Hospital operating certificates; suspension or revocation

§ 2806. Hospital operating certificates; suspension or revocation. 1.
A hospital operating certificate may be revoked, suspended, limited or
annulled by the commissioner on proof that: (a) the hospital has failed
to comply with the provisions of this article or rules and regulations
promulgated thereunder; or (b) a general hospital has refused or failed
to admit or to provide for necessary emergency care and treatment for an
unidentified person brought to it in an unconscious, seriously ill or
wounded condition. A hospital operating certificate shall be revoked,
limited or annulled by the commissioner upon revocation, limitation or
annulment by the public health council of approval of establishment of
such hospital.

2. No hospital operating certificate shall be revoked, suspended,
limited or annulled without a hearing, except for operating certificates
revoked, limited or annulled because of revocation, limitation, or
annulment of establishment approval.

Also, an operating certificate may be temporarily suspended or limited
without a hearing for a period not in excess of sixty days upon written
notice to the hospital and opportunity for a hearing following a finding
by the department that the public 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 patient. The department may also, consistent with
applicable federal law and regulations, prohibit or limit the placement
of new patients in a residential health care facility without a hearing
for a period not in excess of sixty days upon written notice to such
facility and opportunity for a hearing upon a determination that such
facility no longer substantially meets the requirements of this article
and the regulations thereunder and that such deficiencies do not pose an
imminent danger to the health and safety of any patient, provided,
however, that the department shall not make such a determination with
respect to a facility until the facility has had a reasonable
opportunity, following the initial determination that such facility no
longer substantially meets the requirements of this article, to correct
its deficiencies and following this period, has been given written
notice and opportunity for a hearing. Provided, however, that any delay
in the hearing process during the sixty-day period occasioned by the
hospital shall toll the running of said suspension or limitation and
shall not abridge the full time provided for in this subdivision. Upon
such finding and notice the power of the commissioner temporarily to
suspend or limit a hospital operating certificate shall include, but
shall not be limited to, the power to:

(a) prohibit or limit the placement of new patients in the hospital;

(b) remove or cause to be removed some or all of the patients in the
hospital;

(c) suspend or limit or cause to be suspended or limited the payment
of any governmental funds to the hospital.

At any time subsequent to the suspension or limitation of any
operating certificate pursuant to this subdivision, the hospital may
request the department to reinspect the hospital to redetermine whether
a specific condition or practice continues to exist. After the receipt
of such a request the department shall reinspect the hospital within ten
days and in the event that the previously found condition or practice
has been eliminated the suspension or limitation shall be withdrawn. If
the condition or practice has not been eliminated, the commissioner
shall not thereafter be required to reinspect the hospital during the
temporary period of suspension or limitation. Nor shall the commissioner
be required to reinspect upon request during a temporary period of
suspension or limitation any hospital whose operating certificate has
been temporarily suspended or limited due to the existence of a
continuing pattern of conditions or practices which poses imminent
danger to the health and safety of any patient.

3. The commissioner shall fix a time and place for the hearing. A copy
of the charges, together with the notice of the time and place of the
hearing, shall be served in person or mailed by registered or certified
mail to the hospital at least ten days before the date fixed for the
hearing. The hospital shall file with the department not less than three
days prior to the hearing a written answer to the charges.

4. All orders or determinations hereunder shall be subject to review
as provided in article seventy-eight of the civil practice law and
rules. Application for such review must be made within sixty days after
service in person or by registered or certified mail of a copy of the
order or determination upon the applicant.

5. (a) Except as provided in paragraphs (b) and (d) of this
subdivision, anything contained in this section or in a certificate of
relief from disabilities or a certificate of good conduct issued
pursuant to article twenty-three of the correction law to the contrary
notwithstanding, a hospital operating certificate of a hospital under
control of a controlling person as defined in paragraph (a) of
subdivision twelve of section twenty-eight hundred one-a of this
article, or under control of any other entity, shall be revoked upon a
finding by the department that such controlling person or any
individual, member of a partnership or shareholder of a corporation to
whom or to which an operating certificate has been issued, has been
convicted of a class A, B or C felony, or a felony related in any way to
any activity or program subject to the regulations, supervision, or
administration of the department or of the office of temporary and
disability assistance or in violation of the public officers law in a
court of competent jurisdiction in the state, or of a crime outside the
state which, if committed within the state, would have been a class A, B
or C felony or a felony related in any way to any activity or program
subject to the regulations, supervision, or administration of the
department or of the office of temporary and disability assistance or in
violation of the public officers law.

(b) In the event one or more members of a partnership or shareholders
of a corporation shall have been convicted of a felony as described in
paragraph (a) of this subdivision, the commissioner shall, in addition
to his other powers, limit the existing operating certificate of such
partnership or corporation so that it shall apply only to the remaining
partner or shareholders, as the case may be, provided that every such
convicted person immediately and completely ceases and withdraws from
participation in the management and operation of the hospital, and
further provided that an application for approval of change of ownership
or transfer of stock is filed without delay in accordance with the
pertinent provisions of section twenty-eight hundred one-a of this
chapter.

