NY Soc Serv L § 460-D (2021)
2021 New York Laws SOS - Social Services Article 7 - Residential Care Programs for Adults and Children Title 1 - General Provisions 460-D - Enforcement Powers.

§  460-d.  Enforcement  powers.  1.  The  commissioner  or  any person designated by the commissioner may undertake  an  investigation  of  the affairs  and  management  of  any facility subject to the inspection and supervision provision of this article, or of  any  person,  corporation, society,  association or organization which operates or holds itself out as being authorized to operate any such facility, or of the  conduct  of any officers or employers of any such facility. Persons empowered by the commissioner  to  conduct any such investigation are hereby empowered to issue compulsory  process  for  the  attendance  of  witnesses  and  the production  of  papers, to administer oaths and to examine persons under oath, and to exercise the same powers in respect to the conduct of  such an investigation as belong to referees appointed by the supreme court.   2.  If  it shall appear after such investigation that the residents of the facility are cruelly, negligently or  improperly  treated,  or  that inadequate  provision  is  made  for  their  sustenance, clothing, care, supervision  or  other  condition  necessary  for  their   comfort   and well-being, the department may issue an order in the name of the people, and  under  the  official  seal  of the state, directing the appropriate officers or managers of  such  facility  to  modify  such  treatment  or provide  such  other remedy as may be specified therein. Before any such order is issued, it must be approved by a justice of the supreme  court, after  such  notice  as  he may prescribe and after an opportunity to be heard, and any person to whom  such  an  order  is  directed  who  shall intentionally  fail  or  refuse  to  obey its terms shall be guilty of a misdemeanor.   3. The attorney general and every district attorney shall upon request of the department furnish such legal assistance, counsel  or  advice  as the department may require in the discharge of its duties.   4.  (a)  The  operating  certificate  of  any facility may be revoked, suspended or limited upon a determination by  the  department  that  the facility  has  failed  to comply with the requirements of state or local laws or regulations applicable to the operation of such facility.  (b) No operating certificate shall be revoked,  suspended  or  limited without  a  hearing  held  in  accordance with procedures established by department regulations, which procedures shall require  that  notice  of the  time  and place of the hearing, and notice of the charges, shall be served in person or by certified mail addressed to the facility at least thirty days prior to the date of the hearing. A written  answer  to  the charges may be filed with the department not less than ten business days prior  to  the  date  of  the  hearing.  An  operating  certificate may, nevertheless, be suspended or limited without a hearing for a period not in excess of sixty days, upon written notice to the facility following a finding by the department that the public  health,  or  an  individual's health, safety or welfare, are in imminent danger.  (c)  Any  order  or determination to suspend any operating certificate will specify the conditions of  the  suspension.  These  conditions  may include but need not be limited to the following:  (i) if required for the protection of the health, safety or welfare of the  residents, the immediate transfer of some or all residents to other appropriate facilities or to the custody of their  legal  guardians,  if any;  (ii)  the  appointment of a temporary operator to operate the facility during the term of the suspension;  (iii) the immediate transfer of all records concerning  the  operation of  the  facility, including resident records, facility business records and any other records related to the operation of the  facility  to  the department immediately. The department shall control the records for the term of the suspension;  (iv)  the  operator  or operators of the facility shall be barred from access to the facility during the term of the suspension; or  (v)  the  requirement  that  the  operator, if replaced by a temporary operator, provide the temporary operator with any funds received by  the operator for the operation of the facility.  (d) Any order or determination to limit an operating certificate shall specify  the manner in which the operating certificate is to be limited. An operating certificate may be found subject to  one  or  more  of  the following limitations:  (i)  a  limitation  on  the  period of time for which such certificate remains  effective,  contingent  on  a  determination   that   specified violations have been corrected or specified conditions have been met;  (ii)  a limitation on the number of persons for which such facility is authorized to provide care; or  (iii) a prohibition against the admission of  new  residents  after  a specified date.  (e) Any order or determination of revocation, suspension or limitation of  the  operating  certificate  shall  be subject to judicial review in accordance with article seventy-eight of  the  civil  practice  law  and rules.   5.  