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Using Public Health Enforcement as an Instrument of Change: An Integrated Regulatory/Non-regulatory Approach.

State: NY Type: Promising Practice Year: 2018

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Nassau County Department of Health 
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Using Public Health Enforcement as an Instrument of Change: An Integrated Regulatory/Non-regulatory Approach.
Title of Model Practice. Using public health enforcement as an instrument of change: an integrated regulatory/non-regulatory approach. Nassau County is located in the western region of Long Island with 1.4 million residents. Nassau's racial and ethnic profile is as follows: 62.9% self-identified non-Hispanic whites; 11.4% blacks; 8.5% Asian Pacific Islander residents. The median income is $99,465 and of residents above age 25, an estimated 90.8% have received a high school diploma or GED equivalent. Public Health Issue: Foodborne illness/food safety; tobacco use among adolescents; leaded conditions; rabies; petroleum bulk storage (leaking storage impacts Nassau County's sole source aquifer); unsanitary conditions; unsafe conditions at regulated pools, beaches, and children's summer camps lead to preventable public health problems which cause disease, premature death and cost billions of dollars in healthcare-related costs in the U.S. annually. By engaging the regulated community in educational efforts which promote safer practices as an integral part of the LHD's enforcement program, the LHD moves towards achieving its mission to reduce these leading causes of death and disability. Goals and objectives of the proposed practice. Goals: 1. To implement an LHD Enforcement Program that works in partnership with the regulated community to achieve full compliance with public health laws. 2. Reduce morbidity and mortality in Nassau County caused by: foodborne illness; tobacco use; leaded conditions (children); rabies; petroleum bulk storage (which impacts Nassau County's sole source aquifer); unsanitary conditions; and unsafe conditions at regulated pools, beaches, and children's summer camps. Objectives: 1. The regulated community improves its knowledge regarding how to enact safer public health practices and meet the requirements of New York State Public Health Law, New York State Sanitary Code, New York State Environmental Conservation Law, Local Laws of the Nassau County legislature, and Nassau County Public Health Ordinance (NCPHO). 2. The regulated community improves its attitude regarding how to enact safer public health practices and meet public health legal requirements. 3. The regulated community changes its behavior and enacts better safety practices. 4. The regulated community changes and/or improves its policies and procedures. 5. Reduce the number of regulated facilities requiring formal hearings (trials) in NCDOH. How was the practice implemented/activities. The practice has been implemented through using an integrated regulatory/non-regulatory approach to enforcement that contains the following features: 1. Every owner, operator and manager of a high-risk Food Service Establishment (FSE) must attend and satisfactorily complete a Nassau County Food Manager's Training (FMT) Program as required by the NCPHO. [Non-regulatory approach] 2. FSEs in violation of public health laws are required to attend an in-person office conference(s) as an intermediary educational step prior to formal enforcement. [Non-regulatory approach] 3. Violators with Imminent Public Health Hazards and/or Critical Violations and FSEs with failing inspections are placed on a Priority Inspection List. [Regulatory approach] 4. Staff place significance on communication through multiple field visits, correspondence and telephone conferences to impart the importance of following the NCDOH's directives for compliance in all environmental health programs). [Non-regulatory approach] 5. Repeat offenders, severe violators, and those who ignore NCDOH's directives will escalate into the formal enforcement process and lead to a hearing and/or Board of Health Order to correct the violations, cease and desist, and/or pay civil penalties. [Regulatory approach] 6. NCDOH attorneys are available on Court days to conference cases with Respondents to answer questions regarding the administrative hearing process, as well as violations charged. [Non-regulatory approach] 7. During the arraignment stage of court proceedings, the Administrative Law Judge (ALJ) reads to Respondents their rights. Respondents either admit or deny charges. Typically, Respondents admit charges, present mitigation evidence to ALJ, and enter into Stipulation of Discontinuance. While uncommon, Respondent may deny charges, at which time a date certain for formal hearing (trial) is set. [Regulatory approach] Results/Outcomes. All objectives are met. Through the educational components of the program, i.e., requiring in-person Nassau County Food Manager Training (FMT) course; in-person office conferences; multiple field visits; in-person court proceedings and conferences with NCDOH counsel, the regulated community improves its knowledge and attitudes about how to operate a safer facility; changes behaviors and improves policies; reduces incidence of violations; and requires fewer formal enforcement actions. Public Health Impact. Through taking a non-regulatory approach to enforcement which promotes communication and collaboration with the regulated community, the vast majority of regulated facilities operate in a safe manner, comply with public health laws, pass rigorous NCDOH inspections, and do not proceed through trial to resolve enforcement cases. Website. https://www.nassaucountyny.gov/1652/Health-Department
This Model Practice takes a creative approach to enforcement of public health laws by applying a structured framework to enforcement that contains specific education-based components which increase knowledge and accountability among staff members and the regulated community. It recognizes that to effectuate real positive change among the regulated community, a standard formula of inspecting facilities and collecting fines from those facilities for infractions does not adequately meet our vision of leading a public health system that works to create health communities, or our values, which include integrity, professionalism, respect, dedication and innovation. This Model Practice recognizes that while civil penalties must be assessed against regulated facilities that violate public health laws, working towards the goal of preventing these violations before they occur or reoccur is possible through interactive tools and holding an open dialogue with the regulated community, through in-person food manager's training, office conferences, frequent field visits and other tools. Statement of the Problem/Public Health Issue. Foodborne illness/food safety; tobacco use among adolescents; leaded conditions; rabies; toxic and hazardous storage leaks (leaking storage impacts Nassau County's sole source aquifer); unsanitary conditions; and unsafe conditions at regulated pools and beaches, lead to preventable public health problems which cause disease, premature death and cost billions of dollars of dollars in healthcare-related and industry costs in the United