N.Y. MHY Law § 16.17 — New York Code / Act MHY / Title C / Article 16 / Section 16.17
Suspension, revocation, or limitation of an operating certificate
Status: in_force

§ 16.17 Suspension, revocation, or limitation of an operating\n          certificate.\n  (a) The commissioner may revoke, suspend, or limit an operating\ncertificate or impose the penalties described in subparagraph a, b, c or\nd of paragraph one of subdivision (b) or in subdivision (g) of this\nsection upon a determination that the holder of the certificate has\nfailed to comply with the terms of its operating certificate or with the\nprovisions of any applicable statute, rule or regulation. The holder of\nthe certificate shall be given notice and an opportunity to be heard\nprior to any such determination except that no such notice and\nopportunity to be heard shall be necessary prior to an emergency\nsuspension or limitation of the facility's or provider of services'\noperating certificate imposed pursuant to paragraph one of subdivision\n(b) of this section, nor shall such notice and opportunity to be heard\nbe necessary should the commissioner, in his or her discretion, decide\nto issue separate operating certificates to each facility or provider of\nservices formerly included under the services authorized by one\noperating certificate to the provider of services.\n  (b) (1) An operating certificate may be temporarily suspended or\nlimited without a prior hearing for a period not in excess of sixty days\nupon written notice to the facility or provider of services following a\nfinding by the office for people with developmental disabilities that a\nindividual's health or safety is in imminent danger. Upon such finding\nand notice, the power of the commissioner temporarily to suspend or\nlimit an operating certificate shall include, but shall not be limited\nto, the power to:\n  a. Prohibit or limit the placement of new individuals in the facility\nor services;\n  b. Remove or cause to be removed some or all of the individuals in the\nfacility or services;\n  c. Suspend or limit or cause to be suspended or limited the payment of\nany governmental funds to the facility or provider of services provided\nthat such action shall not in any way jeopardize the health, safety and\nwelfare of any person with a developmental disability in such program or\nfacility or services;\n  d. Prohibit or limit the placement of new individuals, remove or cause\nto be removed some or all individuals, or suspend or limit or cause to\nbe suspended or limited the payment of any governmental funds, in or to\nany one or more of the facilities or provider of services authorized\npursuant to an operating certificate.\n  (2) At any time subsequent to the suspension or limitation of any\noperating certificate pursuant to paragraph one of this subdivision\nwhere said suspension or limitation is the result of correctable\nphysical plant, staffing or program deficiencies, the facility or\nprovider of services may request the office to review the facility or\nprovider of services to redetermine whether a physical plant, staffing\nor program deficiency continues to exist. After the receipt of such a\nrequest, the office shall review the facility or provider of services\nwithin ten days and in the event that the previously found physical\nplant, staffing or program deficiency has been corrected, the suspension\nor limitation shall be withdrawn. If the physical plant, staffing or\nprogram deficiency has not been corrected, the commissioner shall not\nthereafter be required to review the facility or provider of services\nduring the emergency period of suspension or limitation.\n  (3) During the sixty day suspension or limitation period provided for\nin paragraph one of this subdivision the commissioner shall determine\nwhether to reinstate or remove the limitations on the facility's or\nprovider of services' operating certificate or to revoke, suspend or\nlimit the operating certificate pursuant to subdivision (a) of this\nsection. Should the commissioner choose to revoke, suspend or limit the\noperating certificate, then the emergency suspension or limitation\nprovided for in this subdivision shall remain in effect pending the\noutcome of an administrative hearing on the revocation, suspension or\nlimitation.\n  (4) The facility operator or provider of services, within ten days of\nthe date when the emergency suspension or limitation pursuant to\nparagraph one of this subdivision is first imposed, may request an\nevidentiary hearing to contest the validity of the emergency suspension\nor limitation. Such an evidentiary hearing shall commence within ten\ndays of the facility operator's or provider's request and no request for\nan adjournment shall be granted without the concurrence of the facility\noperator or provider of service, office for people with developmental\ndisabilities, and the hearing officer. The evidentiary hearing shall be\nlimited to those violations of federal and state law and regulations\nthat existed at the time of the emergency suspension or limitation and\nwhich gave rise to the emergency suspension or limitation. The emergency\nsuspension or limitation shall be upheld upon a determination that the\noffice for people with developmental disabilities had reasonable cause\nto believe that a individual's health or safety was in imminent danger.\nA record of such hearing shall be made available to the facility\noperator or provider of service upon request. Should the commissioner\ndetermine to revoke, suspend or limit an operating certificate pursuant\nto subdivision (a) of this section, no administrative hearing on that\naction shall commence prior to the conclusion of the evidentiary\nhearing. The commissioner shall issue a ruling within ten days after the\nreceipt of the hearing officer's report.\n  (c) When the holder of an operating certificate shall request an\nopportunity to be heard, the commissioner shall fix a time and place for\nthe hearing. A copy of the charges, together with the notice of the time\nand place of the hearing, shall be served in person or mailed by\nregistered or certified mail to the facility or provider of services at\nleast ten days before the date fixed for the hearing. The facility or\nprovider of services shall file with the office, not less than three\ndays prior to the hearing, a written answer to the charges.