Laws Don't Scare Illegal Providers
Little to stop the unlicensed from caring for kids
By Amanda Harris, Investigations Team
Originally published in Newsday, 1999
DAY FIVE
Salvatore Visconti, a one-time sex offender with a 30-year history of criminal activity and a penchant for using different names, took charge of a Southold church's day-care center in the autumn of 1997. And by the time the church banned him from the center, court papers show, he had terrorized a 3-year-old girl and her father.
Visconti was able to take control of the organization that ran a program for 22 children because the New York State agency that regulates day care took more than three years to issue a license to the program. Because the state was so slow, the safeguards against violent criminals being involved in day care were not in place. State officials admitted that the case was mishandled.
But the Visconti case, which involved the Church of the Open Door's Morning Star Day Care Center on Suffolk's North Fork, is a dramatic example of one of the biggest problems in New York State's regulation of day care. During an 18-month investigation, Newsday has found that numerous providers cared for very young children for years without being licensed, and state officials did little to stop them.
Even though it is illegal to operate a day-care center or a day-care home without a license or registration, New York State has only limited resources to combat recalcitrant operators and shut illegal programs. Newsday's investigation determined that state officials have not even used the toughest tool they have: The state agency has never fined anyone on Long Island, even for operating without a license.
As Newsday reported yesterday, Ellen Sirkin-Blanthorn operated an unlicensed group family day-care home in Levittown for more than two years without a license. The state sent her three separate letters ordering her to stop doing day care immediately, to no avail. She finally applied for and received a license in July, 1994—10 months before a baby died in her house. Two children died while in the care of Kelly Simmons, an unlicensed provider in Hampton Bays, who never received a license. Sirkin-Blanthorn would not talk to Newsday. Simmons would not talk about the deaths but said she now cares for only two children, which does not require a license.
Officials defended the agency that regulates day care, the Bureau of Early Childhood Services (BECS), saying it does the best it can under existing laws. "The issue is the limited tools we have for enforcement," said BECS director Suzanne Zafonte Sennett, citing the restrictions of statutes passed by the State Legislature. The agency also has a comparatively small number of licensing representatives, who manage large caseloads, and only two attorneys to work on enforcement matters statewide.
But another major factor is philosophical. Sennett and Edward Watkins, one of the two lawyers who enforce the bureau's regulations, each said the agency's fundamental policy is to encourage illegal providers to become legal, not to put them out of the day-care business completely or to drive them completely underground.
"My hope is that we will move more cases into compliance, instead of assuming they will move to enforcement," Sennett said.
Many child-care advocates say Sennett and her staff need more ammunition to use against unlicensed providers and other violators. "They don't have a strong enough law," said Janet Walerstein, executive director of the Child Care Council of Suffolk Inc. "They don't have the teeth to close a home or facility for noncompliance."
BECS grants authority to provide day care in two ways: It licenses centers and group family day-care providers, and it registers family day-care providers. Each of these three types of day care has its own set of regulations; a center has the most detailed and stringent requirements, for example. All people who care for three or more children who are not their relatives for more than three hours a day are legally required to apply for BECS certification.
Once they learn the rules, most providers submit to government review and complete all the paperwork needed to become legal, officials said. If they don't, the state often hears about them, usually from neighbors who notice children being dropped off and picked up or from legal providers who are afraid their business will be hurt by cut-rate, off-the-books competitors. Sometimes—but not always—state investigators have done surveillance to confirm illegal operations.
When regulators learn about illegal places, licensing representatives are assigned to approach the illegal providers and explain how to become legal. "We work with them, try to get them up to code and on board and regulated," Sennett said.
If providers do not cooperate, the state's most powerful tool is the right to fine them $250 for each day they operate without a license or registration—that's about $65,000 a year. But the state has never assessed any fines for illegal day care on Long Island.
And Sennett admitted that her agency has in recent years rarely referred cases anywhere in the state to the New York attorney general's office for court action.
"In the early to mid-'80s, they were very active in helping us stop the operation of a number of illegal day-care operations on Long Island, as a matter of fact," Sennett said. "There were maybe 10 or 12 of them over the course of a period of a few years. They have been less active since then."