States annually. By engaging the regulated community in front-end [non-regulatory approach] educational efforts which promote safer practices as an integral part of the LHD's enforcement program, the LHD takes an important step towards achieving its mission to reduce these leading causes of death and disability. What target population is affected by problem (please include relevant demographics). The 1.3 million residents of Nassau County are the target population affected by the problems of morbidity and mortality caused by foodborne illness/food safety; tobacco use among adolescents; leaded conditions; rabies; petroleum bulk storage (leaking storage impacts Nassau County's sole source aquifer); unsanitary conditions; unsafe conditions at regulated pools, beaches, and public health issues that arise at children's summer camps. Nassau County is located in the western region of Long Island, and is home to approximately 1.4 million residents. Nassau's racial and ethnic profile is as follows: 62.9% self-identified non-Hispanic whites (after ethnicity is factored out, the number of white residents increases to 70.2% of residents); 11.4% blacks; 8.5% Asian Pacific Islander residents. The median income of Nassau County residents is $99,465 and of residents above age 25, an estimated 90.8% have received a high school diploma or GED equivalent. While Nassau County as a whole appears to be quite well off, there is an unequal distribution of wealth and well-being among communities which are most evident when comparing nine selected communities to the remainder of the county. The average of the median income in the selected communities is $71,712; and of residents above age 25, an estimated 81.1% have received a high school diploma or GED equivalent. Through enforcement of public health laws, this Model Practice reaches all of Nassau County's residents. What has been done in the past to address the problem? Enforcement programs are typically characterized by inspections of regulated facilities, issuing tickets and/or notices of violation which assess civil penalties against violators, and requesting that payment of fines be administratively processed. Why is the current/proposed practice better? The current practice is better because it provides a structured framework to enforcement that combines the power of the law [regulatory approach] with the public health goals of education and collaboration [non-regulatory approach]. The NCDOH Enforcement Program incorporates recommendations made by New York State Department of Health (NYSDOH) in its Environmental Health Manual, ADM 2 Enforcement and Sanitary Code Compliance at Regulated Facilities, i.e., provision of in-office conferences, with Nassau County education-based components, i.e., in-person food manager's training required by the NCPHO. Together, this approach fosters increased knowledge, accountability, and safer practices in the regulated community in Nassau County. Food Manager's Certification Program: Nassau County requires each high-risk FSE to comply with NCPHO, Article III, Section 1 Food and Drink, (f) Personnel; Training which requires every owner, operator, manager or person in charge of a high-risk FSE to attend and satisfactorily complete the Food Managers Training Course conducted in-house by the NCDOH, upon which a certificate will be issued upon satisfactory completion of the training course or equivalent as determined by the NCDOH. Recertification is required every three (3) years. If an FSE is open for business more than 12 hours in a day, then a second employee from the food establishment must attend and satisfactorily complete the Food Managers Training Course. The training certificate must be prominently displayed for public viewing. The Food Manager's Certification Program provides the information necessary for the operator to: (1) become aware of the magnitude of foodborne illness; (2) become knowledgeable of different types of agents that frequently cause foodborne illness outbreaks; (3) understand the factors that contribute to such outbreaks; (4) learn and use those procedures that help prevent future foodborne illness. FSE owners/operators may register for FMT on-line at the NCDOH website. Those FSEs that do not have the requisite Food Managers are brought into Enforcement. Office Compliance Conferences: The NCDOH Enforcement Program requires FSEs in significant violation of New York State Sanitary Code and NCPHO to attend an in-person office conference(s) at NCDOH with a Food Inspector/Area Supervisor to address imminent public health hazards, critical violations, and sanitation and maintenance violations which were noted at the FSE upon inspection. Office conferences provide further educational support to FSEs and are conducted in an effort to avoid future problems and formal enforcement proceedings. Docket meetings: Two days prior to Court dates, a one-hour docket meeting is held. In attendance are NCDOH Counsel, Director of the Bureau of Environmental Administration, the Court Clerk, and the three Enforcement Officers. Each case is reviewed; courtroom strategies are devised; for all cases, application of permits and abatement of violations is determined; for food cases, completion of FMT classes per facility is determined; for tobacco cases, information regarding past violations and fine payment are noted. In order to serve the purposes of cross-training, each of the Enforcement Officers stays for the entirety of the meeting to hear the open discussion of the issues presented. Court: When the Respondent appears before the ALJ, their rights are explained to them, including their right to be represented by an Attorney, and the Respondent is asked whether they wish to admit to the charge(s), or conversely if they wish to deny the charge(s) and proceed to a formal hearing. It is explained to the Respondent that if they admit to the charge(s) that they may offer a statement in mitigation of penalty; should they deny the charge and proceed to a formal hearing (trial), if the charges are upheld, they face a maximum penalty on each charge. If the Respondent admits to the charge(s), the ALJ asks whether the violation has been corrected. If the violation has not been corrected, the ALJ consults with the County representative and the Respondent to determine the length of time needed to correct the violation(s). The case will not be closed until all violation(s) are corrected. The Respondent is given the opportunity to conference the case with NCDOH Counsel and/or the Enforcement Officer before placing a statement of mitigation on the record with the judge. The Respondent will explain their mitigation to the ALJ and a Stipulation of Discontinuance will be entered into, signed by the Respondent, NCDOH, and the ALJ. The ALJ will issue a Report to the Board of Health which contains Findings of Facts, Conclusions of Law, and Recommendations for Penalty. The fines recommended by the ALJ are then reviewed, and presented for approval to the Board of Health. The Board of Health ultimately has the authority to accept, reject or modify the recommendations. An Order of the Board of Health is then issued to the FSE notifying them of the penalty and the date payment is required. If the Respondent denies the charge(s), a Formal Hearing is scheduled to hear testimony and presentation of