N.Y. Mental Hyg. Law § 31.16

§ 31.16 Suspension, revocation, or limitation of an operating\n certificate and imposition of fines by the commissioner of\n mental health.\n (a) The commissioner of mental health may revoke, suspend, or limit an\noperating certificate or impose the penalties described in subparagraph\n(i), (ii) or (iii) of paragraph one of subdivision (b) or in subdivision\n(g) of this section upon a determination that the holder of the\ncertificate has failed to comply with the terms of its operating\ncertificate or with the provisions of any applicable statute, rule or\nregulation. The holder of the certificate shall be given notice and an\nopportunity to be heard prior to any such determination except that no\nsuch notice and opportunity to be heard shall be necessary prior to an\nemergency suspension or limitation of the facility's operating\ncertificate imposed pursuant to paragraph one of subdivision (b) of this\nsection.\n (b) 1. A certificate may be temporarily suspended or limited without a\nhearing for a period not in excess of sixty days upon written notice to\nthe facility following a finding by the office of mental health that a\npatient's health or safety is in imminent danger or there exists any\ncondition or practice or a continuing pattern of conditions or practices\nwhich poses imminent danger to the health or safety of any patient. Upon\nsuch finding and notice, the power of the commissioner temporarily to\nsuspend or limit an operating certificate shall include, but shall not\nbe limited to, the power to:\n (i) Prohibit or limit the placement of new patients in the facility;\n (ii) Remove or cause to be removed some or all of the patients in the\nfacility; or\n (iii) Suspend or limit or cause to be suspended or limited the payment\nof any governmental funds to the facility provided that such action\nshall not in any way jeopardize the health, safety and welfare of any\nperson with a mental illness in such program or facility.\n 2. At any time subsequent to the suspension or limitation of any\noperating certificate pursuant to paragraph one of this subdivision\nwhere said suspension or limitation is the result of correctable\nphysical plant, staffing or program deficiencies, the facility may\nrequest the office to reinspect the facility to redetermine whether a\nspecific condition or practice continues to exist. After the receipt of\nsuch a request, the office shall reinspect the facility within ten days\nand in the event that the previously found condition or practice has\nbeen eliminated, the suspension or limitation shall be withdrawn. If the\ncondition or practice has not been eliminated, the commissioner shall\nnot thereafter be required to reinspect the facility during the\nemergency period of suspension or limitation.\n 3. During the sixty day suspension or limitation period provided for\nin paragraph one of this subdivision the commissioner shall determine\nwhether to reinstate or remove the limitations on the facility's\noperating certificate or to revoke, suspend or limit the operating\ncertificate pursuant to subdivision (a) of this section. Should the\ncommissioner choose to revoke, suspend or limit the operating\ncertificate, then the emergency suspension or limitation provided for in\nthis subdivision shall remain in effect pending the outcome of an\nadministrative hearing on the revocation, suspension or limitation.\n 4. The facility operator, within ten days of the date when the\nemergency suspension or limitation pursuant to paragraph one of this\nsubdivision is first imposed or within ten days of the date of receipt\nof notice from the commissioner to revoke, suspend or limit the\nfacility's operating certificate, may request an evidentiary hearing to\ncontest the validity of the emergency suspension or limitation. Such an\nevidentiary hearing shall commence within ten days of the facility\noperator's request and no request for an adjournment shall be granted\nwithout the concurrence of the facility operator, office of mental\nhealth and the hearing officer. The evidentiary hearing shall be limited\nto a determination of whether a patient's health or safety is in\nimminent danger or there exists any condition or practice or a\ncontinuing pattern of conditions or practices which poses imminent\ndanger to the health or safety of any patient. The emergency suspension\nor limitation shall be upheld upon a determination that the office of\nmental health had reasonable cause to believe that a patient's health or\nsafety was in imminent danger. A record of such hearing shall be made\navailable to the facility operator upon request. Should the commissioner\ndetermine to revoke, suspend or limit the facility's operating\ncertificate pursuant to subdivision (a) of this section, no\nadministrative hearing on that action shall commence prior to the\nconclusion of the evidentiary hearing, the rendering of the hearing\nofficer's report and the commissioner's final review and determination\nconcerning the emergency suspension or limitation. The commissioner\nshall issue a ruling within ten days after the receipt of the hearing\nofficer's report.\n (c) When the holder of an operating certificate shall request an\nopportunity to be heard, the commissioner shall fix a date, time and\nplace for the hearing. A copy of the charges stating the substance of\nthe alleged violations of the terms of the operating certificate or the\nalleged violation of any applicable statute, rule or regulation,\ntogether with the notice of the date, time and place of the hearing,\nshall be served in person or mailed by registered or certified mail to\nthe facility at least ten days before the date fixed for the hearing.\nThe facility shall file with the office, not less than three days prior\nto the hearing, a written answer to the charges.\n (d) 1. When a hearing must be afforded pursuant to this section or\nother provisions of this article, the commissioner, acting as hearing\nofficer, or any person designated by him as hearing officer, shall have\npower to:\n (i) administer oaths and affirmations;\n (ii) issue subpoenas, which shall be regulated by the civil practice\nlaw and rules;\n (iii) take testimony; or\n (iv) control the conduct of the hearings.\n 2. The rules of evidence observed by courts need not be observed\nexcept that the rules of privilege recognized by law shall be respected.\nIrrelevant or unduly repetitious evidence may be excluded.\n 3. All parties shall have the right of counsel and be afforded an\nopportunity to require the production of witnesses and evidence in\nmanner and form as prescribed by the civil practice law and rules, to\ncross-examine witnesses, to examine evidence produced against them, and\nto have subpoenas issued on their behalf.