NY Ment Hygiene L § 16.25 (2021)
2021 New York Laws MHY - Mental Hygiene Title C - Developmental Disabilties Act Article 16 - Regulation and Quality of Services 16.25 - Temporary Operator.

* § 16.25 Temporary operator.  (a) For the purposes of this section:  (1)  "Established  operator"  shall mean the provider of services that has been established and issued an  operating  certificate  pursuant  to this article.  (2)  "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.  (3) "Serious financial instability" shall include but not  be  limited to  defaulting  or  violating  material covenants of bond issues, missed mortgage payments, missed rent payments, a pattern of  untimely  payment of debts, failure to pay its employees or vendors, insufficient funds to meet  the general operating expenses of the program, 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.  (4) "Office" shall mean  the  office  for  people  with  developmental disabilities.  (5)  "Temporary operator" shall mean any provider of services that has been established and issued an operating certificate  pursuant  to  this article or which is directly operated by the office, that:   a.  agrees to provide services certified pursuant to this article on a temporary basis in the best interests of its individuals served  by  the program; and   b.  has  a  history  of  compliance  with  applicable laws, rules, and regulations  and  a  record  of  providing  care  of  good  quality,  as determined by the commissioner; and   c.  prior  to  appointment  as  temporary  operator,  develops  a plan determined to  be  satisfactory  by  the  commissioner  to  address  the program's deficiencies.  (b)  (1)  In  the  event that: (i) the established operator is seeking extraordinary  financial  assistance;   (ii)   office   collected   data demonstrates  that  the  established  operator  is  experiencing serious financial instability issues; (iii) office collected  data  demonstrates that  the established operator's board of directors or administration is 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 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 provider of services' operations  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.  (2)  The established operator 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 individuals until the  established  operator  can resume  operations  within the designated time period or other action is taken as described in section 16.17 of this article.  (c) (1) A temporary operator appointed pursuant to this section  shall use his or her best efforts to implement the plan deemed satisfactory by the commissioner to correct or eliminate any deficiencies in the program and  to  promote  the  quality  and  accessibility  of  services  in the community served by the provider of services.  (2) During the term of appointment, the temporary operator shall  have the  authority  to  direct  the  staff  of  the  established operator as necessary  to  appropriately  provide  services  for  individuals.   The temporary operator shall, during this period, provide services in such a manner  as  to  promote  safety  and  the  quality  and accessibility of services in the community  served  by  the  established  operator  until either  the  established  operator  can  resume  operations or until the office revokes the operating certificate for the services  issued  under this article.  (3)  The  established  operator  shall  grant  access to the temporary operator to the established operator's accounts and records in order  to address  any  deficiencies  related  to the program experiencing serious financial instability or an established  operator  requesting  financial assistance in accordance with this section. The temporary operator shall approve  any financial decision related to an established provider's day to day operations or  the  established  provider's  ability  to  provide services.  (4)  The temporary operator shall not be required to file any bond. No security interest in  any  real  or  personal  property  comprising  the established  operator or contained within the established operator or in any fixture of the program, 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.  (d) The temporary operator shall be entitled to a reasonable  fee,  as determined  by  the  commissioner  and  subject  to  the approval of the director of the division of the budget, and necessary expenses  incurred while  serving  as a temporary operator. The temporary operator shall be liable only in its capacity as temporary operator for injury  to  person and  property  by  reason of its operation of such program; no liability shall incur in the temporary operator's personal  capacity,  except  for gross negligence and intentional acts.  (e)  (1) 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, 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.  (2)  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:   a. the actions taken during the appointment to address the  identified program  deficiencies,  the  resumption  of  program  operations  by the established operator, or the  revocation  of  an  operating  certificate issued by the office;   b.  objectives  for  the continuation of the temporary operatorship if necessary and a schedule for satisfaction of such objectives; and   c. if applicable, the recommended actions for the ongoing provision of services subsequent to the temporary operatorship.  (3) 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.  (f)  (1)  The  commissioner  shall,  upon making a determination of an intention to appoint a temporary operator pursuant to paragraph  one  of subdivision  (b)  of  this section, cause the established operator 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.  (2)  Should the commissioner and the established operator be unable to establish a plan  of  correction  pursuant  to  paragraph  one  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.  (3) If the decision to appoint a temporary  operator  is  upheld  such temporary  operator  shall  be  appointed  as soon as is practicable and shall provide services pursuant to the provisions of this section.  (g) Notwithstanding the  appointment  of  a  temporary  operator,  the established  operator shall remain obligated for the continued provision of services. 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.  (h) 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 mental health  and  developmental disabilities  committee  and  the assembly mental health committee 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.   * NB Repealed March 31, 2022