N.Y. Public Health Law § 2806: Hospital operating certificates; suspension or revocation

§ 2806. Hospital operating certificates; suspension or revocation. 1.

A hospital operating certificate may be revoked, suspended, limited or

annulled by the commissioner on proof that: (a) the hospital has failed

to comply with the provisions of this article or rules and regulations

promulgated thereunder; or (b) a general hospital has refused or failed

to admit or to provide for necessary emergency care and treatment for an

unidentified person brought to it in an unconscious, seriously ill or

wounded condition. A hospital operating certificate shall be revoked,

limited or annulled by the commissioner upon revocation, limitation or

annulment by the public health council of approval of establishment of

such hospital.

2. No hospital operating certificate shall be revoked, suspended,

limited or annulled without a hearing, except for operating certificates

revoked, limited or annulled because of revocation, limitation, or

annulment of establishment approval.

Also, an operating certificate may be temporarily suspended or limited

without a hearing for a period not in excess of sixty days upon written

notice to the hospital and opportunity for a hearing following a finding

by the department that the public 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 department may also, consistent with

applicable federal law and regulations, prohibit or limit the placement

of new patients in a residential health care facility without a hearing

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

facility and opportunity for a hearing upon a determination that such

facility no longer substantially meets the requirements of this article

and the regulations thereunder and that such deficiencies do not pose an

imminent danger to the health and safety of any patient, provided,

however, that the department shall not make such a determination with

respect to a facility until the facility has had a reasonable

opportunity, following the initial determination that such facility no

longer substantially meets the requirements of this article, to correct

its deficiencies and following this period, has been given written

notice and opportunity for a hearing. Provided, however, that any delay

in the hearing process during the sixty-day period occasioned by the

hospital shall toll the running of said suspension or limitation and

shall not abridge the full time provided for in this subdivision. Upon

such finding and notice the power of the commissioner temporarily to

suspend or limit a hospital operating certificate shall include, but

shall not be limited to, the power to:

(a) prohibit or limit the placement of new patients in the hospital;

(b) remove or cause to be removed some or all of the patients in the

hospital;

(c) suspend or limit or cause to be suspended or limited the payment

of any governmental funds to the hospital.

At any time subsequent to the suspension or limitation of any

operating certificate pursuant to this subdivision, the hospital may

request the department to reinspect the hospital to redetermine whether

a specific condition or practice continues to exist. After the receipt

of such a request the department shall reinspect the hospital 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 hospital during the

temporary period of suspension or limitation. Nor shall the commissioner

be required to reinspect upon request during a temporary period of

suspension or limitation any hospital whose operating certificate has

been temporarily suspended or limited due to the existence of a

continuing pattern of conditions or practices which poses imminent

danger to the health and safety of any patient.

3. 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 hospital at least ten days before the date fixed for the

hearing. The hospital shall file with the department not less than three

days prior to the hearing a written answer to the charges.

4. All orders or determinations hereunder shall be subject to review

as provided in article seventy-eight of the civil practice law and

rules. Application for such review must be made within sixty days after

service in person or by registered or certified mail of a copy of the

order or determination upon the applicant.

5. (a) Except as provided in paragraphs (b) and (d) of this

subdivision, anything contained in this section or in a certificate of

relief from disabilities or a certificate of good conduct issued

pursuant to article twenty-three of the correction law to the contrary

notwithstanding, a hospital operating certificate of a hospital under

control of a controlling person as defined in paragraph (a) of

subdivision twelve of section twenty-eight hundred one-a of this

article, or under control of any other entity, shall be revoked upon a

finding by the department that such controlling person or 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 department or of the office of temporary and

disability assistance or in violation of the public officers law in a

court of competent jurisdiction in the state, or of a crime outside the

state which, if committed within the state, would have been 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

department or of the office of temporary and disability assistance or in

violation of the public officers law.

(b) 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 (a) 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 hospital, and

further provided that an application for approval of change of ownership

or transfer of stock is filed without delay in accordance with the

pertinent provisions of section twenty-eight hundred one-a of this

chapter.

(c) With respect to the conviction of any such person of a class D or

E felony, the commissioner shall make a determination before revoking,

or limiting pursuant to paragraph (b), the operating certificate that

such conviction was related to an activity or program subject to the

regulations, supervision, or administration of the department or of the

department of social services. With respect to the conviction of such

person of a crime committed outside the state, the commissioner shall

make a determination before revoking, or limiting pursuant to paragraph

(b), the operating certificate that such crime, if committed within the

state, would have been a class A, B or C felony or a felony related to

an activity or program subject to the regulations, supervision, or

administration of the department or of the department of social services

or in violation of the public officers law. The commissioner shall

notify the person convicted that such determination has been made and

shall give such person thirty days to request a hearing pursuant to this

subdivision.

