N.Y. Mental Hygiene Law § 31.16: Suspension, revocation, or limitation of an operating certificate and imposition of fines by the commissioner of mental health

§ 31.16 Suspension, revocation, or limitation of an operating

certificate and imposition of fines by the commissioner of

mental health.

(a) The commissioner of mental health may revoke, suspend, or limit an

operating certificate or impose the penalties described in subparagraph

(i), (ii) or (iii) 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 operating

certificate imposed pursuant to paragraph one of subdivision (b) of this

section.

(b) 1. A certificate may be temporarily suspended or limited without a

hearing for a period not in excess of sixty days upon written notice to

the facility following a finding by the office of mental health that a

patient's health or safety is in imminent danger or there exists any

condition or practice or a continuing pattern of conditions or practices

which poses imminent danger to the health or safety of any patient. 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:

(i) Prohibit or limit the placement of new patients in the facility;

(ii) Remove or cause to be removed some or all of the patients in the

facility; or

(iii) Suspend or limit or cause to be suspended or limited the payment

of any governmental funds to the facility provided that such action

shall not in any way jeopardize the health, safety and welfare of any

person with a mental illness in such program or facility.

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 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 ten days

and in the event that the previously found condition or practice has

been eliminated, the suspension or limitation shall be withdrawn. If the

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.

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

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, within ten days of the date when the

emergency suspension or limitation pursuant to paragraph one of this

subdivision is first imposed or within ten days of the date of receipt

of notice from the commissioner to revoke, suspend or limit the

facility's operating certificate, 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 request and no request for an adjournment shall be granted

without the concurrence of the facility operator, office of mental

health and the hearing officer. The evidentiary hearing shall be limited

to a determination of whether a patient's health or safety is in

imminent danger or there exists any condition or practice or a

continuing pattern of conditions or practices which poses imminent

danger to the health or safety of any patient. The emergency suspension

or limitation shall be upheld upon a determination that the office of

mental health had reasonable cause to believe that a patient's health or

safety was in imminent danger. A record of such hearing shall be made

available to the facility operator upon request. Should the commissioner

determine to revoke, suspend or limit the facility's 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 rendering of the hearing

officer's report and the commissioner's final review and determination

concerning the emergency suspension or limitation. 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 date, time and

place for the hearing. A copy of the charges stating the substance of

the alleged violations of the terms of the operating certificate or the

alleged violation of any applicable statute, rule or regulation,

together with the notice of the date, time and place of the hearing,

shall be served in person or mailed by registered or certified mail to

the facility at least ten days before the date fixed for the hearing.

The facility 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 as hearing officer, shall have

power to:

(i) administer oaths and affirmations;

(ii) issue subpoenas, which shall be regulated by the civil practice

law and rules;

(iii) take testimony; or

(iv) control the conduct of the hearings.

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 require the production of witnesses and evidence in

manner and form as prescribed by the civil practice law and rules, to

cross-examine witnesses, to examine evidence produced against them, and

to have subpoenas issued on their behalf.

4. If evidence at the hearing relates to the identity, condition, or

clinical record of a patient, 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. The ruling shall be

based upon a preponderance of the evidence and shall contain conclusions

concerning the alleged violations of the terms of the operating

certificate or the alleged violation of any applicable statute, rule or

regulation.

(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 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,

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 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 and

further provided that a change of ownership or transfer of stock is

completed without delay, and provided that such partnerhip or

corporation shall immediately reapply for a certificate of operation

pursuant to this article.

(g) The commissioner may impose a civil penalty 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 civil penalty imposed

thereunder shall not exceed two thousand dollars per day or twenty-five

thousand dollars, per violation. Penalties may be considered at the

individual bed level for beds closed without authorization at inpatient

settings.

Such civil penalty may be recovered by an action brought by the

commissioner in any court of competent jurisdiction.

Such civil penalty may be released or compromised by the commissioner

before the matter has been referred to the attorney general. Any such

civil 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.

1. Such civil penalty under this subdivision shall account for factors

which shall include: (i) any officially declared national, state, or

municipal emergency; (ii) any unforeseen disaster or other catastrophic

event that directly impacts access to health care services; (iii) the

frequency, duration, scope, and nature of non-compliance; and (iv) any

other factors as established by the commissioner.

2. In determining whether an operating certificate holder has violated

its obligation to comply with the terms of the operating certificate, it

shall not be a defense that the operator was unable to secure proper

staff or other necessary resources if the lack of staff or other

resources was foreseeable and could be prudently planned for or involved

routine staffing needs that arose due to typical staffing patterns,

typical levels of absenteeism, and time off typically approved by the

operator for vacation, holidays, sick leave, and personal leave.

(h) It shall be the duty of the attorney general upon the request of

the commissioner to bring an action for an injunction against any person

who violates, disobeys or disregards any term or provision of this

chapter or of any lawful notice, order or regulation pursuant thereto;

provided, however, that the commissioner shall furnish the attorney

general with such material, evidentiary matter or proof as may be

requested by the attorney general for the prosecution of such an action.

(i) Where a proceeding has been brought pursuant to section 31.28 of

this article, and a receiver is 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 chariman of the senate finance committee and the director

of the budget of his intention to assume operation of such facility at

least six months prior to such assumption.