2023 New York Laws › SOS - Social Services › Article 7 - Residential Care Programs for Adults and Children › Title 1 - General Provisions › 460-D - Enforcement Powers.

§  460-d.  Enforcement  powers.  1.  The  commissioner  or  any person
designated by the commissioner may undertake  an  investigation  of  the
affairs  and  management  of  any facility subject to the inspection and
supervision provision of this article, or of  any  person,  corporation,
society,  association or organization which operates or holds itself out
as being authorized to operate any such facility, or of the  conduct  of
any officers or employers of any such facility. Persons empowered by the
commissioner  to  conduct any such investigation are hereby empowered to
issue compulsory  process  for  the  attendance  of  witnesses  and  the
production  of  papers, to administer oaths and to examine persons under
oath, and to exercise the same powers in respect to the conduct of  such
an investigation as belong to referees appointed by the supreme court.
2.  If  it shall appear after such investigation that the residents of
the facility are cruelly, negligently or  improperly  treated,  or  that
inadequate  provision  is  made  for  their  sustenance, clothing, care,
supervision  or  other  condition  necessary  for  their   comfort   and
well-being, the department may issue an order in the name of the people,
and  under  the  official  seal  of the state, directing the appropriate
officers or managers of  such  facility  to  modify  such  treatment  or
provide  such  other remedy as may be specified therein. Before any such
order is issued, it must be approved by a justice of the supreme  court,
after  such  notice  as  he may prescribe and after an opportunity to be
heard, and any person to whom  such  an  order  is  directed  who  shall
intentionally  fail  or  refuse  to  obey its terms shall be guilty of a
misdemeanor.
3. The attorney general and every district attorney shall upon request
of the department furnish such legal assistance, counsel  or  advice  as
the department may require in the discharge of its duties.
4.  (a)  The  operating  certificate  of  any facility may be revoked,
suspended or limited upon a determination by  the  department  that  the
facility  has  failed  to comply with the requirements of state or local
laws or regulations applicable to the operation of such facility.
(b) No operating certificate shall be revoked,  suspended  or  limited
without  a  hearing  held  in  accordance with procedures established by
department regulations, which procedures shall require  that  notice  of
the  time  and place of the hearing, and notice of the charges, shall be
served in person or by certified mail addressed to the facility at least
thirty days prior to the date of the hearing. A written  answer  to  the
charges may be filed with the department not less than ten business days
prior  to  the  date  of  the  hearing.  An  operating  certificate may,
nevertheless, be 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 department that the public  health,  or  an  individual's
health, safety or welfare, are in imminent danger.
(c)  Any  order  or determination to suspend any operating certificate
will specify the conditions of  the  suspension.  These  conditions  may
include but need not be limited to the following:
(i) if required for the protection of the health, safety or welfare of
the  residents, the immediate transfer of some or all residents to other
appropriate facilities or to the custody of their  legal  guardians,  if
any;
(ii)  the  appointment of a temporary operator to operate the facility
during the term of the suspension;
(iii) the immediate transfer of all records concerning  the  operation
of  the  facility, including resident records, facility business records
and any other records related to the operation of the  facility  to  the
department immediately. The department shall control the records for the
term of the suspension;
(iv)  the  operator  or operators of the facility shall be barred from
access to the facility during the term of the suspension; or
(v)  the  requirement  that  the  operator, if replaced by a temporary
operator, provide the temporary operator with any funds received by  the
operator for the operation of the facility.
(d) Any order or determination to limit an operating certificate shall
specify  the manner in which the operating certificate is to be limited.
An operating certificate may be found subject to  one  or  more  of  the
following limitations:
(i)  a  limitation  on  the  period of time for which such certificate
remains  effective,  contingent  on  a  determination   that   specified
violations have been corrected or specified conditions have been met;
(ii)  a limitation on the number of persons for which such facility is
authorized to provide care; or
(iii) a prohibition against the admission of  new  residents  after  a
specified date.