Sennett said she and her staff are working hard to improve the system and crack down on unlicensed providers and other violators.
In 1995, the state sent 10 "cease and desist" letters to illegal providers across the state; last year, the number rose to 51. "Prior to 1995, there was little vigor behind enforcement cases," Sennett said in a statement.
On Long Island, the number of cease-and-desist letters has increased from three in 1995 to eight last year. During the first nine months of this year, the state sent out nine cease-and-desist letters on Long Island.
"Our track record on enforcement has gotten better," Sennett said.
Despite this tougher treatment of unlicensed operators, the agency still had problems processing the license application from Open Door's Morning Star Day Care Center. It normally takes six to 12 months to get a day-care license, and, in May, 1995, the church began the process. It applied for a permit to run an all-day program for 22 children between the ages of 1½ and 5.
"I am looking forward to our center becoming one that is known for its caring staff and happy children," director Danielle S. Durkin said in a letter to the state in September, 1995.
The center opened for business before the state approved its application, and shortly afterward an incident occurred that alerted regulators to the unlicensed operation. In October, 1997, 2-year-old Claire O'Kane was bitten several times on the face by another 2-year-old while the children were playing in a toy castle at the school.
"Eventually someone heard my daughter screaming and saw this girl on my daughter's chest with her face down on my daughter's face," said Debra O'Kane, Claire's mother. "She was mauled. It was terrible."
O'Kane said the center's teachers were not properly supervising the children. A state inspector noted not only that the center was unlicensed but also found the supervision was inadequate. The inspector recommended no supervision changes but did say the center should have a license.
In discussing the incident, center staff wrote in an unsigned report that is in the state file: "… This was an incident that could not be anticipated, and all appropriate actions were taken."
While state officials were handling the required paperwork on the biting incident, a more ominous event was occurring at the center.
In the fall of 1997, Salvatore Visconti arrived on the scene.
He told people in Southold that he ran the United Yokefellow Ministry and was known as the Rev. Anthony. The ministry was part of a national, spiritual institute founded in 1952 by a Quaker theologian in Indiana and has become a support program for people in or headed to prison. But according to a 1995 bankruptcy filing upstate, Visconti has used seven different names: Charles A. Viscount, Anthony Viscount, Salvatore Viscount, Salvatore Visconti, Anthony Visconti, Sylvester Visconti and Tony King. He's also used various birth dates.
The church trustees apparently didn't know that he had been arrested for several violent sex crimes under two of those names.
According to records, Salvatore Visconti was arrested four times for rape and sodomy in 1967 on Staten Island and Sal Viscount was arrested in 1974 in Brooklyn for sodomy and sexual abuse of a child under the age of 1. He was convicted of one of the sodomy charges, another was dismissed, but the disposition of the other sex charges is unknown, according to court papers filed by Visconti's attorney.
Records show that his long criminal record also includes more recent charges of larceny, using the mail or phone to commit bribery, burglary and possession of drugs and a hypodermic needle. He served several prison terms in New York and New Jersey in the 1970s and 1980s on sentences totaling more than 12 years.
Visconti's lawyer said Visconti became aware of the Church of the Open Door when he saw an ad in The New York Times listing the property for sale. Visconti told people in Southold he would help the small, non-denominational church raise money. He persuaded Claudia Green, chairwoman of the church's board of trustees, to sign a deed giving his ministry co-ownership of Open Door's property on Main Bayview Road. Visconti told Green, who could not be reached, that he wouldn't record the deed, according to court records, but as soon as she signed it, Visconti established his title by filing the deed in the county clerk's office. Then he dismissed church employees and took control of its bank account.
Within a few months, parents of children in the day-care center and church employees were calling the Southold Town Police to express concerns about Visconti's involvement with the center because they had heard rumors about his criminal background. Cathy Reilly told police that after she removed her child from the center, Visconti "followed her down the hall, telling her she couldn't do this and she was not going to get her tuition back."
