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 602.8 - Hearing procedures: temporary suspension or limitation of an operating certificate

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(b) which provides
				  that the Office for People With Developmental Disabilities may suspend or limit
				  an operating certificate without notice and an opportunity to be heard
				  following a finding that the health or safety of a person receiving services is
				  in imminent danger. The provider may appeal such an action. 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 of the office to temporarily suspend or limit an
				  operating certificate shall be valid for up to 60 days or, if a notice is
				  served upon the provider within said 60 days notifying said provider of the
				  intention of the office to revoke, suspend or limit the operating certificate
				  pursuant to Mental Hygiene Law, section
				  16.17(a), until the
				  operating certificate is so suspended, limited or revoked or the outcome of any
				  hearing to appeal such decision is reached pursuant to Mental Hygiene Law,
				  section
				  16.17(a) and section
				  602.5  of this Part. The decision to temporarily suspend or limit an operating
				  certificate may be appealed by the provider. Such appeal and request for
				  hearing shall be in writing and must be made within 10 days of the temporary
				  suspension or limitation of the operating certificate.
(c)
Hearing date.
The hearing shall commence within 10 days of receipt of the
				  hearing request. No request for an adjournment shall be granted without the
				  concurrence of the provider and the division of the office which made the
				  decision to temporarily suspend or limit the operating certificate and the
				  hearing officer.
(d)
Service of papers.
The notice of hearing and statement of issues shall be served
				  upon the provider not less than 24 hours prior to the commencement of a hearing
				  requested under this Part. The provider may serve an answer upon the division
				  of the office which issued the statement of issues and the hearing officer at
				  any time prior to the commencement of a hearing conducted pursuant to this
				  Part.
(e)
Scope of
				hearing.
The hearing shall be limited to those violations of Federal
				  and State law and regulation that gave rise to the temporary suspension or
				  limitation of the operating certificate.
(f)
Procedure.
The OPWDD
				shall present its case first.
(g)
Recommendation and decision.
The hearing officer's
				recommendation and the commissioner's decision shall be made upon consideration
				of the record as a whole. The decision of OPWDD to temporarily limit or suspend
				the provider's operating certificate shall be sustained if the OPWDD presents
				evidence demonstrating that, at the time the temporary suspension was imposed,
				there was reasonable cause to believe that the health or safety of a person
				receiving services was in imminent danger. The commissioner shall review and
				render a final determination concerning the temporary suspension or limitation
				of the operating certificate within 10 days of receipt of the record and the
				hearing officer's report and recommended decision.
(h) At any time subsequent to the suspension
				or limitation of any operating certificate pursuant to this subdivision where
				said suspension or limitation is the result of correctable physical plant,
				staffing or program deficiencies, the facility may request the office to
				reinspect the facility to redetermine whether a specific condition or practice
				continues to exist. After the receipt of such a request, the office shall
				reinspect the facility within 10 days and in the event that the previously
				found condition or practice has not been eliminated, the commissioner shall not
				thereafter be required to reinspect the facility during the emergency period of
				suspension or limitation. The findings of the office upon such reinspection may
				be introduced by the office at any hearing requested by the provider pursuant
				to this Part, and may be the subject of evidence introduced by the
				provider.