evidence. Formal Hearings are atypical, as most matters are resolved by stipulation. ATUPA cases: if the Respondent admits to the charge(s), then they present Tobacco Training Certificate(s) to the Enforcement Officer for their review. If a valid Training Certificate is presented for the date of sale then 1 point will be assessed against Respondent's tobacco (and if they have one, 1 point assessed against their lottery) license in accordance with New York Public Health Law. If a valid Training Certificate is not submitted, then 2 points will be assessed against the Respondent's tobacco license (and if they have a training certificate, 2 points assessed against their lottery license). Three points assessed within three years will result in a six-month suspension of tobacco dealer's registration (and six- month suspension of lottery license). Four points assessed within three years will result in one-year revocation of both licenses. Fines will be determined depending upon the Respondent's prior history of violations and in accordance with a pre-determined schedule if Respondent demonstrates mitigating evidence to the Judge. Is current practice innovative? How so/explain: The current practice is innovative in that it applies the MAP-IT (Mobilize, Access, Plan, Implement, Track) framework developed by Healthy People 2020 to plan and evaluate a Local Public Health Department's Enforcement Program. This Model Practice demonstrates that through an effective Public Health Enforcement program, Local Health Departments gain the ability to cross-train its staff, educate the regulated community on applicable public health laws, and improve public health in the locality across the board. Mobilize: The vision and mission of this Practice is to structure an Enforcement Program that supports the regulated community with a strong educational foundation leading to the implementation of safer practices and compliance with public health laws. Integral staff from different programs within NCDOH were brought together to form the Enforcement team. Through the FMT program, we mobilize the FSE community; each owner/operator of a high-risk FSE must take uniform FMT training. Frequent field inspections and enhanced communication at establishments create a greater NCDOH presence and opportunity to educate the regulated community. Assess: NCDOH assessed the needs of the community and NCDOH resources. It was determined that through a structured enforcement framework, NCDOH would be able to carve out educational components to its enforcement program which would lead to implementation of safer practices and incentivize the regulated community to avoid formal enforcement through improved knowledge of the civil penalty structure. Plan: Combine the regulatory and non-regulatory approach to reduce food borne illness, sales of tobacco to adolescents, and other public health infractions and preventable public health disease and illness. The plan is to do this with the regulated community's cooperation and without resorting to formal enforcement action if appropriate and avoidable. Implement: NCDOH has standardized the process by which NCDOH enforces public health law. Because the regulated community understands the ramifications of violating public health law in Nassau County (the end result being entering formal enforcement), the majority of facilities will come into compliance so as to avoid a large civil penalty. Track: NCDOH tracks its Enforcement Program's progress. The FSEs understand their responsibility to attend FMT training which is demonstrated by a low percentage of FSEs which are out of compliance (and some is due to workforce attrition within the food service industry); approximately 94% of tobacco retailers are compliant with applicable laws. Is the current practice evidence-based? If yes, provide references Arrazola, R. A., Singh, T., Corey, C. G., Husten, C. G., Neff, L. J., Apelberg, B. J., ... & McAfee, T. (2015). Tobacco use among middle and high school students-United States, 2011-2014. MMWR. Morbidity and mortality weekly report, 64(14), 381-385. Goodman, R. A., Moulton, A., Matthews, G., Shaw, F., Kocher, P., Mensah, G., ... & Besser, R. (2006). Law and public health at CDC. MMWR supplements, 55(2), 29-33. Switaj, T. L., Winter, K. J., & Christensen, S. R. (2015). Diagnosis and Management of Foodborne Illness. American family physician, 92(5).
Food Safety|Tobacco
Goals and objectives of the proposed practice Goals: 1. To implement an LHD Enforcement Program that works in partnership with the regulated community to achieve full compliance with public health laws. 2. Reduce morbidity and mortality in Nassau County caused by: foodborne illness; tobacco use; leaded conditions (children); rabies; petroleum bulk storage which impacts Nassau County's sole source aquifer; unsanitary conditions; unsafe conditions at regulated pools, beaches, and children's summer camps. Objectives: 1. The regulated community improves its knowledge regarding how to enact safer public health practices and meet the requirements of New York State Public Health Law, New York State Sanitary Code, New York State Environmental Conservation Law, Local Laws of the Nassau County legislature, and Nassau County Public Health Ordinance (NCPHO). 2. The regulated community improves its attitude regarding how to enact safer public health practices and meet public health legal requirements. 3. The regulated community changes its behavior and enacts better safety practices. 4. The regulated community changes and/or improves its policies and procedures. 5. Reduce the number of regulated facilities requiring formal hearings (trials) in NCDOH. What did you do to achieve the goals and objectives? The NCDOH Enforcement Program was developed by creating a unified, structured enforcement team comprised of NCDOH staff from various bureaus, shared resources, interdisciplinary knowledge of public health laws and relationships with the regulated community. The following staff are directly involved with the Enforcement Program: NCDOH Counsel; Director of the Bureau of Environmental Administration; Supervisor of Bureau of Environmental Sanitation (BES) (food safety; pools; beaches; children's summer camps; and, temporary residences); Enforcement Officer, BES; Supervisor of Bureau of Environmental Investigation (BEI) (lead poisoning prevention; rabies; community sanitation; ATUPA); Enforcement Officer, BEI; Supervisor of Bureau of Environmental Protection (BEP) (petroleum bulk storage program; public water supply); Enforcement Officer, BEP; Administrative Clerical Staff (ACS). This staff structure of the Enforcement Program is further supported by the efforts and work of other NCDOH staff as described in the next section. Steps Taken to Implement the Program: The major categories represented in the NCDOH Enforcement Program include Food Safety; Adolescent Tobacco Use Prevention Act (ATUPA); Petroleum Bulk Storage; and, Summer Camp (Recreational Facilities). The steps taken to implement Enforcement in these areas is detailed below: Food Safety Program: 1. Generates and manages Food Service Establishment (FSE) permits and the master list of FSEs in NCDOH's Management Information and Permitting System (MIPS”). Each FSE must pay a permit fee annually or every two years, based on its risk rating. 