N.Y. Social Services Law § 460-d: Enforcement powers

§ 460-d. Enforcement powers. 1. The commissioner or any person

designated by the commissioner may undertake an investigation of the

affairs and management of any facility subject to the inspection and

supervision provision of this article, or of any person, corporation,

society, association or organization which operates or holds itself out

as being authorized to operate any such facility, or of the conduct of

any officers or employers of any such facility. Persons empowered by the

commissioner to conduct any such investigation are hereby empowered to

issue compulsory process for the attendance of witnesses and the

production of papers, to administer oaths and to examine persons under

oath, and to exercise the same powers in respect to the conduct of such

an investigation as belong to referees appointed by the supreme court.

2. If it shall appear after such investigation that the residents of

the facility are cruelly, negligently or improperly treated, or that

inadequate provision is made for their sustenance, clothing, care,

supervision or other condition necessary for their comfort and

well-being, the department may issue an order in the name of the people,

and under the official seal of the state, directing the appropriate

officers or managers of such facility to modify such treatment or

provide such other remedy as may be specified therein. Before any such

order is issued, it must be approved by a justice of the supreme court,

after such notice as he may prescribe and after an opportunity to be

heard, and any person to whom such an order is directed who shall

intentionally fail or refuse to obey its terms shall be guilty of a

misdemeanor.

3. The attorney general and every district attorney shall upon request

of the department furnish such legal assistance, counsel or advice as

the department may require in the discharge of its duties.

4. (a) The operating certificate of any facility may be revoked,

suspended or limited upon a determination by the department that the

facility has failed to comply with the requirements of state or local

laws or regulations applicable to the operation of such facility.

(b) No operating certificate shall be revoked, suspended or limited

without a hearing held in accordance with procedures established by

department regulations, which procedures shall require that notice of

the time and place of the hearing, and notice of the charges, shall be

served in person or by certified mail addressed to the facility at least

thirty days prior to the date of the hearing. A written answer to the

charges may be filed with the department not less than ten business days

prior to the date of the hearing. An operating certificate may,

nevertheless, be 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 department that the public health, or an individual's

health, safety or welfare, are in imminent danger.

(c) Any order or determination to suspend any operating certificate

will specify the conditions of the suspension. These conditions may

include but need not be limited to the following:

(i) if required for the protection of the health, safety or welfare of

the residents, the immediate transfer of some or all residents to other

appropriate facilities or to the custody of their legal guardians, if

any;

(ii) the appointment of a temporary operator to operate the facility

during the term of the suspension;

(iii) the immediate transfer of all records concerning the operation

of the facility, including resident records, facility business records

and any other records related to the operation of the facility to the

department immediately. The department shall control the records for the

term of the suspension;

(iv) the operator or operators of the facility shall be barred from

access to the facility during the term of the suspension; or

(v) the requirement that the operator, if replaced by a temporary

operator, provide the temporary operator with any funds received by the

operator for the operation of the facility.

(d) Any order or determination to limit an operating certificate shall

specify the manner in which the operating certificate is to be limited.

An operating certificate may be found subject to one or more of the

following limitations:

(i) a limitation on the period of time for which such certificate

remains effective, contingent on a determination that specified

violations have been corrected or specified conditions have been met;

(ii) a limitation on the number of persons for which such facility is

authorized to provide care; or

(iii) a prohibition against the admission of new residents after a

specified date.

(e) Any order or determination of revocation, suspension or limitation

of the operating certificate shall be subject to judicial review in

accordance with article seventy-eight of the civil practice law and

rules.

5. In addition to or as an alternative to any power which the

department may exercise under this article, the supreme court may grant

equitable relief against violations or threatened violations of this

article or of the regulations of the department by any facility subject

to the inspection and supervision of the department. The attorney

general may seek such equitable relief, in the name of the people, upon

the request of the department. Service in such an action shall state the

nature of the violation and shall be accomplished in the manner

prescribed by the civil practice law and rules; provided, however, that

an ex parte order for equitable relief may issue, notwithstanding the

civil practice law and rules, if the court finds, on motion and

affidavit, that such violation may reasonably be expected to result in

imminent danger to the public health or to the health, safety or welfare

of any individual in a facility subject to the department's inspection

and supervision. The court, after a hearing, may make an order granting

such equitable relief as it may deem necessary, including, but not

limited to a preliminary injunction or a permanent injunction, enjoining

a facility from admitting new residents, directing the department and

such facility to arrange for the transfer of residents to other

facilities, appointment of a temporary or permanent receiver for the

protection of the public health or the health, safety and welfare of any

individual in such facility, or directing a facility operator to

transfer all records concerning the operation of the facility, including

resident records, facility business records and any other records

related to the operation of the facility to the department immediately.

