§ 460-D — Enforcement powers

§ 460-d. Enforcement powers. 1. The commissioner or any person\ndesignated by the commissioner may undertake an investigation of the\naffairs and management of any facility subject to the inspection and\nsupervision provision of this article, or of any person, corporation,\nsociety, association or organization which operates or holds itself out\nas being authorized to operate any such facility, or of the conduct of\nany officers or employers of any such facility. Persons empowered by the\ncommissioner to conduct any such investigation are hereby empowered to\nissue compulsory process for the attendance of witnesses and the\nproduction of papers, to administer oaths and to examine persons under\noath, and to exercise the same powers in respect to the conduct of such\nan investigation as belong to referees appointed by the supreme court.\n 2. If it shall appear after such investigation that the residents of\nthe facility are cruelly, negligently or improperly treated, or that\ninadequate provision is made for their sustenance, clothing, care,\nsupervision or other condition necessary for their comfort and\nwell-being, the department may issue an order in the name of the people,\nand under the official seal of the state, directing the appropriate\nofficers or managers of such facility to modify such treatment or\nprovide such other remedy as may be specified therein. Before any such\norder is issued, it must be approved by a justice of the supreme court,\nafter such notice as he may prescribe and after an opportunity to be\nheard, and any person to whom such an order is directed who shall\nintentionally fail or refuse to obey its terms shall be guilty of a\nmisdemeanor.\n 3. The attorney general and every district attorney shall upon request\nof the department furnish such legal assistance, counsel or advice as\nthe department may require in the discharge of its duties.\n 4. (a) The operating certificate of any facility may be revoked,\nsuspended or limited upon a determination by the department that the\nfacility has failed to comply with the requirements of state or local\nlaws or regulations applicable to the operation of such facility.\n (b) No operating certificate shall be revoked, suspended or limited\nwithout a hearing held in accordance with procedures established by\ndepartment regulations, which procedures shall require that notice of\nthe time and place of the hearing, and notice of the charges, shall be\nserved in person or by certified mail addressed to the facility at least\nthirty days prior to the date of the hearing. A written answer to the\ncharges may be filed with the department not less than ten business days\nprior to the date of the hearing. An operating certificate may,\nnevertheless, be suspended or limited without a hearing for a period not\nin excess of sixty days, upon written notice to the facility following a\nfinding by the department that the public health, or an individual's\nhealth, safety or welfare, are in imminent danger.\n (c) Any order or determination to suspend any operating certificate\nwill specify the conditions of the suspension. These conditions may\ninclude but need not be limited to the following:\n (i) if required for the protection of the health, safety or welfare of\nthe residents, the immediate transfer of some or all residents to other\nappropriate facilities or to the custody of their legal guardians, if\nany;\n (ii) the appointment of a temporary operator to operate the facility\nduring the term of the suspension;\n (iii) the immediate transfer of all records concerning the operation\nof the facility, including resident records, facility business records\nand any other records related to the operation of the facility to the\ndepartment immediately. The department shall control the records for the\nterm of the suspension;\n (iv) the operator or operators of the facility shall be barred from\naccess to the facility during the term of the suspension; or\n (v) the requirement that the operator, if replaced by a temporary\noperator, provide the temporary operator with any funds received by the\noperator for the operation of the facility.\n (d) Any order or determination to limit an operating certificate shall\nspecify the manner in which the operating certificate is to be limited.\nAn operating certificate may be found subject to one or more of the\nfollowing limitations:\n (i) a limitation on the period of time for which such certificate\nremains effective, contingent on a determination that specified\nviolations have been corrected or specified conditions have been met;\n (ii) a limitation on the number of persons for which such facility is\nauthorized to provide care; or\n (iii) a prohibition against the admission of new residents after a\nspecified date.\n (e) Any order or determination of revocation, suspension or limitation\nof the operating certificate shall be subject to judicial review in\naccordance with article seventy-eight of the civil practice law and\nrules.\n 5. In addition to or as an alternative to any power which the\ndepartment may exercise under this article, the supreme court may grant\nequitable relief against violations or threatened violations of this\narticle or of the regulations of the department by any facility subject\nto the inspection and supervision of the department. The attorney\ngeneral may seek such equitable relief, in the name of the people, upon\nthe request of the department. Service in such an action shall state the\nnature of the violation and shall be accomplished in the manner\nprescribed by the civil practice law and rules; provided, however, that\nan ex parte order for equitable relief may issue, notwithstanding the\ncivil practice law and rules, if the court finds, on motion and\naffidavit, that such violation may reasonably be expected to result in\nimminent danger to the public health or to the health, safety or welfare\nof any individual in a facility subject to the department's inspection\nand supervision. The court, after a hearing, may make an order granting\nsuch equitable relief as it may deem necessary, including, but not\nlimited to a preliminary injunction or a permanent injunction, enjoining\na facility from admitting new residents, directing the department and\nsuch facility to arrange for the transfer of residents to other\nfacilities, appointment of a temporary or permanent receiver for the\nprotection of the public health or the health, safety and welfare of any\nindividual in such facility, or directing a facility operator to\ntransfer all records concerning the operation of the facility, including\nresident records, facility business records and any other records\nrelated to the operation of the facility to the department immediately.