Julia Benjamin, who was a director of the center, told police Visconti fired her. And Edward Hansen, a founder and the pastor of the Church of the Open Door, said Visconti was running "a scam operation" and was soliciting $300 contributions from parents at the day-care center. After Hansen tried to determine whether Visconti had a criminal background, police records show Hansen said Visconti telephoned him and said, "If I go to jail, they will find you in 14 pieces."
On Feb. 4, 1998, the church trustees hurriedly issued a statement asserting that Visconti had no authority over the day-care center or the church and ordered him to return its checkbooks and other legal materials.
Two days later, Christopher Bishop, another parent, pulled his 3-year-old daughter, Alison, out of the center and, court records say, Visconti tried to run his car off the road, screaming, "Just for your information, you're going to be killed." Town police arrested Visconti a few days later on three charges: reckless endangerment, endangering the welfare of a child and harassment. But it took almost two weeks for state day-care regulators to learn about Visconti and his involvement with Morning Star.
That's when an anonymous caller tipped off BECS that Visconti had told parents he was the new chief executive of Morning Star Day Care Center. "Parents do not want a convicted sex offender to have access to their children," the caller told the state.
If the state had regulated Morning Star properly, Visconti would not have been permitted to become an officer of the day-care center before officials checked whether he had a record of child abuse and he had been asked if he had ever been convicted of a crime. Sennett said her staff had no way of knowing about Visconti or his background before a weekly newspaper wrote a story about parents' concerns.
Meanwhile, the criminal case continued in Southold Town Court. Visconti pleaded not guilty to the charges connected to his chasing down Christopher and Alison Bishop, claiming that he controlled the day-care center and that Bishop was trespassing. Visconti also claimed, unsuccessfully, that his threat to murder Bishop was "constitutionally protected speech and served the legitimate purpose of communication." After a brief trial, Visconti was convicted of reckless endangerment and spent a month in the Suffolk County jail as part of a 45-day sentence. He is now on probation in Brooklyn.
Several attempts to reach Visconti were unsuccessful. But his lawyer, Thomas J. Kalish of Lindenhurst, said in an interview that Visconti was the victim of a witch-hunt in Southold. "No children were ever in any danger," Kalish said. "Mr. Visconti was to be in charge of fund-raising and finances for the church … He never said two words to any children."
While the criminal case was under way, delays still plagued Morning Star's license application. On June 2, 1998, the director of the regional office wrote to the center's director informing her Morning Star was licensed. The next day, a licensing representative in the same office wrote to the director and listed six items that had to be finished before the center could be licensed.
The state finally licensed Morning Star on July 21, 1998, but Durkin said the Visconti controversy contributed to the center's closing later in the year. Durkin is bitter that the state took so long to issue the license. "We were told we were licensed and just had to wait for the paperwork, and it never came," she told Newsday.
Durkin was particularly critical of the state licensing representative assigned to the case. After waiting two years for the license without results, Durkin wrote his boss, Aurora Farrington, saying the representative "has been telling us that your department is so overloaded and backed up that he has not gotten the chance to work on our license as of yet. Could this be true???"
BECS has refused Newsday permission to talk to Farrington or any other officials in the Long Island regional office. Sennett said the handling of the case by the regional office was "unacceptable." She said the representative told his supervisors that he was waiting for paperwork from the center.
Sennett said the entire licensing process should take only six months to a year, depending on whether or not the center has a staff and a building ready to go when it submits an application. Sennett added that a new computer system for tracking licensing and enforcement of all providers, which she expects to launch in February, could prevent the delays that kept Open Door unlicensed for so long. The Morning Star licensing application "got lost in the shuffle," she said.
A second center that apparently also got lost was Busy Bee Nursery School and Kindergarten in Amityville, although it was initially a properly regulated and virtually complaint-free day-care center.
It first opened in 1953 as a private school. In 1976, Busy Bee was taken over by Maxine and Jeffrey Postal and eventually became a nursery school and kindergarten for children ages 21/2 to 6. As of Jan. 1, 1991, Maxine Postal, who had become a member of the Suffolk County Legislature, sold the business to Elizabeth Solomon, who took over Postal's day-care license. That expired on March 15, 1991. Repeated efforts to reach Solomon, whose most recent address is a post office box in Connecticut, were unsuccessful.
