If you run a licensed or registered child care program in New York and OCFS sends you a Notice of Hearing, you are no longer in the “fix it with a Corrective Action Plan” phase—you are in a formal enforcement case that can decide whether you stay open.
These hearings are not exactly like court. The hearing officer (often referred to as an Administrative Law Judge/ALJ) controls the process, the strict court rules of evidence generally do not apply, and OCFS still must prove its case by a preponderance of the evidence.
Below is a practical guide to how OCFS child day care enforcement hearings work, what the regulations actually say about proof and evidence, and the preparation steps that most often move the needle at the hearing level.
If you are earlier in the process (violation notice/CAP stage), start here: Received an OCFS or DOH Violation? What Daycare Providers Should Do Next.
For the big-picture overview of OCFS/DOH enforcement and defenses, see: Protecting Your Daycare License in New York: A Complete Guide
1. What Kind of Hearing Is This? (OCFS “Enforcement Hearings” Under 18 NYCRR § 413.5)
OCFS child day care enforcement hearings are governed by the child day care hearing regulations—most commonly 18 NYCRR § 413.5 (enforcement hearings) and 18 NYCRR § 413.3 (enforcement actions, including deadlines to request a hearing).
In plain English: the hearing is your opportunity to challenge whether the violations occurred, whether they were properly proven, and what the agency should be allowed to do as a consequence (suspension, limitation, revocation, denial, termination, or fines).
2. Deadlines That Can Decide the Case (10 Days vs. 30 Days)
In daycare enforcement matters, missing a deadline can be fatal—even if you have a strong defense.
Two key deadlines appear in the regulations:
- Temporary suspension or limitation (“imminent danger” cases): You generally have 10 days from the date of written notice to request a hearing. (18 NYCRR § 413.3(d)(2)).
- Revocation/termination/denial/rejection: You generally have 30 days from receipt of the written notice to request a hearing. (18 NYCRR § 413.3(c)(4)).
If you do not request a hearing on a temporary suspension/limitation, the regulations state that the failure to request a hearing is prima facie evidence that the imminent-danger finding is valid, and the temporary action can remain in effect. (18 NYCRR § 413.3(d)(3)).
3. What the Notice of Hearing Must Tell You (and What to Look For Immediately)
OCFS must send a notice of hearing that identifies the proposed action and the charges. Under the hearing regulations, the notice should include, among other things:
- The date/time/place and how the hearing will be conducted
- The proposed action and the charges (including the statutes/regulations and a brief statement of facts)
- Your opportunity to present evidence and arguments
- Your right to counsel/representation
- Your right to cross-examine witnesses and examine documents offered into evidence
- • That witnesses will be sworn and the hearing will be recorded verbatim
These requirements appear in 18 NYCRR § 413.5(f)(1).
Practical tip: When the statement of charges is vague or missing key facts, you may be able to ask for a more definite and detailed statement (see Section 5 below). Vague charges make it harder to prepare—and that is precisely why the regulation provides a mechanism to force more detail.
4. Do You Need to File an “Answer”? Often Yes (and It’s Due 10 Days Before the Hearing Date)
Many daycare providers are surprised to learn there is an “answer” concept in the regulations.
For enforcement hearings about denial/rejection/termination/revocation/limitation/suspension, the regulations provide that you may file a written answer and that it must be filed with the office and hearing officer not less than 10 days prior to the hearing date. (18 NYCRR § 413.5(g)(1)).
In fine cases, the regulations require a written response that describes corrective action and provides relevant written information in the program’s possession, filed not less than 10 days prior to the hearing. (18 NYCRR § 413.5(g)(2)).
What actually moves the ALJ here is clarity. A good answer/response frames what is disputed, what is admitted (if anything), and what your defenses/mitigation themes are. It also helps you avoid getting ambushed by “new” issues mid-hearing.
5. Discovery Is Limited—But You Still Have Tools
Unlike civil court, formal discovery does not apply in these enforcement hearings. The regulation says:
- The pleadings are generally the notice of hearing and your answer.