2. In 2016 there are approximately 7,600 FSEs under permit with NCDOH; 13,613 FSE inspections were held. 3. Classifies by risk as per New York law each of the FSEs within its jurisdiction into the following three categories: High risk establishments conduct complex cooking processes such as advance preparation, cooling and reheating. These comprise of table-service restaurants; Medium risk establishments generally prepare foods to order, for example pizza, hamburgers and sandwiches, or receive, hold or serve food from other FSEs; Low risk establishments serve foods that require minimal preparation. The purpose of classifying the FSEs by risk category is to determine the number of inspections an FSE should receive, and, also, whether an FSE is high-risk and requires FMT training. 4. Performs inspections and investigates and reports foodborne disease outbreaks to NYSDOH, including uploading inspection reports into the New York State Environmental Health Inspections and Permitting System (EHIPS”). 5. NCDOH's Food Protection division divides the FSEs into 20 territories which are grouped geographically into three main areas and managed by three area supervisors who report to the Program Director. There are also two additional territories (one for Mobile FSEs and another for Institutional FSEs) and their inspectors report directly to the Program Director. 6. Requires every owner, operator, manager, or person in charge of a high risk FSE to attend, and satisfactorily complete, a Food Manager's Training (FMT) program, as required by the NCPHO. 7. Reviews plans for new and renovated FSEs. 8. Requires FSEs in significant violation of New York State Sanitary Code and NCPHO to attend an in-person office conference at the NCDOH with Food Inspector/Area Supervisor to address violations assessed against the facility and provide further educational [non-regulatory approach] support in an effort to avoid future problems and formal enforcement proceedings. 9. Places chronic violators and FSEs with failing inspections on a Priority Inspection List until satisfactory results are achieved. 10. Repeat offenses and severe violations escalate into the formal enforcement process and lead to a hearing and/or Board of Health Order to correct the violations, cease and desist, and/or pay civil penalties. 11. Pre-docket preparation of case files: Enforcement Officer requests hearing date from the Administrative Clerical Staff (ACS) based on calendar availability. 12. Enforcement Officer prepares the Recommendation for Enforcement Action (REA) with Notice of Hearing and Statement of Charges and submits to Program Directors and Bureau Directors for their review and approval. 13. Once approved, the case is forwarded to ACS to be entered electronically and into Calendar book. 14. Upon completion of calendar entry, the case is forwarded to the Commissioner for signature. 15. Signed packages are returned to Enforcement Officers from the Commissioner's Office. 16. Enforcement Officers return a copy of package to ACS who put a bench note cover on package and place final package into Active Enforcement File into the folder that is dated with the specified hearing date. Interagency Notifications: 1. Enforcement actions regarding permit hearings are reported to the NYSDOH, MARO (Metropolitan Area Regional Office) Environmental Director. 2. Shellfish violations noted on inspection are reported to the NYS DEC. 3. Economic violations (i.e., improper substitution of foods such as pork substituted for veal; swai fish substituted for sole) are reported to NYS Department of Agriculture and Markets via completion of an Advertising/Labeling Report. Adolescent Tobacco Use Prevention Act (ATUPA) Program: 1. New York State Public Health Law, Article 13-F Adolescent Tobacco Use Prevention Act (ATUPA) prohibits the sale of cigarettes, cigars, chewing tobacco, powdered tobacco, shisha or other tobacco products, herbal cigarettes, electronic cigarettes, liquid nicotine, rolling papers or smoking paraphernalia to persons under 18 years of age. 2. NCDOH's responsibilities in connection with the ATUPA program include but are not limited to: (1) utilizing the NYSDOH's Environmental Health Information and Permitting System (eHIPS) to establish and maintain an up-to-date inventory including compliance and enforcement status, for registered and unregistered tobacco retail dealers and vendors within jurisdiction; enter compliance check and enforcement data; (2) performing compliance checks with underage youth; (3) for all facilities where tobacco is sold, verifying that tobacco retail dealers and vendors are registered with New York State Department of Taxation and Finance (DTF) to sell tobacco, post required signage, etc.; (4) reporting unregistered tobacco dealers and vendors to New York State Bureau of Community Environmental Health and Food Protection (BCEHFP); (5) collecting and documenting violator information; (6) issuing formal enforcement against the operator for all violators of Article 13-F; (7) providing an advisory notice to vendors in violation of the consequences of subsequent violations; (8) submitting data to BCEHFP including the vendors' active points against their tobacco and lottery licenses and violations; (9) conducting follow-up visits for retail tobacco dealers with suspended or revoked DTF registration; (10) providing public notice of retail tobacco dealers and vendors found in violation of the law; (11) responding to complaints against facilities that involve non-compliance with the law. 3. In order to meet its responsibilities, BEI performs at least one certification check [non-regulatory] and one compliance check [regulatory] at all retail tobacco vendors within a twelve-month period. For the April 1, 2015 to March 31, 2016 ATUPA grant year, the Department began the grant year with 1306 tobacco vendors and ended the year with 1250 vendors. NCDOH completed at total of 1310 compliance checks with a minor; a total of 55 sales of tobacco sales to minors were made. 4. In order to commence an Enforcement Action in this program, ACS makes entry in calendar book of projected ATUPA case number. BEI Enforcement Officer serves an Appearance Ticket to Respondent directing Respondent to appear at a hearing before the ALJ. Petroleum Bulk Storage Program: 1. Nassau County's Petroleum Bulk Storage (PBS) Program enforcement procedures, insuring compliance with Article XV of the NCPHO, must be consistent with all DEC PBS enforcement policies as authorized by the NYSDEC, implemented by the County of Nassau, and pursuant to NYSDEC delegation order dated July 21, 2017. 2. The Nassau County PBS program is estimated to include 2,600 facilities with 2,400 above ground tanks and 1,700 below ground tanks. 3. Discovery of a violation may be the result of a PBS inspection or a desktop review of records. 4. Inspections may reveal one or more of the following violations (or others): expired registration; lack of secondary containment; unreported petroleum spill; non-corrosion resistant tank; failure of tank to have proper leak monitoring; failure to keep proper recordkeeping; failure to properly color code tanks; etc. 5. If a desktop review of records reveals an expired registration or any of the major violations, NCDOH will either bring an enforcement action, or conduct an inspection of the facility to confirm the existence of the violation(s) and bring an enforcement action. 