N.Y. Mental Hyg. Law § 16.25

* § 16.25 Temporary operator.\n (a) For the purposes of this section:\n (1) "Established operator" shall mean the provider of services that\nhas been established and issued an operating certificate pursuant to\nthis article.\n (2) "Extraordinary financial assistance" shall mean state funds\nprovided to, or requested by, a program for the express purpose of\npreventing the closure of the program that the commissioner finds\nprovides essential and necessary services within the community.\n (3) "Serious financial instability" shall include but not be limited\nto defaulting or violating material covenants of bond issues, missed\nmortgage payments, missed rent payments, a pattern of untimely payment\nof debts, failure to pay its employees or vendors, insufficient funds to\nmeet the general operating expenses of the program, failure to maintain\nrequired debt service coverage ratios and/or, as applicable, factors\nthat have triggered a written event of default notice to the office by\nthe dormitory authority of the state of New York.\n (4) "Office" shall mean the office for people with developmental\ndisabilities.\n (5) "Temporary operator" shall mean any provider of services that has\nbeen established and issued an operating certificate pursuant to this\narticle or which is directly operated by the office, that:\n a. agrees to provide services certified pursuant to this article on a\ntemporary basis in the best interests of its individuals served by the\nprogram; and\n b. has a history of compliance with applicable laws, rules, and\nregulations and a record of providing care of good quality, as\ndetermined by the commissioner; and\n c. prior to appointment as temporary operator, develops a plan\ndetermined to be satisfactory by the commissioner to address the\nprogram's deficiencies.\n (b) (1) In the event that: (i) the established operator is seeking\nextraordinary financial assistance; (ii) office collected data\ndemonstrates that the established operator is experiencing serious\nfinancial instability issues; (iii) office collected data demonstrates\nthat the established operator's board of directors or administration is\nunable or unwilling to ensure the proper operation of the program; or\n(iv) office collected data indicates there are conditions that seriously\nendanger or jeopardize continued access to necessary services within the\ncommunity, the commissioner shall notify the established operator of his\nor her intention to appoint a temporary operator to assume sole\nresponsibility for the provider of services' operations for a limited\nperiod of time. The appointment of a temporary operator shall be\neffectuated pursuant to this section, and shall be in addition to any\nother remedies provided by law.\n (2) The established operator may at any time request the commissioner\nto appoint a temporary operator. Upon receiving such a request, the\ncommissioner may, if he or she determines that such an action is\nnecessary, enter into an agreement with the established operator for the\nappointment of a temporary operator to restore or maintain the provision\nof quality care to the individuals until the established operator can\nresume operations within the designated time period or other action is\ntaken as described in section 16.17 of this article.\n (c) (1) A temporary operator appointed pursuant to this section shall\nuse his or her best efforts to implement the plan deemed satisfactory by\nthe commissioner to correct or eliminate any deficiencies in the program\nand to promote the quality and accessibility of services in the\ncommunity served by the provider of services.\n (2) During the term of appointment, the temporary operator shall have\nthe authority to direct the staff of the established operator as\nnecessary to appropriately provide services for individuals. The\ntemporary operator shall, during this period, provide services in such a\nmanner as to promote safety and the quality and accessibility of\nservices in the community served by the established operator until\neither the established operator can resume operations or until the\noffice revokes the operating certificate for the services issued under\nthis article.\n (3) The established operator shall grant access to the temporary\noperator to the established operator's accounts and records in order to\naddress any deficiencies related to the program experiencing serious\nfinancial instability or an established operator requesting financial\nassistance in accordance with this section. The temporary operator shall\napprove any financial decision related to an established provider's day\nto day operations or the established provider's ability to provide\nservices.\n (4) The temporary operator shall not be required to file any bond. No\nsecurity interest in any real or personal property comprising the\nestablished operator or contained within the established operator or in\nany fixture of the program, shall be impaired or diminished in priority\nby the temporary operator. Neither the temporary operator nor the office\nshall engage in any activity that constitutes a confiscation of\nproperty.\n (d) The temporary operator shall be entitled to a reasonable fee, as\ndetermined by the commissioner and subject to the approval of the\ndirector of the division of the budget, and necessary expenses incurred\nwhile serving as a temporary operator. The temporary operator shall be\nliable only in its capacity as temporary operator for injury to person\nand property by reason of its operation of such program; no liability\nshall incur in the temporary operator's personal capacity, except for\ngross negligence and intentional acts.