(c) With respect to the conviction of any such person of a class D or
E felony, the commissioner shall make a determination before revoking,
or limiting pursuant to paragraph (b), the operating certificate that
such conviction was related to an activity or program subject to the
regulations, supervision, or administration of the department or of the
department of social services. With respect to the conviction of such
person of a crime committed outside the state, the commissioner shall
make a determination before revoking, or limiting pursuant to paragraph
(b), the operating certificate that such crime, if committed within the
state, would have been a class A, B or C felony or a felony related to
an activity or program subject to the regulations, supervision, or
administration of the department or of the department of social services
or in violation of the public officers law. The commissioner shall
notify the person convicted that such determination has been made and
shall give such person thirty days to request a hearing pursuant to this
subdivision.

(d) The commissioner shall not revoke, or limit pursuant to paragraph
(b) of this subdivision, the operating certificate of any facility
solely because of a conviction, more than ten years prior to the
effective date of this paragraph, of any person of a felony unless the
commissioner makes a determination that such conviction was related to
an activity or program subject to the regulations, supervision, or
administration of the department or of the department of social
services. The commissioner shall not revoke, or limit pursuant to
paragraph (b) of this subdivision, the operating certificate of any
facility solely because of the conviction, more than ten years prior to
the effective date of this paragraph, of any person of a crime outside
the state unless the commissioner makes a determination that such crime,
if committed within the state, would have been a felony related to an
activity or program subject to the regulations, supervision, or
administration of the department or of the department of social services
or in violation of the public officers law. The commissioner shall
notify the person convicted that such determination has been made and
shall give such person thirty days to request a hearing pursuant to this
subdivision.

(e) Any hearing conducted hereunder shall be strictly limited to the
issue of whether the determination of the commissioner is supported by
the evidence. All such hearings shall be conducted as provided in
paragraph (f) of this subdivision, and no hearing, revocation or
limitation shall be stayed by the pendency of any appeal or other
challenge to the conviction.

(f) The commissioner shall fix a time and place for the hearing. A
copy of the notice and charges shall be served in person or mailed by
registered or certified mail no less than ten days before the date fixed
for the hearing. A written answer to the charges shall be filed with the
department not less than two days prior to the hearing. No adjournment
shall be granted in excess of forty-eight hours. The respondent may
attend the hearing in person, with or without counsel, or be represented
by counsel alone, but need not attend personally if unavailable because
of incarceration, hospitalization or other reason. If no answer is filed
with the department within the time limitation of this paragraph, a
hearing shall be deemed to have been waived, and the commissioner shall
issue an order based on the record before him.

(g) Nothing in this subdivision shall be construed to limit the
authority of the public health council to revoke, limit or annul any
approval of establishment.

6. (a) Notwithstanding the provisions of subdivisions two through four
of this section, the commissioner shall suspend, limit, modify, or
revoke a hospital operating certificate, after taking into consideration
the total number of beds necessary to meet the public need, the
availability of facilities or services such as preadmission, ambulatory,
home care or other services which may serve as alternatives or
substitutes for the whole or any part of any such hospital facility,
and, in the case of modification, the level of care and the nature and
type of services provided or required by all or some of the patients in
or seeking admission to such hospital facility, and whether such level
of care is consistent with the operating certificate of the hospital,
and after finding that suspending, limiting, modifying, or revoking the
operating certificate of such facility would be within the public
interest in order to conserve health resources by restricting the number
of beds and/or the level of services to those which are actually needed.

(b) Whenever any finding as described in paragraph (a) of this
subdivision is under consideration with respect to any particular
facility, the commissioner shall cause to be published, in a newspaper
of general circulation in the geographic area of the facility at least
thirty days prior to making such a finding an announcement that such a
finding is under consideration and an address to which interested
persons can write to make their views known. The commissioner shall take
all public comments into consideration in making such a finding.

(c) The commissioner shall, upon making any finding described in
paragraph (a) of this subdivision with respect to any facility, cause
such facility and the appropriate health systems agency to be notified
of the finding at least thirty days in advance of taking the proposed
action to revoke, suspend, limit, or modify the facility's operating
certificate. Upon receipt of any such notification and before the
expiration of the thirty days or such longer period as may be specified
in the notice, the facility or the appropriate health systems agency may
request a public hearing to be held in the county in which the hospital
is located. In no event shall the revocation, suspension or limitation
take effect prior to the thirtieth day after the date of the notice, or
prior to the effective date specified in the notice or prior to the date
of the hearing decision, whichever is later.

(d) In the case of a modification of an operating certificate by the
commissioner pursuant to paragraph (a) of this subdivision, the
commissioner may not modify an operating certificate to reclassify beds
previously authorized as hospital beds to domiciliary care beds or to
increase the total number of beds authorized by such certificate, and,
provided further that no patient in a hospital is to be removed as a
result of the pendency or conclusion of a proceeding pursuant to this
subdivision.

(e) Except as otherwise provided by law, all appeals from a finding of
the commissioner made pursuant to paragraph (a) of this subdivision
shall be directly to the appellate division of the supreme court in the
third department. Except as otherwise expressly provided by law, such
appeals shall have preference over all issues in all courts.

(f) In determining whether there is a public need for any services or
facilities as required by this subdivision, the commissioner shall
consider the advice of the state health planning and development agency
designated pursuant to the provisions of the national health planning
and resources development act of nineteen hundred seventy-four and any
amendments thereto and the state health plan developed thereunder.