\nThe people shall not be required to post security or bond.\n 6. Orders prohibiting placing-out or boarding-out of children or\norders of removal of any child may be issued and enforced in accordance\nwith section three hundred eighty-five of this chapter.\n 7. (a) The department shall adopt regulations establishing civil\npenalties of up to one thousand dollars per day to be assessed against\nall adult care facilities except facilities operated by a social\nservices district for violations of (i) regulations of the department\npertaining to the care of residents in such facilities, (ii) paragraph\n(a) of subdivision three of section four hundred sixty-one-a of this\nchapter, or (iii) an order issued pursuant to subdivision eight of this\nsection. The regulations shall specify the violations subject to penalty\nand the amount of the penalty to be assessed in connection with each\nsuch violation and shall specify that only civil penalties of up to one\nthousand dollars per day per violation shall be assessed pursuant to\nthis paragraph against an adult care facility found responsible for an\nact of retaliation or reprisal against any resident, employee, or other\nperson for having filed a complaint with or having provided information\nto any long term care patient ombudsman functioning in accordance with\nsection five hundred forty-four or five hundred forty-five of the\nexecutive law.\n (b) (1) In addition to any other civil or criminal penalty provided by\nlaw, the department shall have the power to assess civil penalties in\naccordance with its regulations adopted pursuant to paragraph (a) of\nthis subdivision, after a hearing conducted in accordance with the\nprocedures established by regulations of the department. Such procedures\nshall require that notice of the time and place of the hearing, together\nwith a statement of charges of violations, shall be served in person or\nby certified mail addressed to the facility at least thirty days prior\nto the date of the hearing. The statement of charges of violations shall\nset forth the existence of the violations, the amount of penalty for\nwhich it may become liable and the steps which must be taken to rectify\nthe violation and, where applicable, a statement that the department\ncontends that a penalty may be imposed under this paragraph regardless\nof rectification. An answer to the charges of violations, in writing,\nshall be filed with the department, not less than ten days prior to the\ndate of hearing. The answer shall notify the department of the\nfacility's position with respect to each of the charges and shall\ninclude all matters which if not disclosed in the answer would be likely\nto take the department by surprise. The commissioner, or a member of his\nstaff who is designated and authorized by him to hold such hearing, may\nin his discretion allow the facility to prove any matter not included in\nthe answer. Where the facility satisfactorily demonstrates that it\neither had rectified the violations within thirty days of receiving\nwritten notification of the results of the inspection pursuant to\nsection four hundred sixty-one-a of this chapter, or had submitted\nwithin thirty days an acceptable plan for rectification and was\nrectifying the violations in accordance with the steps and within the\nadditional periods of time as accepted by the department in such plan,\nno penalty shall be imposed, except as provided in subparagraph two of\nthis paragraph.\n (2) Rectification shall not preclude the assessment of a penalty if\nthe department establishes at a hearing that a particular violation,\nalthough corrected, endangered or resulted in harm to any resident as\nthe result of:\n (i) the total or substantial failure of the facility's fire detection\nor prevention systems, or emergency evacuation procedures prescribed by\ndepartment safety standard regulations;\n (ii) the retention of any resident who has been evaluated by the\nresident's physician as being medically or mentally unsuited for care in\nthe facility or as requiring placement in a hospital or residential\nhealth care facility and for whom the operator is not making persistent\nefforts to secure appropriate placement;\n (iii) the failure in systemic practices and procedures;\n (iv) the failure of the operator to take actions as required by\ndepartment regulations in the event of a resident's illness or accident;\n (v) the failure of the operator to provide at all times supervision of\nresidents by numbers of staff at least equivalent to the night staffing\nrequirement set forth in department regulations; or\n (vi) unreasonable threats of retaliation or taking reprisals,\nincluding but not limited to unreasonable threats of eviction or\nhospitalization against any resident, employee or other person who makes\na complaint concerning the operation of an adult care facility,\nparticipates in the investigation of a complaint or is the subject of an\naction identified in a complaint.\n The department shall specify in its regulations those regulations to\nwhich this subparagraph two shall apply.\n (3) In assessing penalties pursuant to this paragraph, the department\nshall consider promptness of rectification, delay occasioned by the\ndepartment, and the specific circumstances of the violations as\nmitigating factors.