N.Y. Comp. Codes R. & Regs. tit. 18 § 491.23

Current through Register Vol. 46, No. 51, December 18, 2024

Section 491.23 - Investigations, immediate emergency measures and enforcement powers

(a)Investigations.

(1) The office may undertake an investigation of the affairs and management of any shelter for adults, small-capacity shelter, or shelters for adult families, or of any person, corporation, society, association or organization that operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility. The office is empowered to issue compulsory process for the attendance of witnesses and the production of papers, to administer oaths and to examine persons under oath, and to exercise the same powers in respect to the conduct of such an investigation as belong to referees appointed by the Supreme Court.

(2) If it shall appear after such investigation that the residents of the facility are cruelly, negligently or improperly treated, or that inadequate provision is made for their sustenance, clothing, care, supervision or other condition necessary for their comfort and well-being, the office, may issue an order in the name of the people, and under the official seal of the State, directing the appropriate officers or managers of such facility to modify such treatment or provide such other remedy as may be specified therein. Before any such order is issued, it must be approved by a Justice of the Supreme Court, after such notice as he may prescribe and after an opportunity to be heard, and any person to whom such an order is directed who shall intentionally fail or refuse to obey its terms shall be guilty of a misdemeanor.

(b)Enforcement.

(1)Enforcement shall mean the action(s) undertaken or initiated by the office to help assure that shelters for adults, small-capacity shelters and shelters for adult families are established and operated in compliance with all applicable State and local laws or regulations, including the applicable provisions of this Part, and in accordance with an operational plan approved by the office.

(2) Enforcement actions undertaken by the office may include, but are not limited to:

(i) issuance of notice of intention to initiate enforcement;

(ii) conduct of hearings to determine if an operator has failed to comply with applicable law and regulation;

(iii) determination, after hearing, that civil penalties should be imposed;

(iv) determination, after hearing, to revoke, suspend or limit an operating certificate;

(v) issuance of an order pursuant to Social Services Law section 460-d(2) requiring an operator to immediately remedy conditions dangerous to residents;

(vi) temporary suspension or limitation of an operating certificate upon finding that resident health and safety are in imminent danger;

(vii) request to the Attorney General to seek an injunction against an operator for violations or threatened violations of law or regulation; or

(viii) request to the Attorney General to take such action as is necessary to seek criminal prosecution, or to bring about compliance with any outstanding hearing determination or order.

(3) The operating certificate of any shelter for adults, small-capacity shelter, or shelters for adult families may be revoked, suspended or limited upon a determination by the office, after a hearing in accordance with procedures set forth in Part 493 of this Title, that the operator has failed to comply with the operational plan approved by the office or requirements of State or local laws or regulations applicable to the operation of such facility.

(4) The operating certificate of any shelter for adults, small-capacity shelter, or shelters for adult families may be temporarily suspended or limited without a hearing for a period not in excess of 60 days upon written notice to the facility that the office has found that the public health, or an individual's health, safety or welfare is in imminent danger. If the office schedules an expedited hearing to begin during the suspension period, in a proceeding to suspend, revoke or limit the operating certificate, as set forth in section 493.8 of this Title, the temporary suspension will remain in effect until the hearing decision is issued.

(5) Any order or determination to limit an operating certificate shall specify the manner in which the operating certificate is to be limited. An operating certificate may be found subject to one or more of the following limitations:

(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;

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

(iv) a limitation on the type(s) of service to be provided.

(c) Violations or threatened violations of law or State regulations at any shelter for adults, small-capacity shelter, or shelters for adult families may be enjoined by the Supreme Court. The Attorney General may seek such an injunction, in the name of the people, upon the request of the office. Service in such an action shall state the nature of the violation and shall be accomplished in the manner prescribed by the Civil Practice Law and Rules; provided, however, that an ex parte temporary restraining order may be issued, notwithstanding the Civil Practice Law and Rules, if the court finds, on motion and affidavit, that such violation may reasonably be expected to result in imminent danger to the public health or to the health, safety or welfare of any individual in a facility subject to the office's inspection and supervision. The court, after a hearing, may issue a preliminary injunction or a permanent injunction enjoining a facility from admitting new residents, or directing the office and such facility to arrange for the transfer of residents to other facilities, or any other injunctive relief the court may deem necessary.

(d) Whenever the office has knowledge, acquired by announced or unannounced inspections, audits, or other methods, or has been advised by any State or local entity authorized to conduct inspections or audits, that there exists a violation of law, regulation, or code with respect to any shelter for adults, small-capacity shelter, or shelter for adult families in which there are conditions that are dangerous, hazardous, imminently detrimental to life or health, or otherwise render the building not fit for human habitation, the office may take immediate emergency measures, including, but not limited to, one or more of the following:

(1) issuing an order directing the facility to take immediate measures to rectify any deficiencies, violations, or conditions, requiring additional security, or directing the transfer of the facility's residents to other temporary emergency housing; or

(2) temporarily suspending the facility's operating certificate or directing closure of the facility, subject to the notice and expedited hearing process set forth in section 493.8 of this Title.

(e) If the office, after investigation, finds that any person, agency or facility subject to this regulation is causing, engaging in or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents of a facility subject to the inspection and supervision of the office, and that it, therefore, appears to be prejudicial to the interests of such residents to delay action for 30 days until an opportunity for a hearing can be provided in accordance with the provisions of this section, the office shall order the person, agency or facility, by written notice setting forth the basis for such finding, to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than 30 days. The office shall, within 30 days of issuance of the order, provide the person, agency or facility an opportunity to be heard and to present any proof that such condition or activity does not constitute a danger to the health of such residents.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 491.23

Adopted New York State Register December 11, 2019/Volume XLI, Issue 50, eff. 1/1/2020