(e) Any order or determination of revocation, suspension or limitation
of  the  operating  certificate  shall  be subject to judicial review in
accordance with article seventy-eight of  the  civil  practice  law  and
rules.
5.  In  addition  to  or  as  an  alternative  to  any power which the
department may exercise under this article, the supreme court may  grant
equitable  relief  against  violations  or threatened violations of this
article or of the regulations of the department by any facility  subject
to  the  inspection  and  supervision  of  the  department. The attorney
general may seek such equitable relief, in the name of the people,  upon
the request of the department. Service in such an action shall state the
nature  of  the  violation  and  shall  be  accomplished  in  the manner
prescribed by the civil practice law and rules; provided, however,  that
an  ex  parte  order for equitable relief may issue, notwithstanding the
civil practice law  and  rules,  if  the  court  finds,  on  motion  and
affidavit,  that  such violation may reasonably be expected to result in
imminent danger to the public health or to the health, safety or welfare
of any individual in a facility subject to the  department's  inspection
and  supervision. The court, after a hearing, may make an order granting
such equitable relief as it  may  deem  necessary,  including,  but  not
limited to a preliminary injunction or a permanent injunction, enjoining
a  facility  from  admitting new residents, directing the department and
such facility  to  arrange  for  the  transfer  of  residents  to  other
facilities,  appointment  of  a  temporary or permanent receiver for the
protection of the public health or the health, safety and welfare of any
individual in  such  facility,  or  directing  a  facility  operator  to
transfer all records concerning the operation of the facility, including
resident  records,  facility  business  records  and  any  other records
related to the operation of the facility to the department  immediately.
The people shall not be required to post security or bond.
6.  Orders  prohibiting  placing-out  or  boarding-out  of children or
orders of removal of any child may be issued and enforced in  accordance
with section three hundred eighty-five of this chapter.
7.  (a)  The  department  shall  adopt  regulations establishing civil
penalties of up to one thousand dollars per day to be  assessed  against
all  adult  care  facilities  except  facilities  operated  by  a social
services district for violations of (i) regulations  of  the  department
pertaining  to  the care of residents in such facilities, (ii) paragraph
(a) of subdivision three of section four  hundred  sixty-one-a  of  this
chapter,  or (iii) an order issued pursuant to subdivision eight of this
section. The regulations shall specify the violations subject to penalty
and the amount of the penalty to be assessed  in  connection  with  each

such  violation and shall specify that only civil penalties of up to one
thousand dollars per day per violation shall  be  assessed  pursuant  to
this  paragraph  against an adult care facility found responsible for an
act  of retaliation or reprisal against any resident, employee, or other
person for having filed a complaint with or having provided  information
to  any  long term care patient ombudsman functioning in accordance with
section five hundred  forty-four  or  five  hundred  forty-five  of  the
executive law.
(b) (1) In addition to any other civil or criminal penalty provided by
law,  the  department  shall have the power to assess civil penalties in
accordance with its regulations adopted pursuant  to  paragraph  (a)  of
this  subdivision,  after  a  hearing  conducted  in accordance with the
procedures established by regulations of the department. Such procedures
shall require that notice of the time and place of the hearing, together
with a statement of charges of violations, shall be served in person  or
by  certified  mail addressed to the facility at least thirty days prior
to the date of the hearing. The statement of charges of violations shall
set forth the existence of the violations, the  amount  of  penalty  for
which  it may become liable and the steps which must be taken to rectify
the violation and, where applicable, a  statement  that  the  department
contends  that  a penalty may be imposed under this paragraph regardless
of rectification. An answer to the charges of  violations,  in  writing,
shall  be filed with the department, not less than ten days prior to the
date  of  hearing.  The  answer  shall  notify  the  department  of  the
facility's  position  with  respect  to  each  of  the charges and shall
include all matters which if not disclosed in the answer would be likely
to take the department by surprise. The commissioner, or a member of his
staff who is designated and authorized by him to hold such hearing,  may
in his discretion allow the facility to prove any matter not included in
the  answer.  Where  the  facility  satisfactorily  demonstrates that it
either had rectified the violations  within  thirty  days  of  receiving
written  notification  of  the  results  of  the  inspection pursuant to
section four hundred sixty-one-a  of  this  chapter,  or  had  submitted
within  thirty  days  an  acceptable  plan  for  rectification  and  was
rectifying the violations in accordance with the steps  and  within  the
additional  periods  of time as accepted by the department in such plan,
no penalty shall be imposed, except as provided in subparagraph  two  of
this paragraph.
