical, mental or emotional harm, or risk of death, serious or protracted disfigurement or protracted impairment of physical or emotional health which may include, but not be limited to:

(i) inadequate supervision;

(ii) overcapacity;

(iii) inappropriate staff-to-child ratios;

(iv) corporal punishment of a child;

(v) failure to obtain appropriate medical treatment for a child, which may include the failure to call 911;

(vi) blocked exits or means of egress; or

(vii) failure to maintain adequate sanitation, heating, cooling or ventilation conditions within the program; or

(3) the program has prevented the office from effectively assessing whether the public health, or an individual's safety or welfare, are in imminent danger as a result of a condition that occurred or exists in the program, by taking actions, which may include, but not be limited to:

(i) refusal to provide inspection staff with access to the child day care program, premise or children, as is otherwise required or authorized by law during the program's hours of operation; or

(ii) use of force or verbal or written threats of force made against inspection staff or staff of the office.

(b)Suspension or limitation.

(1) If a licensee or registrant requests a hearing to contest the temporary suspension or limitation, such hearing must be scheduled to commence as soon as possible but in no event later than 30 days after the receipt of the request by the office.

(2) Suspension shall continue until the condition requiring suspension or limitation is corrected or until a hearing decision has been issued.

(3) If the office determines after a hearing that the temporary suspension or limitation was proper, such suspension or limitation shall be extended until the condition requiring suspension or limitation has been corrected or until the license or registration has been revoked.

(c)Revocation or denial.

(1) If a licensee or registrant requests a hearing to contest the revocation or denial of an application, such hearing must be scheduled to commence within a reasonable time period.

(d)Cease and desist.

(1) Any person who is directed to cease and desist operations pursuant to section 390(3)(d) of the Social Services Law shall be entitled to a hearing before the office. Upon request, a hearing must be scheduled to commence as soon as possible but in no event later than 30 days after receipt of the request by the office.

(2) A person shall not operate a day care program after being directed to cease and desist operations, regardless of whether a hearing is requested.

(3) If the person does not cease operations, the office may impose a civil penalty pursuant to subdivision 11 of section 390 of the Social Services Law, seek an injunction pursuant to section 391 of the Social Services Law, refer the person to law enforcement, including district attorneys, pursuant to section 413.3(a)(11) of this Part and Penal Law section 260.31, or all three.

(e)Fines.

For a hearing held to assess a fine against a licensee, registrant, or unlicensed-provider or unregistered-provider, the notice of hearing must specify the date, time and place of the hearing, and the manner in which the hearing will be conducted, and must include a statement of charges.

(1) The statement of charges must specify:

(i) the existence of a violation or violations and the statute(s) or regulation(s) with which the program failed to comply;

(ii) the maximum daily fine which may be imposed and the date upon which initial notice of potential liability for payment of such a fine was given;

(iii) the corrective action which must be taken to rectify the violation; and

(iv) if applicable, a statement that the office will seek imposition of a fine regardless of rectification.

(2) The notice of hearing sent pursuant to this paragraph must be delivered in person or by certified mail at least 30 days prior to the date of the hearing. The notice must be sent to:

(i) the child day care facility; and

(ii) the licensee or registrant, who includes any person known to the office who, by reason of direct or indirect ownership of the child day care facility, has the ability to direct the facility to take corrective action.

(f)Notice of hearing.

(1) For a hearing held pursuant to this section, the notice must be sent to the licensee or registrant, and must specify:

(i) the date, time and place of the hearing;

(ii) the manner in which the hearing will be conducted;

(iii) the proposed action and the charges which are the basis for the proposed action. The charges must specify the statutes, rules and regulations with which the licensee or registrant failed to comply and must include a brief statement of the facts pertaining to each violation;

(iv) of his or her opportunity to present evidence and arguments on issues of fact and law at the hearing;

(v) of his or her right to be represented by an attorney or other representative of his or her choice;

(vi) of his or her right to cross-examine witnesses and to examine any document or item offered into evidence;

(vii) that all witnesses will be sworn; and

(viii) that the hearing will be recorded verbatim.

(g)Answer.

(1) The holder of the license or registration or the applicant for initial licensure or registration who has requested a hearing regarding the denial, rejection, termination, revocation, limitation or suspension of a license or registration may file an answer to the allegations contained in a notice of the hearing. The answer must be in writing and must be filed with the office and hearing officer not less than 10 days prior to the date of hearing.

(2) Any child day care licensee or registrant or unlicensed-provider or unregistered- provider who is advised of the imposition of a potential fine pursuant to this Part must respond in writing to the charges set forth in the notice of hearing. Such response must include a description of any corrective action taken and copies of all written information in the possession of, or maintained by the program which is relevant to the charges and may be unknown to the office. Such response must be filed with the office and hearing officer not less than 10 days prior to the date of hearing.

(h)Pleadings, depositions and discovery.

(1) The pleadings in an enforcement action will consist of the notice of hearing and answer.

(2) Neither formal discovery procedures nor formal procedures for bills of particulars will apply. However, upon application by the applicant, licensee, registrant, unlicensed-provider or unregistered-provider, operating or seeking to operate the child day care program, a more definite and detailed statement will be furnished whenever the hearing officer finds that the statement of charges does not adequately describe such charges. Any statement furnished will be deemed, in all respects, to be part of the original notice of hearing. The hearing officer may grant additional time to respond to the notice of hearing when an application for a more definite and detailed statement has been granted.

