§ 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.