N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 182-1.14

Current through Register Vol. 46, No. 53, December 31, 2024

Section 182-1.14 - Enforcement powers applicable to residential programs

(a)Powers.

(1) The division shall exercise those powers authorized by the Social Services Law to enforce the provisions of this Subpart. Any action taken by the division to enforce the provisions of this Subpart shall be final.

(2) Consistent with the procedures set forth in this section, the division may suspend, limit, or revoke a program's operating certificate at any time for one or more violations of this Subpart. The division shall notify the certificate holder, in writing, of the decision to take such action, the reasons therefor, and the manner in which the operating certificate is to be limited.

(3) The following limitations may be placed on a program's operating certificate:

(i) a limitation on the period of time for which such certificate remains effective, contingent on a determination that specified violations have been corrected or specified conditions have been met;

(ii) a limitation on the number of persons for which such facility is authorized to provide care; or

(iii) a prohibition against the admission of new residents after a specified date.

(b)Certificate null and void.

If a residential program is not operated as certified for a period of at least 60 days, due to the occurrence of a catastrophe such as fire, flood or hurricane, its operating certificate shall be deemed null and void by the division.

(c)Notice and hearing requirements.

Where the division intends to revoke, suspend, or limit an operating certificate, the affected party shall be afforded notice and an opportunity to be heard as follows:

(1) Notice of suspension, revocation or limitation.

The notice of suspension, revocation, or limitation shall include an explanation of the reasons for the action taken by the division and affected program director's right to invoke the division's hearing process. The affected program director shall have 10 business days from receipt of the notification to invoke the hearing process by returning a copy of the completed form indicating a choice to request a hearing concerning the matter.

(2) Notice of hearing.

A notice of hearing shall be personally served upon or sent by registered mail to the director of the affected program at least 30 days prior to the date of hearing. The notice shall specify the proposed action and the basis therefor, the time and place of the hearing and a statement that interpreter services shall be made available to deaf persons at no charge. The charges shall include a brief statement of jurisdiction and shall contain supporting facts and references to all relevant statutes, regulations or other legal authority.

(3) Answer.

The director of the affected program shall have the option of filing a written answer to the charges. The answer must be mailed to the hearing officer, with a copy to the division, not less than eight days prior to the date of the hearing.

(4) Hearing officer.

The hearing shall be conducted by a hearing officer who has no previous involvement with or knowledge of the case. The hearing officer shall have the authority to administer oaths, issue subpoenas, rule upon requests for adjournment and offers of evidence, preserve the guarantees of due process and effectuate the purposes and provisions of applicable law in accordance with the State Administrative Procedure Act.

(5) Hearing procedure.

(i) The hearing officer shall preside over the proceedings and make all procedural rulings.

(ii) The rules of evidence, as applied in courts of law, shall not apply except that all evidence shall be relevant and material.

(iii) All testimony shall be given under oath.

(iv) The hearing shall be recorded verbatim.

(v) The director of the affected program shall be entitled to the representation of an attorney-at-law or other representative of his or her choice and own expense, and may have witnesses give testimony, cross-examine division witnesses, examine any document or item offered into evidence and otherwise present relevant and material evidence on his or her behalf.

(6) The decision.

(i) Upon conclusion of the proceeding, the hearing officer shall make findings of fact and conclusions of law and render a recommendation as to the decision which should issue therefrom. Said recommendation shall be forwarded to the director of the division within 14 days after the conclusion of the hearing, together with the notice of revocation, suspension or limitation, notice of hearing, answer, verbatim transcript of the hearing, all documents admitted into evidence at the hearing and all other materials designated as part of the record by the hearing officer.

(ii) The director of the division shall, within 30 days of the receipt of the hearing officer's written report, render a written decision based upon a consideration of the entire record. The director's decision shall incorporate only the hearing officer's findings of fact and conclusions of law. The director is not bound by the hearing officer's recommendation as to the appropriate decision, either in whole or in part.

(iii) A copy of the decision shall be mailed to the director of the affected program and, if applicable, his or her attorney or other representative. Where the decision rendered is adverse to the director of the affected program, a notice of the right to judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules shall be attached to the decision.

(d)Temporary suspension or limitation.

(1) An operating certificate may be temporarily suspended or limited, without a hearing, upon a determination by the division that the public health or an individual's health, safety or welfare is in imminent danger.

(2) Such temporary suspension or limitation shall take effect immediately upon the program director's receipt of written notice of the division's determination, which shall state the basis for such determination, and shall remain in effect for a maximum period of 30 days thereafter, except as otherwise provided in subparagraph (3) of this subdivision.

(3) Where the division has temporarily suspended or limited a program's operating certificate and also intends to revoke, or further suspend or limit the program's operating certificate pursuant to the process set forth in subdivision (c) of this section, the notice required in paragraph (c)(1) of this section shall be mailed within the 30-day effective period of the temporary suspension or limitation. In such case, the temporary suspension or limitation shall remain in effect until the hearing process set forth in subdivision (c) of this section is completed.

N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 182-1.14

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Amended New York State Register March 28, 2018/Volume XL, Issue 13, eff. 3/28/2018