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This website has been established to explain the status of two separate class action lawsuits against the New York State Office of Children and Family Services (“OCFS”) which operates the New York Statewide Abuse and Maltreatment Register (“SCR” or the “Register”). The court has certified two classes. One class is referred to as the Finch Class and the other is referred to as Sub Class B. This website will advise you of a settlement for Finch Class A and for Sub Class B and the rights that members of the class have.
SUB CLASS B MEMBERS
IF YOU ARE NOT SURE IF YOU ARE LISTED ON THE REGISTER
You will find below information regarding the following:
1. What is the New York Statewide Abuse and Maltreatment Register and why was the Finch Litigation Filed.
2. Are you a Class A Member?
3. What rights do you receive as a Class A Member?
4. What is the Class A Settlement Agreement about?
6. How will class counsel monitor the State’s compliance with the settlement?
7. Who are the Class Representatives and who is the Class Counsel?
8. Who is paying the attorneys’ fees and litigation expenses of class counsel.
New York, similarly to virtually every State in the union, maintains
a Registry that lists the names of people who have supposedly abused
or maltreated a child. Inclusion on the Registry is virtually
automatic requiring only that the allegations satisfy a minimal “any
credible evidence” standard. Although adding a name to the Registry
is easily done the consequence of such inclusion can be economically
Before an employer who is engaged in child care may hire, the law requires that an inquiry be made to ascertain if the job applicant is listed on the Registry. Licensing or foster care agencies must also consult the Registry. If the person is not listed, the employer receives a “no hit” letter. If listed, a “hit letter” is sent to the employer which will for all practical purposes foreclose the opportunity to be gainfully employed in the child care industry. Once on the Registry, your name remains listed for up to 28 years.
In 1994, a federal Appeal court held that the legal requirement that employers must consult the Registry is an unconstitutional impediment to employment.
Finch v. State, filed in February of 2004, challenged the substantial delays in
scheduling these hearings. Since hearings took years to complete, many people who were awaiting a clearance lost job opportunities. These delays were particularly troubling since 60%-70% of people who eventually received their hearings were exonerated.
The Honorable Shira Scheindlin of the Southern District of New York (04 CIV 1668), was assigned to the Finch case. The Judge certified a class. After denying the State’s motions to dismiss and for summary judgment the trial was scheduled to begin in March of 2010.
Three weeks before the trial was to start the case took a dramatic turn. A staff worker at the Central Registry advised counsel that shortly after the Finch litigation was filed the State Agency that operates the Registry undertook various projects that wrongfully terminated hearing requests. To eliminate the hearing backlogs of up to seven years the State implemented a project that contacted the inquiring employer to ascertain if they were still interested in the applicant. As these calls took place years after the clearance request had been made all of the contacted employers were no longer interested in the applicant. The request for a hearing was then closed out and the State records were marked that the hearing had been “waived”. Some hearing requests were shredded and similarly noted as “waived.” As the State records recorded that the requested hearing was waived, the person who was listed was permanently foreclosed from receiving a hearing ever again when a later clearance inquiry was made. These projects violated the statute that created the Registry which afforded the right to the hearing to the job applicant and not to the inquiring employer. After discovery confirmed the “whistle blowers” allegations, the State agreed to settle the “project” claims. Beginning in August 2010, and staggered over fifteen months, notices would be sent to 20,000 people whose hearings were terminated by these projects. People who receive these Notice Letters are all members of Sub Class B. The notice advises the class members of their right to reopen their “waived” hearings. Because of this settlement over a thousand New Yorkers have requested that their hearings be reopened.
Finch Class A
As the partial settlement only related to the hearing termination
projects, the question as to how long it should take to complete
hearings remained outstanding. The timeliness trial was then
scheduled to start in September 2010. On the eve of trial a final
settlement of the litigation was reached. Beginning in November,
2011, for those whose opportunity to work is impeded, hearings will
be completed in four months. For those whose jobs are not
immediately at risk, hearings will be completed in eight months.
Compliance with these time limits will be monitored by appointed
class counsel for up to three years.
For thousands of people hearings will now be held in a timely way allowing many to return to work sooner. Those projects that wrongfully deprived people of their rights to a hearing are now a thing of the past.
On December 18, 2008, Judge Scheindlin did so and defined the members of the Finch Class as:
“All persons who are working or desire to work or to be licensed in child-related employment who, now and in the future, are listed on the Statewide Central Register of Child Abuse and Maltreatment as the subjects of indicated reports that were investigated and indicated by a designated investigative agency, and who have timely requested amendment of the indicated report and whose requests for amendment have not been disposed of.”
(See 12/18/2008 Decision link)
Thus, if you are currently listed on the Statewide Register and have requested a hearing and have yet to receive the hearing, you are a member of this Finch Class A.
A. What are the Rights you will Receive?
Beginning November 1, 2011, if you have applied for a job or a license to work with children and are awaiting a clearance from the Register, your review will be completed in 130 (4 months) days from the day you make your request. If you have been terminated or suspended form a job because of the indicated report, your review will also be completed in 130 days from the date of request. Those whose jobs, or license or job application are not immediately affected will have reviews completed within 310 days (8 months).
In the past people who have requested hearings have had to await months and often years before the hearings were completed. While awaiting completion of the hearing people were unable to work in child-related employment or to receive a license to operate a day care center or to become a foster parent. The settlement will require these hearings be completed more quickly.
On February 7, 2011 Hon. Shira A. Scheindlin, Federal Judge in the Southern District of New York, has approved the final settlement. No one has objected to the terms of the settlement. CLICK HERE to view class settlement.
A. Under the agreement, because of fiscal considerations, the State
will not have to comply with time limits until November 2011.
B. After November 2011, Class counsel will randomly review records to make sure that 85% of requests will be completed within the agreed to time limits.
C. The Court will continue to have jurisdiction to make sure that the State is complying with the terms of the Settlement Agreement.
D. Oversight by Class Counsel will be for up to three years after the settlement is approved by the Judge. If the State can show that it has completed reviews in a timely fashion for 85% of requests for six consecutive quarters, then the oversight may end after two years.
A. Who are the Class Representatives?
The plaintiffs Barbara Finch, Carol Jordan and Barbara Ortiz will be acting as the class representatives.
B. Who are the Attorneys Representing the Class?
The attorney designated by the court as counsel for the Class is:
Thomas Hoffman, Esq. of Law Offices of Thomas Hoffman, P.C.
250 West 57 Street, Suite 1020, New York, NY 10107
Tel. No. 212 974 1170
You will not pay any of the attorneys’ fees and expenses of the
attorneys Representing the class. Class counsel will request that
the State pay the costs and legal fees.
8. WHERE AND HOW DO YOU GET MORE INFORMATION ABOUT THE SETTLEMENT?
We hope you have found the website helpful. We will continue to update the website and advise you of current developments. Please contact us with any comments you may have.
Thank you for visiting us.
DECISIONS & ORDERS
Publication Notice to Class
LETTER NOTICE TO CLASS MEMBERS OF RIGHT TO RE-OPEN REQUEST FOR HEARING
Printable Claim Form