\n (c) Upon the request of the department, the attorney general may\ncommence an action in any court of competent jurisdiction against any\nfacility subject to the provisions of this section, and against any\nperson or corporation operating such facility, for the recovery of any\npenalty assessed by the department in accordance with the provisions of\nthis subdivision.\n (d) Any such penalty assessed by the department may be released or\ncompromised by the department before the matter has been referred to the\nattorney general, and where such matter has been referred to the\nattorney general, any such penalty may be released or compromised and\nany action commenced to recover the same may be settled and discontinued\nby the attorney general with the consent of the department.\n 8. Whenever the commissioner, after investigation, finds that any\nperson, agency or facility subject to this article is causing, engaging\nin or maintaining a condition or activity which constitutes a danger to\nthe physical or mental health of the residents of a facility subject to\nthe inspection and supervision of the department, and that it therefore\nappears to be prejudicial to the interests of such residents to delay\naction for thirty days until an opportunity for a hearing can be\nprovided in accordance with the provisions of this section, the\ncommissioner shall order the person, agency or facility by written\nnotice, setting forth the basis for such finding, to discontinue such\ndangerous condition or activity or take certain action immediately or\nwithin a specified period of less than thirty days. The commissioner\nshall within thirty days of issuance of the order provide the person,\nagency or facility an opportunity to be heard and to present any proof\nthat such condition or activity does not constitute a danger to the\nhealth of such residents.\n 9. (a) The department shall have authority to impose a civil penalty\nnot exceeding one thousand dollars per day against, and to issue an\norder requiring the closing of, after notice and opportunity to be\nheard, any facility which does not possess a valid operating certificate\nissued by the department and is an adult care facility subject to the\nprovisions of this article and the regulations of the department. A\nhearing shall be conducted in accordance with procedures established by\ndepartment regulations which procedures shall require that notice of the\ndetermination that the facility is an adult care facility and the\nreasons for such determination and notice of the time and place of the\nhearing be served in person on the operator, owner or prime lessor, if\nany, or by certified mail, return receipt requested, addressed to such\nperson and received at least twenty days prior to the date of the\nhearing. If such operator, owner or prime lessor, if any, is not known\nto the department, then service may be made by posting a copy thereof in\na conspicuous place within the facility or by sending a copy thereof by\ncertified mail, return receipt requested, addressed to the facility. A\nwritten answer to the notice of violation may be filed with the\ndepartment not less than five days prior to the date of the hearing.\nDemonstration by the facility that it possessed an operating certificate\nissued pursuant to this article, article twenty-eight of the public\nhealth law or article sixteen, twenty-three, thirty-one or thirty-two of\nthe mental hygiene law at the time the hearing was commenced shall\nconstitute a complete defense to any charges made pursuant to this\nsubdivision.\n (b) The penalty authorized by this section shall begin to run thirty\ndays after the department provides the operator, in writing, with a\nsummary of the inspection of the facility by which the department\ndetermined that he or she is operating an uncertified adult care\nfacility. The submission of an application by the operator for an\noperating certificate for the facility shall not act as a bar to the\nimposition of a penalty against the operator.\n (c) (i) For the purposes of assessing the applicability of this\narticle and the regulations of the department, the department shall be\nauthorized to inspect any facility which reasonably appears to the\ndepartment to be subject to the provisions of this article and to assess\nthe needs of the residents of such facility pursuant to the provisions\nof section four hundred sixty-c of this title.\n (ii) At the time that a representative of the department appears at\nthe facility for purposes of conducting such inspection, the\nrepresentative shall inform the operator, administrator or other person\nin charge that the inspection will be conducted unless such person\nobjects to the inspection and that if such person does object the\ndepartment, pursuant to the provisions of subparagraph (iii) of this\nparagraph, shall be authorized to request the attorney general to apply\nto the court for an order granting the department access to the\nfacility.\n (iii) If the department is not permitted access to such facility by\nthe operator, administrator or other person in charge thereof, the\nattorney general, upon the request of the department, shall be\nauthorized to apply, without notice to the operator, administrator or\nchairman of the board of directors of a not-for-profit facility, to the\nsupreme court in the county in which the facility is located for an\norder granting the department access to such facility. The court may\ngrant such an order if it determines, based on evidence presented by the\nattorney general, that there is reasonable cause to believe that such\nfacility is an adult care facility which does not possess a valid\noperating certificate issued by the department.\n (d) Upon the request of the department, the attorney general may\ncommence an action in any court of competent jurisdiction against any\nfacility subject to the provisions of this subdivision, and against any\nperson or corporation operating such facility, for the recovery of any\npenalty assessed by the department in accordance with the provisions of\nthis subdivision.