Audit Report on the New York City Department of Health and Mental Hygiene’s Follow-up on Health Code Violations at Restaurants

EXECUTIVE SUMMARY

The objective of this audit was to determine whether the Department of Health and Mental Hygiene (DOHMH) has adequate controls to ensure that food service establishments resolve health code violations in a timely manner.

DOHMH’s Bureau of Food Safety and Community Sanitation (BFSCS) is directly responsible for enforcing the New York State (NYS) Public Health Law¹ and Sanitary Code,² the New York City Health Code,³ and related rules governing food service and handling.  Accordingly, DOHMH inspects approximately 25,000 food service establishments (FSEs, also referred to as restaurants in this report) each year to monitor compliance with food safety regulations.

City rules require each FSE to undergo at least one unannounced sanitary inspection by a BFSCS inspector each inspection cycle.  The inspection cycle represents a period of up to approximately one year in which a series of related inspections consisting of at least one initial inspection and, if necessary, subsequent inspections within that cycle, including re-inspections and compliance inspections, takes place.  A numeric point value is assigned to each violation observed during an inspection.  The point value represents the seriousness of each violation-the higher the point value, the more serious the violation.

The FSE point and grade parameters are as follows: 0-13 violations points result in an “A” grade; 14-27 violation points results in a “B” grade; and 28 or more violation points results in a “C” grade.  If 14 or more violation points are assessed at the time of the initial inspection, the FSE is given the opportunity to improve its sanitary conditions and will be re-inspected in no less than 7 days.

If at the time of an initial- or re-inspection the inspector observes one or more violations that represent an imminent (public health) hazard that cannot be corrected by the end of the inspection, DOHMH may order the restaurant to temporarily close to correct those violations.  If an FSE is closed, DOHMH may conduct monitoring visits to ensure that establishment remains closed until authorized to reopen.

Audit Findings and Conclusions

DOHMH needs to strengthen its controls to ensure that FSEs resolve health code violations in a timely manner.  Although DOHMH has established controls designed to foster the timely scheduling of follow-up health inspections and the resolution of rules violations, those controls are weakened because DOHMH’s inspection attempts are not consistently conducted in accordance with established time standards.  For the period of March 2013 through June 2014, DOHMH did not consistently attempt follow-up inspections in a timely manner, and exceeded the agency’s informal 30-day target more than a quarter of the time.  For establishments that received a score of 14 or more violation points during an initial inspection, DOHMH exceeded the mandated time requirements for beginning the next inspection cycle approximately 50 percent of the time.

Our review also found that during Fiscal Years 2013 and 2014, BFSCS supervisors failed to consistently perform supervisory field inspections at the level established by inspection procedures.  Finally, we found that DOHMH does not require documentation of the justifications for allowing restaurants with repeated poor inspection results to continue to remain open-even though inspectors had recommended closure.  By not requiring that justifications be documented, DOHMH foregoes a strong control in its efforts to monitor FSEs with poor inspection records.  Such a control would enhance DOHMH’s efforts to deter fraud and corruption in the inspection process.

Audit Recommendations

To address these issues, this report makes the following four recommendations:

• DOHMH management should review its current productivity requirements and resource estimates to assess the optimum number of inspectors required to complete inspections on-time within normal working hours.  In performing its assessment, management should account for and strategically plan to address those issues it attributes to the delays in performing inspections, e.g., employee turnover, and time allocated to training.
• Based on its analysis, management should consider either expanding or reassigning inspection staff wherever possible to cover the backlog of past due required inspections and to improve its on-time performance of inspections.
• DOHMH should ensure that each inspection supervisor conducts field inspections of at least five percent of the inspections performed each month by each public health sanitarian or inspector under their supervision, in accordance with BFSCS supervisory inspection and review procedures.
• DOHMH should ensure that the reasons for not closing an FSE with poor inspection results following an inspector’s recommendation that it be closed are appropriately documented in the Food and Safety & Community Sanitation Tracking System II (FACTS II).

Agency Response

DOHMH officials disagreed with the audit’s findings and disagreed with three of the audit’s four recommendations.  Officials, however, did agree with the recommendation that the agency document the basis for not closing restaurants with poor inspection results following an inspector’s recommendation that it be closed.

From its response, it is apparent that DOHMH misunderstood the audit objective and, consequently, misinterpreted the audit’s findings.  DOHMH stated in its response that the audit findings “demonstrate a fundamental misunderstanding of how the restaurant inspection program works” and that “every indicator shows that restaurants continue to become cleaner and safer.”  However, the audit did not assess the merits of DOHMH’s inspection process or grading system.  Instead, we reviewed the inspection process and the results of inspections for restaurants cited with health code violations and the agency’s efforts to follow up on those restaurants.  Specifically, we sought to assess DOHMH’s internal processes and compliance with its internal procedures for addressing restaurants cited with health code violations.

In fact, DOHMH misstates the audit objective in its response, stating that it was “to ensure that food service establishments resolve health code violations in a timely manner.”  However, the objective was not to ensure that food service establishments resolve health code violations in a timely manner but to determine whether DOHMH has adequate controls to ensure that violations are resolved in a timely manner.  This is an important distinction.  The inspection is a primary control towards ensuring the timely resolution of violations and the improvement of conditions that lead to violations.  Accordingly, we assessed whether DOHMH conducted these inspections in a timely manner, in accordance with established rules and guidelines.

After carefully considering DOHMH’s arguments, we find no basis for altering our audit’s findings or recommendations.

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