N.Y. Mental Hygiene Law § 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.