Section 2806. Hospital operating certificates; suspension or revocation

1.
  A  hospital  operating certificate may be revoked, suspended, limited or
  annulled by the commissioner on proof that: (a) the hospital has  failed
  to  comply  with the provisions of this article or rules and regulations
  promulgated thereunder; or (b) a general hospital has refused or  failed
  to admit or to provide for necessary emergency care and treatment for an
  unidentified  person  brought  to it in an unconscious, seriously ill or
  wounded condition. A hospital operating certificate  shall  be  revoked,
  limited  or  annulled by the commissioner upon revocation, limitation or
  annulment by the public health council of approval of  establishment  of
  such hospital.
    2.  No  hospital  operating  certificate  shall be revoked, suspended,
  limited or annulled without a hearing, except for operating certificates
  revoked, limited or  annulled  because  of  revocation,  limitation,  or
  annulment of establishment approval.
    Also, an operating certificate may be temporarily suspended or limited
  without  a hearing for a period not in excess of sixty days upon written
  notice to the hospital and opportunity for a hearing following a finding
  by the department that the public 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  department  may  also,  consistent  with
  applicable  federal law and regulations, prohibit or limit the placement
  of new patients in a residential health care facility without a  hearing
  for  a  period  not  in excess of sixty days upon written notice to such
  facility and opportunity for a hearing upon a  determination  that  such
  facility  no longer substantially meets the requirements of this article
  and the regulations thereunder and that such deficiencies do not pose an
  imminent danger to the health  and  safety  of  any  patient,  provided,
  however,  that  the  department shall not make such a determination with
  respect  to  a  facility  until  the  facility  has  had  a   reasonable
  opportunity,  following  the initial determination that such facility no
  longer substantially meets the requirements of this article, to  correct
  its  deficiencies  and  following  this  period,  has been given written
  notice and opportunity for a hearing. Provided, however, that any  delay
  in  the  hearing  process  during the sixty-day period occasioned by the
  hospital shall toll the running of said  suspension  or  limitation  and
  shall  not  abridge the full time provided for in this subdivision. Upon
  such finding and notice the power of  the  commissioner  temporarily  to
  suspend  or  limit  a  hospital operating certificate shall include, but
  shall not be limited to, the power to:
    (a) prohibit or limit the placement of new patients in the hospital;
    (b) remove or cause to be removed some or all of the patients  in  the
  hospital;
    (c)  suspend  or limit or cause to be suspended or limited the payment
  of any governmental funds to the hospital.
    At any  time  subsequent  to  the  suspension  or  limitation  of  any
  operating  certificate  pursuant  to  this subdivision, the hospital may
  request the department to reinspect the hospital to redetermine  whether
  a  specific  condition or practice continues to exist. After the receipt
  of such a request the department shall reinspect the hospital 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 hospital during the
  temporary period of suspension or limitation. Nor shall the commissioner
  be required to reinspect upon  request  during  a  temporary  period  of
  suspension  or  limitation  any hospital whose operating certificate has

  been temporarily  suspended  or  limited  due  to  the  existence  of  a
  continuing  pattern  of  conditions  or  practices  which poses imminent
  danger to the health and safety of any patient.
    3. 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  hospital  at least ten days before the date fixed for the
  hearing. The hospital shall file with the department not less than three
  days prior to the hearing a written answer to the charges.
    4. All orders or determinations hereunder shall be subject  to  review
  as  provided  in  article  seventy-eight  of  the civil practice law and
  rules. Application for such review must be made within sixty days  after
  service  in  person  or by registered or certified mail of a copy of the
  order or determination upon the applicant.
    5.  (a)  Except  as  provided  in  paragraphs  (b)  and  (d)  of  this
  subdivision,  anything  contained in this section or in a certificate of
  relief from disabilities issued pursuant to article twenty-three of  the
  correction  law  to  the  contrary notwithstanding, a hospital operating
  certificate of a hospital under  control  of  a  controlling  person  as
  defined  in  paragraph (a) of subdivision twelve of section twenty-eight
  hundred one-a of this chapter, or under control  of  any  other  entity,
  shall  be revoked upon a finding by the department that such controlling
  person or 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 department or of  the
  department of social services or in violation of the public officers law
  in a court of competent jurisdiction in the state, or of a crime outside
  the  state which, if committed within the state, would have been 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 department or of the department of social services or  in  violation
  of the public officers law.
    (b)  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  (a)  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  hospital,  and
  further provided that an application for approval of change of ownership
  or  transfer  of  stock  is  filed  without delay in accordance with the
  pertinent provisions of  section  twenty-eight  hundred  one-a  of  this
  chapter.
    (c)  With respect to the conviction of any such person of a class D or
  E felony, the commissioner shall make a determination  before  revoking,
  or  limiting  pursuant  to paragraph (b), the operating certificate that
  such conviction was related to an activity or  program  subject  to  the
  regulations,  supervision, or administration of the department or of the
  department of social services. With respect to the  conviction  of  such
  person  of  a  crime committed outside the state, the commissioner shall
  make a determination before revoking, or limiting pursuant to  paragraph
  (b),  the operating certificate that such crime, if committed within the
  state, would have been a class A, B or C felony or a felony  related  to
  an  activity  or  program  subject  to  the regulations, supervision, or
  administration of the department or of the department of social services