6. Notice of Violation (NOV) process: Within 30 days after completing an inspection, NCDOH will issue an NOV that will be delivered to the owner and operator of the PBS facility. The NOV will detail all PBS violations found at the facility. The NOV will also contain a compliance due date. The operator and tank system owner are jointly responsible for bringing the facility into compliance. 7. Notice of a violation can be in the form of an Inspection Report, Overdue Fee Notice, letter sent by Certified mail requesting correction of violations or requesting registration of existing tanks, or in some cases, properly documented phone calls to the responsible party. If a facility has been notified twice to correct a violation (regardless of the type of violation) and no apparent action has been taken to correct the violation, then enforcement proceedings will be initiated against the facility. 8. Notice of Hearing and Statement of Charges/Commencement of Action: A Notice of Hearing is served upon the Respondent summoning it to appear at a hearing before an ALJ in the Board Room of the NCDOH on a date and time certain to answer charges of violations. A copy of the Statement of Charges is annexed to the Notice of Hearing. The Notice of Hearing states that the Respondent has the right to be represented by counsel. Further, the Notice of Hearing states that the Respondent has the right to deny the charges, in whole or in part, and proceed to a full and formal hearing; or, the Respondent may elect to admit to the charges and give up the right to a full and formal hearing and proceed on an informal basis. Children's Day Camp (Office of Recreational Facility) Program: 1. On average, 130 permitted camps operate each year in Nassau County. 2. The children's camp program involves inspecting the facility for compliance with Subpart 7-2 (Children's Camps), Subpart 6-1 (Swimming Pools), and Subpart 14-2 (Food Service Establishment) of the NY State Sanitary Code as many camps may have one or more swimming pools on-site and many camps may prepare or serve food to the campers. Multiple inspection forms are often generated for each camp reflecting the different operations of a camp. Each camp is inspected during their operation at least once each season however, often times multiple visits to a particular camp are necessary. These visits can be classified as inspections, re-inspections, complaints, injury/illness/abuse investigations, and field visits to provide education to the operator. If a public health hazard (PHH) or other significant violation is noted a re-inspection is required to be conducted. A re-visit or second inspection may also be conducted if critical aspects of a camp's operation (e.g. swimming or other high-risk activities) is not observed at the time of the initial inspection. An on-site investigation is always conducted for every complaint received and for any significant injury or illness report. 3. As per Office of Recreational Facilities protocols, a compliance conference is held with the camp operator for every public health hazard noted pertaining to Subpart 7-2 (Children's Camp) and Subpart 6-1 (Swimming Pools). After a compliance conference is conducted where the operator is notified of the violations and the regulations pertaining to that violation, a re-inspection is conducted to ensure compliance. Afterwards, the Office of Recreational Facilities performs a diligent review of the nature of the violation, the camp's history of compliance, and the contributing factors and circumstances surrounding the violation, and determines whether formal legal action is recommended for further enforcement action. 4. With regard to public health hazards noted pertaining to Subpart 14-2 (Food Service Establishments), the children's camp program defers to the established Office of Food Protection's protocols for enforcement. Compliance conference is held after 2 instances of a given public health hazard and an REA is generated on the third instance within 5 years of a compliance conference. 5. When the enforcement protocols mentioned above was applied to the 93 public health hazards that existed between 2012-2015, 32 of the 93 PHH (34%) resulted in an REA, 49 of the 93 PHH (53%) resulted in a compliance conference only, and 12 of the 93 PHH (13%) did not result in any enforcement action taken. 6. Of the 12 public health hazards that resulted in no enforcement action, 11 were for a food service violation of Subpart 14-2 that was noted for the first time at the facility and consistent with Office of Food Protection guidelines recommending no enforcement action. There was only one instance of a public health hazard of either Subpart 7-2 or 6-1 where no enforcement action was taken. Due to the nature of the violation being beyond the scope of a typical camp inspection and the unlikelihood of this being repeated, no enforcement was deemed necessary. 7. Some form of enforcement action has been taken for an overwhelming majority of the time a public health hazard has been identified. Approximately half the time, a discussion of the violation [non-regulatory approach] and the regulations pertaining to the violation has been deemed sufficient to prevent another occurrence of the violation from happening again. These compliance conference serves to educate the operators and to provide a formal written warning of the consequences should that particular violation occur again. Certain violations, whether they cannot be explained sufficiently as to the contributing factors or due to the risk that was placed onto the campers result in a Recommendation for Enforcement Action whereby the operator may face a civil penalty. This sterner approach is used to re-enforce the significance of exposing campers to conditions created by the camp that may result in illness, physical injury, abuse or death. Interagency Notifications: 1. Enforcement actions and investigations pertaining to abuse allegations are reported to NYSDOH and local police departments, which provide guidance. 2. Drowning and Near Drowning investigations are communicated by NCDOH to NYSDOH. This relates to any regulated pool, i.e., camp; fitness clubs. 3. Food borne illness in camps are reported to NYSDOH. 