New York Codes, Rules and Regulations › Title 18 - DEPARTMENT OF SOCIAL SERVICES › Chapter II - Regulations of the Department of Social Services › Subchapter D - Adult-Care Facilities › Part 493 - Hearing Procedure: Residential Care Programs For Adults › Section 493.10 - Conduct of hearing

Current through Register Vol. 46, No. 28, July 10, 2024
(a) At the
		    time and place set forth in the notice of hearing, the parties will advise the
		    hearing officer which portions of the statement of charges remain in
		    dispute.
(b) The hearing officer
		    has the power to administer oaths, issue subpoenas, require the attendance of
		    witnesses and the production of records, rule upon requests for adjournments,
		    make evidentiary rulings, and otherwise preside over the hearing. The hearing
		    officer must make an opening statement describing the proceedings, the issues
		    to be decided and the manner in which the hearing will be conducted.
(c) The hearing officer must introduce into
		    the record the statement of charges and its appendices; post office receipts
		    verifying the receipt of all mailed documents, where applicable; and the
		    answer, together with all appendices and accompanying documents.
(d) The department will be precluded from
		    making any argument and asserting any charges not set forth in the statement of
		    charges that has been sent to the operator with the notice of hearing. The
		    operator will be precluded from raising issues and submitting any evidence not
		    set forth in the answer. Each party may move for orders to preclude the other
		    party from asserting arguments or charges, raising issues or submitting
		    evidence as described within this subdivision. However, the hearing officer
		    may, in his or her discretion, permit either party to prove any matter not set
		    forth in the statement of charges or in the answer. In exercising his or her
		    discretion, the hearing officer will consider prejudice to either party, and
		    whether the party attempting to prove the matter not set forth in the statement
		    of charges or in the answer has demonstrated a good faith attempt to ascertain
		    the matter beforehand, and whether such party informed the other party of the
		    new matter as soon as it was aware of it. If the hearing officer allows a party
		    to call a witness without prior notice to the other party, such other party
		    will be permitted a reasonable time to prepare for cross-examination of that
		    witness.
(e) The hearing officer
		    may direct that the hearing continue or may designate future hearing dates and
		    adjourn the hearing until such time. The hearing officer also may direct that
		    the parties engage in further discussions, exchanges or negotiations to attempt
		    to resolve outstanding issues.
(f)
		    The parties to a hearing have the burden of establishing, by a preponderance of
		    the evidence, the following:
(1) In an action
		    to assess civil penalties against an operator, the department must establish
		    that the violations upon which the civil penalties are based occurred and that
		    the operator received written notice of the violations. Violations which are
		    proven to have occurred are presumed to continue. If the operator raises an
		    affirmative defense that the violations have been rectified, the operator must
		    establish that the violations were rectified, as defined in section
		    486.5(a) 
		    of this Title, within 30 days of receiving the written notice of the
		    violations. The operator may also raise, as an affirmative defense, that the
		    operator had submitted to the department within 30 days of receiving such
		    notice, an acceptable plan for rectification and monitoring and was rectifying
		    the violations in accordance with the necessary corrective actions and within
		    the periods of time as accepted by the department in such plan.
(2) In an action to assess civil penalties
		    pursuant to section
		    486.5(b) 
		    of this Title for operating a facility without a valid operating certificate
		    and to review an order to the operator to close the facility, the department
		    must establish that the operator is providing or arranging for the provision of
		    personal care or supervision to one or more unrelated, dependent adults or has
		    held himself or herself out as providing such services and is providing at
		    least room and board to one or more unrelated, dependent adults. In order to
		    rebut the charge that the operator does not possess a valid operating
		    certificate, the operator must establish that he or she possessed an operating
		    certificate issued pursuant to article 7 of the Social Social Services Law,
		    article 28 of the Public Health Law, or article 16, 23 or 31 of the Mental
		    Hygiene Law, within 30 days of being provided by the department with a written
		    summary of the inspection by which the department determined that the operator
		    is operating an uncertified facility, or that the operator transferred all
		    unrelated dependent adults to appropriate facilities within 30 days of
		    receiving such written summary.
(3)
		    In an action to challenge the denial of an application for an operating
		    certificate, the operator must establish that the operator meets all the
		    statutory and regulatory requirements for obtaining the certificate, including
		    that he or she has the requisite character and competence to obtain an
		    operating certificate and that it was an abuse of discretion for the
		    commissioner or the commissioner's designee not to grant the operating
		    certificate.
(4) In an action to
		    challenge the denial of an application to renew an operating certificate, the
		    operator must establish that the operator meets all the statutory and
		    regulatory requirements for obtaining renewal of the certificate including that
		    he or she has the requisite character and competence to obtain a renewal of the
		    operating certificate and that it was an abuse of discretion for the
		    commissioner or the commissioner's designee not to renew the operating
		    certificate.
(5) In an action to
		    revoke, suspend or limit an operating certificate, the department must
		    establish that the operator has failed to comply with the requirements of State
		    or local laws or regulations applicable to the operation of the
		    facility.
(6) In an action to
		    challenge an order of the commissioner issued pursuant to section 460-d (8)  of the Social
		    Services Law, the operator must establish that the condition or activity which
		    is the subject of the order does not constitute a danger to the physical or
		    mental health of the residents.
(7)
		    In an action to modify an operating certificate, the department must establish
		    that the action would be in the public interest in order to conserve resources
		    by restricting the number of beds, level of services or both to those which are
		    actually needed.