\n  (d) (1) When a hearing must be afforded pursuant to this section or\nother provisions of this article, the commissioner, acting as hearing\nofficer, or any person designated by him or her as hearing officer,\nshall have power to:\n  a. administer oaths and affirmations;\n  b. issue subpoenas, which shall be regulated by the civil practice law\nand rules;\n  c. take testimony; or\n  d. control the conduct of the hearing.\n  (2) The rules of evidence observed by courts need not be observed\nexcept that the rules of privilege recognized by law shall be respected.\nIrrelevant or unduly repetitious evidence may be excluded.\n  (3) All parties shall have the right of counsel and be afforded an\nopportunity to present evidence and cross-examine witnesses.\n  (4) If evidence at the hearing relates to the identity, condition, or\nclinical record of an individual, the hearing officer may exclude all\npersons from the room except parties to the proceeding, their counsel\nand the witness. The record of such proceeding shall not be available to\nanyone outside the office, other than a party to the proceeding or his\ncounsel, except by order of a court of record.\n  (5) The commissioner may establish regulations to govern the hearing\nprocedure and the process of determination of the proceeding.\n  (6) The commissioner shall issue a ruling within ten days after the\ntermination of the hearing or, if a hearing officer has been designated,\nwithin ten days from the hearing officer's report.\n  (e) All orders or determinations hereunder shall be subject to review\nas provided in article seventy-eight of the civil practice law and\nrules.\n  (f) (1) Except as provided in paragraph two of this subdivision,\nanything contained in this section to the contrary notwithstanding, an\noperating certificate of a facility or provider of service shall be\nrevoked upon a finding by the office that any individual, member of a\npartnership or shareholder of a corporation to whom or to which an\noperating certificate has been issued, has been convicted of a class A,\nB or C felony or a felony related in any way to any activity or program\nsubject to the regulations, supervision, or administration of the office\nor of the office of temporary and disability assistance, the department\nof health, or another office of the department of mental hygiene, or in\nviolation of the public officers law in a court of competent\njurisdiction of the state, or in a court in another jurisdiction for an\nact which would have been a class A, B or C felony in this state or a\nfelony in any way related to any activity or program which would be\nsubject to the regulations, supervision, or administration of the office\nor of the office of temporary and disability assistance, the department\nof health, or another office of the department of mental hygiene, or for\nan act which would be in violation of the public officers law. The\ncommissioner shall not revoke or limit the operating certificate of any\nfacility or provider of service, solely because of the conviction,\nwhether in the courts of this state or in the courts of another\njurisdiction, more than ten years prior to the effective date of such\nrevocation or limitation, of any person of a felony, or what would\namount to a felony if committed within the state, unless the\ncommissioner makes a determination that such conviction was related to\nan activity or program subject to the regulations, supervision, and\nadministration of the office or of the office of temporary and\ndisability assistance, the department of health, or another office of\nthe department of mental hygiene, or in violation of the public officers\nlaw.\n  (2) In the event one or more members of a partnership or shareholders\nof a corporation shall have been convicted of a felony as described in\nparagraph one of this subdivision, the commissioner shall, in addition\nto his or her other powers, limit the existing operating certificate of\nsuch partnership or corporation so that it shall apply only to the\nremaining partner or shareholders, as the case may be, provided that\nevery such convicted person immediately and completely ceases and\nwithdraws from participation in the management and operation of the\nfacility or provider of services and further provided that a change of\nownership or transfer of stock is completed without delay, and provided\nthat such partnership or corporation shall immediately reapply for a\ncertificate of operation pursuant to subdivision (a) of section 16.05 of\nthis article.\n  (g) The commissioner may impose a fine upon a finding that the holder\nof the certificate has failed to comply with the terms of the operating\ncertificate or with the provisions of any applicable statute, rule or\nregulation. The maximum amount of such fine shall be one thousand\ndollars per day or fifteen thousand dollars per violation.\n  Such penalty may be recovered by an action brought by the commissioner\nin any court of competent jurisdiction.\n  Such penalty may be released or compromised by the commissioner before\nthe matter has been referred to the attorney general. Any such penalty\nmay be released or compromised and any action commenced to recover the\nsame may be settled or discontinued by the attorney general with the\nconsent of the commissioner.\n  (h) Where a proceeding has been brought pursuant to section 16.27 of\nthis article, and a receiver appointed pursuant thereto, the\ncommissioner may assume operation of the facility subject to such\nreceivership, upon termination of such receivership, and upon showing to\nthe court having jurisdiction over such receivership that no voluntary\nassociation, not-for-profit corporation or other appropriate provider is\nwilling to assume operation of the facility subject to receivership and\nis capable of meeting the requirements of this article; provided that\nthe commissioner notifies the chairman of the assembly ways and means\ncommittee, the chairman of the senate finance committee and the director\nof the budget of his intention to assume operation of such facility upon\nservice of the order to show cause upon the owner or operator of the\nfacility, pursuant to subdivision (b) of section 16.27 of this article.\n