4. Infectious Disease issues (as arise in camp) are reported to the NYSDOH and Centers for Disease Control and Prevention (CDC). NCDOH has sought guidance as to whether international exchange students are able to travel. Were other stakeholders involved? What was their role in the planning and implementation process? This Model Practice is internal to NCDOH. Its implementation demonstrates cooperation and participation across various Bureaus within NCDOH as well as with various agencies as described above, including NYSDOH, MARO Bureau of Community Environmental Health and Food Protection (BCEHFP) (foodborne illness investigations; adolescent tobacco use prevention (ATUPA) cases); New York City Health Department (food manager training reciprocity under certain circumstances); New York State Department of Taxation and Finance (DTF) (ATUPA cases); New York State Department of Environmental Conservation (DEC) (petroleum bulk storage cases); CDC (infectious disease issues in camps); faith-based organizations and schools (to recruit minors to participate the ATUPA compliance-check program); County and Local Police Departments (local police departments within Nassau County refer ATUPA cases to NCDOH for enforcement). The role of these agencies is cooperation in our investigations. NCDOH ultimately makes decisions regarding which cases process through our Enforcement program. When jurisdictionally possible, NCDOH will prosecute cases which are handed over” to us from other county or non-county agencies. Another benchmark of this Model Practice is community collaboration with the regulated community. One example is a change in the Food Manager Training (FMT) program that arose out of suggestions from the FSE community to offer in-person FMT in Spanish. Additionally, as the demographics of Nassau County continue to evolve, the FSE community has requested FMT trainings in languages other than Spanish to meet the needs of their kitchen staff. In response, NCDOH reached out to New York City Health Department and devised a workable solution where Nassau County FSE staff may take in-person FMT training in New York City if training in languages not offered by NCDOH is requested. Upon proof of successful completion of this training, Nassau County will issue a reciprocal Nassau County FMT certificate to those individuals for a nominal fee. Further, NCDOH follows the following Protocol for Notification of Enforcement Activities which informs the public and stakeholders of the results of enforcement actions as well as other pertinent information as discussed within: 1. The NCDOH, Division of Environmental Health, notifies the public of its enforcement activities via providing a link to (1) Fines Assessed by the Board of Health; and (2) ALJs' Case Reports on the NCDOH website at the Regulations & Enforcement tab. These reports inform the public of the results of enforcement actions taken against food service establishments; recreational facilities such as public pools and camps; petroleum storage facilities; tobacco vendors; among others for violations of local and New York State laws and regulations. 2. Every decision of the ALJ that is adopted by the Board of Health will be posted onto the NCDOH website following adoption of the ALJ's findings of fact, conclusions of law, recommendations of penalty as well as any other recommended remedial measures. The Directors of the Bureaus of Environmental Sanitation, Environmental Protection, and Environmental Investigation are responsible for providing updates regarding the resolution of enforcement actions in their program areas to the NCDOH website. The Director of the Division of Environmental Health is responsible for collecting the reports and providing same to the Public Information Officer (the NCDOH Information Technology liaison), who is instructed to post the updated information on the NCDOH website. 3. It is explained to the public at the Regulations & Enforcement page on the NCDOH website that while it is the goal of the NCDOH to achieve compliance with the New York Public Health Law, New York State Sanitary Code, NCPHO, New York State Environmental Conservation Law (Petroleum Bulk Storage), and Nassau County Local Laws, that for those instances when a business, landlord, resident, or other regulated entity fails to comply with these laws, the responsible party (Respondent) will be served with charges and the case will be heard by an ALJ. The ALJ will then render a Decision which includes findings of fact and conclusions of law of the case, and will make recommendations for penalty to the Board of Health. The Board of Health then determines the appropriateness of the penalty, as well as any other remedial measures required by the Respondent. Any start up or in-kind costs and funding services associated with this practice? The Enforcement Program is an internal process and is largely staffed by NCDOH personnel. Other than NCDOH staff, actual costs associated with the Enforcement Program include (1) payments for services rendered by ALJs for presiding over hearings on Court days and for preparation of their reports with recommendations to the Board of Health; and (2) per diem payments to minors (although some minors opt for a school public service credit instead) who visit tobacco retailers to perform compliance checks with NCDOH investigators. Payments to ALJs totaled $33,387.00 in 2016 and payments to minors who conduct ATUPA compliance checks with NCDOH investigators totaled $4,539.00 in 2016 (note: minors in the ATUPA program also have the option of accruing community service credits in lieu of monetary payment). Revenue received from the Food Manager Training Program in 2016 totaled $159,339.00. With respect to NCDOH staff who are assigned to the Enforcement program, none of the staff work exclusively within the Enforcement Program; rather, each staff member carries out various functions within the Bureau to which they are assigned. Further, while it is the mission of the Enforcement Program to enforce public health laws while educating the regulated community and not to serve as a revenue builder, it is estimated that this program is self-sustaining based upon the fines assessed by facilities that come in through the formal enforcement process. In 2016, $364,445.00 in fines was assessed.
What did you find out? To what extent were your objectives achieved? NCDOH has found that taking a non-regulatory, educational approach to enforcement, reinforced with the teeth of a structured formal enforcement program that includes a published list of FSE closures on the NCDOH website, leads to desired outcomes and meeting important objectives, such as improving knowledge, attitudes, behaviors, policies and procedures among the regulated community. The Program works because the various divisions within NCDOH work collaboratively rather than in silos, creating a working nexus in which the divisions within NCDOH integrate with the Enforcement team to share information learned in the field about the regulated community during inspections, in FMT classes through interactive Q&A, in conferences and in court. An added benefit to this Program is that due to the increased accountability of the regulated facilities, the number of trials has significantly reduced. For these reasons, the NCDOH enforcement program is a Model Practice of great value to other LHDs and the populations they serve. The infrastructure, practices and procedures developed by NCDOH in implementing its enforcement program may be appropriately tailored and used as a guidepost for other jurisdictions. Objectives: All objectives have been met: 1. The regulated community improved its knowledge regarding how to enact safer public health practices and meet the requirements of New York State Public Health Law, New York State Sanitary Code, New York State Environmental Conservation Law, Local Laws of the Nassau County legislature, and NCPHO. 2. The regulated community improved its attitude regarding how to enact safer public health practices and meet public health legal requirements. 3. The regulated community changed its behavior and enacts better safety practices. 4. The regulated community changed and/or improved its policies and procedures. 