- Neither formal discovery nor bills of particulars apply.
- However, a more definite and detailed statement must be furnished when the hearing officer finds the charges are not adequately described.
- Depositions before the hearing are generally not permitted except in special circumstances.
These points are addressed in 18 NYCRR § 413.5(h).
What actually moves the needle in a “limited discovery” setting is organization and targeted requests. If you cannot force broad discovery, you can still:
- Pin OCFS down to the actual regulatory elements and facts
- Prepare to cross-examine using the documents you do have
- Present clean, contemporaneous records that undercut the agency narrative
6. The Hearing Officer’s Powers (and Why Procedure Matters)
The hearing is conducted by a hearing officer who is an attorney employed by OCFS for that purpose and who has not been involved in the matter. (18 NYCRR § 413.5(j)(1)).
The hearing officer has broad authority to regulate the hearing, rule on adjournments and objections, and preserve due process. (18 NYCRR § 413.5(j)(1)).
Translation: procedure is not a technicality. A provider can have good facts and still lose because the proof is disorganized, objections are not made, exhibits aren’t marked, or key issues are not preserved for review.
7. Evidence Rules and Burden of Proof (This Is Where Many Providers Lose the Plot)
Here is the most important “hearing mechanics” rule to understand:
- The strict court rules of evidence do not apply (privileges still apply).
- The hearing officer may exclude testimony or other evidence that is irrelevant or unduly repetitious.
- OCFS has the burden of proof to show the charges are supported by a preponderance of the evidence.
That language comes directly from 18 NYCRR § 413.5(k)(2).
What a “preponderance” means in practice: OCFS must show it is more likely than not that each charged violation occurred. If the evidence is evenly balanced, the party with the burden (OCFS) should lose on that issue.
Strategic implication: You do not always need to prove you were perfect. You often win by showing the agency proof is unreliable, inconsistent, incomplete, or focused on the wrong regulatory element.
8. Cross-Examination and Credibility: What Actually Moves an ALJ
The regulations expressly recognize your right to cross-examine witnesses and to examine documents or items offered into evidence. (18 NYCRR § 413.5(f)(1)(vi); 18 NYCRR § 413.5(k)(4)).
In real daycare hearings, credibility is everything. The hearing officer is deciding what happened based on testimony and documents. The providers who do best tend to:
- Stay focused on the elements (what must be proven)
- Use contemporaneous records (attendance, ratios, incident reports, staff schedules)
- Offer credible witnesses who can explain the “why” behind a record or event
- Avoid emotional or argumentative testimony that sounds like excuses
- Present remediation as a safety upgrade, not a confession
Practical cross-exam themes that frequently matter:
- Timing: What did the inspector actually see, and at what time?
- Observation limits: Was the witness in position to observe what they claim?
- Document accuracy: Are the notes complete, and do they match photos/logs?
- Standards: Is the witness applying the correct rule (ratio, capacity, supervision, egress)?
- Consistency: Compare testimony to prior reports, emails, or inspection notes.
9. Your Exhibit Binder: The “Silent Witness” That Wins Cases
Because the hearing decision must be based exclusively on the hearing record (18 NYCRR § 413.5(n); 18 NYCRR § 413.5(o)), your documents matter as much as your testimony.
A strong daycare hearing binder typically includes:
- A one-page timeline of events (inspection dates, alleged incidents, corrective actions)
- The Notice of Hearing / statement of charges (tabbed, highlighted)
- Your written answer/response (if filed) and any correspondence with OCFS
- Policies and procedures in effect at the time (supervision, ratios, sign-in/out, transportation, discipline)
- Attendance logs / sign-in-out / staffing schedules for the relevant dates
- Training certificates, CPR/First Aid, background clearance documentation (as applicable)
- Photos/videos with dates (repairs, egress, sanitation, classroom layout)
- Repair invoices, permits, inspection sign-offs (fire, building, DOH/DOHMH where relevant)
- Corrective Action Plan submissions and proof of completion
- Witness statements (signed, dated) and resumes/qualifications if helpful
What moves the ALJ is when your records are more reliable than the agency’s assumptions. Even where a technical violation happened, documentation of immediate correction and strong compliance systems can change outcomes on penalties and continuing operations (and it protects your record for appeal).
