§ 32.20 — Temporary operator

New York § 32.20

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title E: General Provisions
• Art. 32: Regulation and Quality Control of Chemical Dependence Services and Compulsive Gambling Services

Text

§ 32.20 Temporary operator. 1. For the purposes of this section:\n (a) "chemical dependence treatment program" shall mean a program\ncertified pursuant to section 32.05 of this article;\n (b) "established operator" shall mean the operator of a chemical\ndependence treatment program that has been established and issued an\noperating certificate pursuant to section 32.05 of this article;\n (c) "temporary operator" shall mean any OASAS staff member, person or\nentity that:\n (i) agrees to operate a program on a temporary basis in the best\ninterests of its patients and the community served by the program;\n (ii) has demonstrated that he or she has the character, competence and\nability to operate an OASAS-certified program in compliance with\napplicable standards; and\n (iii) prior to his or her appointment as temporary operator, develops\nwith guidance from the commissioner a satisfactory plan to address the\nprogram's deficiencies;\n (d) "serious financial instability" shall include but not be limited\nto defaulting or violating key covenants of bond issues, missed mortgage\npayments, general untimely payment of debts, failure to pay its\nemployees or vendors, insufficient funds to meet the general operating\nexpenses of the program and/or facility, failure to maintain required\ndebt service coverage ratios and/or, as applicable, factors that have\ntriggered a written event of default notice to the office by the\ndormitory authority of the state of New York; and\n (e) "extraordinary financial assistance" shall mean state funds\nprovided to, or requested by, a program for the express purpose of\npreventing the closure of the program that the commissioner finds\nprovides essential and necessary services within the community.\n 2. (a) In the event that: (i) the program is seeking extraordinary\nfinancial assistance; (ii) office collected data indicates that the\nprogram is experiencing serious financial instability issues; (iii)\noffice collected data indicates that the program's board of directors or\nadministration are unable or unwilling to ensure the proper operation of\nthe program; or (iv) office collected data indicates there are\nconditions that seriously endanger or jeopardize continued access to\nnecessary chemical dependence treatment services within the community,\nthe commissioner shall notify the established operator of his or her\nintention to appoint a temporary operator to assume sole responsibility\nfor the program's treatment operations of that facility for a limited\nperiod of time. The appointment of a temporary operator shall be\neffectuated pursuant to this section, and shall be in addition to any\nother remedies provided by law.\n (b) The established operator of a program may at any time request the\ncommissioner to appoint a temporary operator. Upon receiving such a\nrequest, the commissioner may, if he or she determines that such an\naction is necessary, enter into an agreement with the established\noperator for the appointment of a temporary operator to restore or\nmaintain the provision of quality care to the patients until the\nestablished operator can resume operations within the designated time\nperiod; the patients may be transferred to other OASAS-certified\nproviders; or the program operations of that facility should be\ncompletely discontinued.\n 3. (a) A temporary operator appointed pursuant to this section shall\nuse his or her best efforts to implement the plan developed with the\nguidance of the commissioner to correct or eliminate any deficiencies in\nthe program and to promote the quality and accessibility of chemical\ndependence treatment services in the community served by the program.\n (b) If the identified program deficiencies cannot be addressed in the\ntime period designated in the plan, the patients shall be transferred to\nother OASAS-certified providers.\n (c) During the term of his or her appointment, the temporary operator\nshall have the authority to direct the program staff of the facility in\nall aspects necessary to appropriately treat and/or transfer the\npatients. The temporary operator shall, during this period, operate the\nprogram in such a manner as to promote safety and the quality and\naccessibility of chemical dependence treatment services in the community\nserved by the facility until either the established operator can resume\nprogram operations or until the patients are appropriately transferred\nto other OASAS-certified providers.\n (d) The temporary operator shall also be afforded access to a\nprogram's accounts and records in order to address any deficiencies\nrelated to a program experiencing serious financial instability or a\nprogram requesting financial assistance in accordance with this section.\nThe temporary operator shall approve any financial decision related to a\nprogram's day to day operations or program's ability to provide chemical\ndependence services.\n (e) The temporary operator shall not be required to file any bond. No\nsecurity interest in any real or personal property comprising the\nfacility or contained within the facility or in any fixture of the\nfacility, shall be impaired or diminished in priority by the temporary\noperator. Neither the temporary operator nor the office shall engage in\nany activity that constitutes a confiscation of property.