(2)  Rectification  shall  not preclude the assessment of a penalty if
the department establishes at a hearing  that  a  particular  violation,
although  corrected,  endangered  or resulted in harm to any resident as
the result of:
(i) the total or substantial failure of the facility's fire  detection
or  prevention systems, or emergency evacuation procedures prescribed by
department safety standard regulations;
(ii) the retention of any resident  who  has  been  evaluated  by  the
resident's physician as being medically or mentally unsuited for care in
the  facility  or  as  requiring  placement in a hospital or residential
health care facility and for whom the operator is not making  persistent
efforts to secure appropriate placement;
(iii) the failure in systemic practices and procedures;
(iv)  the  failure  of  the  operator  to  take actions as required by
department regulations in the event of a resident's illness or accident;
(v) the failure of the operator to provide at all times supervision of
residents by numbers of staff at least equivalent to the night  staffing
requirement set forth in department regulations; or
(vi)   unreasonable   threats  of  retaliation  or  taking  reprisals,
including but  not  limited  to  unreasonable  threats  of  eviction  or

hospitalization against any resident, employee or other person who makes
a  complaint  concerning  the  operation  of  an  adult  care  facility,
participates in the investigation of a complaint or is the subject of an
action identified in a complaint.
The  department  shall specify in its regulations those regulations to
which this subparagraph two shall apply.
(3) In assessing penalties pursuant to this paragraph, the  department
shall  consider  promptness  of  rectification,  delay occasioned by the
department,  and  the  specific  circumstances  of  the  violations   as
mitigating factors.
(c)  Upon  the  request  of  the  department, the attorney general may
commence an action in any court of competent  jurisdiction  against  any
facility  subject  to  the  provisions  of this section, and against any
person or corporation operating such facility, for the recovery  of  any
penalty  assessed by the department in accordance with the provisions of
this subdivision.
(d) Any such penalty assessed by the department  may  be  released  or
compromised by the department before the matter has been referred to the
attorney  general,  and  where  such  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 and discontinued
by the attorney general with the consent of the department.
8.  Whenever  the  commissioner,  after  investigation, finds that any
person, agency or facility subject to this article is causing,  engaging
in  or maintaining a condition or activity which constitutes a danger to
the physical or mental health of the residents of a facility subject  to
the  inspection and supervision of the department, and that it therefore
appears to be prejudicial to the interests of such  residents  to  delay
action  for  thirty  days  until  an  opportunity  for  a hearing can be
provided  in  accordance  with  the  provisions  of  this  section,  the
commissioner  shall  order  the  person,  agency  or facility by written
notice, setting forth the basis for such finding,  to  discontinue  such
dangerous  condition  or  activity or take certain action immediately or
within a specified period of less than  thirty  days.  The  commissioner
shall  within  thirty  days of issuance of the order provide the person,
agency or facility an opportunity to be heard and to present  any  proof
that  such  condition  or  activity  does not constitute a danger to the
health of such residents.