  or in violation of the  public  officers  law.  The  commissioner  shall
  notify  the  person  convicted that such determination has been made and
  shall give such person thirty days to request a hearing pursuant to this
  subdivision.
    (d)  The commissioner shall not revoke, or limit pursuant to paragraph
  (b) of this subdivision,  the  operating  certificate  of  any  facility
  solely  because  of  a  conviction,  more  than  ten  years prior to the
  effective date of this paragraph, of any person of a felony  unless  the
  commissioner  makes  a determination that such conviction was related to
  an activity or program  subject  to  the  regulations,  supervision,  or
  administration  of  the  department  or  of  the  department  of  social
  services. The commissioner  shall  not  revoke,  or  limit  pursuant  to
  paragraph  (b)  of  this  subdivision,  the operating certificate of any
  facility solely because of the conviction, more than ten years prior  to
  the  effective  date of this paragraph, of any person of a crime outside
  the state unless the commissioner makes a determination that such crime,
  if committed within the state, would have been a felony  related  to  an
  activity   or  program  subject  to  the  regulations,  supervision,  or
  administration of the department or of the department of social services
  or in violation of the  public  officers  law.  The  commissioner  shall
  notify  the  person  convicted that such determination has been made and
  shall give such person thirty days to request a hearing pursuant to this
  subdivision.
    (e) Any hearing conducted hereunder shall be strictly limited  to  the
  issue  of  whether the determination of the commissioner is supported by
  the evidence.   All such hearings shall  be  conducted  as  provided  in
  paragraph  (f)  of  this  subdivision,  and  no  hearing,  revocation or
  limitation shall be stayed by  the  pendency  of  any  appeal  or  other
  challenge to the conviction.
    (f)  The  commissioner  shall  fix a time and place for the hearing. A
  copy of the notice and charges shall be served in person  or  mailed  by
  registered or certified mail no less than ten days before the date fixed
  for the hearing. A written answer to the charges shall be filed with the
  department  not  less than two days prior to the hearing. No adjournment
  shall be granted in excess of  forty-eight  hours.  The  respondent  may
  attend the hearing in person, with or without counsel, or be represented
  by  counsel alone, but need not attend personally if unavailable because
  of incarceration, hospitalization or other reason. If no answer is filed
  with the department within the time  limitation  of  this  paragraph,  a
  hearing  shall be deemed to have been waived, and the commissioner shall
  issue an order based on the record before him.
    (g) Nothing in this  subdivision  shall  be  construed  to  limit  the
  authority  of  the  public  health council to revoke, limit or annul any
  approval of establishment.
    6. (a) Notwithstanding the provisions of subdivisions two through four
  of this section, the  commissioner  shall  suspend,  limit,  modify,  or
  revoke a hospital operating certificate, after taking into consideration
  the  total  number  of  beds  necessary  to  meet  the  public need, the
  availability of facilities or services such as preadmission, ambulatory,
  home  care  or  other  services  which  may  serve  as  alternatives  or
  substitutes  for  the  whole  or any part of any such hospital facility,
  and, in the case of modification, the level of care and the  nature  and
  type  of services provided or required by all or some of the patients in
  or seeking admission to such hospital facility, and whether  such  level
  of  care  is  consistent with the operating certificate of the hospital,
  and after finding that suspending, limiting, modifying, or revoking  the
  operating  certificate  of  such  facility  would  be  within the public

  interest in order to conserve health resources by restricting the number
  of beds and/or the level of services to those which are actually needed.
    (b)  Whenever  any  finding  as  described  in  paragraph  (a) of this
  subdivision is  under  consideration  with  respect  to  any  particular
  facility,  the  commissioner shall cause to be published, in a newspaper
  of general circulation in the geographic area of the facility  at  least
  thirty  days  prior to making such a finding an announcement that such a
  finding is under  consideration  and  an  address  to  which  interested
  persons can write to make their views known. The commissioner shall take
  all public comments into consideration in making such a finding.
    (c)  The  commissioner  shall,  upon  making  any finding described in
  paragraph (a) of this subdivision with respect to  any  facility,  cause
  such  facility  and the appropriate health systems agency to be notified
  of the finding at least thirty days in advance of  taking  the  proposed
  action  to  revoke,  suspend,  limit, or modify the facility's operating
  certificate. Upon receipt  of  any  such  notification  and  before  the
  expiration  of the thirty days or such longer period as may be specified
  in the notice, the facility or the appropriate health systems agency may
  request a public hearing to be held in the county in which the  hospital
  is  located.  In no event shall the revocation, suspension or limitation
  take effect prior to the thirtieth day after the date of the notice,  or
  prior to the effective date specified in the notice or prior to the date
  of the hearing decision, whichever is later.
    (d)  In  the case of a modification of an operating certificate by the
  commissioner  pursuant  to  paragraph  (a)  of  this  subdivision,   the
  commissioner  may not modify an operating certificate to reclassify beds
  previously authorized as hospital beds to domiciliary care  beds  or  to
  increase  the  total number of beds authorized by such certificate, and,
  provided further that no patient in a hospital is to  be  removed  as  a
  result  of  the  pendency or conclusion of a proceeding pursuant to this
  subdivision.
    (e) Except as otherwise provided by law, all appeals from a finding of
  the commissioner made pursuant to  paragraph  (a)  of  this  subdivision
  shall  be directly to the appellate division of the supreme court in the
  third department. Except as otherwise expressly provided  by  law,  such
  appeals shall have preference over all issues in all courts.
    (f)  In determining whether there is a public need for any services or
  facilities as required  by  this  subdivision,  the  commissioner  shall
  consider  the advice of the state health planning and development agency
  designated pursuant to the provisions of the  national  health  planning
  and  resources  development act of nineteen hundred seventy-four and any
  amendments thereto and the state health plan developed thereunder.