NY Ment Hygiene L § 16.17 (2021)
2021 New York Laws MHY - Mental Hygiene Title C - Developmental Disabilties Act Article 16 - Regulation and Quality of Services 16.17 - Suspension, Revocation, or Limitation of an Operating Certificate.

§ 16.17 Suspension,   revocation,   or   limitation   of   an  operating           certificate.  (a) The commissioner  may  revoke,  suspend,  or  limit  an  operating certificate or impose the penalties described in subparagraph a, b, c or d  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 or provider of services' operating certificate imposed pursuant to paragraph one  of  subdivision (b)  of  this section, nor shall such notice and opportunity to be heard be necessary should the commissioner, in his or her  discretion,  decide to issue separate operating certificates to each facility or provider of services   formerly  included  under  the  services  authorized  by  one operating certificate to the provider of services.  (b) (1) An operating  certificate  may  be  temporarily  suspended  or limited without a prior hearing for a period not in excess of sixty days upon  written notice to the facility or provider of services following a finding by the office for people with developmental disabilities that  a individual's  health  or safety is in imminent danger. 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:   a. Prohibit or limit the placement of new individuals in the  facility or services;   b. Remove or cause to be removed some or all of the individuals in the facility or services;   c. Suspend or limit or cause to be suspended or limited the payment of any  governmental funds to the facility or provider of services provided that such action shall not in any way jeopardize the health, safety  and welfare of any person with a developmental disability in such program or facility or services;   d. Prohibit or limit the placement of new individuals, remove or cause to  be  removed some or all individuals, or suspend or limit or cause to be suspended or limited the payment of any governmental funds, in or  to any  one  or  more  of the facilities or provider of services authorized pursuant to an operating certificate.  (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 or provider of services may request the office to review  the  facility  or provider  of  services to redetermine whether a physical plant, staffing or program deficiency continues to exist. After the receipt  of  such  a request,  the  office  shall review the facility or provider of services within ten days and in the event  that  the  previously  found  physical plant, staffing or program deficiency has been corrected, the suspension or  limitation  shall  be  withdrawn. If the physical plant, staffing or program deficiency has not been corrected, the  commissioner  shall  not thereafter  be  required  to review the facility or provider of services 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  or provider  of  services'  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 or provider of services, within ten days of the date  when  the  emergency  suspension  or  limitation  pursuant  to paragraph  one  of  this  subdivision  is  first imposed, 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 or provider's request and no request for an adjournment shall be granted without the concurrence of the  facility operator  or  provider  of service, office for people with developmental disabilities, and the hearing officer. The evidentiary hearing shall  be limited  to  those  violations  of federal and state law and regulations that existed at the time of the emergency suspension or  limitation  and which gave rise to the emergency suspension or limitation. The emergency suspension  or  limitation shall be upheld upon a determination that the office for people with developmental disabilities had  reasonable  cause to  believe that a individual's health or safety was in imminent danger. A record of such  hearing  shall  be  made  available  to  the  facility operator  or  provider  of service upon request. Should the commissioner determine to revoke, suspend or limit an 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 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 time and place for the hearing. A copy of the charges, together with the notice of the time and place of the hearing,  shall  be  served  in  person  or  mailed  by registered  or certified mail to the facility or provider of services at least ten days before the date fixed for the hearing.  The  facility  or provider  of  services  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  or  her  as  hearing  officer, shall have power to:   a. administer oaths and affirmations;   b. issue subpoenas, which shall be regulated by the civil practice law and rules;   c. take testimony; or   d. control the conduct of the hearing.  (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 present evidence and cross-examine witnesses.  (4)  If evidence at the hearing relates to the identity, condition, or clinical record of an individual, 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.  (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  or provider of service 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  or  provider  of  service,  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 or her 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 or provider of services and further provided that a  change  of ownership  or transfer of stock is completed without delay, and provided that such partnership or corporation shall  immediately  reapply  for  a certificate of operation pursuant to subdivision (a) of section 16.05 of 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  be  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)  Where  a proceeding has been brought pursuant to section 16.27 of this  article,  and  a  receiver   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 chairman of the senate finance committee and the director of the budget of his intention to assume operation of such facility upon service of the order to show cause upon the owner  or  operator  of  the facility, pursuant to subdivision (b) of section 16.27 of this article.