(d) The commissioner shall not revoke, or limit pursuant to paragraph

(b) of this subdivision, the operating certificate of any facility

solely because of a conviction, more than ten years prior to the

effective date of this paragraph, of any person of a felony unless the

commissioner makes a determination that such conviction was related to

an activity or program subject to the regulations, supervision, or

administration of the department or of the department of social

services. The commissioner shall not revoke, or limit pursuant to

paragraph (b) of this subdivision, the operating certificate of any

facility solely because of the conviction, more than ten years prior to

the effective date of this paragraph, of any person of a crime outside

the state unless the commissioner makes a determination that such crime,

if committed within the state, would have been a felony related to an

activity or program subject to the regulations, supervision, or

administration of the department or of the department of social services

or in violation of the public officers law. The commissioner shall

notify the person convicted that such determination has been made and

shall give such person thirty days to request a hearing pursuant to this

subdivision.

(e) Any hearing conducted hereunder shall be strictly limited to the

issue of whether the determination of the commissioner is supported by

the evidence. All such hearings shall be conducted as provided in

paragraph (f) of this subdivision, and no hearing, revocation or

limitation shall be stayed by the pendency of any appeal or other

challenge to the conviction.

(f) The commissioner shall fix a time and place for the hearing. A

copy of the notice and charges shall be served in person or mailed by

registered or certified mail no less than ten days before the date fixed

for the hearing. A written answer to the charges shall be filed with the

department not less than two days prior to the hearing. No adjournment

shall be granted in excess of forty-eight hours. The respondent may

attend the hearing in person, with or without counsel, or be represented

by counsel alone, but need not attend personally if unavailable because

of incarceration, hospitalization or other reason. If no answer is filed

with the department within the time limitation of this paragraph, a

hearing shall be deemed to have been waived, and the commissioner shall

issue an order based on the record before him.

(g) Nothing in this subdivision shall be construed to limit the

authority of the public health council to revoke, limit or annul any

approval of establishment.

6. (a) Notwithstanding the provisions of subdivisions two through four

of this section, the commissioner shall suspend, limit, modify, or

revoke a hospital operating certificate, after taking into consideration

the total number of beds necessary to meet the public need, the

availability of facilities or services such as preadmission, ambulatory,

home care or other services which may serve as alternatives or

substitutes for the whole or any part of any such hospital facility,

and, in the case of modification, the level of care and the nature and

type of services provided or required by all or some of the patients in

or seeking admission to such hospital facility, and whether such level

of care is consistent with the operating certificate of the hospital,

and after finding that suspending, limiting, modifying, or revoking the

operating certificate of such facility would be within the public

interest in order to conserve health resources by restricting the number

of beds and/or the level of services to those which are actually needed.

(b) Whenever any finding as described in paragraph (a) of this

subdivision is under consideration with respect to any particular

facility, the commissioner shall cause to be published, in a newspaper

of general circulation in the geographic area of the facility at least

thirty days prior to making such a finding an announcement that such a

finding is under consideration and an address to which interested

persons can write to make their views known. The commissioner shall take

all public comments into consideration in making such a finding.

(c) The commissioner shall, upon making any finding described in

paragraph (a) of this subdivision with respect to any facility, cause

such facility and the appropriate health systems agency to be notified

of the finding at least thirty days in advance of taking the proposed

action to revoke, suspend, limit, or modify the facility's operating

certificate. Upon receipt of any such notification and before the

expiration of the thirty days or such longer period as may be specified

in the notice, the facility or the appropriate health systems agency may

request a public hearing to be held in the county in which the hospital

is located. In no event shall the revocation, suspension or limitation

take effect prior to the thirtieth day after the date of the notice, or

prior to the effective date specified in the notice or prior to the date

of the hearing decision, whichever is later.

(d) In the case of a modification of an operating certificate by the

commissioner pursuant to paragraph (a) of this subdivision, the

commissioner may not modify an operating certificate to reclassify beds

previously authorized as hospital beds to domiciliary care beds or to

increase the total number of beds authorized by such certificate, and,

provided further that no patient in a hospital is to be removed as a

result of the pendency or conclusion of a proceeding pursuant to this

subdivision.

(e) Except as otherwise provided by law, all appeals from a finding of

the commissioner made pursuant to paragraph (a) of this subdivision

shall be directly to the appellate division of the supreme court in the

third department. Except as otherwise expressly provided by law, such

appeals shall have preference over all issues in all courts.

(f) In determining whether there is a public need for any services or

facilities as required by this subdivision, the commissioner shall

consider the advice of the state health planning and development agency

designated pursuant to the provisions of the national health planning

and resources development act of nineteen hundred seventy-four and any

amendments thereto and the state health plan developed thereunder.