10. The Record Is Everything (Recording, Transcript, Objections, Offers of Proof)
OCFS enforcement hearings are recorded verbatim. (18 NYCRR § 413.5(f)(1)(viii); 18 NYCRR § 413.5(m)(1)).
The regulation also spells out what the record includes, such as exhibits received into evidence, objections and rulings, and offers of proof. (18 NYCRR § 413.5(m)(2)).
Why this matters: if you later need judicial review (Article 78), you cannot rely on what you “meant to say.” The court looks at the administrative record.
If you are considering an appeal after an adverse decision, see: New York State OCFS Article 78 Appeal Lawyer
11. What Happens After the Hearing?
After the hearing concludes, the hearing officer submits a report with findings of fact and conclusions of law, and a recommended and/or final decision. Findings must be based exclusively on the record. (18 NYCRR § 413.5(n)).
The final decision must be in writing and should describe the issues, relevant facts, applicable law, findings, reasons, and any directed action. (18 NYCRR § 413.5(o)(1)).
A copy of the decision is mailed with notice of the right to judicial review under CPLR Article 78. (18 NYCRR § 413.5(o)(2)).
12. When to Call a Daycare Defense Attorney
You should speak with counsel immediately if:
- You received a temporary suspension or limitation notice (10-day hearing-request clock)
- You received a Notice of Hearing seeking revocation/termination/denial or fines
- The statement of charges is vague or seems to misstate what happened
- The case involves an alleged injury, supervision lapse, ratio/capacity issue, or inspector access dispute
Early strategy helps you meet deadlines, frame the issues, and build a record that can win at the hearing level—or position the case for appeal.
Learn more about our daycare defense representation here: Brooklyn Daycare Defense Attorney (OCFS hearings) and Child Care License Defense.
To speak with the firm, contact us here: https://gilmerlegal.com/contact/
Call (718) 864-2011.
FAQ (for Featured Snippets)
Q: Who has the burden of proof at an OCFS daycare enforcement hearing?
A: OCFS has the burden to prove the charged violations by a preponderance of the evidence. (18 NYCRR § 413.5(k)(2)).
Q: Do the strict court rules of evidence apply in an OCFS daycare hearing?
A: No. The rules of evidence as applied in court generally do not apply, although legal privileges still apply, and the hearing officer may exclude irrelevant or unduly repetitious evidence. (18 NYCRR § 413.5(k)(2)).
Q: Can I cross-examine OCFS witnesses and inspectors?
A: Yes. The notice of hearing must advise you of the right to cross-examine witnesses and to examine documents offered into evidence, and the hearing rules recognize those rights. (18 NYCRR § 413.5(f)(1)(vi); 18 NYCRR § 413.5(k)(4)).
Q: Is there discovery in an OCFS child care license hearing?
A: Formal discovery does not apply, but you can request a more definite and detailed statement if the charges are not adequately described, and depositions are generally not permitted absent special circumstances. (18 NYCRR § 413.5(h)).
Q: Do I have to file an answer before the hearing?
A: In many cases you may file a written answer, and the regulation provides it must be filed not less than 10 days before the hearing date. Fine cases require a written response with corrective-action information. (18 NYCRR § 413.5(g)).
Q: Is the hearing recorded, and can I get a transcript?
A: Yes. The hearing is recorded verbatim. You can request the transcript/record, and OCFS may charge up to its cost for preparation; if a private contractor recorded the hearing, transcript arrangements are made with the contractor. (18 NYCRR § 413.5(m)).
Q: How long do I have to request a hearing after suspension or revocation?
A: For temporary suspension/limitation notices, you generally have 10 days to request a hearing. For revocation/termination/denial/rejection notices, you generally have 30 days. (18 NYCRR § 413.3(d)(2) and § 413.3(c)(4)).