9. (a) The department shall have authority to impose a  civil  penalty
not  exceeding  one  thousand  dollars  per day against, and to issue an
order requiring the closing of,  after  notice  and  opportunity  to  be
heard, any facility which does not possess a valid operating certificate
issued  by  the  department and is an adult care facility subject to the
provisions of this article and the  regulations  of  the  department.  A
hearing  shall be conducted in accordance with procedures established by
department regulations which procedures shall require that notice of the
determination that the facility  is  an  adult  care  facility  and  the
reasons  for  such determination and notice of the time and place of the
hearing be served in person on the operator, owner or prime  lessor,  if
any,  or  by certified mail, return receipt requested, addressed to such
person and received at least twenty  days  prior  to  the  date  of  the
hearing.  If  such operator, owner or prime lessor, if any, is not known
to the department, then service may be made by posting a copy thereof in
a conspicuous place within the facility or by sending a copy thereof  by
certified  mail,  return receipt requested, addressed to the facility. A
written answer to  the  notice  of  violation  may  be  filed  with  the
department  not  less  than  five days prior to the date of the hearing.
Demonstration by the facility that it possessed an operating certificate

issued pursuant to this article,  article  twenty-eight  of  the  public
health law or article sixteen, twenty-three, thirty-one or thirty-two of
the  mental  hygiene  law  at  the  time the hearing was commenced shall
constitute  a  complete  defense  to  any  charges made pursuant to this
subdivision.
(b) The penalty authorized by this section shall begin to  run  thirty
days  after  the  department  provides  the operator, in writing, with a
summary of the inspection  of  the  facility  by  which  the  department
determined  that  he  or  she  is  operating  an  uncertified adult care
facility. The submission of  an  application  by  the  operator  for  an
operating  certificate  for  the  facility shall not act as a bar to the
imposition of a penalty against the operator.
(c) (i) For the  purposes  of  assessing  the  applicability  of  this
article  and  the regulations of the department, the department shall be
authorized to inspect any  facility  which  reasonably  appears  to  the
department to be subject to the provisions of this article and to assess
the  needs  of the residents of such facility pursuant to the provisions
of section four hundred sixty-c of this title.
(ii) At the time that a representative of the  department  appears  at
the   facility   for   purposes   of  conducting  such  inspection,  the
representative shall inform the operator, administrator or other  person
in  charge  that  the  inspection  will  be conducted unless such person
objects to the inspection and  that  if  such  person  does  object  the
department,  pursuant  to  the  provisions of subparagraph (iii) of this
paragraph, shall be authorized to request the attorney general to  apply
to  the  court  for  an  order  granting  the  department  access to the
facility.
(iii) If the department is not permitted access to  such  facility  by
the  operator,  administrator  or  other  person  in charge thereof, the
attorney  general,  upon  the  request  of  the  department,  shall   be
authorized  to  apply,  without notice to the operator, administrator or
chairman of the board of directors of a not-for-profit facility, to  the
supreme  court  in  the  county  in which the facility is located for an
order granting the department access to such  facility.  The  court  may
grant such an order if it determines, based on evidence presented by the
attorney  general,  that  there is reasonable cause to believe that such
facility is an adult care  facility  which  does  not  possess  a  valid
operating certificate issued by the department.
(d)  Upon  the  request  of  the  department, the attorney general may
commence an action in any court of competent  jurisdiction  against  any
facility  subject to the provisions of this subdivision, and against any
person or corporation operating such facility, for the recovery  of  any
penalty  assessed by the department in accordance with the provisions of
this subdivision.
(e)  Any  penalty  assessed  by  the  department  pursuant   to   this
subdivision  may be released or compromised by the department before the
matter has been referred to the attorney general and where  such  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 and discontinued by the attorney general with the consent  of
the department.
10.   By  March  first,  nineteen  hundred  ninety-five  and  annually
thereafter, the department shall submit a report to the governor and the
legislature on the regulation of adult homes and residences for  adults.
Such  report  shall  include  both  a  narrative and statistical summary
detailing the results of inspections and enforcement  actions  of  adult
homes  and  residences for adults. The report shall also include results
of audits of financial conditions and practices of a selected sample  of

adult homes and residences of adults and recommendations for legislative
action relating to the need for changes in statute.
