As a highly regulated small business owner, I realize the need to protect one’s license at all costs. In my twenty years of practicing law, I have successfully represented multiple daycare facilities in license revocation and suspension proceedings. I represent these facilities in hearings with the Office of Children’s and Family Services in front of an Administrative Law Judge and appeal decisions made in these hearings in Article 78 proceedings. I also represent daycare providers accused of abuse or neglect by the Administration for Children’s Services (ACS). An abuse or neglect finding by ACS against a facility can lead to that business being shut down. If your facility faces any of these issues, contact me about daycare representation in Brooklyn, New York, today.
Day Care Revocation and Suspension Defense
As a daycare license suspension attorney in Brooklyn, New York, I will fight for you to keep your license and your livelihood. The Office of Children and Family Services (OCFS) is authorized by statute and regulation to oversee providers. Sometimes OCFS wrongfully accuses a facility of violating a regulation or imposes a penalty against a provider that is far too harsh. With years of experience providing daycare representation in Brooklyn, New York, I am fully familiar with the law that applies to to suspension and revocation hearings.
New York City Day Care Revocations and Suspensions
Getting a daycare license can be difficult. Once you finally obtain one, you might feel like you’re all set. However, it’s important to understand that getting a license is just the beginning. You must comply with New York’s many laws and regulations to ensure your business stays up and running.
Types of Licenses
In New York, the rules applicable to running a daycare center and keeping your license depend on the type of care center you’re running. There are several different types of childcare centers available, including:
- Group child care based in a daycare center;
- School-based daycare services;
- Family daycare services based in a home or residence, with an eight-child limit; and
- Group family daycare services based in a home or residence, with a 16-child limit.
Each of these facilities is subject to different licenses, rules, and regulations. Depending on which one you’re running, you may have varied obligations. For example, a school-based daycare service will have different requirements than a residential one.
Reasons for Daycare License Revocation or Suspension
Daycare providers are subject to the New York social services law and health and sanitation standards. Thus, there are many potential reasons a daycare provider could face suspension or revocation of their license. Some reasons a daycare provider could have their license suspended or revoked include the following:
- Child abuse or neglect accusations,
- Failure to meet sanitation rules,
- Lack of supervision or improper child-to-staff ratio,
- Caring for more children than your license allows,
- Conviction of certain crimes that are relevant to the work, or
- Failure of an OFCS inspection of the facility.
OCFS may immediately and temporarily suspend a license without a hearing if there’s an imminent threat to the health and safety of a child or the public. Otherwise, OCFS will investigate a complaint and decide whether to recommend license suspension or revocation. Daycare providers have the right to a hearing before an Administrative Law Judge to challenge OCFS’s decision.
The Law Applicable to Daycare License Suspensions and Revocations
The Court will determine if the agency, in this case OCFS, at the hearing before an Administrative Law Judge, made its decision based upon substantial evidence. The substantial evidence standard is met by the existence of some credible evidence. If a court finds that the day care violated the law, OCFS has the authority to temporarily suspend a facility’s registration without a hearing based on “a finding that the public health, or an individual’s safety or welfare, are in imminent danger” (Social Services Law § 390). On the other hand, “[a]ny violation of applicable statutes or regulations shall be a basis to deny, limit, suspend, revoke, or terminate a license or registration” Social Services Law § 390.
In the event a daycare license is suspended or revoked, an administrative determination will only be set aside “if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.”
Oftentimes, violations of the New York Code are easy to prove by OCFS because they are self-explanatory. Other times there may be a technicality that can be used to show that a violation indeed did not occur. I will analyze the offenses against you and see if there are any technicalities you can win on.
Fighting Revocation Even if You Violated the Law
Perhaps the most important question that pops up on appeals is whether the penalty of revocation is fair and proportionate if a violation of the law is found.
It is important to hire an experienced daycare license revocation attorney in Brooklyn, New York, like myself, to create a narrative around the “fair and proportionate” issue because it can be the difference between you staying in business or not. In my experience, I have settled cases without the need for a hearing by showing that the penalty of revocation is unfair and that the more appropriate penalty would be a fine. The fine can’t be disproportionate to the offense as well, and in some circumstances, a fine may not be justified even if there was a violation of the law.