The state began hearing about problems shortly after the transfer took place. On Sept. 10, 1991, a parent complained to the state that her 3-year-old daughter "was left with people who were taken off the street to watch the children because there were no teachers there." The parent claimed there was hazardous construction debris at the center and inadequate supervision of the children. She removed her daughter after one day. Inspectors found many violations of day-care regulations, supporting the parent's claims.
In March, 1993, an anonymous caller complained to the state that children's food was being wrapped in used supermarket bags, their fruit juice was being watered down to save money and children's cots were dirty. An inspector could not substantiate these complaints, but he concluded: "This center does meet minimum compliance. I feel provider could do a much better job than is currently being done."
As the years passed, the state continued to receive and investigate complaints about Busy Bee, while prodding it to renew its license. Most complaints were minor and unsubstantiated; others were more serious. "That's the thing. You operate and you're not in compliance, and they don't close you down and they don't fine you,” Postal said. "And so the lesson you learn is that you can continue to do that sort of thing and nothing happens."
In 1996, a 3-year-old came home with what records described as the mark of a hand on her leg, where she said a teacher had hit her. Someone else, whose identity was removed from the records given Newsday, complained that rat poison was left around the center in easy reach of young children.
Finally, state officials got fed up. "It is beyond my comprehension how this center can repeatedly have fallen through some crack and be permitted to operate without being renewed for more than five years after some 17 attempts by the regional office to provide assistance," assistant counsel David N. Green wrote on June 27, 1996.
During those years, agency representatives inspected the center and sent copies of form letters asking Solomon to renew the expired license. In April, 1996, Solomon finally submitted a partial renewal application, but the state records indicate the application was incomplete.
Postal, concerned that parents and creditors would think she was still responsible for Busy Bee, prodded the state throughout the unlicensed period.
"I implore you to take immediate action to secure an injunction to stop Elizabeth Solomon from operating Busy Bee," Postal wrote attorney Edward Watkins on Sept. 13, 1996. "Her facility is unhealthy, dangerous and destructive to the welfare of the children in her care, and should someone be injured on the premises, she has no liability coverage."
But before the state hearing was held, the Suffolk County sheriff's office evicted Busy Bee from its buildings for nonpayment of rent. On Dec. 3, 1996, moments after parents arrived to take three children home, two deputy sheriffs removed the day-care materials from the building. But after it closed, the state was unable to collect civil penalties of about $35,000 because agency representatives couldn't prove at the hearing that Solomon was illegally caring for more than three children for more than three hours during that time.
Today, bureau officials say, the state would move faster and be tougher than it was with Busy Bee. They added that it would be unfair to conclude the case could happen again even though the state still has a policy of encouraging illegal operators to become legal.
"There is now a very, very different mode of operation," Sennett said in an interview in Albany.
But the Suffolk Child Care Council's Janet Walerstein and others say the agency still needs tougher laws and a larger staff. "They have these fines that are kind of nebulous and low where it doesn't mean anything," Walerstein said. "It [the Bureau of Early Childhood Services] really has no clout."
The 'Nursery School' Exception
By Amanda Harris, Investigations Team
For most people, the phrase "nursery school" triggers an image of a friendly and safe place run by Mary Poppins look-alikes. But on Long Island, many nursery schools are completely unregulated, creating the potential for problems.
State regulations exempt from licensing and registration nursery schools or any other preschool programs that last less than three hours a day. State officials say the rule is a practical solution to the difficulty of trying to regulate all early childhood education. Also exempt from regulation by the state are day camps and day-care programs in school districts, federal buildings and on Indian lands, but those programs are supposed to be regulated by other government agencies.
As long as they do not receive any public subsidies, providers who care for fewer than three children at once or whose care lasts less than three hours a day are not regulated by New York State.
"It comes down to what we believe is a reasonable cut-off," said Suzanne Zafonte Sennett, director of the Bureau of Early Childhood Services, in an interview last year. "I have no interest in regulating birthday parties."
But the policy has critics. Experts say part-time day care can be just as risky as full-day care. And Long Island activists say some nursery schools illegally circumvent the law by allowing parents to enroll their children in two sequential part-time programs, resulting in day-long care.
