§ 32.20 Temporary operator. 1. For the purposes of this section:

(a) "chemical dependence treatment program" shall mean a program
certified pursuant to section 32.05 of this article;

(b) "established operator" shall mean the operator of a chemical
dependence treatment program that has been established and issued an
operating certificate pursuant to section 32.05 of this article;

(c) "temporary operator" shall mean any OASAS staff member, person or
entity that:

(i) agrees to operate a program on a temporary basis in the best
interests of its patients and the community served by the program;

(ii) has demonstrated that he or she has the character, competence and
ability to operate an OASAS-certified program in compliance with
applicable standards; and

(iii) prior to his or her appointment as temporary operator, develops
with guidance from the commissioner a satisfactory plan to address the
program's deficiencies;

(d) "serious financial instability" shall include but not be limited
to defaulting or violating key covenants of bond issues, missed mortgage
payments, general untimely payment of debts, failure to pay its
employees or vendors, insufficient funds to meet the general operating
expenses of the program and/or facility, failure to maintain required
debt service coverage ratios and/or, as applicable, factors that have
triggered a written event of default notice to the office by the
dormitory authority of the state of New York; and

(e) "extraordinary financial assistance" shall mean state funds
provided to, or requested by, a program for the express purpose of
preventing the closure of the program that the commissioner finds
provides essential and necessary services within the community.

2. (a) In the event that: (i) the program is seeking extraordinary
financial assistance; (ii) office collected data indicates that the
program is experiencing serious financial instability issues; (iii)
office collected data indicates that the program's board of directors or
administration are unable or unwilling to ensure the proper operation of
the program; or (iv) office collected data indicates there are
conditions that seriously endanger or jeopardize continued access to
necessary chemical dependence treatment services within the community,
the commissioner shall notify the established operator of his or her
intention to appoint a temporary operator to assume sole responsibility
for the program's treatment operations of that facility for a limited
period of time. The appointment of a temporary operator shall be
effectuated pursuant to this section, and shall be in addition to any
other remedies provided by law.

(b) The established operator of a program may at any time request the
commissioner to appoint a temporary operator. Upon receiving such a
request, the commissioner may, if he or she determines that such an
action is necessary, enter into an agreement with the established
operator for the appointment of a temporary operator to restore or
maintain the provision of quality care to the patients until the
established operator can resume operations within the designated time
period; the patients may be transferred to other OASAS-certified
providers; or the program operations of that facility should be
completely discontinued.

3. (a) A temporary operator appointed pursuant to this section shall
use his or her best efforts to implement the plan developed with the
guidance of the commissioner to correct or eliminate any deficiencies in
the program and to promote the quality and accessibility of chemical
dependence treatment services in the community served by the program.

(b) If the identified program deficiencies cannot be addressed in the
time period designated in the plan, the patients shall be transferred to
other OASAS-certified providers.

(c) During the term of his or her appointment, the temporary operator
shall have the authority to direct the program staff of the facility in
all aspects necessary to appropriately treat and/or transfer the
patients. The temporary operator shall, during this period, operate the
program in such a manner as to promote safety and the quality and
accessibility of chemical dependence treatment services in the community
served by the facility until either the established operator can resume
program operations or until the patients are appropriately transferred
to other OASAS-certified providers.

(d) The temporary operator shall also be afforded access to a
program's accounts and records in order to address any deficiencies
related to a program experiencing serious financial instability or a
program requesting financial assistance in accordance with this section.
The temporary operator shall approve any financial decision related to a
program's day to day operations or program's ability to provide chemical
dependence services.

(e) The temporary operator shall not be required to file any bond. No
security interest in any real or personal property comprising the
facility or contained within the facility or in any fixture of the
facility, shall be impaired or diminished in priority by the temporary
operator. Neither the temporary operator nor the office shall engage in
any activity that constitutes a confiscation of property.