\n 4. The temporary operator shall be entitled to a reasonable fee, as\ndetermined by the commissioner, and necessary expenses incurred during\nhis or her performance as temporary operator. The temporary operator\nshall be liable only in his or her capacity as temporary operator of the\nprogram for injury to person and property by reason of his or her\noperation of such program; he or she shall not have any liability in his\nor her personal capacity, except for gross negligence and intentional\nacts.\n 5. (a) The initial term of the appointment of the temporary operator\nshall not exceed ninety days. After ninety days, if the commissioner\ndetermines that termination of the temporary operator would cause\nsignificant deterioration of the quality of, or access to, health care\nin the community or that reappointment is necessary to correct the\ndeficiencies that required the appointment of the temporary operator,\nthe commissioner may authorize an additional ninety-day term. However,\nsuch authorization shall include the commissioner's requirements for\nconclusion of the temporary operatorship to be satisfied within the\nadditional term.\n (b) Within fourteen days prior to the termination of each term of the\nappointment of the temporary operator, the temporary operator shall\nsubmit to the commissioner and to the established operator a report\ndescribing:\n (i) the actions taken during the appointment to address: the\nidentified program deficiencies; the resumption of program operations by\nthe established operator; or the transfer of the patients to other\nOASAS-certified providers;\n (ii) objectives for the continuation of the temporary operatorship if\nnecessary and a schedule for satisfaction of such objectives; and\n (iii) if applicable, the recommended actions for the ongoing operation\nof the program subsequent to the temporary operatorship.\n (c) The term of the initial appointment and of any subsequent\nreappointment may be terminated prior to the expiration of the\ndesignated term, if the established operator and the commissioner agree\non a plan of correction and the implementation of such plan.\n 6. (a) The commissioner shall, upon making a determination of an\nintention to appoint a temporary operator pursuant to paragraph (a) of\nsubdivision two of this section cause the established operator of the\nfacility to be notified of the intention by registered or certified mail\naddressed to the principal office of the established operator. Such\nnotification shall include a detailed description of the findings\nunderlying the intention to appoint a temporary operator, and the date\nand time of a required meeting with the commissioner and/or his or her\ndesignee within ten business days of the receipt of such notice. At such\nmeeting, the established operator shall have the opportunity to review\nand discuss all relevant findings. At such meeting, the commissioner and\nthe established operator shall attempt to develop a mutually\nsatisfactory plan of correction and schedule for implementation. In such\nevent, the commissioner shall notify the established operator that the\ncommissioner will abstain from appointing a temporary operator\ncontingent upon the established operator remediating the identified\ndeficiencies within the agreed upon timeframe.\n (b) Should the commissioner and the established operator be unable to\nestablish a plan of correction pursuant to paragraph (a) of this\nsubdivision, or should the established operator fail to respond to the\ncommissioner's initial notification, there shall be an administrative\nhearing on the commissioner's determination to appoint a temporary\noperator to begin no later than thirty days from the date of the notice\nto the established operator. Any such hearing shall be strictly limited\nto the issue of whether the determination of the commissioner to appoint\na temporary operator is supported by substantial evidence. A copy of the\ndecision shall be sent to the established operator.\n (c) If the decision to appoint a temporary operator is upheld such\ntemporary operator shall be appointed as soon as is practicable and\nshall operate the program pursuant to the provisions of this section.\n (d) Upon appointment of a temporary operator, the commissioner shall\ncause the temporary president of the senate, the speaker of the\nassembly, and the chairs of the senate and assembly committees on\nalcoholism and drug abuse to be notified of such determination. Such\nnotification shall include, but not be limited to, the name of the\nestablished operator, the name of the appointed temporary operator and a\ndescription of the reasons for such determination to the extent\npracticable under the circumstances and in the sole discretion of the\ncommissioner.\n 7. Notwithstanding the appointment of a temporary operator, the\nestablished operator remains obligated for the continued operation of\nthe facility so that the program can function in a normal manner. No\nprovision contained in this section shall be deemed to relieve the\nestablished operator or any other person of any civil or criminal\nliability incurred, or any duty imposed by law, by reason of acts or\nomissions of the established operator or any other person prior to the\nappointment of any temporary operator of the program hereunder; nor\nshall anything contained in this section be construed to suspend during\nthe term of the appointment of the temporary operator of the program any\nobligation of the established operator or any other person for the\nmaintenance and repair of the facility, provision of utility services,\npayment of taxes or other operating and maintenance expenses of the\nfacility, nor of the established operator or any other person for the\npayment of mortgages or liens.\n