"… They have two sessions," said Fran Karliner, corporate and information services coordinator for the Child Care Council of Nassau. "It starts at nine o'clock, ends at eleven fifty-five, starts at one o'clock and ends at three fifty-five … I can register my children for both sessions and they'll give them lunch, so they are keeping my children for more than three hours."
In 1992, the American Academy of Pediatrics and the American Public Health Association established national health and safety performance standards for day care that strongly urged regulators to supervise part-time programs.
"We recommend that every state should have a statute that … mandates the licensing and regulation of all regular full-time and part-time out-of-home care of children, regardless of setting, except that provided by parents or legal guardians, grandparents, siblings, aunts or uncles," the associations stated. "Nothing in the educational philosophy, religious orientation or setting of an early childhood program inherently protects children from health and safety risks or provides assurance of a level of quality of child care."
Long Island and the rest of the state are different from New York City, where all programs, including nursery schools, that take in 10 or more children under the age of six need a permit from the city.
Officials say parents are often attracted by the word "school" in a program's name, but it has no legal weight.
"A lot of places use the word school, and the word has lost a lot of its meaning because of that," said Tom Hogan, supervisor for nonpublic schools in the state education department. The state education department has jurisdiction only over schools that instruct children from the ages of 6 to 16.
The laws are so complex it is often difficult for parents to understand them. "It's almost like peeling an onion," Hogan said.
Child Care Council officials say parents are sometimes angry when they learn about the nursery school loophole. "They usually are upset that, if there is a complaint to be made, there is nobody to complain to," Karliner said.
Sennett said there have been only a few complaints about abuses of the nursery school loophole. And she said she has no legal authority to regulate places with morning and afternoon programs when different children attend each session.
But her department has taken the first step toward regulating nursery schools and other exempt programs when public money is used to pay children's tuition.
Regulations issued by the Office of Children and Family Services in October require these providers to promise to meet basic health and safety requirements, such as having a first aid kit on hand and observing sensible food-handling techniques. The new regulations also require employees of nursery schools and other exempt programs to tell the state if they have ever been convicted of a crime.
But many day-care activists would like New York to go further and change state laws to treat part-time nursery programs the same as day-care programs.
"Many parents of 3- and 4-year-olds will call and say, ‘I want a nursery school, not a day-care center,"' said Arlene Labenson, resource and referral coordinator for the Child Care Council of Nassau. "They have the stereotype that a day-care center is for poor people, and they pack the children in like cattle. But the difference between a nursery school and a child-care center is often just the opposite of what most parents assume. They ask how many children are allowed to be in the classroom in a nursery school and we say, ‘As many as they can get away with."'
A Flood of Money Going to 'Informal' Caregivers
By Amanda Harris and Sarah Kershaw, Investigations Team
As new welfare rules flood the day-care system with children, local governments are relying heavily on unregulated care, spending millions of dollars annually without monitoring the providers or checking how the money is spent.
Faced with limited openings in regulated day care, Nassau and Suffolk Counties, as well as local governments throughout the state, are increasingly dependent on so-called "informal” providers to look after the children of the working poor and of parents moving off welfare.
Informal providers care for only one or two children at a time and, as a result, do not have to be licensed by or register with the state Bureau of Early Childhood Services, the state agency that regulates day care. Traditionally, informal providers have been relatives or neighbors. But an increasing number of parents have turned to strangers.
Currently in Suffolk County, more parents receiving public subsidies for day care are putting their children in informal care than any other kind, and more than half of those providers are not related to the children, county officials say. In Nassau, informal care is the second most common type of day care, after centers. About two-thirds of the providers are not grandmothers or other relatives.
This year about 1,229 children in Suffolk and about 1,864 children in Nassau are in informal care, according to the two counties' social services departments. The bill for Suffolk taxpayers last year was about $3.3 million; the amount for Nassau was not available.
Statewide, publicly subsidized informal care has exploded in the past few years. In 1997, 20,000 children on public assistance were in informal care paid for through state and federal funds, according to state officials. Projections for the year 2000 put the number at 89,000.
