N.Y. Comp. Codes R. & Regs. tit. 14 § 687.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 687.5 - Suspension, revocation or limitation of an operating certificate

(a) The commissioner may revoke, suspend or limit an operating certificate or impose penalties upon a determination that the family care provider named on the certificate has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The family care provider shall be given notice and an opportunity to be heard pursuant to section 16.17 of the Mental Hygiene Law and applicable regulations of the commissioner prior to any such determination.

(b) A certificate may be temporarily suspended or limited without a hearing for a period not in excess of 60 days upon written notice to the family care provider following a finding by OPWDD that an individual's 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 individual. Upon such finding and notice, the power of the commissioner to temporarily suspend or limit an operating certificate shall include, but shall not be limited to:

(1) prohibit or limit the placement of new individuals in the family care home;

(2) remove or cause to be removed some or all of the individuals in the family care home; or

(3) suspend or limit or cause to be suspended or limited the payment of any governmental funds to the family care home, provided that such action shall not in any way jeopardize the health, safety and welfare of any individual residing in the family care home.

(c) At any time subsequent to the suspension or limitation of any operating certificate where said suspension or limitation is the result of correctable physical plant or program deficiencies, the family care provider may request OPWDD to reinspect the family care home to redetermine whether a specific condition or practice continues to exist.

(1) Within 10 days of the receipt of such a request, OPWDD shall reinspect the family care home to redetermine whether a specific condition or practice continues to exist.

(2) In the event that the previously found condition or practice has been eliminated, the suspension or limitation shall be withdrawn.

(3) If the condition or practice has not been eliminated, OPWDD shall not thereafter be required to reinspect the family care home during the emergency period of suspension or limitation.

(d) During the 60-day suspension or limitation period provided for in subdivision (b) of this section, the commissioner shall determine whether to reinstate or remove the limitations on the provider's operating certificate, or to revoke, suspend or limit the operating certificate. Should the commissioner choose to revoke, suspend or limit the operating certificate, then the emergency suspension or limitation provided for shall remain in effect pending the outcome of an administrative hearing on the revocation, suspension or limitation.

(e) The family care provider, within 10 days of the date when the emergency suspension or limitation pursuant to subdivision (b) of this section is first imposed or within 10 days of the date of receipt of notice from the commissioner to revoke or limit the provider's operating certificate, may request an evidentiary hearing to contest the validity of the emergency suspension or limitation. Such an evidentiary hearing shall commence within 10 days of the family care provider's request and no request for an adjournment shall be granted without the concurrence of the family care provider, the commissioner and the hearing officer. The evidentiary hearing shall be limited to those violations of Federal and State law and regulations that gave rise initially to the emergency suspension or limitation. Should the commissioner decide to revoke, suspend or limit the facility's operating certificate, no administrative hearing on that action shall commence prior to the conclusion of the evidentiary hearing, the rendering of the hearing officer's report and the commissioner's final review and determination concerning the emergency suspension or limitation. The commissioner shall issue a ruling within 10 days after the receipt of the hearing officer's report.

(f) The commissioner may impose a fine upon a finding that the holder of the certificate has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The maximum amount of fine shall be $1,000 per day or $15,000 per violation. Such penalty may be recovered by an action brought by the commissioner in any court of competent jurisdiction. Such penalty may be released or compromised by the commissioner before the matter has been referred to the Attorney General. Any such penalty may be released or compromised, and any action commenced to recover the same may be settled or discontinued by the Attorney General with the consent of the commissioner.

(g) Any notice of suspension, revocation, or limitation of an operating certificate, or notice of intent to take such action, must also be addressed and sent to the executive director of an agency sponsored family care program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.5

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Amended New York State Register February 15, 2023/Volume XLIV, Issue 07, eff. 2/15/2023