\n 4. If evidence at the hearing relates to the identity, condition, or\nclinical record of a patient, the hearing officer may exclude all\npersons from the room except parties to the proceeding, their counsel\nand the witness. The record of such proceeding shall not be available to\nanyone outside the office, other than a party to the proceeding or his\ncounsel, except by order of a court of record.\n 5. The commissioner may establish regulations to govern the hearing\nprocedure and the process of determination of the proceeding.\n 6. The commissioner shall issue a ruling within ten days after the\ntermination of the hearing or, if a hearing officer has been designated,\nwithin ten days from the hearing officer's report. The ruling shall be\nbased upon a preponderance of the evidence and shall contain conclusions\nconcerning the alleged violations of the terms of the operating\ncertificate or the alleged violation of any applicable statute, rule or\nregulation.\n (e) All orders or determinations hereunder shall be subject to review\nas provided in article seventy-eight of the civil practice law and\nrules.\n (f) 1. Except as provided in paragraph two of this subdivision,\nanything contained in this section to the contrary notwithstanding, an\noperating certificate of a facility shall be revoked upon a finding by\nthe office that any individual, member of a partnership or shareholder\nof a corporation to whom or to which an operating certificate has been\nissued, has been convicted of a class A, B or C felony or a felony\nrelated in any way to any activity or program subject to the\nregulations, supervision, or administration of the office or of the\noffice of temporary and disability assistance, the department of health,\nor another office of the department of mental hygiene, or in violation\nof the public officers law in a court of competent jurisdiction of the\nstate, or in a court in another jurisdiction for an act which would have\nbeen a class A, B or C felony in this state or a felony in any way\nrelated to any activity or program which would be subject to the\nregulations, supervision, or administration of the office or of the\noffice of temporary and disability assistance, the department of health,\nor another office of the department of mental hygiene, or for an act\nwhich would be in violation of the public officers law. The commissioner\nshall not revoke or limit the operating certificate of any facility,\nsolely because of the conviction, whether in the courts of this state or\nin the courts of another jurisdiction, more than ten years prior to the\neffective date of such revocation or limitation, of any person of a\nfelony, or what would amount to a felony if committed within the state,\nunless the commissioner makes a determination that such conviction was\nrelated to an activity or program subject to the regulations,\nsupervision, and administration of the office or of the office of\ntemporary and disability assistance, the department of health, or\nanother office of the department of mental hygiene, or in violation of\nthe public officers law.\n 2. In the event one or more members of a partnership or shareholders\nof a corporation shall have been convicted of a felony as described in\nparagraph one of this subdivision, the commissioner shall, in addition\nto his other powers, limit the existing operating certificate of such\npartnership or corporation so that it shall apply only to the remaining\npartner or shareholders, as the case may be, provided that every such\nconvicted person immediately and completely ceases and withdraws from\nparticipation in the management and operation of the facility and\nfurther provided that a change of ownership or transfer of stock is\ncompleted without delay, and provided that such partnerhip or\ncorporation shall immediately reapply for a certificate of operation\npursuant to this article.\n (g) The commissioner may impose a civil penalty upon a finding that\nthe holder of the certificate has failed to comply with the terms of the\noperating certificate or with the provisions of any applicable statute,\nrule or regulation. The maximum amount of such civil penalty imposed\nthereunder shall not exceed two thousand dollars per day or twenty-five\nthousand dollars, per violation. Penalties may be considered at the\nindividual bed level for beds closed without authorization at inpatient\nsettings.\n Such civil penalty may be recovered by an action brought by the\ncommissioner in any court of competent jurisdiction.\n Such civil penalty may be released or compromised by the commissioner\nbefore the matter has been referred to the attorney general. Any such\ncivil penalty may be released or compromised and any action commenced to\nrecover the same may be settled or discontinued by the attorney general\nwith the consent of the commissioner.\n 1. Such civil penalty under this subdivision shall account for factors\nwhich shall include: (i) any officially declared national, state, or\nmunicipal emergency; (ii) any unforeseen disaster or other catastrophic\nevent that directly impacts access to health care services; (iii) the\nfrequency, duration, scope, and nature of non-compliance; and (iv) any\nother factors as established by the commissioner.\n 2. In determining whether an operating certificate holder has violated\nits obligation to comply with the terms of the operating certificate, it\nshall not be a defense that the operator was unable to secure proper\nstaff or other necessary resources if the lack of staff or other\nresources was foreseeable and could be prudently planned for or involved\nroutine staffing needs that arose due to typical staffing patterns,\ntypical levels of absenteeism, and time off typically approved by the\noperator for vacation, holidays, sick leave, and personal leave.\n (h) It shall be the duty of the attorney general upon the request of\nthe commissioner to bring an action for an injunction against any person\nwho violates, disobeys or disregards any term or provision of this\nchapter or of any lawful notice, order or regulation pursuant thereto;\nprovided, however, that the commissioner shall furnish the attorney\ngeneral with such material, evidentiary matter or proof as may be\nrequested by the attorney general for the prosecution of such an action.\n (i) Where a proceeding has been brought pursuant to section 31.28 of\nthis article, and a receiver is appointed pursuant thereto, the\ncommissioner may assume operation of the facility subject to such\nreceivership, upon termination of such receivership, and upon showing to\nthe court having jurisdiction over such receivership that no voluntary\nassociation, not-for-profit corporation or other appropriate provider is\nwilling to assume operation of the facility subject to receivership and\nis capable of meeting the requirements of this article; provided that\nthe commissioner notifies the chairman of the assembly ways and means\ncommittee, the chariman of the senate finance committee and the director\nof the budget of his intention to assume operation of such facility at\nleast six months prior to such assumption.\n