Applied Behavior Analysis (ABA) therapy providers operating clinic-based environments in New York City and New York State have recently experienced increased scrutiny and enforcement actions from different regulatory authorities, including the New York State Office of Children and Family Services (OCFS),[1] and the New York City Department of Health and Mental Hygiene (DOHMH). These authorities are asserting that when an ABA agency provides services to multiple children in a clinic setting, for extended hours, without a parent or guardian present, then such ABA clinic is operating as an unlicensed child day care program.
These authorities have concluded that when ABA clinic settings look and function like child day care centers – young/school-aged children are dropped off at the facility where they participate in group sessions for several hours per day, and are not accompanied by a parent or guardian – then licensure as a child day care program is required, unless an exception applies.
NYC DOHMH, whose enforcement powers are limited to New York City, defines a “group child care program” as a non-residential childcare program that serves children from birth to six (6) years old; has space for three (3) or more children; and operates five (5) or more hours per week, for more than thirty (30) days in a twelve-month period. DOHMH has the authority to issue immediate closure orders, including instructing landlords to physically lock facilities it deems to be illegally operating without a group care license.
Even though ABA is a medically necessary and reimbursable healthcare service under Medicaid, the ABA clinic service model is still subject to scrutiny and classification by state and/or city officials as a child day care center.
If your ABA clinic’s operations mirror the structure of a child day care program, particularly in terms of group size, length of session time, and lack of parental supervision, the aforementioned authorities may classify the clinic’s operating model as an unlicensed child day care center, regardless of the credentials of the licensed clinicians providing services.
Should you have any questions regarding the above, or if your ABA practice has received a notice of violation, stop-work order, or other correspondence from DOHMH or OCFS, or require assistance in ensuring your organization is compliant, please reach out to the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].
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[1] Under state OCFS regulations, a “child day care center” is defined as any non-residential program that provides childcare on a regular basis to more than six (6) children at any one time for more than three (3) hours per day per child, with or without compensation.