The level of spending on informal care and the lack of oversight "is the scandal of the next decade," predicted Barbara Blum, the former state commissioner of social services.
"It is so clearly a knee-jerk response to an overwhelming demand for care," said Gail Nayowith, executive director of the Citizens Committee for Children, an advocacy group. "Basically you are giving cash to people, and you have no idea what it buys. In every other instance, when tax dollars are at stake the city [New York] has figured out how to ensure there's some accountability for expenditure of public money."
Local government officials say they are relying more and more on this type of day care because it is cheaper, easier and meets parents' needs. "The big draw is the convenience," said Peter Clement, assistant to the Nassau commissioner of social services for finance and development.
The flexibility of informal care is often essential to parents—particularly low-income parents—who work at nights or on weekends or have otherwise unusual schedules. Officials and experts admit, however, that it can be much less reliable than formal day care. As for cost, under market rates established by the state, Nassau pays 17 percent less per day toward informal care for a child under the age of 11/2 than it would for a day-care center, and Suffolk pays 34 percent less.
Until recently, however, there were no regulations for informal care providers. In October, the state for the first time put into place regulations that establish some basic rules for these informal providers, as well as other day-care providers that until now had been exempt from any official scrutiny. From now on, for example, informal providers must tell officials if they or anyone in their household has been convicted of a crime.
State officials say the new regulations will help them improve the health and safety of informal care. "They are giving us something that we have never even dared to dream of in the past," said Suzanne Zafonte Sennett, BECS director. "These are huge wins for us."
Providers will fill out a form, which has to be signed by the parents, attesting to basic health and safety measures in their homes, such as smoke detectors and fire exits. Providers will also have to submit sworn statements about whether they have been convicted of a crime or involved in a substantiated case of child abuse.
The regulations do not require independent screening of the providers or monitoring of the homes, and critics say the new regulations, like the existing rules on day care, rely too heavily on providers' own words of honor.
Some professional child-care providers, who subject themselves to government regulation, resent the competition from informals. Joyce Lanier, who runs Toddlers University in Great Neck, has repeatedly charged that some informal providers are operating illegally at public expense. She said some people are caring for three or more children at the same time, which should subject them to regulation as registered family day-care providers.
Lanier said illegal informal providers damage the business she and her husband have spent years developing. "Why should they get what we get with no regulation?” Lanier said. "The lady doing informal down the street hurts my business."
Officials on Long Island say they are unaware of any widespread financial fraud with illegal informals. They also said they know of no horror stories about children being abused in informal care.
"There is an assumption in some people's mind that informal equals inferior, but that is not the case," said John Walsh, director of day care for Suffolk County Department of Social Services.
Before the state issued its new regulations, some concerned officials had begun resorting to creative but voluntary methods of contacting informal providers and teaching them about good child-care techniques.
New York State is distributing copies of a newsletter called "Children in My Care," which was researched and written by Susan Hicks of Cornell University. The four-page issues are brightly written and illustrated and full of practical advice about how to care for young children, from reminding providers to wash their hands frequently to making certain there are no guns that children can find.
The newsletter is part of a $1.25 million state "quality enhancement" program aimed at the informal providers. As part of the initiative, local groups are also offering free first-aid kits, smoke detectors and other safety materials to make informal providers' homes safer.
Also, state and city officials are using a federally funded food program as a way to get inspectors inside informal providers' homes to check out living conditions and to guarantee nutritious meals to children in informal care.
Still, officials and child-care advocates say the effort has reached only a fraction of the informal providers and there remains a great deal of mediocre, or bad child care, in New York as well as the rest of the country.
"The reality of it is, sadly, that there is informal care out there, some of which may not be of good quality and some of which may not be safe for kids," said Michael Kharfen, spokesman for the U.S. Department of Health and Human Services.
While many child-care advocates say government has the moral responsibility to work harder to make certain that informal care is good care, government officials insist the current law leaves those issues almost completely up to parents, not bureaucrats.
"What kind of parent is it who doesn't ask who it is who is taking care of their children?" asked Clement, a father of triplets. "It's somewhat absurd to say, ‘Don't worry, the government will do it for you."'
