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  mentally ill person 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 anevidentiary 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  bebased 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 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  not  exceed  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  thesame  may  be  settled  or discontinued by the attorney general with the  consent of the commissioner.    (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.