NY Ment Hygiene L § 31.16 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 31 - Regulation and Quality Control of Services for the Mentally Disabled 31.16 - Suspension, Revocation, or Limitation of an Operating Certificate and Imposition of Fines by the Commissioner of Mental Health.

§ 31.16 Suspension,   revocation,   or   limitation   of   an  operating           certificate and imposition of fines  by  the  commissioner  of           mental health.  (a) The commissioner of mental health may revoke, suspend, or limit an operating  certificate or impose the penalties described in subparagraph (i), (ii) or (iii) of paragraph one of subdivision (b) or in subdivision (g) of this  section  upon  a  determination  that  the  holder  of  the certificate  has  failed  to  comply  with  the  terms  of its operating certificate or with the provisions of any applicable  statute,  rule  or regulation.  The  holder of the certificate shall be given notice and an opportunity to be heard prior to any such determination except  that  no such  notice  and opportunity to be heard shall be necessary prior to an emergency  suspension  or  limitation  of   the   facility's   operating certificate imposed pursuant to paragraph one of subdivision (b) of this section.  (b) 1. A certificate may be temporarily 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 office of mental health  that  a patient's  health  or  safety  is in imminent danger or there exists any condition or practice or a continuing pattern of conditions or practices which poses imminent danger to the health or safety of any patient. Upon such finding and notice, the power of the  commissioner  temporarily  to suspend  or  limit an operating certificate shall include, but shall not be limited to, the power to:  (i) Prohibit or limit the placement of new patients in the facility;  (ii) Remove or cause to be removed some or all of the patients in  the facility; or  (iii) Suspend or limit or cause to be suspended or limited the payment of  any  governmental  funds  to  the facility provided that such action shall not in any way jeopardize the health, safety and  welfare  of  any person with a mental illness in such program or facility.   2.  At  any  time  subsequent  to  the suspension or limitation of any operating certificate pursuant to  paragraph  one  of  this  subdivision where  said  suspension  or  limitation  is  the  result  of correctable physical plant, staffing  or  program  deficiencies,  the  facility  may request  the  office  to reinspect the facility to redetermine whether a specific condition or practice continues to exist. After the receipt  of such  a request, the office shall reinspect the facility within ten days and in the event that the previously found  condition  or  practice  has been eliminated, the suspension or limitation shall be withdrawn. If the condition  or  practice  has not been eliminated, the commissioner shall not  thereafter  be  required  to  reinspect  the  facility  during  the emergency period of suspension or limitation.   3.  During  the sixty day suspension or limitation period provided for in paragraph one of this subdivision the  commissioner  shall  determine whether  to  reinstate  or  remove  the  limitations  on  the facility's operating certificate or to  revoke,  suspend  or  limit  the  operating certificate  pursuant  to  subdivision  (a)  of this section. Should the commissioner  choose  to  revoke,  suspend  or   limit   the   operating certificate, then the emergency suspension or limitation provided for in this  subdivision  shall  remain  in  effect  pending  the outcome of an administrative hearing on the revocation, suspension or limitation.   4. The facility operator,  within  ten  days  of  the  date  when  the emergency  suspension  or  limitation  pursuant to paragraph one of this subdivision is first imposed or within ten days of the date  of  receipt of  notice  from  the  commissioner  to  revoke,  suspend  or  limit the facility's operating certificate, may request an evidentiary hearing  to contest  the validity of the emergency suspension or limitation. Such an  evidentiary hearing shall commence  within  ten  days  of  the  facility operator's  request  and  no request for an adjournment shall be granted without the concurrence of  the  facility  operator,  office  of  mental health and the hearing officer. The evidentiary hearing shall be limited to  a  determination  of  whether  a  patient's  health  or safety is in imminent  danger  or  there  exists  any  condition  or  practice  or  a continuing  pattern  of  conditions  or  practices  which poses imminent danger to the health or safety of any patient. The emergency  suspension or  limitation  shall  be upheld upon a determination that the office of mental health had reasonable cause to believe that a patient's health or safety was in imminent danger. A record of such hearing  shall  be  made available to the facility operator upon request. Should the commissioner determine   to   revoke,  suspend  or  limit  the  facility's  operating certificate  pursuant  to  subdivision   (a)   of   this   section,   no administrative  hearing  on  that  action  shall  commence  prior to the conclusion of the evidentiary hearing,  the  rendering  of  the  hearing officer's  report  and the commissioner's final review and determination concerning the emergency  suspension  or  limitation.  The  commissioner shall  issue  a  ruling within ten days after the receipt of the hearing officer's report.  (c) When the holder of  an  operating  certificate  shall  request  an opportunity  to  be  heard,  the commissioner shall fix a date, time and place for the hearing. A copy of the charges stating  the  substance  of the  alleged violations of the terms of the operating certificate or the alleged  violation  of  any  applicable  statute,  rule  or  regulation, together  with  the  notice  of the date, time and place of the hearing, shall be served in person or mailed by registered or certified  mail  to the  facility  at  least ten days before the date fixed for the hearing. The facility shall file with the office, not less than three days  prior to the hearing, a written answer to the charges.  (d)  1.  When  a  hearing must be afforded pursuant to this section or other provisions of this article, the commissioner,  acting  as  hearing officer,  or any person designated by him as hearing officer, shall have power to:  (i) administer oaths and affirmations;  (ii) issue subpoenas, which shall be regulated by the  civil  practice law and rules;  (iii) take testimony; or  (iv) control the conduct of the hearings.   