\n (e) Any penalty assessed by the department pursuant to this\nsubdivision may be released or compromised by the department before the\nmatter has been referred to the attorney general and where such matter\nhas been referred to the attorney general, any such penalty may be\nreleased or compromised and any action commenced to recover the same may\nbe settled and discontinued by the attorney general with the consent of\nthe department.\n 10. By March first, nineteen hundred ninety-five and annually\nthereafter, the department shall submit a report to the governor and the\nlegislature on the regulation of adult homes and residences for adults.\nSuch report shall include both a narrative and statistical summary\ndetailing the results of inspections and enforcement actions of adult\nhomes and residences for adults. The report shall also include results\nof audits of financial conditions and practices of a selected sample of\nadult homes and residences of adults and recommendations for legislative\naction relating to the need for changes in statute.\n 11. On or before issuance by the department to an adult care facility\noperator of official written notice of: the proposed revocation,\nsuspension or denial of the operator's operating certificate; the\nlimitation of the operating certificate with respect to new admissions;\nthe issuance of a department order or commissioner's order; the seeking\nof equitable relief pursuant to this section; the proposed assessment of\ncivil penalties for violations of the provisions of subparagraph two of\nparagraph (b) of subdivision seven of this section or placement on the\n"do not refer list" pursuant to subdivision fifteen of this section,\nwritten notice also shall be given to the appropriate office of the\ndepartment of mental hygiene, department of corrections and community\nsupervision and local social services districts, and provided further\nthat the department of health shall notify hospitals in the locality in\nwhich such facility is located that such notice has been issued. Upon\nresolution of such enforcement action the department shall notify the\nappropriate office of the department of mental hygiene, department of\ncorrections and community supervision, local social services districts\nand hospitals.\n 12. Social services districts and other local government entities\nestablished pursuant to this chapter shall be prohibited from making\nreferrals for admissions to adult care facilities that have received\nofficial written notice regarding: the proposed revocation, suspension\nor denial of the operator's operating certificate; the limitation of the\noperating certificate with respect to new admissions; the issuance of\ndepartment order or commissioner's orders; the seeking of equitable\nrelief pursuant to this section; the proposed assessment of civil\npenalties for violations of the provisions of subparagraph two of\nparagraph (b) of subdivision seven of this section; or the facility's\nplacement on the "do not refer list" pursuant to subdivision fifteen of\nthis section.\n * 13. The department shall notify the department of health of any\nenforcement action pursuant to this section taken against an operator of\nan adult home or enriched housing program which has been licensed by the\ndepartment of health as a limited home care services agency pursuant to\nsection thirty-six hundred five of the public health law.\n * NB Expires June 30, 2027\n * 14. If the department receives notice from the department of health\nthat an action has been taken against an operator of a limited home care\nservices agency, pursuant to section thirty-six hundred five-a of the\npublic health law, the department shall review the delivery of services\nprovided by the certified operator of an adult home or enriched housing\nprogram to determine whether such operator is meeting all applicable\nregulations and standards.\n * NB Expires June 30, 2027\n 15. The department of health shall maintain, on its website, a list of\nall adult homes, enriched housing programs, residences for adults and\nassisted living programs that have received written notice of:\nenforcement action based on a violation of an applicable law or\nregulation that creates an endangerment of resident health or safety\npursuant to subparagraph two of paragraph (b) of subdivision seven of\nthis section or a pending enforcement action against a facility's\noperating certificate or a determination that the facility is required\nto be certified as an adult home, enriched housing program or residence\nfor adults. Provided however, if a facility contends, in writing, that\nthe violation resulting in the facility being included on the "do not\nrefer list" has been corrected, the department shall, within thirty\ndays, reinspect the facility, and if the department determines that the\nviolation has been corrected, the facility shall be immediately removed\nfrom the list. This list shall be known as the "do not refer" list and\nshall be promptly updated to reflect any of the above violations and the\nreopening of admissions in any adult care facility in which the\nenforcement action for which they were added to the list has been\nresolved.\n 16. Any operator or controlling person of an adult care facility, as\ndefined in clause two of subparagraph (x) of paragraph (a) of\nsubdivision four of section four hundred sixty-one-e of this article\nshall be prohibited from applying to the department of health or to any\nother agency of this state for an operating certificate or approval to\noperate an alternate type of facility during the period in which such\ncertificate has been revoked, suspended or limited.\n 17. The department of health shall direct the temporary operator to,\nand the temporary operator shall, provide written notification to\nresidents of all adult homes, enriched housing programs, residences for\nadults and assisted living programs where a temporary operator has been\nappointed pursuant to subdivision four of this section.\n