NY Ment Hygiene L § 32.20 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 32 - Regulation and Quality Control of Chemical Dependence Services and Compulsive Gambling Services. 32.20 - Temporary Operator.

§ 32.20 Temporary operator. 1. For the purposes of this section:  (a)  "chemical  dependence  treatment  program"  shall  mean a program certified pursuant to section 32.05 of this article;  (b) "established operator" shall  mean  the  operator  of  a  chemical dependence  treatment  program  that  has been established and issued an operating certificate pursuant to section 32.05 of this article;  (c) "temporary operator" shall mean any OASAS staff member, person  or entity that:  (i)  agrees  to  operate  a  program  on a temporary basis in the best interests of its patients and the community served by the program;  (ii) has demonstrated that he or she has the character, competence and ability  to  operate  an  OASAS-certified  program  in  compliance  with applicable standards; and  (iii)  prior to his or her appointment as temporary operator, develops with guidance from the commissioner a satisfactory plan to  address  the program's deficiencies;  (d)  "serious  financial instability" shall include but not be limited to defaulting or violating key covenants of bond issues, missed mortgage payments,  general  untimely  payment  of  debts,  failure  to  pay  its employees  or  vendors, insufficient funds to meet the general operating expenses of the program and/or facility, failure  to  maintain  required debt  service  coverage  ratios and/or, as applicable, factors that have triggered a written event  of  default  notice  to  the  office  by  the dormitory authority of the state of New York; and  (e)  "extraordinary  financial  assistance"  shall  mean  state  funds provided to, or requested by, a  program  for  the  express  purpose  of preventing  the  closure  of  the  program  that  the commissioner finds provides essential and necessary services within the community.   2. (a) In the event that: (i) the  program  is  seeking  extraordinary financial  assistance;  (ii)  office  collected  data indicates that the program is experiencing  serious  financial  instability  issues;  (iii) office collected data indicates that the program's board of directors or administration are unable or unwilling to ensure the proper operation of the   program;  or  (iv)  office  collected  data  indicates  there  are conditions that seriously endanger or  jeopardize  continued  access  to necessary  chemical  dependence treatment services within the community, the commissioner shall notify the established operator  of  his  or  her intention  to appoint a temporary operator to assume sole responsibility for the program's treatment operations of that facility  for  a  limited period  of  time.  The  appointment  of  a  temporary  operator shall be effectuated pursuant to this section, and shall be in  addition  to  any other remedies provided by law.  (b)  The established operator of a program may at any time request the commissioner to appoint a temporary  operator.  Upon  receiving  such  a request,  the  commissioner  may,  if  he or she determines that such an action is necessary,  enter  into  an  agreement  with  the  established operator  for  the  appointment  of  a  temporary operator to restore or maintain the provision  of  quality  care  to  the  patients  until  the established  operator  can  resume operations within the designated time period;  the  patients  may  be  transferred  to  other  OASAS-certified providers;  or  the  program  operations  of  that  facility  should  be completely discontinued.   3. (a) A temporary operator appointed pursuant to this  section  shall use  his  or  her  best efforts to implement the plan developed with the guidance of the commissioner to correct or eliminate any deficiencies in the program and to promote the quality  and  accessibility  of  chemical dependence treatment services in the community served by the program.  (b)  If the identified program deficiencies cannot be addressed in the time period designated in the plan, the patients shall be transferred to other OASAS-certified providers.  (c)  During the term of his or her appointment, the temporary operator shall have the authority to direct the program staff of the facility  in all  aspects  necessary  to  appropriately  treat  and/or  transfer  the patients. The temporary operator shall, during this period, operate  the program  in  such  a  manner  as  to  promote safety and the quality and accessibility of chemical dependence treatment services in the community served by the facility until either the established operator can  resume program  operations  or until the patients are appropriately transferred to other OASAS-certified providers.  (d) The  temporary  operator  shall  also  be  afforded  access  to  a program's  accounts  and  records  in  order to address any deficiencies related to a program experiencing serious  financial  instability  or  a program requesting financial assistance in accordance with this section. The temporary operator shall approve any financial decision related to a program's day to day operations or program's ability to provide chemical dependence services.  (e)  The temporary operator shall not be required to file any bond. No security interest in  any  real  or  personal  property  comprising  the facility  or  contained  within  the  facility  or in any fixture of the facility, shall be impaired or diminished in priority by  the  temporary operator.  Neither the temporary operator nor the office shall engage in any activity that constitutes a confiscation of property.   4. The temporary operator shall be entitled to a  reasonable  fee,  as determined  by  the commissioner, and necessary expenses incurred during his or her performance as temporary  operator.  