2023 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 civil penalty 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 civil penalty imposed
thereunder shall not exceed two thousand dollars per day or  twenty-five
thousand  dollars,  per  violation.  Penalties  may be considered at the
individual bed level for beds closed without authorization at  inpatient
settings.
Such  civil  penalty  may  be  recovered  by  an action brought by the
commissioner in any court of competent jurisdiction.
Such civil penalty may be released or compromised by the  commissioner
before  the  matter  has been referred to the attorney general. Any such
civil 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.
1. Such civil penalty under this subdivision shall account for factors
which  shall  include:  (i)  any officially declared national, state, or
municipal emergency; (ii) any unforeseen disaster or other  catastrophic
event  that  directly  impacts access to health care services; (iii) the
frequency, duration, scope, and nature of non-compliance; and  (iv)  any
other factors as established by the commissioner.
2. In determining whether an operating certificate holder has violated
its obligation to comply with the terms of the operating certificate, it
shall  not  be  a  defense that the operator was unable to secure proper
staff or other necessary  resources  if  the  lack  of  staff  or  other
resources was foreseeable and could be prudently planned for or involved
routine  staffing  needs  that  arose  due to typical staffing patterns,
typical levels of absenteeism, and time off typically  approved  by  the
operator for vacation, holidays, sick leave, and personal leave.
(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.