4. The temporary operator shall be entitled to a reasonable fee, as
determined by the commissioner, and necessary expenses incurred during
his or her performance as temporary operator. The temporary operator
shall be liable only in his or her capacity as temporary operator of the
program for injury to person and property by reason of his or her
operation of such program; he or she shall not have any liability in his
or her personal capacity, except for gross negligence and intentional
acts.

5. (a) The initial term of the appointment of the temporary operator
shall not exceed ninety days. After ninety days, if the commissioner
determines that termination of the temporary operator would cause
significant deterioration of the quality of, or access to, health care
in the community or that reappointment is necessary to correct the
deficiencies that required the appointment of the temporary operator,
the commissioner may authorize an additional ninety-day term. However,
such authorization shall include the commissioner's requirements for
conclusion of the temporary operatorship to be satisfied within the
additional term.

(b) Within fourteen days prior to the termination of each term of the
appointment of the temporary operator, the temporary operator shall
submit to the commissioner and to the established operator a report
describing:

(i) the actions taken during the appointment to address: the
identified program deficiencies; the resumption of program operations by
the established operator; or the transfer of the patients to other
OASAS-certified providers;

(ii) objectives for the continuation of the temporary operatorship if
necessary and a schedule for satisfaction of such objectives; and

(iii) if applicable, the recommended actions for the ongoing operation
of the program subsequent to the temporary operatorship.

(c) The term of the initial appointment and of any subsequent
reappointment may be terminated prior to the expiration of the
designated term, if the established operator and the commissioner agree
on a plan of correction and the implementation of such plan.

6. (a) The commissioner shall, upon making a determination of an
intention to appoint a temporary operator pursuant to paragraph (a) of
subdivision two of this section cause the established operator of the
facility to be notified of the intention by registered or certified mail
addressed to the principal office of the established operator. Such
notification shall include a detailed description of the findings
underlying the intention to appoint a temporary operator, and the date
and time of a required meeting with the commissioner and/or his or her
designee within ten business days of the receipt of such notice. At such
meeting, the established operator shall have the opportunity to review
and discuss all relevant findings. At such meeting, the commissioner and
the established operator shall attempt to develop a mutually
satisfactory plan of correction and schedule for implementation. In such
event, the commissioner shall notify the established operator that the
commissioner will abstain from appointing a temporary operator
contingent upon the established operator remediating the identified
deficiencies within the agreed upon timeframe.

(b) Should the commissioner and the established operator be unable to
establish a plan of correction pursuant to paragraph (a) of this
subdivision, or should the established operator fail to respond to the
commissioner's initial notification, there shall be an administrative
hearing on the commissioner's determination to appoint a temporary
operator to begin no later than thirty days from the date of the notice
to the established operator. Any such hearing shall be strictly limited
to the issue of whether the determination of the commissioner to appoint
a temporary operator is supported by substantial evidence. A copy of the
decision shall be sent to the established operator.

(c) If the decision to appoint a temporary operator is upheld such
temporary operator shall be appointed as soon as is practicable and
shall operate the program pursuant to the provisions of this section.

(d) Upon appointment of a temporary operator, the commissioner shall
cause the temporary president of the senate, the speaker of the
assembly, and the chairs of the senate and assembly committees on
alcoholism and drug abuse to be notified of such determination. Such
notification shall include, but not be limited to, the name of the
established operator, the name of the appointed temporary operator and a
description of the reasons for such determination to the extent
practicable under the circumstances and in the sole discretion of the
commissioner.

7. Notwithstanding the appointment of a temporary operator, the
established operator remains obligated for the continued operation of
the facility so that the program can function in a normal manner. No
provision contained in this section shall be deemed to relieve the
established operator or any other person of any civil or criminal
liability incurred, or any duty imposed by law, by reason of acts or
omissions of the established operator or any other person prior to the
appointment of any temporary operator of the program hereunder; nor
shall anything contained in this section be construed to suspend during
the term of the appointment of the temporary operator of the program any
obligation of the established operator or any other person for the
maintenance and repair of the facility, provision of utility services,
payment of taxes or other operating and maintenance expenses of the
facility, nor of the established operator or any other person for the
payment of mortgages or liens.