5. The number of regulated facilities requiring formal hearings (trials) in NCDOH have reduced. What We Found Out. We have found across our different bureaus that our Enforcement Strategy of combining educational [non-regulatory] resources with a structured [regulatory] enforcement framework has led to fewer food service establishments being closed by NCDOH for critical and imminent public health hazard violations such as severe infestations and food adulteration. Improving knowledge: With respect to improving knowledge, as will be demonstrated below in the FMT Chart, pass rates continue to improve as the FMT program matures. We believe this improved pass rate correlates to reinforcement of education through compliance conferences and during inspectors' educational directives during FSE inspections. Additionally, we have modified the FMT curriculum to reinforce the need for exercising sanitary habits via participatory demonstrations (i.e., black lights, handbooks). This allows the opportunity for people taking the class to engage with the instructor and ask questions. Food workers have expressed their appreciation for what they have learned. Improving attitude: With respect to attitude changes, we have noted that high-risk FSE owners indicate during conferences that they will send additional food service workers for FMT, even though they may have a sufficient number required by law, in an effort to create a safer environment. Improving behavior: Our ATUPA program has an approximate 94% compliance rate among tobacco retail vendors. This is a significant improvement from the compliance rate among tobacco retailer vendors from the 1998 - 1999 grant year, when compliance was at a rate of 78% (see, NCDOH ATUPA Compliance History Chart within this document). Additionally, improved behavior is demonstrated via FSEs being closed by NCDOH for severe imminent public health hazard violations such as severe infestations and food adulteration. Further, compared with the number of facilities under permit, only a small number are brought into Enforcement, signifying that the vast majority of permitted facilities are compliant with public health laws. Changes and/or improves its policies and procedures: Following compliance conferences, FSEs have supplemented and enhanced their sick worker policies and cleaning schedules; remediation plans for lead abatement; increased chlorine residual testing; revision to children's summer camps' buddy check procedures during swim activities; engaged experts and consultants to remedy ongoing issues, such as exterminators, food service consultants. Reduction of the number of regulated facilities requiring formal hearings (trials) in NCDOH: In 2017, to date, 217 cases resolved via informal proceedings (as evidenced by 217 cases being resolved per stipulations of discontinuance) and no formal trials have been held as of this writing. Compliance Conferences 2016: In 2016, compliance conferences were held as follows, for a total number of 462 conferences: January 2016: Total of 33 conferences (broken down as 15 for Poor Operation; 3 for Shellfish violations; 5 Special Problems; 10 for Chronic Violations). February 2016: Total of 37 conferences (broken down as 8 for Poor Operation; 2 for Shellfish violations; 6 Special Problems; 20 for Chronic Violations). March 2016: Total of 56 conferences (broken down as 13 Poor Operation; 6 for Shellfish violations; 1 Complaint; 6 for Special Problems; 30 for Chronic Violations; and 1 Other”). April 2016: Total of 43 conferences (broken down as 6 for Poor Operation; 7 Special Problems; 28 for Chronic Violations; and 2 Other”). May 2016: Total of 26 conferences (broken down as 6 Poor Operation; 1 for Shellfish violations; 7 for Special Problems; 12 for Chronic Violations). June 2016: Total of 34 conferences (broken down as 13 Poor Operation; 4 for Shellfish violations; 2 Complaint; 1 for Special Problems; 12 for Chronic Violations; and 2 Other”). July 2016: Total of 36 conferences (broken down as 15 Poor Operation; 4 for Shellfish violations; 5 for Special Problems; 8 for Chronic Violations; and 4 Other”). August 2016: Total of 32 conferences (broken down as 5 Poor Operation; 3 for Shellfish violations; 1 Complaint; 7 for Special Problems; 13 for Chronic Violations; and 3 Other”). September 2016: Total of 42 conferences (broken down as 16 Poor Operation; 4 for Shellfish violations; 1 Complaint; 4 for Special Problems; 15 for Chronic Violations; and 2 Other”). October 2016: Total of 42 conferences (broken down as 17 Poor Operation; 1 for Shellfish violations; 1 Management Consult; 23 for Chronic Violations). November 2016: Total of 35 conferences (broken down as 8 Poor Operation; 2 for Shellfish violations; 1 for Special Problems; 24 for Chronic Violations). December 2016: Total of 46 conferences (broken down as 13 Poor Operation; 2 for Shellfish violations; 7 for Special Problems; 24 for Chronic Violations). Compliance Conferences 2017: In 2017, up to September 2017, a total number of 362 conferences have been conducted with a similar distribution, which is on pace with the compliance conferences held in the previous year. Food Managers Training Course - 2009-2016: Pass rates continue to improve as the FMT program matures; we believe this improved pass rate correlates to reinforcement of education through compliance conferences and during inspectors' educational directives during FSE inspections. Note that there is no examination administered following the renewal, 3-hour review course; therefore, there is no pass rate percentage assigned to the 3 hour review class. 2016: English FMT 10 hour class: 814 attended; 790 passed (97% pass rate). English FMT 3 hour review class: 1219 attended. Spanish FMT 10 hour class: 275 attended; 258 passed (94% pass rate). 2015: English FMT 10 hour class: 906 attended; 862 passed (95% pass rate). English FMT 3 hour review class: 1018 attended. Spanish FMT 10 hour class: 258 attended; 236 passed (91% pass rate). 2014: English FMT 10 hour class: 891 attended; 868 passed (97% pass rate). English FMT 3 hour review class: 1040 attended. Spanish FMT 10 hour class: 237 attended; 207 passed (87% pass rate). 2013: English FMT 10 hour class: 948 attended; 873 passed (92% pass rate). English FMT 3 hour review class: 1218 attended. Spanish FMT 10 hour class: 196 attended; 165 passed (84% pass rate). 2012: English FMT 10 hour class: 879 attended; 874 passed 99% pass rate). English FMT 3 hour review class: 1027 attended. Spanish FMT 10 hour class: 167 attended; 150 passed (89% pass rate). 2011: English FMT 10 hour class: 928 attended; 835 passed 89% pass rate). English FMT 3 hour review class: 923 attended. Spanish FMT 10 hour class: 193 attended; 170 passed (90% pass rate). 2010: English FMT 10 hour class: 818 attended; 757 passed 92% pass rate). English FMT 3 hour review class: 1083 attended. Spanish FMT 10 hour class: 286 attended; 252 passed (88% pass rate). 