\n (e) (1) The initial term of the appointment of the temporary operator\nshall not exceed ninety days. After ninety days, if the commissioner\ndetermines that termination of the temporary operator would cause\nsignificant deterioration of the quality of, or access to, care in the\ncommunity or that reappointment is necessary to correct the deficiencies\nthat required the appointment of the temporary operator, the\ncommissioner may authorize an additional ninety-day term. However, such\nauthorization shall include the commissioner's requirements for\nconclusion of the temporary operatorship to be satisfied within the\nadditional term.\n (2) Within fourteen days prior to the termination of each term of the\nappointment of the temporary operator, the temporary operator shall\nsubmit to the commissioner and to the established operator a report\ndescribing:\n a. the actions taken during the appointment to address the identified\nprogram deficiencies, the resumption of program operations by the\nestablished operator, or the revocation of an operating certificate\nissued by the office;\n b. objectives for the continuation of the temporary operatorship if\nnecessary and a schedule for satisfaction of such objectives; and\n c. if applicable, the recommended actions for the ongoing provision of\nservices subsequent to the temporary operatorship.\n (3) The term of the initial appointment and of any subsequent\nreappointment may be terminated prior to the expiration of the\ndesignated term, if the established operator and the commissioner agree\non a plan of correction and the implementation of such plan.\n (f) (1) The commissioner shall, upon making a determination of an\nintention to appoint a temporary operator pursuant to paragraph one of\nsubdivision (b) of this section, cause the established operator to be\nnotified of the intention by registered or certified mail addressed to\nthe principal office of the established operator. Such notification\nshall include a detailed description of the findings underlying the\nintention to appoint a temporary operator, and the date and time of a\nrequired meeting with the commissioner and/or his or her designee within\nten business days of the receipt of such notice. At such meeting, the\nestablished operator shall have the opportunity to review and discuss\nall relevant findings. At such meeting, the commissioner and the\nestablished operator shall attempt to develop a mutually satisfactory\nplan of correction and schedule for implementation. In such event, the\ncommissioner shall notify the established operator that the commissioner\nwill abstain from appointing a temporary operator contingent upon the\nestablished operator remediating the identified deficiencies within the\nagreed upon timeframe.\n (2) Should the commissioner and the established operator be unable to\nestablish a plan of correction pursuant to paragraph one of this\nsubdivision, or should the established operator fail to respond to the\ncommissioner's initial notification, there shall be an administrative\nhearing on the commissioner's determination to appoint a temporary\noperator to begin no later than thirty days from the date of the notice\nto the established operator. Any such hearing shall be strictly limited\nto the issue of whether the determination of the commissioner to appoint\na temporary operator is supported by substantial evidence. A copy of the\ndecision shall be sent to the established operator.\n (3) If the decision to appoint a temporary operator is upheld such\ntemporary operator shall be appointed as soon as is practicable and\nshall provide services pursuant to the provisions of this section.\n (g) Notwithstanding the appointment of a temporary operator, the\nestablished operator shall remain obligated for the continued provision\nof services. No provision contained in this section shall be deemed to\nrelieve the established operator or any other person of any civil or\ncriminal liability incurred, or any duty imposed by law, by reason of\nacts or omissions of the established operator or any other person prior\nto the appointment of any temporary operator of the program hereunder;\nnor shall anything contained in this section be construed to suspend\nduring the term of the appointment of the temporary operator of the\nprogram any obligation of the established operator or any other person\nfor the maintenance and repair of the facility, provision of utility\nservices, payment of taxes or other operating and maintenance expenses\nof the facility, nor of the established operator or any other person for\nthe payment of mortgages or liens.\n (h) Upon appointment of a temporary operator, the commissioner shall\ncause the temporary president of the senate, the speaker of the\nassembly, and the chairs of the senate mental health and developmental\ndisabilities committee and the assembly mental health committee to be\nnotified of such determination. Such notification shall include, but not\nbe limited to, the name of the established operator, the name of the\nappointed temporary operator and a description of the reasons for such\ndetermination to the extent practicable under the circumstances and in\nthe sole discretion of the commissioner.\n * NB Repealed March 31, 2028\n