Audit Report on the Hearings of the Office of Administrative Trials and Hearings on Notices of Violations Issued by the Department of Health and Mental Hygiene

Executive Summary

The objective of this audit was to determine whether the Health Hearings unit of the New York City (the City) Office of Administrative Trials and Hearings (OATH) provides hearings and adjudicates cases relating to Department of Health and Mental Hygiene (DOHMH) violations in a timely manner.  The Health Hearings unit at OATH is responsible for conducting hearings on Notices of Violations (NOVs) issued by DOHMH that are challenged by the NOV recipients (the respondents).  NOVs issued by DOHMH allege one or more violations of the City’s Health Code and/or other public health-related laws.  The violations cited in the NOVs are associated with various types of occupations and enterprises, including food service establishments, day care centers, day camps, swimming pools, street fairs, hospitals, barber shops, tattoo parlors, tanning salons, and funeral homes.  The overwhelming majority of these DOHMH cases received by OATH, approximately 90 percent, relate to food service establishments.

The process that results in a hearing before the Health Hearings unit begins at DOHMH after a DOHMH inspector discovers a violation.  The inspector must then identify the violation and enter a hearing date on the NOV, and issue it to the respondent.  If the respondent challenges an NOV, he or she must attend the scheduled hearing, which is required by regulation to be scheduled no less than 15 calendar days after the NOV is served.

By regulation, for OATH to conduct a hearing, a copy of the NOV served on the respondent must have been filed with OATH prior to the hearing date entered on the NOV.  Once an NOV has been filed, OATH’s responsibility begins.  OATH provides various ways for a respondent to contest an NOV—in person, by mail, by phone, or online.  At the conclusion of an in-person hearing, the Hearing Officer informs the respondent either that the decision will be issued that day or that it will be mailed to the respondent within one week.  According to OATH’s website, for a hearing conducted by mail, by phone or online, the respondent should receive the Hearing Officer’s decision within 30 days.

During the initial part of the scope period of this audit (from July 1, 2014, through June 30, 2015), each party could reschedule the hearing up to three times.  During the latter part of the audit scope period (from July 1, 2015, through December 31, 2015), each party could only reschedule the hearing date one time.  Any subsequent request for a new hearing date must be approved by a Hearing Officer.

According to the Mayor’s Management Report (MMR) for Fiscal Year 2015, the Health Hearings unit received a total of 37,776 cases, conducted 34,013 hearings, and rendered 23,731 decisions during the year.

Audit Findings and Conclusions

The audit revealed that OATH’s Health Hearings unit generally conducts hearings and adjudicates cases relating to DOHMH violations in a timely manner.  However, the audit also revealed that OATH needs to improve the scheduling of its hearings to decrease inefficiencies for all parties to its proceedings and to increase the protection of public health and safety.  In particular, OATH did not consistently reschedule hearings in a timely manner.  In addition, OATH did not properly handle most of the NOVs that were improperly filed by DOHMH after the scheduled hearing dates.  Also, OATH did not maintain adequate support for the performance data submitted for the MMR.  Further, there were certain weaknesses in the reliability of OATH’s Administrative Tribunal Automation System (ATAS) data and OATH lacked a user manual for ATAS, which is necessary to ensure that ATAS data is properly entered and used.  Finally, we identified additional scheduling weaknesses that resulted in hearings being scheduled fewer than 15 days after the service of an NOV and well past the 30-day goal for hearing dates.  Because the processes that contributed to these improper scheduling dates appear to relate to both OATH and DOHMH and the interaction between the two, we make one recommendation to the Mayor’s Office of Operations that it advise DOHMH and OATH to consider revising their hearing scheduling practices and procedures to minimize the possibility of improper hearing dates being set.

Audit Recommendations

To address these issues, this report makes a total of 10 recommendations, including the following:

• OATH should develop formal written standards to govern the timeframes for rescheduled hearings and clearly communicate these standards to its staff.
• OATH should monitor the filing of NOVs more closely to ensure that those NOVs filed after their scheduled hearing dates are rejected by ATAS and reported to DOHMH.
• OATH should generate and maintain adequate support for the performance data on the Health Hearings unit that is submitted for inclusion in the MMR.
• OATH should more closely monitor the accuracy of information recorded in ATAS related to manually filed NOVs to ensure that the information is complete and accurate.  OATH should develop and implement an ATAS user manual to ensure that ATAS data is entered and used properly.

Agency Response

In its response, OATH officials generally agreed with four of the audit’s nine recommendations addressed to OATH, partially agreed with one, disagreed with three and did not address one.  In addition, the Mayor’s Office of Operations did not respond to the one recommendation that was addressed to it.

Unfortunately, OATH’s response included misstatements and reflected a lack of understanding of the audit findings and recommendations.  A detailed discussion of OATH’s response is provided in the body of the report.