-Agency failed to inspect 1 out of every 5 permitted restaurants-

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The Department of Health and Mental Hygiene (DOHMH) is not inspecting all of New York City’s permitted restaurants and is failing to follow up in a timely manner with all restaurants that have failed inspections to ensure that health code violations are being remedied, according to a new audit by New York City Comptroller William C. Thompson, Jr.
“The thousands of restaurants in New York help to create our unique, culturally diverse, and dynamic City,” Thompson said. “However, what we found may give New Yorkers pause the next time they decide to go out to eat. It is deplorable that many restaurants are not being inspected, and that many which have failed numerous inspections are allowed to remain open.”

Thompson added, “The Health Department is charged with protecting the health and well-being of New Yorkers, but, unfortunately its internal controls for ensuring that health code violations at restaurants are corrected in a timely manner were found to be flawed. For the health and safety of all New Yorkers, they must be strengthened.”
Thompson’s audit of DOHMH – available at www.comptroller.nyc.gov – covered Fiscal Year 2008 and exposed that DOHMH:

• Did not inspect more than 22% of permitted restaurants in Fiscal Year 2008, even though its internal regulations state that these inspections should be done once a year to ensure the ongoing safety of food service operations.
• Failed to follow up with restaurants that failed at least one sanitary inspection in a timely manner.
• Kept inadequate documentation on why restaurants with multiple failed sanitary inspections were allowed to remain open.
• Does not adequately track its inspectors or supervisors to ensure that inspections are being properly conducted and monitored.

DOHMH is charged with protecting and promoting the health and mental well-being of all City residents through health-promotion and disease-prevention programs, and through the enforcement of City health regulations. The DOHMH Bureau of Food Safety and Community Sanitation (BFSCS) is the unit responsible for enforcing the City Health and Administrative Codes, the State Sanitary Code, and various local laws of the City of New York.

BFSCS educates the public about food-borne illnesses and regulates, issues permits to, and inspects a variety of food service establishments (FSEs), such as restaurants, mobile food units, and senior-center and school cafeterias. An FSE is a place where food is provided in individual portions directly to the consumer to be eaten on or off the premises.

BFSCS’s main responsibility is to inspect FSEs in an effort to protect the public’s health and safety. These inspections are conducted by Public Health Sanitarians (PHSs), who are trained public health professionals with college degrees who have earned at least 30 credits in the physical sciences.

PHSs conduct unannounced inspections of FSEs. During an inspection, the PHS inspector evaluates the FSE’s conditions and practices and identifies risk factors for food-borne illnesses. Based on inspection results, the PHS may issue a Notice of Violation (NOV), which is an administrative summons for a violation of the City Health Code, the State Sanitary Code, or other applicable laws.

During Fiscal Year 2008, BFSCS conducted 79,170 inspections in 32 different types of facilities. For this audit, Thompson’s office reviewed one type of facility – restaurants – for which there were 61,848 (78%) inspections during that period.

Thompson’s audit charged that more than 22% of permitted restaurants operating in Fiscal Year 2008 were not inspected by DOHMH. In a randomly selected audit sample of 42 of these restaurants, only 36 had been inspected as of February 13, 2009. Of these, 14% failed their first inspection. The time between the prior inspections in Fiscal Year 2007 and the subsequent inspections in Fiscal Year 2009 ranged from 380 days to 699 days, with an average of 538 days.

“It is possible that the conditions at these restaurants leading to the failed inspections had been allowed to continue for a very long time without detection by the Department,” Thompson said. “Consequently, there is an increased risk that unsanitary conditions at restaurants continued for long periods of time without detection, which in turn increase the likelihood that food-borne illnesses could occur.”

Thompson’s audit found that, during Fiscal Year 2008, 5,838 restaurants failed at least one sanitary inspection. A sampling of 62 restaurants revealed that DOHMH did not conduct a follow up compliance inspection for 2 of them. Furthermore, 20% of these restaurants received a compliance inspection more than the mandated 45 days after the failed initial inspection.

“It is important to ensure that compliance inspections are performed timely,” Thompson said. “Otherwise, the danger that food-borne illness could occur as a result of unsanitary conditions being allowed to continue is increased.”

Thompson further charged that DOHMH’s documentation was woefully inadequate on why restaurants with multiple failed sanitary inspections were allowed to remain open. While 678 restaurants failed three or more consecutive sanitary inspections in 2008, Thompson’s audit sample of 39 of these restaurants indicated that nearly half of them (49%) were allowed to remain open. However, inspectors did not report in the Department’s system why these restaurants were not subject to closure.

“In one instance, a restaurant was allowed to remain open even after four failed inspections, two of which detected mice,” Thompson said. “By not documenting the reasons for allowing restaurants to remain open, the Health Department is hindered in its ability to oversee and evaluate the appropriateness of these decisions.”

Thompson’s audit uncovered that DOHMH does not adequately track its inspectors or supervisors to ensure that inspections are being properly conducted and monitored. As a result, the agency cannot ensure that its inspectors conduct sanitary inspections in a consistent manner. While variances in inspector scores are not necessarily a sign that inspectors are not performing their jobs correctly, Thompson noted that these variances do merit further investigation to determine their causes.

Furthermore, the audit found that DOHMH is not conducting enough supervisory inspections of restaurants. According to agency regulations, 5% of all inspections should be supervisory. However, the audit demonstrated that only 1.8% of inspections were conducted by supervisors.

“It may be necessary for the Department of Health and Mental Hygiene to make modifications to ensure that inspections are performed in a uniform manner,” Thompson said. “Also, when inspectors know that a supervisor may inspect the same restaurant soon after they complete their inspection, the risk of fraud or corruption in the inspection program is reduced.”

To address issues exposed in the audit, Thompson made several recommendations, including that DOHMH should:

• Ensure that all permitted restaurants are given a full sanitary inspection at least once a year in accordance with its procedures.
•  Consistently conduct compliance inspections of restaurants in a timely manner.
• Ensure that those restaurants that have failed three or more consecutive regular sanitary inspections or two or more consecutive Accelerated Inspection Program (Program) inspections are reinspected in a timely manner.
• Ensure that reasons for not closing restaurants that fail a minimum of three consecutive regular sanitary inspections or two consecutive Program inspections are documented in the DOHMH tracking system.
• Analyze inspection data to ascertain whether significant variances exist with respect to inspection scores given by inspectors. If such variances exist, determine the reasons for the variances and, if needed, make modifications (e.g., increase training) to ensure that inspections are performed in a consistent manner.
• Ensure that supervisors conduct supervisory inspections as required to ensure that sanitary inspections are being properly conducted and to minimize the risk of corruption in the inspection process.

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