§ 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.