NY Pub Health L § 2806 (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2806 - Hospital Operating Certificates; Suspension or Revocation.

§  2806. Hospital operating certificates; suspension or revocation. 1. A hospital operating certificate may be revoked, suspended,  limited  or annulled  by the commissioner on proof that: (a) the hospital has failed to comply with the provisions of this article or rules  and  regulations promulgated  thereunder; or (b) a general hospital has refused or failed to admit or to provide for necessary emergency care and treatment for an unidentified person brought to it in an unconscious,  seriously  ill  or wounded  condition.  A  hospital operating certificate shall be revoked, limited or annulled by the commissioner upon revocation,  limitation  or annulment  by  the public health council of approval of establishment of such hospital.   2. No hospital operating  certificate  shall  be  revoked,  suspended, limited or annulled without a hearing, except for operating certificates revoked,  limited  or  annulled  because  of  revocation, limitation, or annulment of establishment approval.   Also, an operating certificate may be temporarily suspended or limited without a hearing for a period not in excess of sixty days upon  written notice to the hospital and opportunity for a hearing following a finding by the department that the public 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  department  may  also,  consistent  with applicable federal law and regulations, prohibit or limit the  placement of  new patients in a residential health care facility without a hearing for a period not in excess of sixty days upon  written  notice  to  such facility  and  opportunity  for a hearing upon a determination that such facility no longer substantially meets the requirements of this  article and the regulations thereunder and that such deficiencies do not pose an imminent  danger  to  the  health  and  safety of any patient, provided, however, that the department shall not make such  a  determination  with respect   to  a  facility  until  the  facility  has  had  a  reasonable opportunity, following the initial determination that such  facility  no longer  substantially meets the requirements of this article, to correct its deficiencies and following  this  period,  has  been  given  written notice  and opportunity for a hearing. Provided, however, that any delay in the hearing process during the sixty-day  period  occasioned  by  the hospital  shall  toll  the  running of said suspension or limitation and shall not abridge the full time provided for in this  subdivision.  Upon such  finding  and  notice  the power of the commissioner temporarily to suspend or limit a hospital operating  certificate  shall  include,  but shall not be limited to, the power to:  (a) prohibit or limit the placement of new patients in the hospital;  (b)  remove  or cause to be removed some or all of the patients in the hospital;  (c) suspend or limit or cause to be suspended or limited  the  payment of any governmental funds to the hospital.   At  any  time  subsequent  to  the  suspension  or  limitation  of any operating certificate pursuant to this  subdivision,  the  hospital  may request  the department to reinspect the hospital to redetermine whether a specific condition or practice continues to exist. After  the  receipt of such a request the department shall reinspect the hospital 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  hospital  during  the temporary period of suspension or limitation. Nor shall the commissioner be  required  to  reinspect  upon  request  during a temporary period of suspension or limitation any hospital whose  operating  certificate  has  been  temporarily  suspended  or  limited  due  to  the  existence  of a continuing pattern of  conditions  or  practices  which  poses  imminent danger to the health and safety of any patient.   3. 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  hospital  at least ten days before the date fixed for the hearing. The hospital shall file with the department not less than three days prior to the hearing a written answer to the charges.   4. All orders or determinations hereunder shall be subject  to  review as  provided  in  article  seventy-eight  of  the civil practice law and rules.  Application for such review must be made within sixty days after service in person or by registered or certified mail of a  copy  of  the order or determination upon the applicant.   5.  (a)  Except  as  provided  in  paragraphs  (b)  and  (d)  of  this subdivision, anything contained in this section or in a  certificate  of relief  from  disabilities  or  a  certificate  of  good  conduct issued pursuant to article twenty-three of the correction law to  the  contrary notwithstanding,  a  hospital  operating certificate of a hospital under control  of  a  controlling  person  as  defined  in  paragraph  (a)  of subdivision  twelve  of  section  twenty-eight  hundred  one-a  of  this article, or under control of any other entity, shall be revoked  upon  a finding   by   the  department  that  such  controlling  person  or  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  department  or  of  the office of temporary and disability assistance or in violation of the public officers  law  in  a court  of competent jurisdiction in the state, or of a crime outside the state which, if committed within the state, would have been 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 department or of the office of temporary and disability assistance or in violation of the public officers law.  (b) 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 (a) 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 hospital, and further provided that an application for approval of change of ownership or transfer of stock is filed  without  delay  in  accordance  with  the pertinent  provisions  of  section  twenty-eight  hundred  one-a of this chapter.  (c) With respect to the conviction of any such person of a class D  or E  felony,  the commissioner shall make a determination before revoking, or limiting pursuant to paragraph (b), the  operating  certificate  that such  conviction  was  related  to an activity or program subject to the regulations, supervision, or administration of the department or of  the department  of  social  services. With respect to the conviction of such person of a crime committed outside the state,  the  commissioner  shall make  a determination before revoking, or limiting pursuant to paragraph (b), the operating certificate that such crime, if committed within  the state,  would  have been a class A, B or C felony or a felony related to an activity or program  subject  to  the  regulations,  supervision,  or  administration of the department or of the department of social services or  in  violation  of  the  public  officers law. The commissioner shall notify the person convicted that such determination has  been  made  and shall give such person thirty days to request a hearing pursuant to this subdivision.  (d)  The commissioner shall not revoke, or limit pursuant to paragraph (b) of this subdivision,  the  operating  certificate  of  any  facility solely  because  of  a  conviction,  more  than  ten  years prior to the effective date of this paragraph, of any person of a felony  unless  the commissioner  makes  a determination that such conviction was related to an activity or program  subject  to  the  regulations,  supervision,  or administration  of  the  department  or  of  the  department  of  social services. The commissioner  shall  not  revoke,  or  limit  pursuant  to paragraph  (b)  of  this  subdivision,  the operating certificate of any facility solely because of the conviction, more than ten years prior  to the  effective  date of this paragraph, of any person of a crime outside the state unless the commissioner makes a determination that such crime, if committed within the state, would have been a felony  related  to  an activity   or  program  subject  to  the  regulations,  supervision,  or administration of the department or of the department of social services or in violation of the  public  officers  law.  The  commissioner  shall notify  the  person  convicted that such determination has been made and shall give such person thirty days to request a hearing pursuant to this subdivision.  (e) Any hearing conducted hereunder shall be strictly limited  to  the issue  of  whether the determination of the commissioner is supported by the evidence. All such  hearings  shall  be  conducted  as  provided  in paragraph  (f)  of  this  subdivision,  and  no  hearing,  revocation or limitation shall be stayed by  the  pendency  of  any  appeal  or  other challenge to the conviction.  (f)  The  commissioner  shall  fix a time and place for the hearing. A copy of the notice and charges shall be served in person  or  mailed  by registered or certified mail no less than ten days before the date fixed for the hearing. A written answer to the charges shall be filed with the department  not  less than two days prior to the hearing. No adjournment shall be granted in excess of  forty-eight  hours.  The  respondent  may attend the hearing in person, with or without counsel, or be represented by  counsel alone, but need not attend personally if unavailable because of incarceration, hospitalization or other reason. If no answer is filed with the department within the time  limitation  of  this  paragraph,  a hearing  shall be deemed to have been waived, and the commissioner shall issue an order based on the record before him.  (g) Nothing in this  subdivision  shall  be  construed  to  limit  the authority  of  the  public  health council to revoke, limit or annul any approval of establishment.   6. (a) Notwithstanding the provisions of subdivisions two through four of this section, the  commissioner  shall  suspend,  limit,  modify,  or revoke a hospital operating certificate, after taking into consideration the  total  number  of  beds  necessary  to  meet  the  public need, the availability of facilities or services such as preadmission, ambulatory, home  care  or  other  services  which  may  serve  as  alternatives  or substitutes  for  the  whole  or any part of any such hospital facility, and, in the case of modification, the level of care and the  nature  and type  of services provided or required by all or some of the patients in or seeking admission to such hospital facility, and whether  such  level of  care  is  consistent with the operating certificate of the hospital, and after finding that suspending, limiting, modifying, or revoking  the operating  certificate  of  such  facility  would  be  within the public  interest in order to conserve health resources by restricting the number of beds and/or the level of services to those which are actually needed.  (b)  Whenever  any  finding  as  described  in  paragraph  (a) of this subdivision is  under  consideration  with  respect  to  any  particular facility,  the  commissioner shall cause to be published, in a newspaper of general circulation in the geographic area of the facility  at  least thirty  days  prior to making such a finding an announcement that such a finding is under  consideration  and  an  address  to  which  interested persons can write to make their views known. The commissioner shall take all public comments into consideration in making such a finding.  (c)  The  commissioner  shall,  upon  making  any finding described in paragraph (a) of this subdivision with respect to  any  facility,  cause such  facility  and the appropriate health systems agency to be notified of the finding at least thirty days in advance of  taking  the  proposed action  to  revoke,  suspend,  limit, or modify the facility's operating certificate. Upon receipt  of  any  such  notification  and  before  the expiration  of the thirty days or such longer period as may be specified in the notice, the facility or the appropriate health systems agency may request a public hearing to be held in the county in which the  hospital is  located.  In no event shall the revocation, suspension or limitation take effect prior to the thirtieth day after the date of the notice,  or prior to the effective date specified in the notice or prior to the date of the hearing decision, whichever is later.  (d)  In  the case of a modification of an operating certificate by the commissioner  pursuant  to  paragraph  (a)  of  this  subdivision,   the commissioner  may not modify an operating certificate to reclassify beds previously authorized as hospital beds to domiciliary care  beds  or  to increase  the  total number of beds authorized by such certificate, and, provided further that no patient in a hospital is to  be  removed  as  a result  of  the  pendency or conclusion of a proceeding pursuant to this subdivision.  (e) Except as otherwise provided by law, all appeals from a finding of the commissioner made pursuant to  paragraph  (a)  of  this  subdivision shall  be directly to the appellate division of the supreme court in the third department. Except as otherwise expressly provided  by  law,  such appeals shall have preference over all issues in all courts.  (f)  In determining whether there is a public need for any services or facilities as required  by  this  subdivision,  the  commissioner  shall consider  the advice of the state health planning and development agency designated pursuant to the provisions of the  national  health  planning and  resources  development act of nineteen hundred seventy-four and any amendments thereto and the state health plan developed thereunder.