Section 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 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  discretion,  decide  to issue separate operating
  certificates to each  facility  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 following a finding by the office of
  mental retardation and developmental disabilities that a client'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 clients in the facility;
    b.  Remove  or  cause  to be removed some or all of the clients in the
  facility;
    c. 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 mentally
  retarded or developmentally disabled person in such program or facility;
    d.  Prohibit or limit the placement of new clients, remove or cause to
  be removed some or all clients, 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  authorized  pursuant to an operating
  certificate issued to a provider of services.
    (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
  physical plant, staffing or program deficiency 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  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 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,  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
  retardation and 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  of  mental  retardation  and
  developmental disabilities  had  reasonable  cause  to  believe  that  a
  client'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  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 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:
    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 a client, 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 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  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.