The people shall not be required to post security or bond.

6. Orders prohibiting placing-out or boarding-out of children or

orders of removal of any child may be issued and enforced in accordance

with section three hundred eighty-five of this chapter.

7. (a) The department shall adopt regulations establishing civil

penalties of up to one thousand dollars per day to be assessed against

all adult care facilities except facilities operated by a social

services district for violations of (i) regulations of the department

pertaining to the care of residents in such facilities, (ii) paragraph

(a) of subdivision three of section four hundred sixty-one-a of this

chapter, or (iii) an order issued pursuant to subdivision eight of this

section. The regulations shall specify the violations subject to penalty

and the amount of the penalty to be assessed in connection with each

such violation and shall specify that only civil penalties of up to one

thousand dollars per day per violation shall be assessed pursuant to

this paragraph against an adult care facility found responsible for an

act of retaliation or reprisal against any resident, employee, or other

person for having filed a complaint with or having provided information

to any long term care patient ombudsman functioning in accordance with

section five hundred forty-four or five hundred forty-five of the

executive law.

(b) (1) In addition to any other civil or criminal penalty provided by

law, the department shall have the power to assess civil penalties in

accordance with its regulations adopted pursuant to paragraph (a) of

this subdivision, after a hearing conducted in accordance with the

procedures established by regulations of the department. Such procedures

shall require that notice of the time and place of the hearing, together

with a statement of charges of violations, shall be served in person or

by certified mail addressed to the facility at least thirty days prior

to the date of the hearing. The statement of charges of violations shall

set forth the existence of the violations, the amount of penalty for

which it may become liable and the steps which must be taken to rectify

the violation and, where applicable, a statement that the department

contends that a penalty may be imposed under this paragraph regardless

of rectification. An answer to the charges of violations, in writing,

shall be filed with the department, not less than ten days prior to the

date of hearing. The answer shall notify the department of the

facility's position with respect to each of the charges and shall

include all matters which if not disclosed in the answer would be likely

to take the department by surprise. The commissioner, or a member of his

staff who is designated and authorized by him to hold such hearing, may

in his discretion allow the facility to prove any matter not included in

the answer. Where the facility satisfactorily demonstrates that it

either had rectified the violations within thirty days of receiving

written notification of the results of the inspection pursuant to

section four hundred sixty-one-a of this chapter, or had submitted

within thirty days an acceptable plan for rectification and was

rectifying the violations in accordance with the steps and within the

additional periods of time as accepted by the department in such plan,

no penalty shall be imposed, except as provided in subparagraph two of

this paragraph.

(2) Rectification shall not preclude the assessment of a penalty if

the department establishes at a hearing that a particular violation,

although corrected, endangered or resulted in harm to any resident as

the result of:

(i) the total or substantial failure of the facility's fire detection

or prevention systems, or emergency evacuation procedures prescribed by

department safety standard regulations;

(ii) the retention of any resident who has been evaluated by the

resident's physician as being medically or mentally unsuited for care in

the facility or as requiring placement in a hospital or residential

health care facility and for whom the operator is not making persistent

efforts to secure appropriate placement;

(iii) the failure in systemic practices and procedures;

(iv) the failure of the operator to take actions as required by

department regulations in the event of a resident's illness or accident;

(v) the failure of the operator to provide at all times supervision of

residents by numbers of staff at least equivalent to the night staffing

requirement set forth in department regulations; or

(vi) unreasonable threats of retaliation or taking reprisals,

including but not limited to unreasonable threats of eviction or

hospitalization against any resident, employee or other person who makes

a complaint concerning the operation of an adult care facility,

participates in the investigation of a complaint or is the subject of an

action identified in a complaint.

The department shall specify in its regulations those regulations to

which this subparagraph two shall apply.

