2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 32 - Regulation and Quality Control of Chemical Dependence Services and Compulsive Gambling Services. › 32.20 - Temporary Operator.

§ 32.20 Temporary operator. 1. For the purposes of this section:
(a)  "chemical  dependence  treatment  program"  shall  mean a program
certified pursuant to section 32.05 of this article;
(b) "established operator" shall  mean  the  operator  of  a  chemical
dependence  treatment  program  that  has been established and issued an
operating certificate pursuant to section 32.05 of this article;
(c) "temporary operator" shall mean any OASAS staff member, person  or
entity that:
(i)  agrees  to  operate  a  program  on a temporary basis in the best
interests of its patients and the community served by the program;
(ii) has demonstrated that he or she has the character, competence and
ability  to  operate  an  OASAS-certified  program  in  compliance  with
applicable standards; and
(iii)  prior to his or her appointment as temporary operator, develops
with guidance from the commissioner a satisfactory plan to  address  the
program's deficiencies;
(d)  "serious  financial instability" shall include but not be limited
to defaulting or violating key covenants of bond issues, missed mortgage
payments,  general  untimely  payment  of  debts,  failure  to  pay  its
employees  or  vendors, insufficient funds to meet the general operating
expenses of the program and/or facility, 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; and
(e)  "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.
2. (a) In the event that: (i) the  program  is  seeking  extraordinary
financial  assistance;  (ii)  office  collected  data indicates that the
program is experiencing  serious  financial  instability  issues;  (iii)
office collected data indicates that the program's board of directors or
administration are 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  chemical  dependence treatment 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 program's treatment operations of that facility  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.
(b)  The established operator of a program 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  patients  until  the
established  operator  can  resume operations within the designated time
period;  the  patients  may  be  transferred  to  other  OASAS-certified
providers;  or  the  program  operations  of  that  facility  should  be
completely discontinued.
3. (a) A temporary operator appointed pursuant to this  section  shall
use  his  or  her  best efforts to implement the plan developed with the
guidance of the commissioner to correct or eliminate any deficiencies in
the program and to promote the quality  and  accessibility  of  chemical
dependence treatment services in the community served by the program.
(b)  If the identified program deficiencies cannot be addressed in the
time period designated in the plan, the patients shall be transferred to
other OASAS-certified providers.
(c)  During the term of his or her appointment, the temporary operator
shall have the authority to direct the program staff of the facility  in
all  aspects  necessary  to  appropriately  treat  and/or  transfer  the
patients. The temporary operator shall, during this period, operate  the
program  in  such  a  manner  as  to  promote safety and the quality and
accessibility of chemical dependence treatment services in the community
served by the facility until either the established operator can  resume
program  operations  or until the patients are appropriately transferred
to other OASAS-certified providers.
(d) The  temporary  operator  shall  also  be  afforded  access  to  a
program's  accounts  and  records  in  order to address any deficiencies
related to a program experiencing serious  financial  instability  or  a
program requesting financial assistance in accordance with this section.
The temporary operator shall approve any financial decision related to a
program's day to day operations or program's ability to provide chemical
dependence services.
(e)  The temporary operator shall not be required to file any bond. No
security interest in  any  real  or  personal  property  comprising  the
facility  or  contained  within  the  facility  or in any fixture of the
facility, 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.
4. The temporary operator shall be entitled to a  reasonable  fee,  as
determined  by  the commissioner, and necessary expenses incurred during
his or her performance as temporary  operator.  The  temporary  operator
shall be liable only in his or her capacity as temporary operator of the
program  for  injury  to  person  and  property  by reason of his or her
operation of such program; he or she shall not have any liability in his
or her personal capacity, except for gross  negligence  and  intentional
acts.
5.  (a)  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,  health  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.
(b) 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:
(i)   the  actions  taken  during  the  appointment  to  address:  the
identified program deficiencies; the resumption of program operations by
the established operator; or the  transfer  of  the  patients  to  other
OASAS-certified providers;
(ii)  objectives for the continuation of the temporary operatorship if
necessary and a schedule for satisfaction of such objectives; and
(iii) if applicable, the recommended actions for the ongoing operation
of the program subsequent to the temporary operatorship.
(c) 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.
6.  (a)  The  commissioner  shall,  upon  making a determination of an
intention to appoint a temporary operator pursuant to paragraph  (a)  of
subdivision  two  of  this section cause the established operator of the
facility 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.
(b)  Should the commissioner and the established operator be unable to
establish a plan  of  correction  pursuant  to  paragraph  (a)  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.
(c) If the decision to appoint a temporary  operator  is  upheld  such
temporary  operator  shall  be  appointed  as soon as is practicable and
shall operate the program pursuant to the provisions of this section.
(d) 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  and  assembly  committees  on
alcoholism  and  drug  abuse  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.
7.  Notwithstanding  the  appointment  of  a  temporary  operator, the
established operator remains obligated for the  continued  operation  of
the  facility  so  that  the program can function in a normal manner. 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.