The  temporary  operator shall be liable only in his or her capacity as temporary operator of the program  for  injury  to  person  and  property  by reason of his or her operation of such program; he or she shall not have any liability in his or her personal capacity, except for gross  negligence  and  intentional acts.   5.  (a)  The initial term of the appointment of the temporary operator shall not exceed ninety days. After ninety  days,  if  the  commissioner determines  that  termination  of  the  temporary  operator  would cause significant deterioration of the quality of, or access to,  health  care in  the  community  or  that  reappointment  is necessary to correct the deficiencies that required the appointment of  the  temporary  operator, the  commissioner  may authorize an additional ninety-day term. However, such authorization shall include  the  commissioner's  requirements  for conclusion  of  the  temporary  operatorship  to be satisfied within the additional term.  (b) Within fourteen days prior to the termination of each term of  the appointment  of  the  temporary  operator,  the temporary operator shall submit to the commissioner and to  the  established  operator  a  report describing:  (i)   the  actions  taken  during  the  appointment  to  address:  the identified program deficiencies; the resumption of program operations by the established operator; or the  transfer  of  the  patients  to  other OASAS-certified providers;  (ii)  objectives for the continuation of the temporary operatorship if necessary and a schedule for satisfaction of such objectives; and  (iii) if applicable, the recommended actions for the ongoing operation of the program subsequent to the temporary operatorship.  (c) The  term  of  the  initial  appointment  and  of  any  subsequent reappointment   may  be  terminated  prior  to  the  expiration  of  the  designated term, if the established operator and the commissioner  agree on a plan of correction and the implementation of such plan.   6.  (a)  The  commissioner  shall,  upon  making a determination of an intention to appoint a temporary operator pursuant to paragraph  (a)  of subdivision  two  of  this section cause the established operator of the facility to be notified of the intention by registered or certified mail addressed to the principal office  of  the  established  operator.  Such notification  shall  include  a  detailed  description  of  the findings underlying the intention to appoint a temporary operator, and  the  date and  time  of a required meeting with the commissioner and/or his or her designee within ten business days of the receipt of such notice. At such meeting, the established operator shall have the opportunity  to  review and discuss all relevant findings. At such meeting, the commissioner and the   established   operator   shall   attempt  to  develop  a  mutually satisfactory plan of correction and schedule for implementation. In such event, the commissioner shall notify the established operator  that  the commissioner   will   abstain   from  appointing  a  temporary  operator contingent upon the  established  operator  remediating  the  identified deficiencies within the agreed upon timeframe.  (b)  Should the commissioner and the established operator be unable to establish a plan  of  correction  pursuant  to  paragraph  (a)  of  this subdivision,  or  should the established operator fail to respond to the commissioner's initial notification, there shall  be  an  administrative hearing  on  the  commissioner's  determination  to  appoint a temporary operator to begin no later than thirty days from the date of the  notice to  the established operator. Any such hearing shall be strictly limited to the issue of whether the determination of the commissioner to appoint a temporary operator is supported by substantial evidence. A copy of the decision shall be sent to the established operator.  (c) If the decision to appoint a temporary  operator  is  upheld  such temporary  operator  shall  be  appointed  as soon as is practicable and shall operate the program pursuant to the provisions of this section.  (d) Upon appointment of a temporary operator, the  commissioner  shall cause  the  temporary  president  of  the  senate,  the  speaker  of the assembly, and the chairs  of  the  senate  and  assembly  committees  on alcoholism  and  drug  abuse  to be notified of such determination. Such notification shall include, but not be  limited  to,  the  name  of  the established operator, the name of the appointed temporary operator and a description  of  the  reasons  for  such  determination  to  the  extent practicable under the circumstances and in the sole  discretion  of  the commissioner.   7.  Notwithstanding  the  appointment  of  a  temporary  operator, the established operator remains obligated for the  continued  operation  of the  facility  so  that  the program can function in a normal manner. No provision contained in this section  shall  be  deemed  to  relieve  the established  operator  or  any  other  person  of  any civil or criminal liability incurred, or any duty imposed by law, by  reason  of  acts  or omissions  of  the established operator or any other person prior to the appointment of any temporary operator  of  the  program  hereunder;  nor shall  anything contained in this section be construed to suspend during the term of the appointment of the temporary operator of the program any obligation of the established operator  or  any  other  person  for  the maintenance  and  repair of the facility, provision of utility services, payment of taxes or other operating  and  maintenance  expenses  of  the facility,  nor  of  the established operator or any other person for the payment of mortgages or liens.