2.  The  rules  of  evidence  observed  by courts need not be observed except that the rules of privilege recognized by law shall be respected. Irrelevant or unduly repetitious evidence may be excluded.   3. All parties shall have the right of  counsel  and  be  afforded  an opportunity  to  require  the  production  of  witnesses and evidence in manner and form as prescribed by the civil practice law  and  rules,  to cross-examine  witnesses, to examine evidence produced against them, and to have subpoenas issued on their behalf.   4. If evidence at the hearing relates to the identity,  condition,  or clinical  record  of  a  patient,  the  hearing  officer may exclude all persons from the room except parties to the  proceeding,  their  counsel and the witness. The record of such proceeding shall not be available to anyone  outside  the office, other than a party to the proceeding or his counsel, except by order of a court of record.   5. The commissioner may establish regulations to  govern  the  hearing procedure and the process of determination of the proceeding.   6.  The  commissioner  shall  issue a ruling within ten days after the termination of the hearing or, if a hearing officer has been designated, within ten days from the hearing officer's report. The ruling  shall  be  based upon a preponderance of the evidence and shall contain conclusions concerning  the  alleged  violations  of  the  terms  of  the  operating certificate or the alleged violation of any applicable statute, rule  or regulation.  (e)  All orders or determinations hereunder shall be subject to review as provided in article seventy-eight  of  the  civil  practice  law  and rules.  (f)  1.  Except  as  provided  in  paragraph  two of this subdivision, anything contained in this section to the contrary  notwithstanding,  an operating  certificate  of a facility shall be revoked upon a finding by the office that any individual, member of a partnership  or  shareholder of  a  corporation to whom or to which an operating certificate has been issued, has been convicted of a class A, B  or  C  felony  or  a  felony related   in  any  way  to  any  activity  or  program  subject  to  the regulations, supervision, or administration of  the  office  or  of  the office of temporary and disability assistance, the department of health, or  another  office of the department of mental hygiene, or in violation of the public officers law in a court of competent jurisdiction  of  the state, or in a court in another jurisdiction for an act which would have been  a  class  A,  B  or  C felony in this state or a felony in any way related to any activity  or  program  which  would  be  subject  to  the regulations,  supervision,  or  administration  of  the office or of the office of temporary and disability assistance, the department of health, or another office of the department of mental hygiene,  or  for  an  act which would be in violation of the public officers law. The commissioner shall  not  revoke  or  limit the operating certificate of any facility, solely because of the conviction, whether in the courts of this state or in the courts of another jurisdiction, more than ten years prior to  the effective  date  of  such  revocation  or limitation, of any person of a felony, or what would amount to a felony if committed within the  state, unless  the  commissioner makes a determination that such conviction was related  to  an  activity  or  program  subject  to   the   regulations, supervision,  and  administration  of  the  office  or  of the office of temporary and  disability  assistance,  the  department  of  health,  or another  office  of the department of mental hygiene, or in violation of the public officers law.   2. In the event one or more members of a partnership  or  shareholders of  a  corporation shall have been convicted of a felony as described in paragraph one of this subdivision, the commissioner shall,  in  addition to  his  other  powers, limit the existing operating certificate of such partnership or corporation so that it shall apply only to the  remaining partner  or  shareholders,  as the case may be, provided that every such convicted person immediately and completely ceases  and  withdraws  from participation  in  the  management  and  operation  of  the facility and further provided that a change of ownership  or  transfer  of  stock  is completed   without   delay,   and  provided  that  such  partnerhip  or corporation shall immediately reapply for  a  certificate  of  operation pursuant to this article.  (g)  The commissioner may impose a fine upon a finding that the holder of the certificate has failed to comply with the terms of the  operating certificate  or  with  the provisions of any applicable statute, rule or regulation. The maximum  amount  of  such  fine  shall  not  exceed  one thousand dollars per day or fifteen thousand dollars per violation.   Such penalty may be recovered by an action brought by the commissioner in any court of competent jurisdiction.   Such penalty may be released or compromised by the commissioner before the  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  or discontinued by the attorney general with the consent of the commissioner.  (h)  It  shall be the duty of the attorney general upon the request of the commissioner to bring an action for an injunction against any person who violates, disobeys or disregards  any  term  or  provision  of  this chapter  or  of any lawful notice, order or regulation pursuant thereto; provided, however, that the  commissioner  shall  furnish  the  attorney general  with  such  material,  evidentiary  matter  or  proof as may be requested by the attorney general for the prosecution of such an action.  (i) Where a proceeding has been brought pursuant to section  31.28  of this  article,  and  a  receiver  is  appointed  pursuant  thereto,  the commissioner may assume  operation  of  the  facility  subject  to  such receivership, upon termination of such receivership, and upon showing to the  court  having jurisdiction over such receivership that no voluntary association, not-for-profit corporation or other appropriate provider is willing to assume operation of the facility subject to receivership  and is  capable  of  meeting the requirements of this article; provided that the commissioner notifies the chairman of the assembly  ways  and  means committee, the chariman of the senate finance committee and the director of  the  budget of his intention to assume operation of such facility at least six months prior to such assumption.