(3) In assessing penalties pursuant to this paragraph, the department

shall consider promptness of rectification, delay occasioned by the

department, and the specific circumstances of the violations as

mitigating factors.

(c) Upon the request of the department, the attorney general may

commence an action in any court of competent jurisdiction against any

facility subject to the provisions of this section, and against any

person or corporation operating such facility, for the recovery of any

penalty assessed by the department in accordance with the provisions of

this subdivision.

(d) Any such penalty assessed by the department may be released or

compromised by the department before the matter has been referred to the

attorney general, and where such 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 and discontinued

by the attorney general with the consent of the department.

8. Whenever the commissioner, after investigation, finds that any

person, agency or facility subject to this article is causing, engaging

in or maintaining a condition or activity which constitutes a danger to

the physical or mental health of the residents of a facility subject to

the inspection and supervision of the department, and that it therefore

appears to be prejudicial to the interests of such residents to delay

action for thirty days until an opportunity for a hearing can be

provided in accordance with the provisions of this section, the

commissioner shall order the person, agency or facility by written

notice, setting forth the basis for such finding, to discontinue such

dangerous condition or activity or take certain action immediately or

within a specified period of less than thirty days. The commissioner

shall within thirty days of issuance of the order provide the person,

agency or facility an opportunity to be heard and to present any proof

that such condition or activity does not constitute a danger to the

health of such residents.

9. (a) The department shall have authority to impose a civil penalty

not exceeding one thousand dollars per day against, and to issue an

order requiring the closing of, after notice and opportunity to be

heard, any facility which does not possess a valid operating certificate

issued by the department and is an adult care facility subject to the

provisions of this article and the regulations of the department. A

hearing shall be conducted in accordance with procedures established by

department regulations which procedures shall require that notice of the

determination that the facility is an adult care facility and the

reasons for such determination and notice of the time and place of the

hearing be served in person on the operator, owner or prime lessor, if

any, or by certified mail, return receipt requested, addressed to such

person and received at least twenty days prior to the date of the

hearing. If such operator, owner or prime lessor, if any, is not known

to the department, then service may be made by posting a copy thereof in

a conspicuous place within the facility or by sending a copy thereof by

certified mail, return receipt requested, addressed to the facility. A

written answer to the notice of violation may be filed with the

department not less than five days prior to the date of the hearing.

Demonstration by the facility that it possessed an operating certificate

issued pursuant to this article, article twenty-eight of the public

health law or article sixteen, twenty-three, thirty-one or thirty-two of

the mental hygiene law at the time the hearing was commenced shall

constitute a complete defense to any charges made pursuant to this

subdivision.

(b) The penalty authorized by this section shall begin to run thirty

days after the department provides the operator, in writing, with a

summary of the inspection of the facility by which the department

determined that he or she is operating an uncertified adult care

facility. The submission of an application by the operator for an

operating certificate for the facility shall not act as a bar to the

imposition of a penalty against the operator.

(c) (i) For the purposes of assessing the applicability of this

article and the regulations of the department, the department shall be

authorized to inspect any facility which reasonably appears to the

department to be subject to the provisions of this article and to assess

the needs of the residents of such facility pursuant to the provisions

of section four hundred sixty-c of this title.

(ii) At the time that a representative of the department appears at

the facility for purposes of conducting such inspection, the

representative shall inform the operator, administrator or other person

in charge that the inspection will be conducted unless such person

objects to the inspection and that if such person does object the

department, pursuant to the provisions of subparagraph (iii) of this

paragraph, shall be authorized to request the attorney general to apply

to the court for an order granting the department access to the

facility.

(iii) If the department is not permitted access to such facility by

the operator, administrator or other person in charge thereof, the

attorney general, upon the request of the department, shall be

authorized to apply, without notice to the operator, administrator or

chairman of the board of directors of a not-for-profit facility, to the

supreme court in the county in which the facility is located for an

order granting the department access to such facility. The court may

grant such an order if it determines, based on evidence presented by the

attorney general, that there is reasonable cause to believe that such

facility is an adult care facility which does not possess a valid

operating certificate issued by the department.

(d) Upon the request of the department, the attorney general may

commence an action in any court of competent jurisdiction against any

facility subject to the provisions of this subdivision, and against any

person or corporation operating such facility, for the recovery of any

penalty assessed by the department in accordance with the provisions of

this subdivision.