2009: English FMT 10 hour class: 572 attended; 554 passed 96% pass rate). English FMT 3 hour review class: 878 attended. Spanish FMT 10 hour class: 217 attended; 166 passed (76% pass rate). Tobacco Sales Compliance: Compliance checks under the Adolescent Tobacco Use Prevention Act (ATUPA) program are conducted to ensure that tobacco vendors comply with state laws which prohibit tobacco sales to minors. NCDOH ATUPA COMPLIANCE HISTORY: GRANT YEAR COMPLIANCE CHECKS WITH MINORS COMPLIANCE PERCENTAGE 1998-1999 1919 78% 1999-2000 1707 84% 2000-2001 1759 79% 2001-2002 1761 86% 2002-2003 1716 87% 2003-2004 2204 87% 2004-2005 2367 87% 2005-2006 2097 90% 2006-2007 559* 91% 2007-2008 1953 92% 2008-2009 1820 95% 2009-2010 1454 93% 2010-2011 1665 97% 2011-2012 489* 94% 2012-2013 1380 92% 2013-2014 1461 96% 2014-2015 1373 96% 2015-2016 1310 96% 2016-2017 1242 94% Grant Period runs from April 1 to March 31. *Partial grant year. 2017 Enforcement Activity Across Bureaus, through September 2017. As shown below, in 2017, up through September, there have been a total of 217 Stipulations of Discontinuance entered into between Respondent, NCDOH Enforcement Officer, and ALJ resolving enforcement cases, and 0 trials. Bureau of Environmental Sanitation (BES) (food safety; pools; beaches; children's summer camps; and, temporary residences): 124 Stipulations; 0 Trials. Bureau of Environmental Investigation (BEI) (lead poisoning prevention; rabies; community sanitation; Adolescent Tobacco Use Prevention Act (ATUPA): 76 Stipulations; 0 Trials. Bureau of Environmental Protection (BEP) (petroleum bulk storage program; public water supply): 16 Stipulations; 0 Trials. Bureau of Environmental Engineering (engineering plans: water supply, PBS facilities): 1 Stipulation; 0 Trials. Food Service Establishment Closures 2017 2017 is on pace to see fewer FSE closures than 2016. In 2016, there were 42 FSE closures; in 2017 up through September there were 8 FSE closures. A significant change in 2016 was posting on the NCDOH website: (1) Food Service Establishment Closure List; (2) Fines Assessed by the Board of Health; and, (3) 2016 Case Reports. See, https://www.nassaucountyny.gov/3880/Regulations-Enforcement. We believe that including this information on the NCDOH website is a powerful tool that leads to greater accountability among FSE owners and operators who are now acutely aware that the public has access to these records.
Lessons learned in relation to practice Lessons learned in development of the Enforcement Program include as follows: 1. Docket meetings (meetings held approximately two days before Court dates) are an excellent opportunity to (1) cross-train staff in different Bureaus of NCDOH; (2) increase standardization in enforcement practices; and (3) promote collaboration among staff members who work in different program areas. 2. Court conferences between NCDOH counsel and Respondents' counsel prior to appearing before the ALJ serve as a beneficial educational tool to explain the administrative hearing process to counsel who may otherwise be unfamiliar with the courtroom procedures. Administrative proceedings are different from other types of court procedures, as described below. In NCDOH administrative hearings, the Respondent is requested by the ALJ to Admit or Deny the charges set forth in the Statement of Charges attached to the Notice of Hearing. Admitting to the charges leads to the mitigation process and a stipulation of discontinuance; denying the charges leads directly to a formal trial on another date. This is different from other types of court proceedings in New York. For example, in a typical negligence case in state court, a great deal of discovery may take place (exchange of legal documents and proofs, examinations before trial, motion practice) and more often than not, a case will settle without a party admitting to the main allegations made against them in the lawsuit. In criminal court, attorneys are accustomed to conferencing cases for purposes of negotiating plea bargains in exchange for reduction of charges. This is not the case in public health enforcement. A main tenet of public health enforcement is that public health cannot be negotiated – charges will not be reduced; albeit, if appropriate, a charge(s) may be withdrawn. We have learned that discussing the courtroom procedures to Respondents and counsel prior to the case being called by the ALJ levels the playing field,” leads to a smoother process, and provides counsel with the opportunity to consider and explain to their clients their different options, away from the bench. Now, with a more comprehensive understanding of the courtroom procedures, counsel become vested and invested in educating their present clients, as well as future clients. Lessons learned in relation to partner collaboration. The regulated community is largely receptive to receiving educational direction from NCDOH. Collaborating with the regulated community and meeting their needs for Food Manager training in languages other than English was a positive step that helps even some disparities that exist in some communities within our diverse County. Although our resources only allow for training in one additional language (Spanish) we were able to collaborate with New York City Department of Health (NYCDOH) and NCDOH now has the ability to issue a reciprocal Nassau County FMT certificate to an individual who takes and successfully completes in-person NYCDOH FMT training in a language that is not available in Nassau County. Did you do a cost/benefit analysis? If so, describe. Through our analysis we have discovered that local public health sees a better return in terms of compliance by investing in human resources (staff) in educating the regulated community through Food Manager's Training, compliance conferences, court conferences with NCDOH counsel than by simply collecting fines/penalties through ticketing when regulated facilities misstep and violate public health laws. Since we have invested in educating the regulated facilities through these and other mediums, we have found that less time is spent in Court prosecuting facilities in a formal hearing setting – in fact, hardly any Respondents pursue that route. There is a cost savings associated with reducing the number of formal trials conducted. A typical trial may last a half day with associated ALJ cost and staff time. Having reduced from 35 trials/year from the inception of the NCDOH Enforcement Program to 0 trials in the past two years has resulted in a significant savings of resources. Most importantly, this Enforcement Program ultimately benefits the public because the regulated facilities understand that the NCDOH has a structured enforcement program, that violators will be pursued, and, a civil penalty will be assessed (and if there are repeated violations, it is likely that the ALJ will recommend to the Board of Health to impose a higher penalty for repeat charges). Also, because the regulated facilities are better educated on the importance of their responsibility to protect the public and how to institute safer practices, most will do so as a matter of civic responsibility and, if for no other reason, because it is good for business. Publishing a list of closures on the NCDOH website is another way our Enforcement Program keeps the regulated community accountable. Is there sufficient stakeholder commitment to sustain the practice? Describe sustainability plans. The Enforcement Program by its very nature and pursuant to the public health law and NCPHO commits the stakeholder (regulated community) to the practices described within. The Enforcement Program requires the regulated community to attend trainings and conferences and they must answer charges asserted against them by the NCDOH. The Enforcement Program is self-sustaining and is a mandate of NCDOH.
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