§ 2806 — Hospital operating certificates; suspension or revocation

§ 2806. Hospital operating certificates; suspension or revocation. 1.\nA hospital operating certificate may be revoked, suspended, limited or\nannulled by the commissioner on proof that: (a) the hospital has failed\nto comply with the provisions of this article or rules and regulations\npromulgated thereunder; or (b) a general hospital has refused or failed\nto admit or to provide for necessary emergency care and treatment for an\nunidentified person brought to it in an unconscious, seriously ill or\nwounded condition. A hospital operating certificate shall be revoked,\nlimited or annulled by the commissioner upon revocation, limitation or\nannulment by the public health council of approval of establishment of\nsuch hospital.\n 2. No hospital operating certificate shall be revoked, suspended,\nlimited or annulled without a hearing, except for operating certificates\nrevoked, limited or annulled because of revocation, limitation, or\nannulment of establishment approval.\n Also, an operating certificate may be temporarily suspended or limited\nwithout a hearing for a period not in excess of sixty days upon written\nnotice to the hospital and opportunity for a hearing following a finding\nby the department that the public health or safety is in imminent danger\nor there exists any condition or practice or a continuing pattern of\nconditions or practices which poses imminent danger to the health or\nsafety of any patient. The department may also, consistent with\napplicable federal law and regulations, prohibit or limit the placement\nof new patients in a residential health care facility without a hearing\nfor a period not in excess of sixty days upon written notice to such\nfacility and opportunity for a hearing upon a determination that such\nfacility no longer substantially meets the requirements of this article\nand the regulations thereunder and that such deficiencies do not pose an\nimminent danger to the health and safety of any patient, provided,\nhowever, that the department shall not make such a determination with\nrespect to a facility until the facility has had a reasonable\nopportunity, following the initial determination that such facility no\nlonger substantially meets the requirements of this article, to correct\nits deficiencies and following this period, has been given written\nnotice and opportunity for a hearing. Provided, however, that any delay\nin the hearing process during the sixty-day period occasioned by the\nhospital shall toll the running of said suspension or limitation and\nshall not abridge the full time provided for in this subdivision. Upon\nsuch finding and notice the power of the commissioner temporarily to\nsuspend or limit a hospital operating certificate shall include, but\nshall not be limited to, the power to:\n (a) prohibit or limit the placement of new patients in the hospital;\n (b) remove or cause to be removed some or all of the patients in the\nhospital;\n (c) suspend or limit or cause to be suspended or limited the payment\nof any governmental funds to the hospital.\n At any time subsequent to the suspension or limitation of any\noperating certificate pursuant to this subdivision, the hospital may\nrequest the department to reinspect the hospital to redetermine whether\na specific condition or practice continues to exist. After the receipt\nof such a request the department shall reinspect the hospital within ten\ndays and in the event that the previously found condition or practice\nhas been eliminated the suspension or limitation shall be withdrawn. If\nthe condition or practice has not been eliminated, the commissioner\nshall not thereafter be required to reinspect the hospital during the\ntemporary period of suspension or limitation. Nor shall the commissioner\nbe required to reinspect upon request during a temporary period of\nsuspension or limitation any hospital whose operating certificate has\nbeen temporarily suspended or limited due to the existence of a\ncontinuing pattern of conditions or practices which poses imminent\ndanger to the health and safety of any patient.\n 3. The commissioner shall fix a time and place for the hearing. A copy\nof the charges, together with the notice of the time and place of the\nhearing, shall be served in person or mailed by registered or certified\nmail to the hospital at least ten days before the date fixed for the\nhearing. The hospital shall file with the department not less than three\ndays prior to the hearing a written answer to the charges.\n 4. All orders or determinations hereunder shall be subject to review\nas provided in article seventy-eight of the civil practice law and\nrules. Application for such review must be made within sixty days after\nservice in person or by registered or certified mail of a copy of the\norder or determination upon the applicant.\n 5. (a) Except as provided in paragraphs (b) and (d) of this\nsubdivision, anything contained in this section or in a certificate of\nrelief from disabilities or a certificate of good conduct issued\npursuant to article twenty-three of the correction law to the contrary\nnotwithstanding, a hospital operating certificate of a hospital under\ncontrol of a controlling person as defined in paragraph (a) of\nsubdivision twelve of section twenty-eight hundred one-a of this\narticle, or under control of any other entity, shall be revoked upon a\nfinding by the department that such controlling person or any\nindividual, member of a partnership or shareholder of a corporation to\nwhom or to which an operating certificate has been issued, has been\nconvicted of a class A, B or C felony, or a felony related in any way to\nany activity or program subject to the regulations, supervision, or\nadministration of the department or of the office of temporary and\ndisability assistance or in violation of the public officers law in a\ncourt of competent jurisdiction in the state, or of a crime outside the\nstate which, if committed within the state, would have been a class A, B\nor C felony or a felony related in any way to any activity or program\nsubject to the regulations, supervision, or administration of the\ndepartment or of the office of temporary and disability assistance or in\nviolation of the public officers law.\n (b) In the event one or more members of a partnership or shareholders\nof a corporation shall have been convicted of a felony as described in\nparagraph (a) of this subdivision, the commissioner shall, in addition\nto his other powers, limit the existing operating certificate of such\npartnership or corporation so that it shall apply only to the remaining\npartner or shareholders, as the case may be, provided that every such\nconvicted person immediately and completely ceases and withdraws from\nparticipation in the management and operation of the hospital, and\nfurther provided that an application for approval of change of ownership\nor transfer of stock is filed without delay in accordance with the\npertinent provisions of section twenty-eight hundred one-a of this\nchapter.