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 602.8 - Hearing procedures: temporary suspension or limitation of an operating certificate
Current through Register Vol. 46, No. 39, September 25, 2024
(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(b) which provides that the Office for People With Developmental Disabilities may suspend or limit an operating certificate without notice and an opportunity to be heard following a finding that the health or safety of a person receiving services is in imminent danger. The provider may appeal such an action. 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 of the office to temporarily suspend or limit an operating certificate shall be valid for up to 60 days or, if a notice is served upon the provider within said 60 days notifying said provider of the intention of the office to revoke, suspend or limit the operating certificate pursuant to Mental Hygiene Law, section 16.17(a), until the operating certificate is so suspended, limited or revoked or the outcome of any hearing to appeal such decision is reached pursuant to Mental Hygiene Law, section 16.17(a) and section 602.5 of this Part. The decision to temporarily suspend or limit an operating certificate may be appealed by the provider. Such appeal and request for hearing shall be in writing and must be made within 10 days of the temporary suspension or limitation of the operating certificate.
(c) Hearing date.
The hearing shall commence within 10 days of receipt of the hearing request. No request for an adjournment shall be granted without the concurrence of the provider and the division of the office which made the decision to temporarily suspend or limit the operating certificate and the hearing officer.
(d) Service of papers.
The notice of hearing and statement of issues shall be served upon the provider not less than 24 hours prior to the commencement of a hearing requested under this Part. The provider may serve an answer upon the division of the office which issued the statement of issues and the hearing officer at any time prior to the commencement of a hearing conducted pursuant to this Part.
(e) Scope of hearing.
The hearing shall be limited to those violations of Federal and State law and regulation that gave rise to the temporary suspension or limitation of the operating certificate.
(f) Procedure. The OPWDD shall present its case first.
(g) Recommendation and decision. The hearing officer's recommendation and the commissioner's decision shall be made upon consideration of the record as a whole. The decision of OPWDD to temporarily limit or suspend the provider's operating certificate shall be sustained if the OPWDD presents evidence demonstrating that, at the time the temporary suspension was imposed, there was reasonable cause to believe that the health or safety of a person receiving services was in imminent danger. The commissioner shall review and render a final determination concerning the temporary suspension or limitation of the operating certificate within 10 days of receipt of the record and the hearing officer's report and recommended decision.
(h) At any time subsequent to the suspension or limitation of any operating certificate pursuant to this subdivision where said suspension or limitation is the result of correctable physical plant, staffing or program deficiencies, the facility may request the office to reinspect the facility to redetermine whether a specific condition or practice continues to exist. After the receipt of such a request, the office shall reinspect the facility within 10 days and in the event that the previously found condition or practice has not been eliminated, the commissioner shall not thereafter be required to reinspect the facility during the emergency period of suspension or limitation. The findings of the office upon such reinspection may be introduced by the office at any hearing requested by the provider pursuant to this Part, and may be the subject of evidence introduced by the provider.