In the Matter of Katrese Lewis, the Facility was found to have violated the regulation requiring continuous supervision of children. In this case, there was no doubt that the Facility violated the regulation, but there were mitigating circumstances. Here the children were supposed to be picked up from school by one of the facility’s approved providers but because of a family emergency was unable to meet the children, ages 13 and 11. The children walked to the home of the provider and were left there unattended. Despite this, the provider maintained constant contact with the children by text and arranged to have the children picked up by a friend. The provider had no prior violations in seven years of operation. Here, it was found that the penalty of revocation was disproportionate and shocked the conscious because although a statute was violated there were extenuating circumstances. Furthermore, the children were never in danger.
As you can see, it is important to show mitigating factors and extenuating circumstances to avoid the harsh penalty of revocation even if you have violated the law. I have successfully done this on behalf of many clients in my twenty years of practice as a New York daycare license revocation attorney. I create a narrative that puts the Facility in the best light, by showing that the penalty imposed is grave (for many a loss of income) in the context of what was done by the Facility.
Administration for Children’s Services (ACS) Defense
When a daycare owner is accused of abuse or neglect, the owner can be prevented from working with children for many years. This can result in the closing of a facility, taking away one’s precious livelihood. The false allegations of abuse or neglect can come from a disgruntled parent, or you may have just made a mistake. Either way, I will fight to clear your name.
As an ACS Defense Attorney, I have twenty years of experience in representing daycare centers. If ACS is knocking on your door, it would be wise to give my office a call. When an anonymous complaint comes into the SCR alleging you abused or neglected someone, ACS under the vast majority of circumstances, will start a case and initiate a 60-day investigation. They will come to your facility interview you and your staff, and inspect the premises. They may also interview the parents and child. They must issue a letter notifying you of the investigation at the beginning of the investigation. After the sixty-day period, they will make their findings via a written report, either saying you have been indicated or the report is unfounded. You will be entitled to a copy of this letter.
If you have been indicated, you have 90 days to appeal the decision and request that the report be sealed. During this time, you will be able to work.
If you have been indicated and you start an appeal, OCFS will conduct an administrative review of your case to determine if they can close the matter without the need for a hearing. Although this is done, OCFS doesn’t do due this frequently. It is important for you to hire a New York ACS defense lawyer like myself to present evidence on your behalf when you initially appeal the case because your chances will be better for getting it dismissed before going to a hearing.
If you go to a hearing, you will conference the case with the Administrative Law Judge and the ACS attorney. Here it will be discussed whether the case can be settled and if ACS needs any information from you to help their decision in sealing the case. You will request a copy of your ACS file if you haven’t received it already so you can see the specifics of the charges against you.
If you can’t settle the matter at the conference, it will be set down for a hearing. Here you will present evidence, examine and cross-examine witnesses, and have an opportunity to poke holes in the ACS investigation notes.
ACS will have the burden of proof going forward and they will have to prove by the preponderance of the evidence that you committed abuse or neglect. If ACS meets its burden, OCFS will retain the report, and your name may be listed in the Central Registry. If you win, the case will be sealed.
There is an exception to your name being placed in the registry even if you were found to have committed neglect or abuse. If the Administrative Law Judge finds that the neglect you committed is not relevant or reasonably related to employment, licensure ,or certification in child care, foster care, and adoption. This finding will also lead to the sealing of your records.
The reasonable and relevant finding can be a lifesaver for many in a daycare business. Sometimes mistakes are made that may have been neglectful, but the Judge may find that there are mitigating circumstances to this neglect. It is best to hire an experienced ACS Defense Attorney like myself to make the arguments as to whether the finding is relevant and reasonably related to your employment.
If your daycare center is facing license revocation or suspension or ACS has filed a case against you for abuse or neglect, contact this office for daycare representation in Brooklyn, New York, at 718-568-5214 for a free consultation.