(3) Disclosure of evidence by deposition of a party to the hearing or any officer, director, member, agent or employee of a party prior to the hearing will not be permitted, except where the hearing officer determines that special circumstances, as set forth in section 3101(a)(3) of the Civil Practice Law and Rules, require the taking of testimony by deposition.

(i)Who may be present at hearing; authorization of representative.

(1) The applicant or licensee, registrant, unlicensed-provider, unregistered-provider, his or her representative or representatives, counsel or other representatives of the office, witnesses of both parties, and any person who may be called by the hearing officer may be present at the hearing, together with such other persons as may be admitted by the hearing officer in his or her discretion. Upon his or her own application, or upon the application of either party, the hearing officer may exclude potential witnesses and those who have given prior testimony from the hearing during the testimony of other witnesses.

(2) An individual, other than an attorney, representing the applicant or licensee, registrant, unlicensed-provider, unregistered-provider must have an appropriate written authorization for representation signed by such person or by an officer, member or director of the corporation, partnership or other organization applying or operating the program when the applicant licensee, registrant, unlicensed-provider, unregistered-provider is not a natural person.

(j)Hearing officer.

(1) The hearing will be conducted by a hearing officer who is an attorney employed by the office for that purpose and who has not been involved in any way with the matter. He or she will have all the powers conferred by law and regulations of the office to administer oaths, issue subpoenas, require the production of records and the attendance of witnesses, rule upon requests for adjournment, rule upon objections to the introduction of evidence, and to otherwise regulate the hearing, preserve requirements of due process and effectuate the purpose and provisions of applicable law and regulations.

(k)Conduct of hearing; rights of parties.

(1) The hearing officer will preside and will make all procedural rulings. He or she will make an opening statement describing the nature of the proceedings, the issues and the manner in which the hearing will be conducted.

(2) The rules of evidence as applied in a court of law will not apply, except that privileges recognized by law will be given effect. The hearing officer may exclude testimony or other evidence which is irrelevant or unduly repetitious. The burden of proof at such hearings shall be on the office to show that the charges are supported by a preponderance of the evidence.

(3) All testimony will be given under oath or affirmation.

(4) The licensee, registrant, unlicensed-provider, unregistered-provider will be entitled to be represented by an attorney or other representative of the his or her choice, to have witnesses give testimony, and to otherwise present relevant and material evidence on his or her behalf, to cross-examine witnesses, and to examine any document or item offered into evidence.

(5) At the discretion of the hearing officer, the licensee, registrant, unlicensed-provider, unregistered-provider may be permitted to attempt to prove by a preponderance of the evidence any matter not included in his or her answer.

(l)Adjournment.

(1) The hearing may be adjourned only for good cause by the hearing officer on his or her own application or at the request of either party.

(m)Hearing record.

(1) The hearing will be recorded verbatim by either the office or a private contractor. Where the hearing is recorded by other than a private contractor, on request made upon the office by any party to a hearing, the office will prepare the record, together with any transcript of the proceedings, and will furnish a copy of the record and transcript or any part thereof to any party as requested. The office is authorized to charge not more than its cost for the preparation of the transcript. Where a private contractor records the hearing, the party requesting a transcript must make all arrangements for the obtainment thereof directly with the private contractor.

(2) The record. The record will include:

(i) all notices, pleadings and intermediate rulings;

(ii) the transcript or recording of the hearing;

(iii) exhibits received into evidence;

(iv) matters officially noticed;

(v) questions and offers of proof, objections thereto and rulings thereon;

(vi) any proposed findings and exceptions;

(vii) any report rendered by the hearing officer; and

(viii) any request for disqualification of a hearing officer.

(n)Hearing report.

After the hearing has been concluded, the hearing officer will submit a report to the Commissioner of the Office or his or her designee containing findings of fact, conclusions of law, and a recommended and/or final decision. Findings of fact will be based exclusively on the record of the hearing.

(1) Examination of the record after a hearing. Upon reasonable notice to the Office, the record of the hearing may be examined by any party to the hearing at the offices of the Bureau of Special Hearings during regular business hours or by the Office providing a copy to the requesting party, whichever is deemed more practicable by the Office.

(o)Decision after a hearing.

The hearing decision will be made and issued by the commissioner or by a member of his or her staff designated by him or her to consider and make such decisions and must be based exclusively on the record of the hearing.

(1) The decision will be in writing and will describe the issues, recite the relevant facts and pertinent provisions of law and regulations, make appropriate findings, determine the issues, state reasons for the determination and, when appropriate, direct specific action.

(2) A copy of such decision will be mailed to the respective applicant, licensee or registrant and his or her attorney or other designated hearing representative, together with a notice of the right to judicial review in accordance with article 78 of the Civil Practice Law and Rules.

(3) If the hearing before the office determines that an application for renewal of a license or registration should have been granted, the renewed license or registration will be dated retroactively to the date of the expiration of the prior license or registration.

(4) In the event the decision is adverse to the applicant, licensee or registrant, he or she must forthwith comply with the specific action ordered in the decision.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 413.5

Amended New York State Register September 28, 2016/Volume XXXVIII, Issue 39, eff. 9/28/2016

Amended New York State Register June 3, 2020/Volume XLII, Issue 22, eff.6/3/2020

Amended New York State Register April 21, 2021/Volume XLIII, Issue 16, eff. 4/21/2021