11.  On or before issuance by the department to an adult care facility
operator  of  official  written  notice  of:  the  proposed  revocation,
suspension  or  denial  of  the  operator's  operating  certificate; the
limitation of the operating certificate with respect to new  admissions;
the  issuance of a department order or commissioner's order; the seeking
of equitable relief pursuant to this section; the proposed assessment of
civil penalties for violations of the provisions of subparagraph two  of
paragraph  (b)  of subdivision seven of this section or placement on the
"do not refer list" pursuant to subdivision  fifteen  of  this  section,
written  notice  also  shall  be  given to the appropriate office of the
department of mental hygiene, department of  corrections  and  community
supervision  and  local  social services districts, and provided further
that the department of health shall notify hospitals in the locality  in
which  such  facility  is located that such notice has been issued. Upon
resolution of such enforcement action the department  shall  notify  the
appropriate  office  of  the department of mental hygiene, department of
corrections and community supervision, local social  services  districts
and hospitals.
12.  Social  services  districts  and  other local government entities
established pursuant to this chapter shall  be  prohibited  from  making
referrals  for  admissions  to  adult care facilities that have received
official written notice regarding: the proposed  revocation,  suspension
or denial of the operator's operating certificate; the limitation of the
operating  certificate  with  respect to new admissions; the issuance of
department order or commissioner's  orders;  the  seeking  of  equitable
relief  pursuant  to  this  section;  the  proposed  assessment of civil
penalties for violations  of  the  provisions  of  subparagraph  two  of
paragraph  (b)  of  subdivision seven of this section; or the facility's
placement on the "do not refer list" pursuant to subdivision fifteen  of
this section.
* 13.  The  department  shall  notify  the department of health of any
enforcement action pursuant to this section taken against an operator of
an adult home or enriched housing program which has been licensed by the
department of health as a limited home care services agency pursuant  to
section thirty-six hundred five of the public health law.
* NB Expires June 30, 2025
* 14.  If the department receives notice from the department of health
that an action has been taken against an operator of a limited home care
services agency, pursuant to section thirty-six hundred  five-a  of  the
public  health law, the department shall review the delivery of services
provided by the certified operator of an adult home or enriched  housing
program  to  determine  whether  such operator is meeting all applicable
regulations and standards.
* NB Expires June 30, 2025
15. The department of health shall maintain, on its website, a list of
all adult homes, enriched housing programs, residences  for  adults  and
assisted   living   programs  that  have  received  written  notice  of:
enforcement action  based  on  a  violation  of  an  applicable  law  or
regulation  that  creates  an  endangerment of resident health or safety
pursuant to subparagraph two of paragraph (b) of  subdivision  seven  of
this  section  or  a  pending  enforcement  action  against a facility's
operating certificate or a determination that the facility  is  required
to  be certified as an adult home, enriched housing program or residence
for adults. Provided however, if a facility contends, in  writing,  that
the  violation  resulting  in the facility being included on the "do not
refer list" has been corrected,  the  department  shall,  within  thirty

days,  reinspect the facility, and if the department determines that the
violation has been corrected, the facility shall be immediately  removed
from  the  list. This list shall be known as the "do not refer" list and
shall be promptly updated to reflect any of the above violations and the
reopening  of  admissions  in  any  adult  care  facility  in  which the
enforcement action for which they  were  added  to  the  list  has  been
resolved.
16.  Any  operator or controlling person of an adult care facility, as
defined  in  clause  two  of  subparagraph  (x)  of  paragraph  (a)   of
subdivision  four  of  section  four hundred sixty-one-e of this article
shall be prohibited from applying to the department of health or to  any
other  agency  of this state for an operating certificate or approval to
operate an alternate type of facility during the period  in  which  such
certificate has been revoked, suspended or limited.
17.  The  department of health shall direct the temporary operator to,
and the  temporary  operator  shall,  provide  written  notification  to
residents  of all adult homes, enriched housing programs, residences for
adults and assisted living programs where a temporary operator has  been
appointed pursuant to subdivision four of this section.