(e) Any penalty assessed by the department pursuant to this

subdivision may be released or compromised by the department before the

matter has been referred to the attorney general and where such 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 and discontinued by the attorney general with the consent of

the department.

10. By March first, nineteen hundred ninety-five and annually

thereafter, the department shall submit a report to the governor and the

legislature on the regulation of adult homes and residences for adults.

Such report shall include both a narrative and statistical summary

detailing the results of inspections and enforcement actions of adult

homes and residences for adults. The report shall also include results

of audits of financial conditions and practices of a selected sample of

adult homes and residences of adults and recommendations for legislative

action relating to the need for changes in statute.

11. On or before issuance by the department to an adult care facility

operator of official written notice of: the proposed revocation,

suspension or denial of the operator's operating certificate; the

limitation of the operating certificate with respect to new admissions;

the issuance of a department order or commissioner's order; the seeking

of equitable relief pursuant to this section; the proposed assessment of

civil penalties for violations of the provisions of subparagraph two of

paragraph (b) of subdivision seven of this section or placement on the

"do not refer list" pursuant to subdivision fifteen of this section,

written notice also shall be given to the appropriate office of the

department of mental hygiene, department of corrections and community

supervision and local social services districts, and provided further

that the department of health shall notify hospitals in the locality in

which such facility is located that such notice has been issued. Upon

resolution of such enforcement action the department shall notify the

appropriate office of the department of mental hygiene, department of

corrections and community supervision, local social services districts

and hospitals.

12. Social services districts and other local government entities

established pursuant to this chapter shall be prohibited from making

referrals for admissions to adult care facilities that have received

official written notice regarding: the proposed revocation, suspension

or denial of the operator's operating certificate; the limitation of the

operating certificate with respect to new admissions; the issuance of

department order or commissioner's orders; the seeking of equitable

relief pursuant to this section; the proposed assessment of civil

penalties for violations of the provisions of subparagraph two of

paragraph (b) of subdivision seven of this section; or the facility's

placement on the "do not refer list" pursuant to subdivision fifteen of

this section.

* 13. The department shall notify the department of health of any

enforcement action pursuant to this section taken against an operator of

an adult home or enriched housing program which has been licensed by the

department of health as a limited home care services agency pursuant to

section thirty-six hundred five of the public health law.

* NB Expires June 30, 2027

* 14. If the department receives notice from the department of health

that an action has been taken against an operator of a limited home care

services agency, pursuant to section thirty-six hundred five-a of the

public health law, the department shall review the delivery of services

provided by the certified operator of an adult home or enriched housing

program to determine whether such operator is meeting all applicable

regulations and standards.

* NB Expires June 30, 2027

15. The department of health shall maintain, on its website, a list of

all adult homes, enriched housing programs, residences for adults and

assisted living programs that have received written notice of:

enforcement action based on a violation of an applicable law or

regulation that creates an endangerment of resident health or safety

pursuant to subparagraph two of paragraph (b) of subdivision seven of

this section or a pending enforcement action against a facility's

operating certificate or a determination that the facility is required

to be certified as an adult home, enriched housing program or residence

for adults. Provided however, if a facility contends, in writing, that

the violation resulting in the facility being included on the "do not

refer list" has been corrected, the department shall, within thirty

days, reinspect the facility, and if the department determines that the

violation has been corrected, the facility shall be immediately removed

from the list. This list shall be known as the "do not refer" list and

shall be promptly updated to reflect any of the above violations and the

reopening of admissions in any adult care facility in which the

enforcement action for which they were added to the list has been

resolved.

16. Any operator or controlling person of an adult care facility, as

defined in clause two of subparagraph (x) of paragraph (a) of

subdivision four of section four hundred sixty-one-e of this article

shall be prohibited from applying to the department of health or to any

other agency of this state for an operating certificate or approval to

operate an alternate type of facility during the period in which such

certificate has been revoked, suspended or limited.

17. The department of health shall direct the temporary operator to,

and the temporary operator shall, provide written notification to

residents of all adult homes, enriched housing programs, residences for

adults and assisted living programs where a temporary operator has been

appointed pursuant to subdivision four of this section.