\n (c) With respect to the conviction of any such person of a class D or\nE felony, the commissioner shall make a determination before revoking,\nor limiting pursuant to paragraph (b), the operating certificate that\nsuch conviction was related to an activity or program subject to the\nregulations, supervision, or administration of the department or of the\ndepartment of social services. With respect to the conviction of such\nperson of a crime committed outside the state, the commissioner shall\nmake a determination before revoking, or limiting pursuant to paragraph\n(b), the operating certificate that such crime, if committed within the\nstate, would have been a class A, B or C felony or a felony related to\nan activity or program subject to the regulations, supervision, or\nadministration of the department or of the department of social services\nor in violation of the public officers law. The commissioner shall\nnotify the person convicted that such determination has been made and\nshall give such person thirty days to request a hearing pursuant to this\nsubdivision.\n (d) The commissioner shall not revoke, or limit pursuant to paragraph\n(b) of this subdivision, the operating certificate of any facility\nsolely because of a conviction, more than ten years prior to the\neffective date of this paragraph, of any person of a felony unless the\ncommissioner makes a determination that such conviction was related to\nan activity or program subject to the regulations, supervision, or\nadministration of the department or of the department of social\nservices. The commissioner shall not revoke, or limit pursuant to\nparagraph (b) of this subdivision, the operating certificate of any\nfacility solely because of the conviction, more than ten years prior to\nthe effective date of this paragraph, of any person of a crime outside\nthe state unless the commissioner makes a determination that such crime,\nif committed within the state, would have been a felony related to an\nactivity or program subject to the regulations, supervision, or\nadministration of the department or of the department of social services\nor in violation of the public officers law. The commissioner shall\nnotify the person convicted that such determination has been made and\nshall give such person thirty days to request a hearing pursuant to this\nsubdivision.\n (e) Any hearing conducted hereunder shall be strictly limited to the\nissue of whether the determination of the commissioner is supported by\nthe evidence. All such hearings shall be conducted as provided in\nparagraph (f) of this subdivision, and no hearing, revocation or\nlimitation shall be stayed by the pendency of any appeal or other\nchallenge to the conviction.\n (f) The commissioner shall fix a time and place for the hearing. A\ncopy of the notice and charges shall be served in person or mailed by\nregistered or certified mail no less than ten days before the date fixed\nfor the hearing. A written answer to the charges shall be filed with the\ndepartment not less than two days prior to the hearing. No adjournment\nshall be granted in excess of forty-eight hours. The respondent may\nattend the hearing in person, with or without counsel, or be represented\nby counsel alone, but need not attend personally if unavailable because\nof incarceration, hospitalization or other reason. If no answer is filed\nwith the department within the time limitation of this paragraph, a\nhearing shall be deemed to have been waived, and the commissioner shall\nissue an order based on the record before him.\n (g) Nothing in this subdivision shall be construed to limit the\nauthority of the public health council to revoke, limit or annul any\napproval of establishment.\n 6. (a) Notwithstanding the provisions of subdivisions two through four\nof this section, the commissioner shall suspend, limit, modify, or\nrevoke a hospital operating certificate, after taking into consideration\nthe total number of beds necessary to meet the public need, the\navailability of facilities or services such as preadmission, ambulatory,\nhome care or other services which may serve as alternatives or\nsubstitutes for the whole or any part of any such hospital facility,\nand, in the case of modification, the level of care and the nature and\ntype of services provided or required by all or some of the patients in\nor seeking admission to such hospital facility, and whether such level\nof care is consistent with the operating certificate of the hospital,\nand after finding that suspending, limiting, modifying, or revoking the\noperating certificate of such facility would be within the public\ninterest in order to conserve health resources by restricting the number\nof beds and/or the level of services to those which are actually needed.\n (b) Whenever any finding as described in paragraph (a) of this\nsubdivision is under consideration with respect to any particular\nfacility, the commissioner shall cause to be published, in a newspaper\nof general circulation in the geographic area of the facility at least\nthirty days prior to making such a finding an announcement that such a\nfinding is under consideration and an address to which interested\npersons can write to make their views known. The commissioner shall take\nall public comments into consideration in making such a finding.\n (c) The commissioner shall, upon making any finding described in\nparagraph (a) of this subdivision with respect to any facility, cause\nsuch facility and the appropriate health systems agency to be notified\nof the finding at least thirty days in advance of taking the proposed\naction to revoke, suspend, limit, or modify the facility's operating\ncertificate. Upon receipt of any such notification and before the\nexpiration of the thirty days or such longer period as may be specified\nin the notice, the facility or the appropriate health systems agency may\nrequest a public hearing to be held in the county in which the hospital\nis located. In no event shall the revocation, suspension or limitation\ntake effect prior to the thirtieth day after the date of the notice, or\nprior to the effective date specified in the notice or prior to the date\nof the hearing decision, whichever is later.\n (d) In the case of a modification of an operating certificate by the\ncommissioner pursuant to paragraph (a) of this subdivision, the\ncommissioner may not modify an operating certificate to reclassify beds\npreviously authorized as hospital beds to domiciliary care beds or to\nincrease the total number of beds authorized by such certificate, and,\nprovided further that no patient in a hospital is to be removed as a\nresult of the pendency or conclusion of a proceeding pursuant to this\nsubdivision.\n (e) Except as otherwise provided by law, all appeals from a finding of\nthe commissioner made pursuant to paragraph (a) of this subdivision\nshall be directly to the appellate division of the supreme court in the\nthird department. Except as otherwise expressly provided by law, such\nappeals shall have preference over all issues in all courts.\n (f) In determining whether there is a public need for any services or\nfacilities as required by this subdivision, the commissioner shall\nconsider the advice of the state health planning and development agency\ndesignated pursuant to the provisions of the national health planning\nand resources development act of nineteen hundred seventy-four and any\namendments thereto and the state health plan developed thereunder.\n