New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIV - Office for People With Developmental Disabilities › Part 602 - Uniform Hearing Procedures › Section 602.5 - Hearing procedures: current operating certificate suspension, revocation, limitation or fine hearings

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Applicability.
In addition to section
				  602.2  of this
				  Part, this section shall apply to hearings held pursuant to Mental Hygiene Law,
				  section
				  16.17(a), which provides
				  that the commissioner may not revoke, suspend or limit an operating certificate
				  fine the holder thereof for failure to comply with the terms of the operating
				  certificate, or any applicable statute, rule or regulation, without giving the
				  provider notice and opportunity to be heard. Where a conflict exists between
				  this section and section
				  602.2  of this
				  Part, the provisions of this section shall be controlling.
(b)
Hearing requests.
The decision to revoke, suspend or limit an existing
				  operating certificate, or to fine the holder thereof, shall be final, unless
				  the provider requests a hearing in writing within 30 days of service of notice
				  of the proposed action. Such request shall be made to the commissioner, and
				  shall include a copy of OPWDD's notice of proposed action. The request must
				  also include a declaration of the issues alleged to be involved, and
				  documentation of the provider's position as to each identified issue.
(c)
Stay of execution of
				proposed action.
Except as provided for in Mental Hygiene Law, section
				  16.17(b), if the provider
				  makes a valid request for a hearing, the execution of any proposed action to
				  revoke, suspend, limit or fine shall be stayed pending the commissioner's
				  determination.
(d) The
				provider must serve on the division of the office which issued the statement of
				issues and the hearing officer an answer, signed by the provider no later than
				three days before the initial hearing date.
(e)
Burden of proof.
The OPWDD shall present its case first. The burden of proof
				  shall be on the OPWDD to present evidence of the provider's failure to operate
				  the facility in full compliance with all relevant laws and regulations at the
				  time of the survey of the facility by OPWDD.
(f) When the office seeks the revocation,
				suspension [of] or limitation of an operating certificate previously granted by
				the OPWDD or to levy a fine on the holder of an operating certificate, either
				party shall, upon demand and at least seven days prior to the hearing, disclose
				the evidence that the party intends to introduce at the hearing, including
				documentary evidence and identification of witnesses, provided, however, the
				provisions of this subdivision shall not be deemed to require the disclosure of
				information or material otherwise protected by law from disclosure, including
				information and material protected because of privilege or confidentiality. If,
				after such disclosure, a party determines to rely upon other witnesses or
				information, the party shall, as soon as practicable, supplement its disclosure
				by providing the names of such witnesses or the additional documents.