Section 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
  mentally ill person 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 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  not  exceed  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)  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.