New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIV - Office for People With Developmental Disabilities
Part 602 - Uniform Hearing Procedures
Section 602.5 - Hearing procedures: current operating certificate suspension, revocation, limitation or fine hearings

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Mental Hygiene Law, section 16.17(a), which provides that the commissioner may not revoke, suspend or limit an operating certificate fine the holder thereof for failure to comply with the terms of the operating certificate, or any applicable statute, rule or regulation, without giving the provider notice and opportunity to be heard. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

The decision to revoke, suspend or limit an existing operating certificate, or to fine the holder thereof, shall be final, unless the provider requests a hearing in writing within 30 days of service of notice of the proposed action. Such request shall be made to the commissioner, and shall include a copy of OPWDD's notice of proposed action. The request must also include a declaration of the issues alleged to be involved, and documentation of the provider's position as to each identified issue.

(c) Stay of execution of proposed action.

Except as provided for in Mental Hygiene Law, section 16.17(b), if the provider makes a valid request for a hearing, the execution of any proposed action to revoke, suspend, limit or fine shall be stayed pending the commissioner's determination.

(d) The provider must serve on the division of the office which issued the statement of issues and the hearing officer an answer, signed by the provider no later than three days before the initial hearing date.

(e) Burden of proof.

The OPWDD shall present its case first. The burden of proof shall be on the OPWDD to present evidence of the provider's failure to operate the facility in full compliance with all relevant laws and regulations at the time of the survey of the facility by OPWDD.

(f) When the office seeks the revocation, suspension [of] or limitation of an operating certificate previously granted by the OPWDD or to levy a fine on the holder of an operating certificate, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses, provided, however, the provisions of this subdivision shall not be deemed to require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.