In  addition  to  or  as  an  alternative  to  any power which the department may exercise under this article, the supreme court may  grant equitable  relief  against  violations  or threatened violations of this article or of the regulations of the department by any facility  subject to  the  inspection  and  supervision  of  the  department. The attorney general may seek such equitable relief, in the name of the people,  upon the request of the department. Service in such an action shall state the nature  of  the  violation  and  shall  be  accomplished  in  the manner prescribed by the civil practice law and rules; provided, however,  that an  ex  parte  order for equitable relief may issue, notwithstanding the civil practice law  and  rules,  if  the  court  finds,  on  motion  and affidavit,  that  such violation may reasonably be expected to result in imminent danger to the public health or to the health, safety or welfare of any individual in a facility subject to the  department's  inspection and  supervision. The court, after a hearing, may make an order granting such equitable relief as it  may  deem  necessary,  including,  but  not limited to a preliminary injunction or a permanent injunction, enjoining a  facility  from  admitting new residents, directing the department and such facility  to  arrange  for  the  transfer  of  residents  to  other facilities,  appointment  of  a  temporary or permanent receiver for the protection of the public health or the health, safety and welfare of any individual in  such  facility,  or  directing  a  facility  operator  to transfer all records concerning the operation of the facility, including resident  records,  facility  business  records  and  any  other records related to the operation of the facility to the department  immediately. The people shall not be required to post security or bond.   6.  Orders  prohibiting  placing-out  or  boarding-out  of children or orders of removal of any child may be issued and enforced in  accordance with section three hundred eighty-five of this chapter.   7.  (a)  The  department  shall  adopt  regulations establishing civil penalties of up to one thousand dollars per day to be  assessed  against all  adult  care  facilities  except  facilities  operated  by  a social services district for violations of (i) regulations  of  the  department pertaining  to  the care of residents in such facilities, (ii) paragraph (a) of subdivision three of section four  hundred  sixty-one-a  of  this chapter,  or (iii) an order issued pursuant to subdivision eight of this section. The regulations shall specify the violations subject to penalty and the amount of the penalty to be assessed  in  connection  with  each  such  violation and shall specify that only civil penalties of up to one thousand dollars per day per violation shall  be  assessed  pursuant  to this  paragraph  against an adult care facility found responsible for an act  of retaliation or reprisal against any resident, employee, or other person for having filed a complaint with or having provided  information to  any  long term care patient ombudsman functioning in accordance with section five hundred  forty-four  or  five  hundred  forty-five  of  the executive law.  (b) (1) In addition to any other civil or criminal penalty provided by law,  the  department  shall have the power to assess civil penalties in accordance with its regulations adopted pursuant  to  paragraph  (a)  of this  subdivision,  after  a  hearing  conducted  in accordance with the procedures established by regulations of the department. Such procedures shall require that notice of the time and place of the hearing, together with a statement of charges of violations, shall be served in person  or by  certified  mail addressed to the facility at least thirty days prior to the date of the hearing. The statement of charges of violations shall set forth the existence of the violations, the  amount  of  penalty  for which  it may become liable and the steps which must be taken to rectify the violation and, where applicable, a  statement  that  the  department contends  that  a penalty may be imposed under this paragraph regardless of rectification. An answer to the charges of  violations,  in  writing, shall  be filed with the department, not less than ten days prior to the date  of  hearing.  The  answer  shall  notify  the  department  of  the facility's  position  with  respect  to  each  of  the charges and shall include all matters which if not disclosed in the answer would be likely to take the department by surprise. The commissioner, or a member of his staff who is designated and authorized by him to hold such hearing,  may in his discretion allow the facility to prove any matter not included in the  answer.  Where  the  facility  satisfactorily  demonstrates that it either had rectified the violations  within  thirty  days  of  receiving written  notification  of  the  results  of  the  inspection pursuant to section four hundred sixty-one-a  of  this  chapter,  or  had  submitted within  thirty  days  an  acceptable  plan  for  rectification  and  was rectifying the violations in accordance with the steps  and  within  the additional  periods  of time as accepted by the department in such plan, no penalty shall be imposed, except as provided in subparagraph  two  of this paragraph.  (2)  Rectification  shall  not preclude the assessment of a penalty if the department establishes at a hearing  that  a  particular  violation, although  corrected,  endangered  or resulted in harm to any resident as the result of:  (i) the total or substantial failure of the facility's fire  detection or  prevention systems, or emergency evacuation procedures prescribed by department safety standard regulations;  (ii) the retention of any resident  who  has  been  evaluated  by  the resident's physician as being medically or mentally unsuited for care in the  facility  or  as  requiring  placement in a hospital or residential health care facility and for whom the operator is not making  persistent efforts to secure appropriate placement;  (iii) the failure in systemic practices and procedures;  (iv)  the  failure  of  the  operator  to  take actions as required by department regulations in the event of a resident's illness or accident;  (v) the failure of the operator to provide at all times supervision of residents by numbers of staff at least equivalent to the night  staffing requirement set forth in department regulations; or  (vi)   unreasonable   threats  of  retaliation  or  taking  reprisals, including but  not  limited  to  unreasonable  threats  of  eviction  or  hospitalization against any resident, employee or other person who makes a  complaint  concerning  the  operation  of  an  adult  care  facility, participates in the investigation of a complaint or is the subject of an action identified in a complaint.   The  department  shall specify in its regulations those regulations to which this subparagraph two shall apply.  (3) In assessing penalties pursuant to this paragraph, the  department shall  consider  promptness  of  rectification,  delay occasioned by the department,  and  the  specific  circumstances  of  the  violations   as mitigating factors.  (c)  Upon  the  request  of  the  department, the attorney general may commence an action in any court of competent  jurisdiction  against  any facility  subject  to  the  provisions  of this section, and against any person or corporation operating such facility, for the recovery  of  any penalty  assessed by the department in accordance with the provisions of this subdivision.  (d) Any such penalty assessed by the department  may  be  released  or compromised by the department before the matter has been referred to the attorney  general,  and  where  such  matter  has  been  referred to the attorney general, any such penalty may be released  or  compromised  and any action commenced to recover the same may be settled and discontinued by the attorney general with the consent of the department.   8.  Whenever  the  commissioner,  after  investigation, finds that any person, agency or facility subject to this article is causing,  engaging in  or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents of a facility subject  to the  inspection and supervision of the department, and that it therefore appears to be prejudicial to the interests of such  residents  to  delay action  for  thirty  days  until  an  opportunity  for  a hearing can be provided  in  accordance  with  the  provisions  of  this  section,  the commissioner  shall  order  the  person,  agency  or facility by written notice, setting forth the basis for such finding,  to  discontinue  such dangerous  condition  or  activity or take certain action immediately or within a specified period of less than  thirty  days.  The  commissioner shall  within  thirty  days of issuance of the order provide the person, agency or facility an opportunity to be heard and to present  any  proof that  such  condition  or  activity  does not constitute a danger to the health of such residents.   9. (a) The department shall have authority to impose a  civil  penalty not  exceeding  one  thousand  dollars  per day against, and to issue an order requiring the closing of,  after  notice  and  opportunity  to  be heard, any facility which does not possess a valid operating certificate issued  by  the  department and is an adult care facility subject to the provisions of this article and the  regulations  of  the  department.  A hearing  shall be conducted in accordance with procedures established by department regulations which procedures shall require that notice of the determination that the facility  is  an  adult  care  facility  and  the reasons  for  such determination and notice of the time and place of the hearing be served in person on the operator, owner or prime  lessor,  if any,  or  by certified mail, return receipt requested, addressed to such person and received at least twenty  days  prior  to  the  date  of  the hearing.  If  such operator, owner or prime lessor, if any, is not known to the department, then service may be made by posting a copy thereof in a conspicuous place within the facility or by sending a copy thereof  by certified  mail,  return receipt requested, addressed to the facility. A written answer to  the  notice  of  violation  may  be  filed  with  the department  not  less  than  five days prior to the date of the hearing. Demonstration by the facility that it possessed an operating certificate  issued pursuant to this article,  article  twenty-eight  of  the  public health law or article sixteen, twenty-three, thirty-one or thirty-two of the  mental  hygiene  law  at  the  time the hearing was commenced shall constitute  a  complete  defense  to  any  charges made pursuant to this subdivision.  (b) The penalty authorized by this section shall begin to  run  thirty days  after  the  department  provides  the operator, in writing, with a summary of the inspection  of  the  facility  by  which  the  department determined  that  he  or  she  is  operating  an  uncertified adult care facility. The submission of  an  application  by  the  operator  for  an operating  certificate  for  the  facility shall not act as a bar to the imposition of a penalty against the operator.  (c) (i) For the  purposes  of  assessing  the  applicability  of  this article  and  the regulations of the department, the department shall be authorized to inspect any  facility  which  reasonably  appears  to  the department to be subject to the provisions of this article and to assess the  needs  of the residents of such facility pursuant to the provisions of section four hundred sixty-c of this title.  (ii) At the time that a representative of the  department  appears  at the   facility   for   purposes   of  conducting  such  inspection,  the representative shall inform the operator, administrator or other  person in  charge  that  the  inspection  will  be conducted unless such person objects to the inspection and  that  if  such  person  does  object  the department,  pursuant  to  the  provisions of subparagraph (iii) of this paragraph, shall be authorized to request the attorney general to  apply to  the  court  for  an  order  granting  the  department  access to the facility.  (iii) If the department is not permitted access to  such  facility  by the  operator,  administrator  or  other  person  in charge thereof, the attorney  general,  upon  the  request  of  the  department,  shall   be authorized  to  apply,  without notice to the operator, administrator or chairman of the board of directors of a not-for-profit facility, to  the supreme  court  in  the  county  in which the facility is located for an order granting the department access to such  facility.  The  court  may grant such an order if it determines, based on evidence presented by the attorney  general,  that  there is reasonable cause to believe that such facility is an adult care  facility  which  does  not  possess  a  valid operating certificate issued by the department.  (d)  Upon  the  request  of  the  department, the attorney general may commence an action in any court of competent  jurisdiction  against  any facility  subject to the provisions of this subdivision, and against any person or corporation operating such facility, for the recovery  of  any penalty  assessed by the department in accordance with the provisions of this subdivision.  (e)  Any  penalty  assessed  by  the  department  pursuant   to   this subdivision  may be released or compromised by the department before the matter has been referred to the attorney general and where  such  matter has  been  referred  to  the  attorney  general, any such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the attorney general with the consent  of the department.   10.   By  March  first,  nineteen  hundred  ninety-five  and  annually thereafter, the department shall submit a report to the governor and the legislature on the regulation of adult homes and residences for  adults. Such  report  shall  include  both  a  narrative and statistical summary detailing the results of inspections and enforcement  actions  of  adult homes  and  residences for adults. The report shall also include results of audits of financial conditions and practices of a selected sample  of  adult homes and residences of adults and recommendations for legislative action relating to the need for changes in statute.   11.  On or before issuance by the department to an adult care facility operator  of  official  written  notice  of:  the  proposed  revocation, suspension  or  denial  of  the  operator's  operating  certificate; the limitation of the operating certificate with respect to new  admissions; the  issuance of a department order or commissioner's order; the seeking of equitable relief pursuant to this section; the proposed assessment of civil penalties for violations of the provisions of subparagraph two  of paragraph  (b)  of subdivision seven of this section or placement on the "do not refer list" pursuant to subdivision  fifteen  of  this  section, written  notice  also  shall  be  given to the appropriate office of the department of mental hygiene, department of  corrections  and  community supervision  and  local  social services districts, and provided further that the department of health shall notify hospitals in the locality  in which  such  facility  is located that such notice has been issued. Upon resolution of such enforcement action the department  shall  notify  the appropriate  office  of  the department of mental hygiene, department of corrections and community supervision, local social  services  districts and hospitals.   12.  Social  services  districts  and  other local government entities established pursuant to this chapter shall  be  prohibited  from  making referrals  for  admissions  to  adult care facilities that have received official written notice regarding: the proposed  revocation,  suspension or denial of the operator's operating certificate; the limitation of the operating  certificate  with  respect to new admissions; the issuance of department order or commissioner's  orders;  the  seeking  of  equitable relief  pursuant  to  this  section;  the  proposed  assessment of civil penalties for violations  of  the  provisions  of  subparagraph  two  of paragraph  (b)  of  subdivision seven of this section; or the facility's placement on the "do not refer list" pursuant to subdivision fifteen  of this section.   * 13.  The  department  shall  notify  the department of health of any enforcement action pursuant to this section taken against an operator of an adult home or enriched housing program which has been licensed by the department of health as a limited home care services agency pursuant  to section thirty-six hundred five of the public health law.   * NB Expires June 30, 2023   * 14.  If the department receives notice from the department of health that an action has been taken against an operator of a limited home care services agency, pursuant to section thirty-six hundred  five-a  of  the public  health law, the department shall review the delivery of services provided by the certified operator of an adult home or enriched  housing program  to  determine  whether  such operator is meeting all applicable regulations and standards.   * NB Expires June 30, 2023   15. The department of health shall maintain, on its website, a list of all adult homes, enriched housing programs, residences  for  adults  and assisted   living   programs  that  have  received  written  notice  of: enforcement action  based  on  a  violation  of  an  applicable  law  or regulation  that  creates  an  endangerment of resident health or safety pursuant to subparagraph two of paragraph (b) of  subdivision  seven  of this  section  or  a  pending  enforcement  action  against a facility's operating certificate or a determination that the facility  is  required to  be certified as an adult home, enriched housing program or residence for adults. Provided however, if a facility contends, in  writing,  that the  violation  resulting  in the facility being included on the "do not refer list" has been corrected,  the  department  shall,  within  thirty  days,  reinspect the facility, and if the department determines that the violation has been corrected, the facility shall be immediately  removed from  the  list. This list shall be known as the "do not refer" list and shall be promptly updated to reflect any of the above violations and the reopening  of  admissions  in  any  adult  care  facility  in  which the enforcement action for which they  were  added  to  the  list  has  been resolved.   16.  Any  operator or controlling person of an adult care facility, as defined  in  clause  two  of  subparagraph  (x)  of  paragraph  (a)   of subdivision  four  of  section  four hundred sixty-one-e of this article shall be prohibited from applying to the department of health or to  any other  agency  of this state for an operating certificate or approval to operate an alternate type of facility during the period  in  which  such certificate has been revoked, suspended or limited.   17.  The  department of health shall direct the temporary operator to, and the  temporary  operator  shall,  provide  written  notification  to residents  of all adult homes, enriched housing programs, residences for adults and assisted living programs where a temporary operator has  been appointed pursuant to subdivision four of this section.