2023 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.