We knew that the OCFS and the regulatory system were the unspoken cause and reason for the childcare crisis but we solidified that sentiment today with the discovery of an existing flaw in the system. This message is being sent to politicians statewide seeking intervention to repair what is a breach in the state's checks and balances system.
In 1989, Governor Cuomo signed Executive Order 131 that provided rules for agencies that conduct adjudicatory proceedings, including the OCFS. The order required that agencies create an Administrative Adjudication Plan and submit it to the Office of Business Permits and Regulatory Assistance (OBPRA) for oversight. The OBPRA also would be responsible for reviewing complaints from an individual or an organization that an agency’s system of administrative adjudication was inconsistent with the provisions of the order. Agencies were required to submit, biannually after December 1, 1990, a report that sets forth the steps taken by the agency to comply with the order and include statistics on Article 78 proceedings brought against the agency including the outcome of such proceedings.
From what we can find with our limited resources, it appears the OBPRA was dissolved around 1995 and the responsibility of oversight was shifted to the Governor’s Office of Regulatory Reform (GORR). GORR ceased operations April 1, 2011 and it does not appear any entity has been responsible for the direct oversight of the OCFS (or monitoring our protections as the businesses being regulated) since then and for the last 13 years. In the January 30, 1991 edition of the New York State Register, the New York State Department of Social Services (NYSDSS) announced the developed of its Administrative Adjudication Plan in accordance with Governor Mario M. Cuomo's Executive Order No. 131 which continues to govern administrative adjudicatory proceedings (such as Fair Hearings) of NYSDSS's successor agencies after the 1997 welfare reform, the Office of Temporary and Disability Assistance (OTDA) and Office of Children and Family Services (OCFS), which together comprise the New York State Department of Family Assistance (NYSDFA). Both successor agencies have stopped producing biennial reports in 2018 and 2014 respectively in the absence of an oversight agency.
From what we can tell, Executive Order 131 remains in effect and has been continued by at least Governors Pataki, Spitzer, Paterson, and Cuomo, though the agency responsible for the oversight ceases to exist. Childcare providers in NYC are currently regulated by the Department of Health, and childcare providers in the rest of NYS are regulated by the OCFS. The existing regulations, subjectivity, punitive consumer education reporting system, and violation procedures of the OCFS are in dire need of oversight as they have evolved to force many quality providers out of the industry. Currently, the OCFS is currently non-compliant with the ACF for Equal Access Affordability, Payment Practices, and Inspection Reports, and is currently on a Corrective Action Plan (CAP) for an error rate over 10% for fiscal management and internal control practices being ineffective. The Office of Children and Family Services needs oversight on a state-level as their current practices are infringing on the rights of both parents and providers and have created the childcare crisis we are experiencing.